Kemal Kahraman v. Turkey (39857/03)

Date	20080722
Article	3
Decision	violation

Three ill-treatment Chamber judgments concerning Turkey

The European Court of Human Rights has today notified in writing three Chamber judgments1 - available only in English – in the cases of Getiren v. Turkey (application no. 10301/03), Kemal Kahraman v. Turkey (no. 39857/03) and Osman Karademir v. Turkey (no. 30009/03).

The Court held, unanimously:

· that in all three cases, there had been a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights concerning the applicants’ ill-treatment in police custody; and,

· that in the cases of Getiren and Osman Karademir there had also been a violation of Article 3 of the Convention on account of the authorities’ inadequate investigation into the applicants’ allegations of ill-treatment.

The Court further held unanimously that, in the case of Getiren, there had been:

· a violation of Article 5 §§ 3 and 4 (right to liberty and security) on account of the applicant’s excessive length of detention on remand and the lack of a remedy by which he could challenge the lawfulness of that detention; and,

· a violation of Article 6 § 1 (right to a fair trial) concerning his right to remain silent and not to incriminate himself.

Under Article 41 (just satisfaction), in respect of non-pecuniary damage, the Court awarded 11,500 euros (EUR) to Mr Getiren’s brother, EUR 15,000 to Mr Kahraman and EUR 10,000 to Mr Karademir. For costs and expenses, the Court awarded EUR 1,500 to Mr Kahraman and EUR 3,000 to Mr Karademir.

1. Principal facts

The applicants are three Turkish nationals: Neytullah Getiren who was born in 1959 and lived in Bursa (Turkey) until his death on 23 January 2003; Kemal Kahraman who was born in 1972 and lives in Istanbul; and, Osman Karademir, who was born in 1961 and also lives in Istanbul.

All three cases concerned, in particular, the applicants’ allegations that they were subjected to ill-treatment in police custody.

Getiren

On 14 March 1999 Mr Getiren was arrested in a flat during a police raid. He was suspected of being involved in the bombing of a shopping centre in Istanbul by the PKK (the Kurdistan workers’ party) which had caused 13 deaths.

The arrest report drawn up the same day noted that, as the applicant had attempted to escape, there had been a physical struggle between him and the police. Also on the same day, the applicant was taken to hospital and examined by a doctor who noted that there was no sign of physical violence on his body.

On 20 March 1999 two police officers drafted and signed a report which noted that the applicant, claiming that he was only answerable to the PKK, refused to make a statement. The applicant refused to sign the report.

According to the applicant, while in police custody, he was beaten, suspended by his arms (“reverse hanging”) and immersed in cold water. Made to lie down, police officers walked and jumped on his back and perforated his eardrum by striking him over the head.

On 21 March 1999 the applicant underwent four medical examinations: the reports noted injuries to his right shoulder blade, spine and lower back as well as a perforation of his right eardrum.

The same day the applicant was brought before the Istanbul State Security Court public prosecutor: he denied the accusations against him and alleged that he had been ill-treated while in police custody.

Subsequently an investigation was launched and criminal proceedings were brought against the two police officers who had questioned the applicant during his custody. On 8 June 1999 Fatih Public Prosecutor questioned those two officers. They stated that the applicant’s injuries had occurred when he had attempted to escape during the on-site inspection of the flat after his arrest. During the trial before Istanbul Assize Court, however, one of those officers submitted that he had not actually been present during the applicant’s arrest. On 27 July 2001 the Assize Court ordered the doctor who had recorded that the applicant’s eardrum had been perforated to examine the applicant again: he reported that the applicant had not suffered from a fresh ear injury. Ultimately, on 25 April 2002 that court, noting that the applicant had been beaten when having attempted to escape the on-spite inspection, found that the officers had not intentionally injured the applicant and therefore ordered their acquittal.

In September 2002 the applicant was convicted of membership of the PKK and sentenced to 12 years and six months’ imprisonment. The courts considered that, by refusing to give any information to the police or to sign the document drawn up on 20 March 1999, the applicant had acted as a member of an illegal organisation. Given the length of his detention on remand he was immediately released.

Kemal Kahraman

On 10 June 1999 Mr Kahraman was arrested on suspicion of being involved in three bombings in Istanbul.

According to the applicant, during his questioning in police custody, he was beaten, suspended by his arms (“reverse hanging”) and hosed with cold water.

