CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 février 2016

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TURKEY   (Application no.   2082/05)             JUDGMENT           STRASBOURG   2 February 2016   FINAL   02/05/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aydın Çetinkaya v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Guido Raimondi, President,   Işıl Karakaş,   Nebojša Vučinić,   Helen Keller,   Paul Lemmens,   Egidijus Kūris,   Robert Spano, judges, and Abel Campos, Deputy Section Registrar , Having deliberated in private on 12 January 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 2082/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Aydın Çetinkaya (“the applicant”), on 16 November 2004. 2.     The applicant was initially represented by Mr A.K. Özcan, a lawyer practising in Düzce. By means of an authority form dated 25 March 2011 the applicant appointed Mr E. Şen, a lawyer practising in Istanbul, as his representative, and he informed the Court on 26 April 2011 that he had dismissed his previous representative. The Turkish Government (“the Government”) were represented by their Agent. 3.     On 21 May 2012 the application was communicated to the Government. On 31 October 2012 and 20 February 2013 the Government and the applicant submitted their observations on the admissibility and merits of the case respectively. 4.     On 17 March 2015 the Chamber decided, under Rule 54 § 2 (c) of the Rules of Court, to invite the parties to submit further written observations on the admissibility of the applicant’s complaint under Article 3 of the Convention. 5.     On 10 April 2015 the Government submitted their further observations. On 11 and 18 May 2015 the applicant replied to the submissions of the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1964. A.     The applicant’s arrest and detention in police custody and the medical certificates concerning his alleged ill-treatment 7.     In 1993 the applicant was convicted of murder and sentenced to twenty four years’ imprisonment. 8.     On 8 March 2002 the applicant was conditionally released from prison. 9.     On 23 March 2002 at 8.40 p.m. the applicant was arrested at his home on suspicion of leading a criminal organisation and involvement in the attempted abduction of a certain Ş.H. and his son, H.H. He was subsequently placed in custody by the organised crime division of the Istanbul Security Directorate. 10.     On 24 March 2002 at 8 p.m. the applicant and six other persons were examined at the Haseki Hospital, in Istanbul, by a doctor who recorded on a single sheet of paper that there was no sign of violence on the bodies of these seven persons. 11.     On the same day at 10.30 p.m. the applicant was once again examined at the Haseki Hospital by a doctor who noted that he had been told that the applicant had hit his head against a wall. The doctor, a general practitioner, observed the following injuries on the applicant’s body: a swelling on the left side of the forehead and a headache, a hyperaemia of 0.5   cm in width around both wrists and a hyperaemia of 2 cm on the right side of the neck. The doctor considered that the applicant should also be examined by a neurosurgeon, who subsequently carried out a number of tests on the applicant and concluded that the applicant did not show any signs of pathology. 12.     On 25 March 2002 at 9.10 p.m. the applicant underwent a further medical examination at the Haseki Hospital by a doctor who noted in a medical report the same injuries as those mentioned in the medical report of 24   March 2002. 13.     On 26 March 2002 at 7 p.m. the applicant was once again taken to the Haseki Hospital for an examination. The medical expert noted that there was an erythema of 3 cm in diameter on the right side of the applicant’s forehead, scabbed wounds of 3 cm on the underside of his wrists and a hyperaemia of 2 cm on the right side of his neck. 14.     On 27 March 2002 the applicant underwent two medical examinations. The first examination took place at the Haseki Hospital at 9.30   a.m. The doctor observed scabbed wounds on the underside of the wrists, a recovering hyperaemia of 2 cm on the right side of the neck and an erythema of 2 cm in diameter on the right side of the forehead. The second medical examination was carried out by a medical expert at the Forensic Medicine Institute branch responsible for the Istanbul State Security Court at 11 a.m. The doctor who examined the applicant observed the following injuries on his body: a scabbed abrasion of 3 cm on the underside of the left wrist, a scabbed abrasion of 1 cm on the underside of the right wrist, a scabbed abrasion of 0.5 cm on the back of the right wrist, two thin abrasions of 1 cm and 3 cm on the right side of the forehead. The doctor concluded that these injuries did not put the applicant’s life at risk but rendered him unfit to carry out daily activities for three days. 15.     