SECOND SECTION

Application no. 54768/11 Hamdiye KILINÇ and others against Turkey lodged on 16 June 2011

STATEMENT OF FACTS

The applicants, Hamdiye Kılınç , Asya Kılınç , Mizgin Kılınç , Berfin Kılınç , Osman Kılınç , Sultani Kılınç , Fikret Kılınç and Memduh Kılınç are Turkish nationals who were born in 1979, 1997, 1999, 2003, 1946, 1946, 1972 and 1964 respectively and live in Uşak . They are represented before the Court by Ms Nezahat Paşa Bayraktar , a lawyer practising in İzmir .

The circumstances of the case

The facts of the case, as submitted by the applicants and as they appear from the documents submitted by them, may be summarised as follows.

Mehmet Kılınç was the first applicant ’ s husband, the second to fourth applicants ’ father, the fifth and sixth applicants ’ son and the remaining two applicants ’ brother. He was serving a prison sentence in İzmir High Security Prison where he was being detained in a cell on his own.

On 3 April 2010 Mehmet Kılınç was taken to hospital in a military vehicle with a fractured skull. The doctors observed that he had had a brain haemorrhage and placed him in intensive care. The soldiers who accompanied him to the hospital handcuffed him to his bed.

His family were not informed about the incident until 5 April 2010.

On 6 April 2010 lawyers at the İzmir branches of the Human Rights Association and at the Contemporary Lawyers ’ Association submitted petitions to the prosecutor. They informed the prosecutor that the gendarmes guarding Mehmet Kılınç were giving the family conflicting versions of what had happened to him. While some gendarmes had stated that Mehmet Kılınç had injured himself by hitting his head against the wall in his cell, the others had told the family that he had fallen from the stairs. The lawyers asked the prosecutor to take over the investigation, secure any evidence, question all eyewitnesses, and ensure adequate medical treatment for Mehmet Kılınç .

On 10 April 2010 Mehmet Kılınç died at the hospital.

According to a post-mortem report, there were a large number of lesions on various parts of Mehmet Kılınç ’ s body, including his lips, legs and ankles. The cause of death was established as brain haemorrhage caused by head trauma.

On 12 April 2010 a lawyer representing the family made an official complaint to the prosecutor. She informed the prosecutor that, according to the prison authorities, Mehmet Kılınç had been taken to hospital because he had attempted to take his own life. However, because of the large number of injuries on the body, the family was very sceptical about the accuracy of that explanation. The lawyer also informed the prosecutor that, throughout his stay at the hospital Mehmet Kılınç had been handcuffed to his bed and even when medical personnel had asked the gendarmes to remove the handcuffs so that they could carry out certain medical procedures, the gendarmes had refused to remove them. The lawyer complained that no judicial authority had yet initiated an investigation into the incident, and urged the prosecutor to start an investigation at once. She requested that the investigation be carried out by an independent prosecutor and not by the prison prosecutor.

The same day the İzmir Chief Prosecutor assigned one of his deputies to carry out an investigation. The Chief Prosecutor also urged his colleague to take into account the points raised by the family ’ s lawyer.

Also on the same day the prison prosecutor questioned four prison guards who had been on duty when Mehmet Kılınç was taken to hospital. The prison guards told the prosecutor that, at around 12.30 pm on 3 April 2010, they had entered Mehmet Kılınç ’ s cell to give him his lunch. When they had failed to see Mehmet Kılınç in the cell they had shouted his name and he had started coming down the stairs from the mezzanine which is used as sleeping quarters. Then they had noticed that blood was coming from his mouth and nose. When they had asked him what happened, he had told them that his back was aching. They had then put him in a wheelchair and taken him to a room downstairs where a doctor had examined him and recommended that he be taken to hospital. They had then put him in a vehicle kept at the prison by the gendarmes who were responsible for the external security of the prison, and taken him to hospital.

The prison guards also told the prison prosecutor that after Mehmet Kılınç had been sent to hospital they had returned to his cell and carried out a search in order to find out what had happened to him. In the cell they had noticed blood splattered in various locations and they had found a part of his scalp and some hair on the top of the door opening from the cell to the prison courtyard.

The same day the prosecutor questioned five inmates at the prison. One of them told the prosecutor that he had heard people arguing, but could not remember what time. The remaining inmates had not heard or seen anything suspicious.

Also on the same day the prosecutor visited Mehmet Kılınç ’ s cell in the prison, where he observed blood stains in various places and marks on the wall caused by the sole of a shoe. He noted his findings in a report.

On 13 April 2010 the prosecutor watched the CCTV footage showing the corridor outside Mehmet Kılınç ’ s cell, and recorded his findings in a report. It appears from the report that at 7.53 am on 3 April 2010 a prison guard went into Mehmet Kılınç ’ s cell and that he came out at 7.54 am. No one was then seeing going into his cell until at 12.37 pm when a guard and a person distributing food opened the door and waited outside. At 12.42 pm three more guards arrived and the four guards went inside. At 12.45 pm one of the guards came out of the cell, sent the person distributing the food away, and then took the food into the cell. Then the prison governor and various other guards entered the cell. At 1.01 pm Mehmet Kılınç was taken out in a wheelchair and at 1.34 pm he was put in the vehicle to be taken to the hospital.

The same day the prosecutor questioned the four gendarmes who had taken Mehmet Kılınç to hospital. Two of them told the prosecutor that they had handcuffed Mehmet Kılınç to his bed at the hospital.