On 14 June 1999 the applicant was examined by a doctor from the Istanbul Forensic Institute. The subsequent report noted numerous injuries on his body, in particular bruising and a scab covered wound, as well as pain in his arms. It concluded that the applicant had been subjected to physical violence.

The applicant repeatedly requested the judicial authorities to bring criminal proceedings against the police officers who had tortured him and to disregard the extracted statements in the criminal proceedings against him.

In October 2002 he was, however, convicted of being a member of the IBDA-C (Great Eastern Islamic Raiders’ Front) and sentenced to life imprisonment.

Osman Karademir

On 25 May 2002 Mr Karademir was arrested on suspicion of theft and released the next day.

The applicant alleged that, while in police custody he was punched, slapped, kicked and, taken to a cellar, where he was stripped naked and had electric shocks applied to his genitals.

The applicant was medically examined on 25, 26 and 29 May 2002. The first two examinations noted no signs of ill-treatment on the applicant’s body. The applicant alleged, however, that even though he had complained about having been ill-treated to the doctor who had examined him on 26 May, the latter, having been paid a visit by the police just before the examination, had not noted down any of his injuries. The examination of 29 May 2002 noted that the applicant had pain and sensitivity in his groin and had difficulty urinating.

The preliminary investigation into the applicant’s allegations, carried out by senior police officers, found that there was no need to bring charges as the medical reports of 25 and 26 May had indicated no signs of ill-treatment and two of the accused officers had not even been on duty on the day of the incident.

Charges were nonetheless brought against the four accused officers. They were, however, acquitted on the basis of the reports of 25 and 26 May 2002 and another report of 13 December 2004 which noted that the applicant did not suffer from sexual impotence as he alleged.

In the meantime, the applicant was acquitted of the charges against him of theft.

2. Procedure and composition of the Court The application in the case of Getiren was lodged with the European Court of Human Rights on 23 January 2003; in the case of Kemal Kahraman on 17 November 2003 and declared partly inadmissible on 3 October 2006; and, in the case of Osman Karademir on 17 July 2003 and declared partly inadmissible on 10 May 2007.

Judgment was given by a Chamber of seven judges, composed as follows:

Getiren

Françoise Tulkens (Belgian), President,
Antonella Mularoni (San Marinese),
Vladimiro Zagrebelsky (Italian),
Danutė Jočienė (Lithuanian),
Dragoljub Popović (Serbian),
András Sajó (Hungarian),
Işıl Karakaş (Turkish), judges,

and also Sally Dollé, Section Registrar.

Kemal Kahraman

Françoise Tulkens (Belgian), President,
Ireneu Cabral Barreto (Portuguese),
Vladimiro Zagrebelsky (Italian),
Danutė Jočienė (Lithuanian),
András Sajó (Hungarian),
Nona Tsotsoria (Georgian),
Işıl Karakaş (Turkish), judges,

and also Sally Dollé, Section Registrar.

Osman Karademir

Françoise Tulkens (Belgian), President,
Antonella Mularoni (San Marinese),
Ireneu Cabral Barreto (Portuguese),
Danutė Jočienė (Lithuanian),
Dragoljub Popović (Serbian),
Nona Tsotsoria (Georgian),
Işıl Karakaş (Turkish), judges,

and also Sally Dollé, Section Registrar.

3. Summary of the judgment2

Complaints

Relying on Article 3 (prohibition of torture and inhuman or degrading treatment), all three applicants alleged that they were subjected to ill-treatment in police custody. Mr Getiren and Mr Karademir also complained under Article 3 (lack of effective investigation) and Article 13 (right to an effective remedy) about the inadequacy of the investigations into their allegations of ill-treatment. Lastly, Mr Getiren complained about the length and unlawfulness of his detention on remand, in breach of Article 5 §§ 3 and 4 (right to liberty and security), and about the unfairness of the proceedings against him, notably that the document of 20 March 1999 was used as evidence against him, in breach of Article 6 §§ 1, 2 and 3 (right to a fair trial).

Article 3

Ill-treatment

In the case of Getiren, the Court considered that if the applicant had sustained the injuries noted in the medical reports of 21 March 1999 during his arrest, as alleged by the Government, those injuries should have already appeared in the report drawn up on 14 March 1999. Furthermore, the findings of the medical reports on 21 March corroborated the applicant’s allegations that the police had beaten him and inflicted injuries to his back. Similarly, the perforation of the applicant’s right eardrum should have already been noted in the report of 14 March 1999 and his allegation that he had been struck about the head corresponded to the nature of that injury.