According to the applicant, he was subjected to ill-treatment throughout his detention in police custody. In particular, he was kept blindfolded and handcuffed to an iron bar for five days. He was beaten, given electric shocks and made to lie on a bed over which his arms and legs were stretched, and his genitals were squeezed. 16.     According to the Government, the applicant sustained his injuries as a result of his own conduct. The scratches and traces on his body were a result of having attempted to break his handcuffs, and he had hit his head on the floor. In support of their submissions, the Government provided video footage from the surveillance camera monitoring the room in which the applicant was detained, recorded between 9.11 p.m. and 9.16 p.m. on 24   March 2002 (see paragraph 21 below). 17.     On 24 March 2002 at 9.20 p.m. eight police officers and the applicant signed an incident report according to which the applicant was kept attached to a bed in order to prevent him from harming himself. The report states that at around 9.10 p.m., he managed to break one of his handcuffs and hit his head on the floor. The officers recorded that they had used force to handcuff the applicant and that the applicant had sustained injuries on his wrists as a result. According to the report, the injuries on the applicant’s head had occurred when he hit his head on the floor. 18.     On 26 and 27 March 2002 statements were taken from the applicant by two police officers. According to the document drafted at 00.35 a.m. on 27   March 2002 and signed by the applicant, the police told the applicant that he had been in possession of a mobile phone whilst in prison and that the conversations that he had held using this telephone had been intercepted by the police. The police officers alleged that he had given instructions for the abduction of a number of persons by phone and that it was considered that he had been the leader of a criminal organisation. The applicant denied the allegations that he had made the phone calls in question and that he had been involved in criminal activities. In his statements to the police, the applicant accepted that he knew some of the persons who had been arrested on the same day as him and that he knew that two other arrestees had attempted to abduct Ş.H. He stated that he knew Ş.H. personally, but that he had not been involved in his abduction attempt. 19.     On 27 March 2002 the applicant appeared before the public prosecutor at the Istanbul State Security Court. He denied the allegations against him and submitted that he had been subjected to torture in police custody. He alleged that he had been beaten, given electric shocks and stretched by his arms and legs, had his testicles squeezed, and been handcuffed to an iron bar for five days. On the same day he was remanded in detention by a judge. 20.     Between 23 and 27 March 2002 the six persons who had been taken into police custody on the same day as the applicant also made statements to the police. According to some of these statements, the applicant had been the leader of a criminal organisation and had given instructions for the abduction of Ş.H. These persons were also medically examined during and after their detention in police custody. Some of them were found to have sustained injuries to various parts of their bodies. B.     Video footage submitted by the Government 21.     During the proceedings before the Court, the Government produced a CD-ROM containing a police video recording. The CD-ROM contains images of a room. The part which concerns the applicant was recorded between 9.11 p.m. and 9.16 p.m. on 24 March 2002. It shows that the applicant was kept in a room on a mattress, the top of which is placed on two chairs. The applicant is seen lying down on the mattress with his arms straight out to the sides and attached to the chair legs. He is also blindfolded with a piece of black cloth. On the other side of the room, there are four or five plainclothes police officers standing around a desk and a chair. The applicant begins moving with a view to standing up. Four officers approach the applicant, detach him from the chairs, put him on the floor, kneel around him and for about one and a half minutes keep the applicant under physical restraint on the floor. During this period, the applicant cannot be seen by the camera. Thereafter, another plainclothes officer arrives in the room and instructs the other officers to arrange the mattress and the chairs in a certain way. Subsequently, the applicant is seen without the blindfold and with his arms held behind his back by two officers who are also holding him around his neck. They make the applicant stand in front of the newly-arrived officer, who douses the applicant’s face with water from a plastic bottle. He then hits the applicant on the head with the same bottle. Afterwards, six officers place the top of the mattress on the chairs, force the applicant to lie down on the mattress on his back, handcuff him to the chair legs and blindfold him. C.     