SECOND SECTION

Application no. 67457/09 Rihan ÖZER and others against Turkey lodged on 3 December 2009

STATEMENT OF FACTS

The applicants, Mrs Rihan Özer, Mr Mehmet Özer, Mr Murat Özer, Mrs Gülbahar Akman, Ms Emine Özer, Ms Berivan Özer, Ms Ayşe Özer and Mrs Bedia Kurtum, are Turkish nationals, who were born in 1964, 1982, 1982, 1987, 1979, 1991, 1971 and 1989 respectively. The first applicant is the wife and the remaining applicants are the children of Mr Beşir Özer, who died on 28 February 2009. Before the Court, they are represented by Mr T. Elçi, a lawyer practising in Diyarbakır .

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 4 October 2007 Mr Beşir Özer was taken into police custody on suspicion of aiding and abetting a terrorist organisation. The following day, he was placed in pre-trial detention in the Mardin Prison.

Prior to his detention, Mr Özer had had a stroke and become partially paralysed. A medical report issued in 2006 by the Diyarbakır State Hospital established a 59 % disability and noted that he was also suffering from renal failure and high blood pressure.

During his detention on remand, Mr Özer applied repeatedly to the domestic courts, requesting his release based on his critical state of health. According to the documents in the case file, all of the release requests were rejected taking into consideration the seriousness of the offence and the evidence in the case file.

On 1 May 2008 Mr Özer was found guilty as charged and sentenced to six years and three months ’ imprisonment.

While the appeal proceedings were pending before the Court of Cassation, on 11 December 2008 the applicant, suffering from gastrointestinal bleeding, was transferred to the Mardin State Hospital . Upon the recommendation of the doctors at the Mardin State Hospital , the applicant was transferred to the Diyarbakır Dicle University Hospital . On 29 December 2008 Mr Özer was discharged from the hospital and started serving his prison sentence at the Diyarbakır Prison.

On 15 and 21 January 2009 respectively Mr Özer was referred to the hospital for further medical controls due to renal failure.

On 12 February 2009 the prison doctor diagnosed that he was suffering from a stomach ulcer.

On 24 February 2009, upon the instructions of the prison doctor, Mr Özer was transferred to the Diyarbakır State Hospital , as he was suffering from abdominal pain. At the hospital, he was prescribed with medication and was sent back to prison.

On 28 February 2009 at around 10 a.m. Mr Özer applied to the prison infirmary. According to the applicants ’ submissions, he had to wait for an ambulance for more than an hour. Subsequently, at around 11.15 a.m. he was transferred to the Emergency Department of the Diyarbakır State Hospital . From the Diyarbakır State Hospital , he was referred to the Diyarbakır Dicle University Hospital . Mr Özer died during the transfer, at around 12.15 p.m. The death certificate, prepared by nurse at the Diyarbakır Dicle University Hospital , indicated that Mr Özer had died due to gastrointestinal bleeding.

At 3.10 p.m. the same day, an autopsy was conducted in the presence of the Diyarbakır Public Prosecutor. Since the cause of death could not be determined, samples taken from the body were sent for further forensic examination to the Istanbul Forensic Medicine Institute. According to the information in the case file, the final report of the Istanbul Forensic Medicine Institute has not yet been prepared.

On 23 March 2009 the prison director took statements from the deputy director, the doctor, the health care officer and five prison guards. They all stated that when they were informed about Mr Özer ’ s condition, they had acted rapidly and shown due diligence in securing his transfer to the hospital. Subsequently, on 3 April 2009 the prison director decided that there was no need to initiate disciplinary proceedings against the prison guards or doctors in relation to the death of Mr Özer, as there was no evidence of malpractice or negligence.

On 30 June 2009 the public prosecutor heard evidence from several witnesses, including the prison director, the prison doctor, guards and three detainees. The prison director and doctor stated that as soon as they had been informed that Mr Özer was ill, they had acted rapidly and secured his transfer to the hospital. The three detainees stated that Mr Özer had been suffering from health problems for a long time. They explained that on the day of the incident, when he started feeling sick, they informed the prison administration, but Mr Özer had to wait for about an hour before being transferred to a hospital.

According to the information in the case file, the investigation of the public prosecutor initiated upon the death of Mr Özer is still pending.

COMPLAINTS

The applicants alleged, in particular, that the domestic authorities had failed to protect the health and life of Mr Beşir Özer in prison, contrary to Article 2 of the Convention. They further complained about the ineffectiveness of the investigation conducted by the public prosecutor. In this connection, they relied on the delay of the Forensic Medicine Institute in preparing its final report which would establish Mr Özer ’ s cause of death.

The applicants further relied on Article 3 of the Convention, and complained about the emotional distress they had endured as a result of the death of their relative.

Finally, under Article 5 of the Convention, the applicants maintained that Mr Beşir Özer ’ s detention had been unlawful. They further complained about the excessive length of his detention on remand.

QUESTIONS TO THE PARTIES

Given Mr Beşir Özen ’ s medical condition, did the domestic authorities take all necessary measures to safeguard his life, as required by Article 2 of the Convention? In particular, was Mr Özer provided with prompt and adequate medical care?

Having regard to the procedural obligation of the right to life (see, Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000 ‑ VII), was the investigation in the present case initiated by the Diyarbakır Public Prosecutor following the death of Mr Özer in breach of Article 2 of the Convention? In this connection, did the investigating authorities display due diligence and expedition in conducting the investigation?

The Government are further requested to submit a full copy of the investigation file regarding Mr Beşir Özer ’ s death.