SECOND SECTION

Application no. 11152/11 Hikmet TOPAL against Turkey lodged on 24 November 2010

STATEMENT OF FACTS

The applicant, Mr Hikmet Topal , is a Turkish national who was born in 1981 and lives in Mersin . He is represented before the Court by Mr Abdulhamit Çakan and Mr Ahmet Şükrü Deniz , lawyers practising in Batman.

The circumstances of the case

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

The applicant was arrested on 23 March 2009 by officers from the anti-terrorism department and placed in custody at the Diyarbakır Police Headquarters.

During his questioning in custody police officers hit him on the head with a firearm. On two occasions he was taken to Dicle University Hospital for a head injury to be treated. It appears from the hospital records that, during his visit to the hospital the applicant was accompanied by a police officer who told the doctors that the applicant had fallen from a chair in custody and had thus injured himself. The applicant told the doctors that he had not fallen from a chair but had been ill-treated by police officers. In another entry in the hospital records the applicant was reported as having stated that he had fallen from a chair. The applicant claims that he was subjected to pressure by the police officer to make that latter statement.

The applicant also claims that the lawyer who was present during his questioning in police custody refused to put on record his allegations of police brutality.

At the end of his police custody the applicant was brought before a judge on 27 March 2009 and his detention on remand was ordered. When questioned by the judge the applicant stated that he had been ill-treated in custody and forced to sign a number of statements. He told the judge that when the police officer had hit him on the head with the butt of his pistol he had passed out. He had regained consciousness in a hospital. Police officers had forced him to make statements to the effect that he had not been ill-treated in their custody. The lawyer, who had been summoned by the police officers and who was supposed to represent him in police custody, had not interfered.

Two different lawyers who represented the applicant before the judge on 27 March 2009 told the judge that they had been contacted by the applicant ’ s family and gone to see the applicant while he was being detained in police custody. However, they had not been permitted to see the applicant because police officers had told them that the applicant was already being represented by a lawyer.

On 2 April 2009 the applicant ’ s sister made an official complaint to the prosecutor, and alleged that the applicant had been ill-treated in custody and that the police officers had extinguished cigarettes on his hands.

On 8 December 2009 the prosecutor decided not to prosecute the police officers allegedly responsible for the applicant ’ s ill-treatment. Having regard to, inter alia , the fact that the applicant was represented by a lawyer in police custody and to the fact that lives were lost in the incident in which the applicant was implicated, the prosecutor considered that the applicant had made the allegations of ill-treatment in order to save himself from being prosecuted for his terrorism-related activities.

It appears from this decision that the prosecutor questioned the applicant on 10 June 2009. The applicant confirmed that he had been ill-treated, and added that the police officers had also made threats against his family members. The police officers were also questioned by the prosecutor, and denied having ill-treated the applicant. They told the prosecutor that the applicant had fallen from a chair during his questioning.

The objection lodged by the applicant against the prosecutor ’ s decision was rejected by the Siverek Assize Court on 7 April 2010. The Assize Court ’ s decision was communicated to the applicant on 26 May 2010.

In the meantime, the applicant made a complaint to the Diyarbakır Bar Association and complained about the lawyer who was present during his questioning by the police. On 3 May 2010 the disciplinary board of the Diyarbakır Bar Association observed that the lawyer ’ s presence had not been requested by the applicant, and considered there were serious ethical questions with the way the lawyer had come to represent him in police custody. It was concluded that the incident was a part of a pattern in which lawyers in close cooperation with the Diyarbakır Police Headquarters were assigned by police officers to represent suspects in their custody, notwithstanding those suspects ’ wishes to the contrary. The lawyer in question in the present case had also been assigned in that manner and represented the applicant in accordance with the instructions and orders given by police officers.

COMPLAINTS

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

Relying on Articles 6 and 13 of the Convention the applicant complains that the prosecutor did not carry out an effective investigation in order to discover the truth about his ill-treatment.

QUESTIONS TO THE PARTIES

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

In this connection, did the judicial authorities carry out an effective investigation, capable of providing a plausible explanation for the applicant ’ s injuries?

2. Having regard to the procedural protection from ill-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 requested to submit a copy of the investigation file.