SECOND SECTION

Application no. 70945/10 Ender Bulhaz AKTÃœRK against Turkey lodged on 21 September 2010

STATEMENT OF FACTS

The applicant, Mr Ender Bulhaz Aktürk , is a Turkish national, who was born in 1982, and is currently detained in the Tekirdağ F-type Prison. He is represented before the Court by Ms R.A. Sala and Ms Ö. Gümüştaş , lawyers practising in Istanbul .

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

According to the arrest report, signed by thirteen police officers, on 18 March 2009 at 2.15 p.m. the applicant was stopped by police officers for an identity check. He resisted and opened fire, killing a police officer. The other police officers used force to neutralise and arrest him. The applicant was then taken to the Kestel District Police Station. According to a form explaining arrested persons ’ rights, the applicant was reminded of his rights, including his right to have the assistance of a lawyer, to remain silent and to inform his family members of his arrest. According to the applicant, he was beaten at the police station.

At 5.15 p.m. the applicant was sent to the Bursa Şevket Yılmaz State Hospital for a medical examination. The medical report indicated that there were superficial grazes on the applicant ’ s back and bruises in the frontal region of his head, caused by blunt trauma. It further specified that the abrasions on the applicant ’ s wrists could have been caused by handcuffs. The report concluded that the injuries on the applicant ’ s body were not life-threatening.

The applicant was subsequently transferred to the Anti-Terrorism Branch of the Bursa Security Headquarters, where he was allegedly subjected to ill-treatment. According to the applicant, in the basement of the Bursa Security Headquarters Building , his testicles were squeezed, he was beaten, subjected to hanging by his arms, hosed with cold water, exposed to cold air circulation and forced to lie in an ice-covered blanket.

According to a police report, on 19 March 2009 at about 7 p.m. the applicant was taken to Istanbul by four police officers, as he had offered to show the cell house used by the MLKP (Marxist-Leninist Communist Party), an illegal organisation. It was reported that as the applicant could not find the house, they returned to Bursa Security Headquarters Building on 20 March 2009 at 4.15 a.m. This report was signed by four police officers, but the applicant refrained from signing it.

On 20 March 2009 the applicant was questioned in the presence of his lawyer at the Bursa Security Headquarters in connection with the killing of a police officer and the applicant ’ s alleged involvement in the MLKP. The applicant used his right to remain silent.

On the same day, the applicant was taken to the Bursa State Hospital . During his examination, the applicant complained that he had been ill-treated under custody. He stated that he had been beaten, hung by his arms, hosed with cold water and alleged that ice cubes had been placed over his body. The medical examination revealed that the applicant had a haematoma under his left eyelid, a red-coloured bruise measuring 5 x 10 cm and swellings in his occipital region, purple-coloured bruises on his right eye and periorbital region. It was also noted that the applicant had several bruises on his left eyebrow, on the zygoma , on both sides of his mouth, in the middle of his eyebrows, on his left arm and on both of his wrists. The doctor noted that the bruises on the applicant ’ s wrists could have been sustained due to the use of handcuffs. It was further noted that the applicant had complained about shortness of breath, headaches and pain in his ribs. The doctor requested a consultation at the thoracic surgery, neurosurgery and internal medicine departments.

Later on the same day, the applicant was interrogated by the Kestel Public Prosecutor in the presence of his lawyer and used his right to remain silent. The applicant was then heard by the investigating judge at the Kestel Magistrates ’ Court. Before the judge, the applicant denied the accusations against him and complained that he had been ill-treated during his police custody. On the basis of the evidence in the case file, the judge ordered his detention on remand.

On 21 March 2009 the applicant was once again taken to the Bursa State Hospital . In the hospital, he was examined by several doctors, namely from the emergency service and the forensic medicine and thoracic surgery departments. The emergency service doctor noted that the applicant ’ s eighth and ninth ribs had been fractured. The medical report issued at the end of the examinations concluded that the applicant suffered from post trauma and he was admitted to the emergency service for monitoring and observation.

On 30 March 2009 the applicant filed a complaint with the Bursa Public Prosecutor and alleged that he had been ill-treated in custody. In his petition, the applicant maintained that he had been beaten at the Kestel Police Station. He also argued that following his transfer to the Anti-Terrorism Branch of the Bursa Security Headquarters, his testicles had been squeezed, he had been beaten, subjected to hanging by his arms, hosed with cold water, exposed to cold air circulation and forced to lie in an ice-covered blanket.

Upon the applicant ’ s complaint, the Bursa Public Prosecutor initiated an investigation into his ill-treatment allegations. In this connection, the applicant gave a statement on 31 March 2009, and claimed in a detailed account that he had been ill-treated during his custody. The applicant further maintained that he would be able to identify the police officers who had ill-treated him.

The public prosecutor further heard seven police officers, who were on duty at the time of the applicant ’ s arrest, and during his custody at the Kestel Police Station and the Anti-Terrorism Branch of the Bursa Security Headquarters respectively. They all denied the accusations against them. The police officers who had arrested the applicant stated that they had used proportionate force to neutralise him.

At the request of the public prosecutor, on 8 April 2009 the applicant was once again taken to the doctor at the Bursa UludaÄŸ University Hospital for a medical examination. As the gendarme officer refused to leave the consultation room, the doctor did not perform the examination. The gendarme officer issued a report, indicating that the doctor had not complied with the Protocol for Prisons signed by the Ministries of Justice, Health and Interior, dated 6 January 2000. According to the terms of this protocol, the gendarme officer was obliged to stay in the consultation room during the medical examination at the hospital of a person who was remanded in connection with terrorism-related crimes.

The doctor ordered certain medical tests. According to the information in the case file, the prison authorities did not allow the applicant to go to the hospital on the appointment dates, and transferred him to the TekirdaÄŸ F ‑ type Prison.

On 15 April 2009 the Forensic Medicine Institution issued a medical report in respect of the applicant and stated that his injuries were not life-threatening, and would heal with simple medical care. It was also noted that no fractures were observed on the applicant ’ s ribs.

In the course of the investigation, the public prosecutor further requested the video camera recordings of the Kestel Police Station and the Bursa Security Headquarters, taken during the applicant ’ s custody period. The Bursa Security Directorate informed the Public Prosecutor ’ s office that the camera recordings were kept for eight days only.

On 3 November 2009 the Public Prosecutor issued a decision of non-prosecution. In his decision, the prosecutor 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 Article 16 of Law no. 2559 on the Duties and Powers of the Police.

On 23 March 2010 the Yalova Assize Court rejected the applicant ’ s objection.

COMPLAINTS

The applicant alleged that he had been subjected to torture while in police custody. He further complained about the manner in which the ensuing criminal investigation was conducted by the domestic authorities. In this respect, he relied on Articles 3, 6 and 13 of the Convention.

Relying on Article 5 of the Convention, the applicant argued that his family had not been informed about his arrest. He further argued under the same provision that he did not have the assistance of a lawyer while in police custody.

Finally, he invoked Article 14 and maintained that he had been subjected to discrimination.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to ill-treatment, in breach of Article 3 of the Convention?

In this connection, were the authorities capable of providing a plausible explanation for the applicant ’ s injuries observed in the medical report of 20 March 2009?

2. Having regard to the procedural protection from torture, 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?