Individual Application

The Facts

The applicant filed a criminal complaint with the incumbent public prosecutor’s office, maintaining that she had been subjected to torture during her detention in police custody for a criminal charge. 

In her medical examinations carried out by a state hospital during her custody period, it was reported that “No sign of battery and physical coercion was found”. In the medical report issued by the hospital with respect to her when she was held in the penitentiary institution, it was noted that her orthopaedic examination showed no abnormality.

Upon her release, the applicant applied to the Human Rights Foundations of Turkey, and thereafter a medical report was issued in respect of her. In this report, it was concluded that the bruises on the applicant’s body might have resulted from beating and electrical torture. 

The report issued by the Forensic Medicine Institute indicated that no medical conclusion could be reached as to the exact time when the signs/bruises on the applicant’s body occurred; and that there was no definite medical evidence to the effect that the person concerned had been tortured during her police custody.

In the report issued by a member of the Medical Faculty upon the applicant’s request, it was stated that the medical reports issued with respect to the applicant during the custody period did not comply with the medical standards, gave rise to a deficiency of diagnosis and was to be therefore considered as the product of a medical malpractice; that the report issued by the Forensic Medicine Institute did not contain a thorough and complete assessment; and that the findings obtained at the end of the medical examination of the patient were highly consistent with the consequences of torture cases. Other medical reports subsequently issued by two separate medical faculties indicated that the applicant’s forensic examinations had not been performed in accordance with the relevant procedure, which led to medical difficulties; and that the applicant’s physical and mental findings were consistent with the torture she had been allegedly subjected to.  

Within the scope of the investigation conducted into the incident, the incumbent prosecutor’s office indicted two doctors for professional misconduct due to the alleged inaccuracy of the medical reports issued with respect to the applicant and two gendarmerie officers for allegedly ill-treating the applicant during custody.

The incumbent assize court (“the court”) acknowledged that the applicant had been subjected to ill-treatment, but acquitted the accused gendarmerie officers as it was unable to ensure the exact identification of the persons, the perpetrators of the ill-treatment. It also ordered the discontinuation of the proceedings in respect of the doctors accused of professional misconduct due to the expiry of the statutory time-limit.

The Court of Cassation, the appellate authority, amended and upheld the first instance decision in so far as it related to the accused doctors but quashed the decision in so far as it related to the accused officers having allegedly inflicted ill-treatment. The court, conducting a retrial, reinstated its original decision. Upon the appellate request, the General Assembly of Criminal Chambers of the Court of Cassation examined the request and ordered the discontinuation of the case.

The Applicant’s Allegations

The applicant maintained that the prohibition of torture had been violated, stating that she had been subjected to torture during her custody; that the medical reports issued by the hospital where she had been taken for compulsory forensic examination were inaccurate; and that no effective investigation had been conducted against those responsible.  

The Court’s Assessment

Regardless of how high the significance of the grounds leading to ill-treatment is, no torture, ill-treatment or treatment incompatible with human dignity may be inflicted under the harshest conditions as the cases where the right to life is at stake. 

It appears that in the present case, several medical reports were issued within the scope of the investigation conducted into the alleged ill-treatment, and many of these reports were in support of the applicant’s allegations. In this case, it must be accepted that there is sufficient evidence to conclude that the applicant, who was at the material time under the State’s supervision and responsibility, was exposed to attacks on physical and mental integrity. The burden of proof is upon the public authorities to prove the otherwise.

In consideration of the applicant’s statements, the witness statements, the findings included in various medical reports, the first-instance decision establishing that the applicant was subjected to ill-treatment during custody and the quashing judgment of the Court of Cassation in support of the first-instance decision as a whole, the Court has concluded that the applicant was subjected to ill-treatment.

As the proceedings with respect to the accused doctors were discontinued due to the expiry of statutory time-limit and, in so far as related to the accused gendarmerie officers, the proceedings were terminated with final effect without the offender(s) of the impugned incident being identified, it has been observed that the public authorities acted in breach of the obligation to respond to the complaints of ill-treatment. It has been considered that the acts amounting to ill-treatment were performed with a special intent (dolus specialis) in order to obtain from the applicant information or a confession; and that the public officers acted deliberately during the impugned process.

It has been observed that the treatments, which were incompatible with human dignity, caused physical or mental suffering to the applicant, affected her capacities to perceive and to control her actions and amounted to humiliation, were inflicted with a view to obtaining information or a confession from her and were intended to arouse feelings of fear, anxiety and inferiority, by way of causing severe physical pain or mental suffering, for breaking her resistance and humiliation. 

Regard being had to the underlying aim and duration of the treatment deliberately inflicted on the applicant, its physical and mental effects found established by the medical reports, as well as to the finding that the impugned acts were performed consciously by the state agents, it has been concluded that the impugned acts could be classified as torture and were in breach of the negative obligation incumbent on the State under Article 17 of the Constitution.

Besides, what is expected from the judicial authorities in such cases is to conclude the investigation in a speedy manner by paying due regard to the rights of the parties in case of a grave offence like torture due to the severe nature of the imputed acts and corresponding penalties.

It has been observed that the judicial authorities concluded the applicant’s case within 13 years, 4 months and 20 days from the date of offence despite her warnings as to the statutory time-limit, and the decision ultimately issued was indeed based on the expiry of the statutory time-limit.

The Court has accordingly concluded that the judicial authorities failed to act in a particularly delicate manner as required by the State’s positive obligation to swiftly complete the investigations into alleged violations of the prohibition of ill-treatment so as to prevent its becoming time-barred; and that they remained indifferent as having tolerated the unlawful acts amounting to torture. 

Consequently, the Court has found violations of the substantive and procedural aspects of the prohibition of torture safeguarded by Article 17 of the Constitution.