SECOND SECTION

Application no. 53645/10 Musa ATEÅžOÄžLU against Turkey lodged on 2 July 2010

STATEMENT OF FACTS

The applicant, Mr Musa Ateşoğlu , is a Turkish national, who was born in 1985 and lives in Kars . He is represented before the Court by Mr O. Gündoğdu , a lawyer practising in Kars .

On 27 April 2002 the applicant, who was seventeen years old at the time, was arrested by police officers in Kars , on suspicion of robbery. On the same day, he was examined by a doctor at the Kars State Hospital , and no signs of injury were reported.

At the police station, the applicant was forced to make self-incriminating statements. During his interrogation, the police officers pulled his ears and he was beaten and subjected to falaka (beating on the soles of his feet).

On 29 April 2002, upon the complaint of the applicant ’ s representative, the Kars Public Prosecutor went to the police station to see the applicant. According to his report, there were several widespread bruises under the applicant ’ s feet and oedema behind his ears. The public prosecutor also noted that the applicant had stated that he had been ill-treated and that he could identify the police officers who had ill-treated him. The same day, the applicant identified the four police officers who had ill-treated him.

The applicant was subsequently taken to the Kars State Hospital for a medical examination. According to the doctor ’ s report, there were several scars on his left arm, bruises and oedema behind his left ear, and bruises on both of his palms and under his feet. It was noted that his injuries would heal in five days.

Later on the same day, the applicant was taken before the Kars Public Prosecutor.

On 1 May 2002 the Kars Public Prosecutor initiated criminal proceedings against four police officers, accusing them of ill-treating the applicant under Article 245 of the former Criminal Code. The applicant joined the proceedings as a civil party.

On 9 May 2002 the Kars Criminal Court declared lack of jurisdiction, holding that the proceedings should be initiated before the Assize Court on account of torture under Article 243 of the former Criminal Code.

The proceedings therefore resumed before the Kars Assize Court . At the end of the trial, on 15 June 2010 the Kars Assize Court , on the basis of the evidence in the case file, found the police officers guilty as charged. The court found it established that the police officers had intentionally ill-treated the applicant to extract a confession. It accordingly sentenced each of the police officers to one year ’ s imprisonment under Article 243 of the former Criminal Code, and banned them from public service for six months. Having regard to the good attitude of the police officers during the trial, the court then reduced their sentence to ten months ’ imprisonment and five months ’ ban from public service. It subsequently suspended the pronouncement of the judgment in accordance with Article 231 of the Code of Criminal Procedure.

COMPLAINTS

The applicant alleged that he had been subjected to ill-treatment during his police custody. He also complained about the ineffectiveness of the ensuing criminal proceedings. In particular, he stated that the suspension of the pronouncement of the judgment against the police officers created a virtual impunity. In this connection, the applic ant relied on Articles 3, 6 and 13 of the Convention.

Under Article 5 §§§ 1, 2 and 3 of the Convention the applicant further complained about his police custody, which lasted between 27 and 29 April 2002.

Finally, relying on Article 7 § 2 of the Convention, the applicant alleged that the police officers should have been convicted pursuant to the new Criminal Code (Law no. 5237), which entered into force in 2005, since Article 94 of the new code foresees a heavier penalty for those who are found guilty of torture.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to torture or inhuman or degrading treatment in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from torture and inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), were the criminal proceedings against the police officers in the present case in breach of Article 3 of the Convention? In particular, was the suspension the pronouncement of the judgment (Article 231 of the Criminal Procedure Code) compatible with the requirements of Article 3 of the Convention?