The same day and on subsequent days the prosecutor questioned a number of other guards, the prison governor, prisoners and two prison psychologists who made similar statements. They also confirmed that Mehmet Kılınç had asked to stay in a cell on his own and he had thus been moved to his cell on 21 December 2009.

On 15 April 2010 the family lawyer asked for copies of the CCTV footage.

On 19 April 2010 the lawyer sent a letter to the prosecutor and urged the prosecutor to secure the clothes Mehmet Kılınç had been wearing at the time of his admission to the hospital, as well as the reports pertaining to his treatment at the hospital. The same day the prosecutor sent a letter to the hospital and asked for the clothes and the medical reports.

On 20 April 2010 the accident and emergency department of the hospital informed the prosecutor that the clothes Mehmet Kılınç had been wearing on his arrival had not been kept. The neurology department informed the prosecutor that on his arrival at that department Mehmet Kılınç had only been wearing his underwear, which had since been thrown away.

On 29 April 2010 the prosecutor decided to close the investigation. In his decision seven prison guards and a soldier who handcuffed Mehmet Kılınç to his hospital bed were described as suspects. The prosecutor considered that Mehmet Kılınç had climbed the door in order to get to the mezzanine in his cell but had fallen down and hit his head against the door in doing so. The other injuries on his body had been caused during that climb and the subsequent fall.

The applicants lodged an objection against the prosecutor ’ s decision. On 18 June 2010 the Karşıyaka Assize Court in İzmir accepted the objection and ruled that a number of shortcomings highlighted in the applicants ’ objection should be remedied.

The prosecutor insisted that a thorough investigation had been carried out, and asked the Ministry of Justice to quash the Assize Court ’ s decision which, in the prosecutor ’ s opinion, was not compatible with the applicable laws and procedure. This request was not accepted by the Ministry of Justice.

The prosecutor reopened the investigation and on 18 October 2010 questioned the paramedics who had attended Mehmet Kılınç at the prison immediately before he was taken to the hospital. One of the paramedics told the prosecutor that, although Mehmet Kılınç had been conscious and answering his questions, he had kept silent when asked how the injuries had occurred. At that moment, the prison guards had told the paramedic that Mehmet Kılınç had fallen from his bed and had thus hurt himself. The paramedic had then told the guards that he was taking Mehmet Kılınç to the hospital in the ambulance. However, the guards had not allowed him to do so and had taken Mehmet Kılınç to the hospital in the military vehicle. A nurse questioned by the prosecutor made a similar statement and added that she had noticed another injury on Mehmet Kılınç ’ s back.

On 2 November 2010 the prosecutor decided, once more, to close the investigation.

The applicants lodged an objection and argued, inter alia , that the prosecutor had exceeded his powers and that his decision of 2 November 2010 to close the investigation had been in contravention of the applicable laws and procedure. The applicants maintained that, in accordance with the applicable rules, after the Karşıyaka Assize Court quashed the prosecutor ’ s decision of 29 April 2010, the file should have been forwarded to the Magistrates ’ Court for a new investigation to be conducted.

On 17 December 2010 the Karşıyaka Assize Court rejected the objection lodged by the applicants.

COMPLAINTS

The applicants complain that their relative Mehmet Kılınç ’ s detention in a cell on his own in the prison and his subsequent death was in breach of Articles 1, 2, 3, 6, 7, 13, 14 and 17 of the Convention and Article 2 of Protocol No. 7 to the Convention. They argue that the injuries on various parts of Mehmet Kılınç ’ s body show that his death was not caused by falling. They allege that he was beaten by the personnel at the prison during the night. They also submit that, even assuming that Mehmet Kılınç attempted to kill himself, the authorities did not take the necessary precautions and did not ensure prompt medical assistance. Lastly, the applicants argue that the investigation into his death was not effective.

QUESTIONS TO THE PARTIES

1. Has the applicants ’ relative ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case? To that end, has an effective investigation been conducted by the national authorities capable of providing a plausible explanation for his death? In this connection:

– What steps were taken by the judici al authorities between 3 and 12 April 2010?

– Was the examination of Mehmet Kılınç ’ s cell immediately after he was taken to hospital by the prison guards who were subsequently questioned as suspects compatible with the requirement of independence and impartiality?

– Why were Mehmet Kılınç ’ s family not informed about the incident until 5 April 2010?

– What medical and other examinations and investigations were conducted to determine the extent and the cause of the various injuries found on Mehmet Kılınç ’ s body?

– What attempts have been made by the prosecutor to find Mehmet Kılınç ’ s missing clothes?

– Was the prosecutor, whose decision of 29 April 2010 was quashed by the Karşıyaka Assize Court on 18 June 2010, competent under the applicable laws and procedure to take his second decision of 2 November 2010 to close the investigation?

2. Was Mehmet Kılınç provided with prompt and adequate medical care for his injuries? In this connection:

– Why did the prison authorities not permit the ambulance team to take Mehmet Kılınç to hospital?

– Given his medical condition, what was the reason for handcuffing him to his bed at the hospital? Did that handcuffing have any negative effects on the medical treatment provided for him by the hospital staff?

3 . Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

The Government are requested to provide documentary evidence in support of their answers to the questions above. They are also requested to submit the following:

– Copies of the CCTV footage, showing the corridor outside Mehmet Kılınç ’ s cell for the 24 hour period ending at 1 pm on 3 April 2010;

– copies of the camera footage and the photographs showing the inside of Mehmet Kılınç ’ s cell, recorded and taken at the request of the investigating prosecutor;

– a copy of the report pertaining to the post-mortem examination; and

– a copy of the prosecutor ’ s decision of 2 November 2010.