SECOND SECTION

Application no. 22182/10 Seyfettin GÃœNEÅž against Turkey lodged on 24 February 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Seyfettin Güneş , is a Turkish national, who was born in 1970 and is currently serving a prison sentence in Bismil prison, in Diyarbakır .

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

1. The applicant ’ s arrest, detention and trial

On 4 April 2000 the applicant was arrested and placed in police custody on suspicion of membership of Hizbullah , an illegal organisation. According to the official records, the applicant was arrested on 7 April 2000.

On 10 April 2000 the applicant was interrogated by the police in the absence of his lawyer.

On 11 April 2000 the applicant was brought before the prosecutor and, subsequently, a judge, who questioned him and recorded his statements. The judge remanded the applicant in custody pending the introduction of criminal proceedings against him.

On 3 May 2000 the public prosecutor at the Diyarbakır State Security Court filed an indictment against the applicant, charging him with membership of Hizbullah .

In 2004 State Security Courts were abolished. The case against the applicant was transferred to the Diyarbakır Assize Court .

On 11 October 2004 the applicant was released pending trial.

On 13 February 2008 the Diyarbakır Assize Court convicted the applicant of membership of an illegal organisation and sentenced him to ten years of imprisonment.

On 24 June 2009 the applicant appealed against the decision.

On 30 September 2009 the Court of Cassation upheld the judgment of the first-instance court.

On 1 December 2009 the applicant began serving the prison sentence.

2. The alleged ill-treatment of the applicant in police custody

On 6 April 2000 the applicant was referred to a doctor by the police. The report issued after examination indicated that there was 2.5 cm-long trace of an old scar tissue on the applicant ’ s right wrist. The doctor noted that there was no sign of violence on the applicant ’ s person.

On 9 April 2000 a second medical report was drafted in respect of the applicant, with the same conclusions.

On 11 April 2000 a third medical report was issued, according to which there was no sign of violence on the applicant ’ s person.

The applicant alleged that he had been subjected to ill-treatment by the police when he was brought before the public prosecutor and the judge on 11 April 2000. On 27 June 2000 he denied the veracity of his police statements before the Diyarbakır State Security Court , alleging that they had been taken under ill-treatment.

Ten years later, in December 2010, an investigation was initiated by the public prosecutor ’ s office in Diyarbakır . Within the context of this investigation, on 2 December 2010 a doctor from the Diyarbakır branch of the Forensic Medical Institute conducted a medical examination of the applicant. The applicant stated before the medical expert that he had been hung by his wrists in police custody and that there had been bruises on his wrists at the time. A detailed report was issued. A doctor from the Forensic Medical Institute drafted a detailed report comparing the results of the three medical reports issued in April 2000. The doctor noted in his report that the term “old scar tissue” should not have been used in the reports of 2000, since such a scar could not fade away for a long time but that he could not observe the scar when he examined the applicant in 2010. The doctor also noted that those reports had not described the type, colour and other features of the scar. He then referred the applicant for a psychiatric examination by the relevant Expert Section of the Forensic Medicine Institute of Istanbul in order to find out whether the applicant suffered any psychiatric effects due to the alleged torture.

3. The alleged lack of medical assistance in prison

On 8 January 2001 while the applicant was detained on remand, his hip-bone was broken while he was playing volleyball. He had surgery twice. In a medical report, doctors from the Dicle University Faculty of Medicine opined that for the full recovery of the applicant, a total hip-bone prosthesis was required to be implanted. The applicant filed a petition with the prison administration requesting immediate surgery and complaining about the delay of nearly ten months in operating. On 6 February 2003 the applicant ’ s father submitted another petition to the Ministry of Justice requesting immediate intervention . The prosthesis was implanted after four consecutive surgeries. The applicant alleges that due to the unnecessary delays in proceeding his leg significantly lost its functionality.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment while in police custody.

The applicant further complains, under the same head, of the lack of adequate medical assistance in prison. He applied for treatment when his hip-bone was broken while playing volleyball with other inmates. This wound then caused his leg to lose a significant amount of its functionality due to late intervention of the prison authorities.

The applicant submits under Article 5 § 1 of the Convention that the length of his detention pending trial was excessive.

The applicant complains under Article 6 § 1 of the Convention that the evidence allegedly taken from him under ill-treatment was used during the proceedings brought against him.

The applicant alleges under Article 6 § 1 that his right to be tried within a reasonable time was violated since the judicial proceedings against him lasted nine years and five months.

The applicant finally complains under Article 6 § 3 (c) of the Convention the he did not have access to legal assistance in police custody.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to ill-treatment during his police custody, in breach of Article 3 of the Convention?

2. Have the authorities carried out an effective official investigation into the applicant ’ s allegations of ill-treatment (see Assenov and Others v. Bulgaria , no. 24760/94, § 102, Reports , 1998-VIII; see also, Batı and Others v. Turkey , no. 3097/96, §§ 133-149, ECHR-2004-IV (extracts))?

The Government is invited to submit a copy of the medical report issued by the prison doctor when the applicant was placed in prison on 11 April 2000. The Government are further invited to provide a copy of the investigation file initiated into the applicant ’ s complaint of ill-treatment in 2010, including decisions taken and information as to whether the applicant was subject to a psychiatric examination as was recommended by the Forensic Medicine Institute and to submit related reports, if applicable.

3. Was the judgment of the Diyarbakır Assize Court of 13 February 2008 based on statements taken from the applicant as a result of ill-treatment? Has there been a violation of Article 6 § 1 of the Convention in this respect?

4. Has there been a breach of Article 6 § 3 (c) of the Convention, in conjunction with Article 6 § 1, as a result of the lack of legal assistance available to the applicant during his detention in police custody (see Salduz v. Turkey [GC], no. 36391/02, §§ 45-63, 27 November 2008)?

5. Has the length of the criminal proceedings in the pr esen t case been in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention (see Daneshpayeh v. Turkey , no. 21086/04, 16 July 2009 ) ?