Individual Application

The Facts

The vehicle in which there were the applicant and his two friends was stopped by the police officers. The applicant and the accompanying persons, asked to get out of the vehicle, were arrested for a criminal charge and then taken to the District Security Directorate. After being placed there for a while, the applicant was taken to the anti-terror branch in the morning.

The applicant’s lawyer, submitting a petition to the chief public prosecutor’s office, filed a criminal complaint against the public officers, who had arrested the applicant on the night of the incident. In the petition, it was briefly asserted that the vehicle which the applicant had got in after a burial procedure had been stopped by the police officers without a warning, that the applicant had been battered by being punched and kicked by the officers, and that he had been also subjected to torture at the police station where he had been subsequently taken. In the forensic medical report drawn up with respect to the applicant, it was indicated that he had been subjected to battery and coercion.  

At the end of the investigation conducted with respect to the applicant’s criminal complaint, the Bismil Chief Public Prosecutor’s Office issued a decision of non-prosecution. The applicant’s challenge against this decision was dismissed by the incumbent magistrate judge.

On the other hand, the assize court acquitted the applicant and the accompanying persons at the end of the criminal case initiated upon the incident. The decision thereafter became final.

The Applicant’s Allegations

The applicant claimed that there had been a violation of the prohibition of inhuman or degrading treatment due to his being subjected to battery during his arrest by the police officers and subsequently at the police station where he had been placed under custody, as well as lack of an effective investigation into this incident.

The Court’s Assessment

It is evident that the forensic medical report issued with respect to the applicant on the day of the incident is in support of his allegation that he was battered. In the decision of non-prosecution, issued by the incumbent chief public prosecutor’s office, it is acknowledged that the applicant was injured by the police officers without their names being mentioned. 

In their report drawn up just after the incident, the police officers noted that the persons asked to get out of the vehicle had shown resistance while being brought under control; and that they had therefore gradually applied force to these persons. The police report reveals that there were at least 16 police officers including those from special operations department at the incident scene. On the other hand, 3 persons were made to get out of the vehicle in question. Besides, there is no finding to the effect that the applicants had, at that time, displayed an aggressive and offensive behaviour towards the police officers or attempted to run away.    

In the forensic medical report issued just after the incident, it was noted that the applicant sustained ecchymosis and swelling on his left eye socket and nose bleed, which could be, however, treated with a simple medical intervention. The report issued by a state hospital before his being taken into police custody includes the following findings: “ecchymosis, swelling and redness on the left eye socket; scratch, redness and ecchymosis on the left shoulder; redness on the right arm and throat; redness and ecchymosis on the back; scratch on the left elbow; slight redness on the left renal part; and nose bleed”. It was also indicated in the report that a computed tomography scan was necessary; however, the scanner at the hospital was out of order.

Within the scope of the investigation conducted into the impugned incident, no report regarding the applicant was requested from the forensic medicine institute or the applicant was ensured to undergo a medical examination through a tomography scanner with an advanced scanning technique. The applicant, detained on remand following his police custody, received treatment due to his health problems during the period when he was in the prison. This situation casts doubt on the veracity of the finding indicated in the first forensic medical report that the injuries sustained by the applicant could be treated with a simple medical intervention. Therefore, it must be acknowledged that the applicant sustained an injury to the extent that would cause facial bone fractures as a result of the police intervention during his arrest.

Although the police officers arresting the applicant noted in the report that the latter had shown resistance during his arrest, this argument was not clearly substantiated by any other evidence such as footage of the incident or statements of impartial witnesses. The police officers in question were not heard within the scope of the investigation, and the decision of non-prosecution referred to the police report according to which the applicant had shown resistance to the police officers. Even if the applicant was considered to resist the police officers, it must be still ascertained, in consideration of the extent of the impugned injury which caused a bone fracture on the applicant’s face, whether the force applied by the police officers was proportionate to the aim of breaking the applicant’s resistance. However, the prosecutor’s office provided no explanation in this regard in its decision of non-prosecution. On the other hand, as revealed by the police report and the way in which the impugned incident took place, a proportionate intervention by the police officers might have caused only a slight injury to the applicant.

In the light of these findings, although it could not be ascertained, on account of the deficiencies in the investigation process, how the injury was caused, it has been observed that given the severity of the injury sustained by the applicant -albeit the difficulty inherent in the profession of police officer-, the police intervention with respect to the applicant, who was not accused of any physical attack, was disproportionate, even if considered to be necessary. 

Upon the applicant’s criminal complaint, the chief public prosecutor office initiated an investigation and ordered the collection of certain evidence likely to elucidate the impugned incident. Despite this order, no inquiry was conducted so as to determine whether any video footage of the incident could be obtained from the police vehicles that were at the incident scene or from any nearby workplaces that might have security cameras. Nor did the subsequent chief public prosecutor’s office to which the investigation file was referred upon a decision of non-jurisdiction take any step so as to eliminate this deficiency.

It also appears that the police officers, effecting the arrest within the scope of the investigation, were not heard even in the capacity of a witness and asked to address the claims against them. Besides, no action was taken to identify and hear the persons having potentially witnessed the incident. These deficiencies cast doubt on the serious effort of the public prosecutor’s office to reveal the truth. 

As a result, it has been concluded that no effective investigation was conducted into the applicant’s allegations that he had been injured by the police officers during his arrest.

Consequently, the Court has found a violation of the prohibition of inhuman or degrading treatment under its substantive and procedural aspects.