Criminal proceedings against the police officers 22.     On 3 April 2002 the applicant lodged a petition with the Fatih public prosecutor’s office and alleged that he had been subjected to ill-treatment during his detention in police custody. 23.     On 22 May 2002 the applicant made statements to the Fatih public prosecutor in which he complained about his alleged ill-treatment while in police custody. He claimed that he had been insulted, threatened, beaten, stripped naked, stretched by his arms and legs, blindfolded, given electric shocks and had his genitals squeezed. The applicant submitted that there were a superintendent, A.İ., and the director of the Department of Organised Crime of the Istanbul Security Directorate, A.S.S., among those who had tortured him. The applicant also provided the names of several persons who had allegedly witnessed his ill-treatment in police custody and asked the public prosecutor to take their statements as witnesses. 24.     On 29 July and 6 and 22 August 2002 the Fatih public prosecutor took statements from İ.E., N.K., S.G. and M.G., the police officers who had been on duty at the time of the applicant’s detention in police custody. They all denied the veracity of the applicant’s allegations of ill-treatment. 25.     On 17 October 2002 the Fatih public prosecutor further obtained statements from A.İ., who submitted that the applicant had hit his head on the floor. On 20 January 2003 A.S.S. also made statements to the Fatih public prosecutor and maintained that he had not been involved in the applicant’s questioning. 26.     On 21 January 2003 the Fatih public prosecutor requested the Department of Organised Crime of the Istanbul Security Directorate to submit any video recording demonstrating that the applicant had resisted the officers, if such recording existed. 27.     On 25 February 2003 A.S.S., in his capacity as the director of the Department of Organised Crime, sent the video recording of 24 March 2002 (see paragraph 21 above) along with a letter to the Fatih public prosecutor’s office. In his letter, A.S.S. noted that the applicant had resisted the police officers while in police custody. 28.     On 20 June 2003 the Fatih public prosecutor sent the video recording to the Forensic Medicine Institute and requested that a report clarifying whether the applicant could have sustained the injuries noted in the medical reports as a result of his own conduct be drafted. The public prosecutor also submitted the medical reports concerning the applicant to the Institute. 29.     On 13 August 2003 six medical experts from the Forensic Medicine Institute, including the president, drafted a report after examining the medical reports issued during the applicant’s police custody and the photographs and video footage submitted to them by the Fatih public prosecutor. In their report, the doctors concluded that the applicant’s injuries had occurred as a result of his own conduct. They considered that, following the applicant’s agitation, the police officers had struggled to lay him down on a camp bed and had handcuffed his hands to the bed. They further stated that the applicant did not appear to have been subjected to any beatings in the video footage. Having considered the position of the applicant’s injuries on his body, they concluded that the injuries must have been caused by the applicant’s own conduct. 30.     On 15 October 2003 the Fatih public prosecutor filed a bill of indictment with the Fatih Criminal Court accusing six police officers, A.İ, A.S.S., İ.E, N.K., S.G. and M.G., of inflicting ill-treatment on the applicant and one of his co-accused, Ö.Ç. 31.     On 8 December 2003 the applicant testified before the Bolu Criminal Court, acting on letters rogatory. The applicant contended that he had been kept blindfolded throughout his detention, stretched by his arms and legs, given electric shocks, hosed with cold water, stripped naked and had his genitals squeezed. 32.     On 12 February 2004 the Fatih Criminal Court held the first hearing on the merits of the case and heard evidence from the accused police officers, except one officer, A.S.S., who did not participate in the hearing. They all maintained that they had not ill-treated the applicant or Ö.Ç. As regards the applicant, they contended that they had handcuffed him upon the instructions of a public prosecutor and subsequently used force with a view to preventing him from harming himself. One of the officers, İ.E., maintained that the applicant had sustained injuries to his head as he had hit his head against the wall. They referred to the video footage recorded on 24   March 2002. During the same hearing, C.A., one of the applicant’s lawyers who represented him along with A.K. Özcan, requested that the applicant be allowed to join the proceedings as an intervening party. His request was granted. The applicant’s representative further requested the court to obtain the entire video recording of the places where the applicant had been held throughout his detention in police custody. The court decided to consider this request subsequently, after obtaining the statements of all accused police officers. 