SECOND SECTION

Application no. 8077/08 Şakir KAÇMAZ against Turkey lodged on 4 February 2008

STATEMENT OF FACTS

The applicant, Mr Şakir Kaçmaz , is a Turkish national, who was born in 1973 and is currently serving his prison sentence in the Tokat Prison.

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

On 30 September 2001 the applicant was arrested on suspicion of membership of an illegal organisation, namely the Hizbullah . During his arrest, the applicant showed resistance to the police officers and the officers used force to neutralise him.

On 9 October 2001 he was placed in detention on remand upon the order of the investigating judge.

A. Investigation into the applicant ’ s alleged ill-treatment

On 24 December 2001 the applicant filed a petition with the Diyarbakır Public Prosecutor and stated that he had been subjected to ill-treatment during his police custody. In this connection, he alleged that he had been stripped naked, beaten, threatened, subjected to electroshocks and to hanging from his arms, hosed with pressurised water, and his testicles had been squeezed.

On 28 October 2008 the Diyarbakır Public Prosecutor requested that the applicant be examined by the Forensic Medicine Institution.

On 12 November 2008 the applicant was examined at the Forensic Medicine Institution. During his examination, he stated that he had been beaten at the time of his arrest. He also reiterated his allegations and maintained that he had been ill-treated at the police station.

On 31 December 2008 the Forensic Medicine Institution issued a report. In this report, reference was made to the arrest protocol, dated 30 September 2001, which stated that the police officers had had to use force to apprehend the applicant, since he had resisted the arrest. The Forensic Medicine Institution further took into considerat ion the medical report dated 30 September 2001, which had been issued immediately after the applicant ’ s arrest. According to this report, the applicant had a widespread bruise under his left eye, oedema under his right eye, a scratch on his left wrist, red patches behind his left ear and bleeding on his right ear. A subsequent medical report issued on 9 October 2001 further indicated that the applicant had a widespread bruise under his left eye and a scratch on his left wrist. Based on these reports, the Forensic Medicine Institution found it established that the injuries observed on the applicant ’ s body were not life-threatening, but would prevent him from continuing his daily activities for fifteen days. It was further indicated that although the injury on the applicant ’ s ear could have been the result of a trauma, it had been sustained at the time of his arrest. It was also reported that there was no element to establish that the applicant had been ill-treated during his custody at the Security Directorate.

On 15 October 2009 the Public Prosecutor issued a decision of non-prosecution. In his decision, the prosecutor relied on the report of the Forensic Medicine Institution and held that the injuries observed on the applicant ’ s body had been sustained during the scuffle at the time of his arrest. The prosecutor further concluded that the force used to neutralise the applicant had been in compliance with the Law on the Duties and Powers of the Police.

On 29 March 2010 the Siverek Assize Court rejected the applicant ’ s objection.

B. Criminal proceedings against the applicant

On 12 October 2001 the Public Prosecutor at the Diyarbakır State Security Court filed an indictment with that court, accusing the applicant of membership of an illegal organisation.

The proceedings commenced before the Diyarbakır State Security Court . On an unspecified date, the case-file was transferred to the Van State Security Court .

On 6 May 2003 the Van State Security Court found the applicant guilty under Article 146 of the former Criminal Code and sentenced him to life imprisonment. On 8 June 2004 the Court of Cassation quashed the judgment of the first-instance court on procedural grounds.

In the meantime, by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. Therefore, the Van Assize Court acquired jurisdiction over the case.

On 11 May 2006 the Van Assize Court sentenced the applicant to life imprisonment for membership of an armed illegal organisation and for his involvement in activities which undermined the constitutional order of the State.

On 15 March 2007 the Court of Cassation upheld the judgment of the first-instance court.

Subsequently, on 20 June 2007 a committal order ( müddetname ) was served on the applicant.

COMPLAINTS

The applicant alleged that he had been subjected to ill-treatment while in police custody. He further complained about the ineffectiveness of the ensuing criminal investigation conducted by the domestic authorities. In this respect, he relied on Article 3 of the Convention.

Under Article 5 of the Convention, the applicant submitted that the length of his pre-trial detention had been excessive.

The applicant also maintained under Article 6 § 1 of the Convention that he did not have a fair trial in that the Van Assize Court based its decision on his police statements, which had been obtained under duress.

QUESTIONS TO THE PARTIES

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

2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

The Government are further requested to submit a full copy of the investigation file regarding the applicant ’ s ill-treatment complaints, in particular a copy of his arrest protocol and the medical reports prepared during his police custody.