In the case of Kemal Kahraman, the injuries noted in the medical examination of 14 June 1999 were consistent with the applicant’s allegations of having been suspended by his arms and beaten. The Government had not offered any explanation for the injuries observed on the applicant’s body. Nor had they challenged the medical report of 14 June or alleged that those injuries had dated from a period prior to the applicant’s arrest.

In the case of Osman Karademir the symptoms described in the third medical report of 29 May 2002 were consistent with the applicant’s allegation that electric shocks had been applied to his genitals. Indeed, the applicant, in his statements to the investigating and prosecution authorities, had given an unequivocal and detailed account of that ill-treatment and had even identified by name those police officers responsible. Moreover, the Court noted with grave concern the alleged police interference before the applicant’s medical examination on 26 May 2002. The Government, relying on the first two reports of 25 and 26 May 2002 which had recorded that the applicant had no injuries, simply ignored the report of 29 May 2002.

Considering the circumstances of all three cases as a whole and in the absence of plausible explanations from the Turkish Government as to the how the applicants’ injuries had been caused, the Court concluded that their injuries had been the result of ill-treatment in police custody, for which the Government had been responsible, in breach of Article 3.

In the case of Kemal Kahraman the Court further considered that the applicant had been ill-treated intentionally by the police for the purpose of extracting confessions from him, a particularly serious and cruel act capable of causing severe pain and suffering, which could only be described as torture.

Investigation

In the case of Getiren, the Court observed that there had been serious shortcomings in the way the trial had been conducted. Firstly, the medical report of 27 July 2001 stated that there had been no fresh injury to the applicant’s ear without providing a explanation as to the meaning of that term. Furthermore, Istanbul Assize Court failed to take into account the obviously contradictory statements made by the accused police officers, one of whom had stated to Fatih Public Prosecutor that the applicant’s injuries had occurred due to a struggle during an on-site inspection but then, at trial, the same officer testified that he had not actually even been present. Indeed, the Court was particularly struck by the fact that in its judgment acquitting the police officers, the Assize Court had noted that the applicant had been struck during the on-site inspection whereas there was no document in the case file to prove that that inspection had actually even taken place.

In the case of Osman Karademir, the Court reiterated that it had already found in previous cases against Turkey that the bodies in charge of investigations concerning ill-treatment by the police, if made up of civil servants hierarchically dependent on the governor, himself an executive officer linked to the very security forces under investigation, could not be considered independent. In effect, the appointment of senior police officers as investigators in the applicant’s case had been inappropriate given that the allegations had been directed against the police force of which they were members. Even though charges had subsequently been brought against the four accused police officers, they had been acquitted with no further inquiry into the cause of the symptoms indicated in the 29 May 2002 medical report.

The Court therefore concluded that, in the case of Getiren, the Turkish authorities had failed to bring adequate criminal proceedings against the accused police officers and that, in the case of Osman Karademir, they had failed to carry out an effective and independent investigation into the applicant’s allegations of ill-treatment in police custody, in further violation Article 3.

Given that finding, the Court considered that no separate issues arose under Article 13 in either of those two cases.

Other Articles in the case of Getiren

Article 5 §§ 3 and 4

The Court found that the Government had failed to justify the length of the applicant’s detention, which had lasted over three years and six months, in violation of Article 5 § 3.

It also found that, as in other cases against Turkey raising similar issues, the remedy suggested by the Government for the applicant to object to his continued detention had little prospect of success in practice and had not provided a procedure that had been genuinely adversarial, in breach of Article 5 § 4.

Article 6 § 1

The Court noted that the Istanbul State Security Court had considered the applicant’s silence in itself as an indication of his guilt, in breach of the very essence of the right to a fair trial. Furthermore, according to Article 135 of the former Criminal Code in force at the relevant time, the document of 20 March 1999 had no legal value without the applicant’s signature. The State Security Court had nonetheless taken into consideration the content of the document of 20 March 1999 as if it had been the applicant’s voluntary statement and had therefore used evidence against him which had no legal value.

The Court therefore concluded that the admission of the document of 20 March 1999 as evidence against the applicant had undermined his right to remain silent and not to incriminate himself, in breach of Article 6 § 1.