33.     Between 12 February 2004 and 5 October 2004 the trial court adjourned the hearings as A.S.S. could not be located. 34.     On 5 October 2004 A.S.S. made statements before the Fatih Criminal Court and denied the veracity of the applicant’s allegations. He reiterated that he had not been involved in the questioning of the applicant and Ö.Ç. On the same day the Fatih Criminal Court ordered the Security Directorate to send it the video recordings concerning the applicant’s police custody. 35.     On 2 February 2005 the first-instance court adjourned the hearing as the video footage requested during the previous hearing had not been received. One of the applicant’s lawyers, C.A., was present during this hearing. 36.     Upon receipt of the video footage of 24 March 2002, during the hearing of 3 March 2005 the Fatih Criminal Court viewed the recording and observed that one person had suddenly bent forwards and the police officers had immediately intervened. The court noted that the video footage was very short, lasting a few seconds, and the people in the images were not identifiable. At the same hearing, one of the accused police officers, İ.E., contended that the person in the footage was the applicant himself, who had hit his head on the floor in order to be able to lodge a complaint against them for ill-treatment in police custody, and that they had intervened to stop him. 37.     On 14 June 2005 the Fatih Criminal Court referred the case to the Istanbul Assize Court on account of lack of jurisdiction, pursuant to Article   94 of the new Criminal Code (Law no. 5237), which defined ill-treatment by public servants as torture, an offence that should be tried by assize courts. 38.     On 3 October 2005 the Istanbul Assize Court issued a summons requiring the applicant and the accused police officers to attend the hearing to be held on 29 November 2005. The summons issued in respect of the applicant was served on A.K. Özcan. On 29 November and 27   December 2005 the Istanbul Assize Court held two hearings and heard evidence from the accused police officers, who reiterated the statements they had made before the Fatih Criminal Court. Neither the applicant nor his representatives participated in these hearings. 39.     During the hearing held on 27 December 2005 the public prosecutor requested that the police officers be acquitted of the charges against them. At the end of the same hearing the Istanbul Assize Court acquitted the accused police officers of the charges of torture. On the basis of the evidence before it, namely the medical reports, the report of the Forensic Medicine Institute dated 13 August 2003, the statements taken from the accused officers, the applicant and Ö.Ç., and the aforementioned video footage, the Istanbul Assize Court found that the applicant had been agitated and the police officers had handcuffed him to a camp bed with a view to preventing him from injuring himself. The court noted that the injuries observed on the applicant’s wrists and other parts of his body had thus occurred as a result of his agitation. The assize court considered that the applicant had not been subjected to beatings. It concluded that the accused officers had not tortured the applicant. 40.     On 20 January 2006 the judgment of 27 December 2005 was served on lawyer C.A. As C.A. could not be found in his office, the notification document was left with the mayor of the neighbourhood, in accordance with the provisions of the Law on Notifications. 41.     On 21 January 2011 A.K. Özcan, acting on behalf of the applicant, submitted a petition to the Istanbul Assize Court. He maintained that the judgment of 27 December 2005 had been served on a lawyer who had not been involved in the case and asked to be officially served with the judgment in question. 42.     On 14 February 2011 another lawyer lodged an appeal with the Istanbul Assize Court, to be submitted to the Court of Cassation, against the judgment of 27 December 2005 on behalf of the applicant, claiming that the judgment of 27 December 2005 had erroneously been served on C.A. 43.     On 28 February 2011 the Istanbul Assize Court rejected the petition, holding that C.A. had represented the applicant during the proceedings and his power of attorney was in the case file. It further noted that the judgment had already been served on him and that notification to one of the applicant’s representatives had been sufficient for the judgment to become final. The assize court therefore considered that the appeal dated 14   February 2011 had been submitted outside the time-limit laid down for submission of appeals in Article 310 of the Code of Criminal Procedure. 44.     