SECOND SECTION

Application no. 2082/05 Ayd ı n ÇETİNKAYA against Turkey lodged on 16 November 2004

STATEMENT OF FACTS

The applicant, Mr Aydın Çetinkaya , is a Turkish national, who was born in 1964 and lives in Malatya . He is represented before the Court by Mr E. Şen , a lawyer practising in İstanbul .

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

A. The background information and the applicant ’ s arrest and detention in police custody

In 1993 the applicant was convicted of murder and sentenced to twenty- four years ’ imprisonment.

While he was serving his sentence in prison, the Organised Crime Division of the Istanbul Police Department and the public prosecutor requested authorisation for the interception of the applicant ’ s mobile phone communications on suspicion of his involvement in an organised crime gang. The Istanbul State Security Court authorised the interception for three months as of 26 February 2001.

On 1 April 2001 S.H., a brother of the head of a drug trafficking gang, was the target with his son of an attempted abduction in central Istanbul by three persons with a car. During the struggle between the parties, the son of S.H. was hit on his head by a pistol, the cartridge clip of which was later found on the site by the investigating authorities, and S.H. ’ s fingers were broken after being stuck in the car ’ s door. Eventually, the suspects ran away after noticing the police car arriving at the site.

Having served a part of his sentence of imprisonment, on 8 March 2002 the applicant was released from the prison on probation.

On 23 March 2002 the applicant was arrested on suspicion of his involvement into S.H. ’ s abduction. During his detention in police custody the applicant was examined by doctors every day and four provisional medical reports were drawn up in respect of his state of health. According to the medical report of 24 March 2002, the applicant had sustained a swelling on the front part of his head, ecchymosis on his neck and grazes around his wrists at the end of the first day of his police custody. Over the following days three other medical reports were issued, in which the applicant ’ s injuries and their position were restated and he was found to be incapacitated for work for three days.

On 27 March 2002 the applicant was brought before the public prosecutor and investigating judge respectively and the latter ordered his pre-trial detention. In his statements before those authorities, the applicant alleged that he had been tortured in police custody, having been given electric shocks, stretched by his hands and legs, had his testicles squeezed, been handcuffed to a bar for four days, and threatened .

B. Criminal proceedings against the police officers

In 2003 criminal proceedings were brought against six police officers on suspicion of having ill-treated the applicant and one other co-accused, who then joined the proceedings as intervening and complainant parties respectively.

The public prosecutor ’ s office referred the case to the Forensic Medicine Department of the Ministry of Justice. Having examined the video footage of the applicant ’ s second day in police custody, in their report of 13 August 2003 the experts stated that following the applicant ’ s agitation, the police officers had struggled to lay him down on a camp bed and handcuffed his hands to the bed. They further stated that the applicant did not appear to have been subjected to any beatings in the video footage. Having considered the position of the applicant ’ s injuries, they subsequently concluded that the injuries must have been caused by the applicant ’ s own acts and agitation.

On 5 October 2004 the Fatih Criminal Court ordered the Security Department to send any video footage of the applicant ’ s police custody between 24 and 27 March 2002 corroborating the defence ’ s claim that the applicant had showed agitation or resistance against the police officers which caused his injuries.

Following the transmission of the video footage of 24 March 2002 by the Security Department, on 3 March 2005 the Fatih Criminal Court viewed it in which it observed that one person had suddenly bent to the front and the police officers had immediately intervened. The court noted that the video footage was very short, lasting several seconds, and the people in images were not identifiable. At the same hearing, one of the accused police officers contended that the person in the footage was the applicant himself, who wanted to bang his head to the ground with a view to lodging a complaint against them for ill-treatment in police custody, and that they had intervened to stop him.

On 14 June 2005 the Fatih Criminal Court referred the proceedings to a higher court due to its lack of jurisdiction. In its decision, the court held that, notwithstanding the determination made in the report of the forensic medicine department, the courts were better placed to make the assessment of evidence.

On the basis of the evidence before it, namely the medical and forensic medicine department ’ s reports and the statements taken from the accused and complainant parties, on 27 December 2005 the Istanbul Assize Court found that the applicant had been handcuffed to a camp bed with a view to preventing him from injuring himself and that he had not been subjected to ill-treatment in police custody. Consequently, the court acquitted the police officers of the charge.

The applicant claims that the Istanbul Assize Court ’ s decision became final without having been served on his representative.

In 2011, claiming that the decision had been notified to a wrong representative, the applicant filed an appeal against the Istanbul Assize Court ’ s decision of 27 December 2005.

According to the information in the case file, the proceedings are still pending before the Court of Cassation.

C. Criminal proceedings against the applicant

On 30 April 2002 the public prosecutor of the Istanbul State Security Court issued a bill of indictment against the applicant and fourteen other persons on charges of commanding and being members of an organised crime gang and attempting to abduct a person in order to obtain a ransom.

During the proceedings, the applicant complained that his statement had been taken by the police under coercion. In addition, he challenged the authenticity of the intercepted telephone communications, claiming that it had not been his own voice.

In the light of factual evidence before it, in particular the reports of the intercepted telephone communications, the on-site inspection and expert reports, the statements taken from the witnesses, the intervening parties and the accused, the Istanbul State Security Court established that while the applicant was in prison he had given instructions on the phone to the other members of the gang for the abduction of Ş.H. in order to obtain a ransom. In its judgment of 18 July 2003, the court asserted that the accused were linked under a hierarchical relation with a view to carrying out criminal activities which elements sufficed to qualify them as an organised crime gang. Accordingly, the Istanbul State Security Court convicted the applicant of commanding a crime gang and of attempting to abduct a person, and sentenced him to nine years and five months ’ imprisonment. In its judgment, the court ordered that the applicant ’ s release on probation be revoked.

On 26 May 2004 the Court of Cassation upheld the judgment.

Following the adoption of the new criminal code, the Istanbul Assize Court reviewed the applicant ’ s conviction and sentence in the light of the provisions of the new code. Holding that the new code provided more favourable conditions for the applicant, on 6 April 2006 the court amended the applicant ’ s sentence and imposed on him four years and three months ’ imprisonment.

On 20 February 2007 the Court of Cassation upheld the judgment in a final decision.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment in police custody. He further complains that the national authorities failed to conduct an effective investigation into his allegation of ill-treatment.

Relying on Articles 5, 6, 17 and 18 of the Convention, the applicant contends that the prosecuting authorities acted in bad faith as they fabricated evidence against him and deliberately postponed the prosecution of the alleged offences until his release from the prison in order to have his parole revoked.

Finally, the applicant alleges under Article 6 § 1 of the Convention that he was denied a fair trial as the domestic court relied on the incriminating statement he had been forced to make in police custody. Under the same head, the applicant further alleges that the trial court used his intercepted telephone communications as evidence against him, despite the fact that he had challenged their veracity and authenticity during the proceedings.

QUESTIONS TO THE PARTIES

1. Was the Istanbul Assize Court ’ s decision of 27 December 2005 acquitting the accused police officers notified to the applicant or his valid representative ? In this regard, has the applicant complied with the rule of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention in relation to his complaints under Article 3 of the Convention?

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

3 . Having regard to the procedural protection from ill ‑ treatment, did the investigation and trial in the present case discharge the domestic authorities ’ positive obligations under Article 3 of the Convention ?

4 . Was the judgment of the Istanbul State Security Court based on police 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?

The Government are invited to submit the full video footage of the applicant ’ s detention in police custody on 24 March 2002 , as well as the complete investigation and case file of the criminal proceedings brought against the police officers.