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SECOND SECTION

Application no. 14040/10
Olcay OGUZ
against Turkey
lodged on 22 February 2010

STATEMENT OF FACTS

The applicant, Mr Olcay Oguz, is a Turkish national who was born in 1970 and lives in Istanbul. He was represented before the Court by Ms O. Oguz, his sister.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 28 October 1994 the applicant was arrested on suspicion of membership of an illegal organisation, namely the Ibda-C (Great Eastern Islamic Raiders’ Front- Islami Büyükdogu Akincilar Cephesi) and taken to the Anti-Terror Branch of the Istanbul Security Directorate. He did not benefit from the assistance of a lawyer while in police custody.

The applicant was placed in detention on remand on 9 November 1994. On the next day, he was examined by a doctor at the Bakirköy branch of the Forensics Medical Institute. The medical report, which was drawn up on 14 November 1994, indicated that the applicant had numerous red patches (erythema) (four measuring 5 x 30 cm on his back, a wider one on his neck and around twenty at the back of both of his upper legs), scars on his legs and pain and numbness on his ankles. The report concluded that the injuries on the applicant were not life-threatening but would prevent him from performing routine activities for a week.

A.  Criminal proceedings against the police officers complained of by the applicant

On an unspecified date the applicant submitted a complaint before the Istanbul public prosecutor, claiming that he had been ill-treated by certain police officers. On 31 January 1996 the prosecutor issued an indictment with the Istanbul Assize Court in respect of four of the officers concerned, accusing them of acting contrary to Article 243 of the Penal Code in force at the time, which made it an offence for a government employee to subject someone to torture. The prosecutor decided not to prosecute the rest of the officers, stating that they had not been working at the Anti-Terror Branch during the time the applicant had been kept in custody. The applicant did not object to that decision.

During the course of the criminal proceedings against the four officers, on 20 March 1996 the applicant gave his statements and maintained that he had been hosed with cold water, beaten, sexually harassed, hung by the arms and subjected to electric shocks during his time in police custody.

The applicant did not submit information as regards the outcome of this set of proceedings.

B.  Criminal proceedings against the applicant

On 8 December 1994 the public prosecutor at the Istanbul State Security Court issued an indictment with that court, accusing the applicant with three others of involvement in activities which undermined the constitutional order of the State.

During the criminal proceedings against the applicant, on 20 March 1995 and 24 January 1996 respectively, he indicated that he had been ill-treated during his time in police custody and had been forced to confess to having committed some of the offences.

On 13 December 1996 the applicant was released pending trial. On 6 February 2002 the Istanbul State Security Court sentenced him to twelve years and six months’ imprisonment for membership of an illegal organisation. The Court of Cassation quashed that judgment on 17 June 2003. Neither the first-instance court nor the higher court ruled on the applicant’s allegations of ill-treatment.

In June 2004 State Security Courts were abolished and the Istanbul Assize Court acquired jurisdiction over the case.

On 3 October 2005, in a statement he submitted before the Istanbul Assize Court, the applicant indicated again that he had been ill-treated and that his police statements were taken under duress.

On 19 April 2006 the Assize Court sentenced the applicant to a certain term of imprisonment. On 18 December 2006 that judgment was quashed as well.

On 5 March 2008 the Assize Court sentenced the applicant to six years and three months’ imprisonment for membership of an illegal organisation. The court based its judgment on various sorts of evidence, including expert reports, statements of all of the accused and material found at the houses of the accused. The applicant appealed against the judgment, raising once more his complaints as to his alleged ill-treatment and his forced confession.

On 30 March 2009 the Court of Cassation upheld the judgment of the first-instance court.

On 5 September 2009 the applicant was arrested to serve his sentence. On 6 September 2009 he was notified of the final decision in person. Finally, a committal order (müddetname) was prepared in respect of the applicant on 4 November 2009.

COMPLAINTS

The applicant maintains under Article 3 of the Convention that he was subjected to ill-treatment while in police custody. He argues that his complaints about the matter were disregarded by the domestic authorities.

Relying upon Article 6 § 1 of the Convention, the applicant complains about the excessive length of the criminal proceedings against him. He further submits that he did not have a fair trial in that the Istanbul Assize Court based its decision on his police statements, which had been obtained unlawfully. Finally, he maintains in conjunction with Article 6 § 3 (d) that the court did not take account of the witness statements in his favour.

QUESTIONS TO THE PARTIES

1.  Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?

2.  Having regard to the procedural protection from inhuman or degrading 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 parties are requested to inform the Court about the outcome of the criminal proceedings, which were brought against the police officers concerned by an indictment dated 31 January 1996.

3.  Was the length of the criminal proceedings in the present case, in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

4.  Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, did the use of statements, taken in the absence of a lawyer and under alleged duress, violate the applicant’s right to a fair hearing (see Özcan Çolak v. Turkey, no. 30235/03, §§ 47-50, 6 October 2009)?

Both parties are invited to submit the Court of Cassation decision dated 30 March 2009.