The applicant appealed against the decision of the Istanbul Assize Court. 45.     On 22 May 2013 the Court of Cassation upheld the decision of 28   February 2011. 46.     According to the documents in the case file, on 18 March 2003 A.S.S. and on an unspecified date A.İ. were dismissed from duty respectively on account of some other criminal convictions. According to the judgment of 27 December 2005 one of the police officers, İ.E., was promoted and became a superintendent during the criminal proceedings brought against him. D.     Criminal proceedings against the applicant 47.     On 30 April 2002 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and fifteen other individuals. The applicant was charged with leading a criminal organisation and the attempted abduction of Ş.H. and H.H. in order to obtain a ransom. The charges were brought under Article 1 of Law no. 4422 on the Struggle against Profit-oriented Criminal Organisations and Article 499 of the former Criminal Code. The public prosecutor claimed that the applicant had been in possession of a mobile phone while he was in prison, that his conversations had been intercepted by the police following a court decision and that he had given instructions by phone to two of his co-accused for the abduction attempt. In this connection, the public prosecutor referred to the transcripts of the telephone conversations which were included in the investigation file. The public prosecutor further claimed that the applicant had expanded the criminal organisation subsequent to his release from prison and his co ‑ accused had either become members of this organisation or had aided it. In the indictment, the public prosecutor had explained the details of the abduction attempt regarding Ş.H. and H.H., specifying the role of each accused. The applicant was identified as the person who had given the order for this offence to be committed. 48.     On 23 July 2002 the Istanbul State Security Court held the first hearing on the merits of the case. During this hearing, the applicant made statements before the court and maintained that he had been tortured while in police custody. He maintained that he had been made to listen to a recording of a telephone conversation by the police and that as he had denied that he had held the conversation in question, he had been tortured. He described the treatment he had allegedly been subjected to in detail and denied the veracity of his police statements. He further submitted that he had not made any phone calls or given instructions when he had been in prison and that these allegations had been invented by the police. He contended that he knew neither his co-accused nor Ş.H. or H.H. During the hearing of 23 July 2002 the applicant’s co-accused also denied the veracity of their police statements, claiming that they had been forced to sign those statements by the police and that they had been ill-treated whilst in police custody. During the hearing, the medical report of 27 March 2002 issued by the Forensic Medicine Institute in respect of the applicant was read out. At the end of the hearing, noting that the applicant had lodged a formal complaint with the Fatih public prosecutor’s office requesting that his allegations of ill ‑ treatment be investigated, the Istanbul State Security Court decided to request information from the Fatih public prosecutor as to the outcome of the investigation. 49.     During the second hearing in the case, held on 24 September 2002, the applicant once again denied that he had made telephone calls while in prison. One of his lawyers contended that the police reports according to which the applicant had made telephone calls did not reflect the truth and requested his client’s release. At the end of the hearing, as the Fatih public prosecutor’s office had not sent the information requested on 23 July 2002, the first-instance court reiterated its request for information regarding the investigation into the applicant’s allegations of ill-treatment. 50.     During the third hearing on 12 December 2002 one of the applicant’s lawyers maintained that it would have been impossible for the applicant to possess a mobile phone whilst detained in an F-type prison. At the end of the hearing, the Istanbul State Security Court once again decided to request information from the Fatih public prosecutor’s office. 51.     On 11 March 2003 the fourth hearing in the case was held. During the hearing one of the applicant’s lawyers stated that the information requested from the Fatih public prosecutor’s office had been submitted and the investigation into the applicant’s allegations of ill-treatment was pending. However, the first-instance court neither noted that this document had been submitted nor read it out. 52.     During the same hearing, H.H., the son of the person whose abduction had allegedly been ordered by the applicant, made a statement before the trial court and submitted that neither of the accused had been involved in the attempted abduction. During the same hearing, the applicant’s lawyers contended that the only evidence against the applicant was the police statements of his co-accused, which had been obtained through ill ‑ treatment and the veracity of which had been denied by each of the accused. 53.     On 29 May 2003 the fifth hearing was held, during which the public prosecutor submitted his opinion on the merits of the case and the accused were asked to provide their observations on the public prosecutor’s opinion by the next hearing. During the hearing, the applicant submitted a petition to the first-instance court in which he submitted that he did not have a good relationship with his brother and claimed that he had been the victim of a conspiracy organised by a senior police director who was a friend of his brother. Finally, one of the applicant’s lawyers maintained that the investigation into the applicant’s allegations of ill-treatment was still pending. 54.     During the sixth and last hearing in the case, held on 18 July 2003, one of the applicant’s lawyers maintained that there was no evidence against the applicant in the case file other than the statements obtained under torture and that an investigation had been launched into the applicant’s allegations of torture by the Fatih public prosecutor. Another lawyer representing the applicant also made defence statements. He contended that the telephone tapping in question had been illegal and that there had not been a court order authorising it. He further noted that the police statements obtained from the applicant under torture could not be used as evidence. 55.     On the same day the Istanbul State Security Court rendered its judgment in the case. The applicant was convicted of leading an armed criminal organisation and of the abduction of Ş.H. and H.H. in order to obtain a ransom as charged and was sentenced to nine years, five months and ten days’ imprisonment. His conditional release in respect of his previous sentence was also revoked. 56.     In its judgment, the first-instance court found it established, in the light of the content of the case file as a whole, to which the court repeatedly referred in its reasoning, and the evidence in its possession (which included, inter alia , the following evidence: transcripts of telephone conversations allegedly held by the applicant, material evidence collected where the attempted abduction of Ş.H. and H.H. had occurred, witness statements, the applicant’s and the co-accuseds’ police statements, and statements made to the public prosecutor and a judge at the State Security Court on 27   March 2002), that the applicant had planned the attempted abduction of Ş.H. and had given instructions to two of his co-accused to carry out the abduction in telephone calls he had made using a mobile phone when he was in prison. This telephone had originally been used by other inmates in prison and had been tapped by the police. The police had found out that the applicant had also used it in order to give instructions to the members of his criminal organisation and had subsequently conducted an investigation into the applicant and his co ‑ accused. The first-instance court further noted that, after having assessed all the evidence in the case file, taking into account the legislation and the Court of Cassation’s case-law, it had come to the conclusion that the applicant and his co-accused had already formed a criminal organisation prior to the attempted abduction. The State Security Court therefore found, once again referring to the content of the case file, which included the applicant’s police statements, that the applicant was the leader of the criminal organisation in question and six other co-accused were members of that organisation. 57.     On 26 May 2004 the Court of Cassation upheld the judgment. 58.     Following the entry into force of the new Criminal Code in 2005, the Istanbul Assize Court reviewed the applicant’s conviction of 18 July 2003 and his sentence in the light of the provisions of the new Code. On 6   April 2006 the assize court amended the applicant’s sentence and imposed on him four years and three months’ imprisonment, holding that the new Code provided more favourable conditions for the applicant. One of the applicant’s lawyers, A.K. Özcan, was present when the assize court pronounced its judgment. 59.     On 20 February 2007 the Court of Cassation rejected the applicant’s appeal and upheld the judgment of 6 April 2006. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Criminal Codes (Laws nos. 765 and 5237) 60.     Article 245 of the former Criminal Code (Law no. 765), which was repealed on 1 June 2005, provided: “Any law-enforcement officer ... who, in the course of duty ... and in circumstances other than those prescribed by law ... ill-treats, injures or strikes a person or causes him bodily harm shall be liable to imprisonment of between three months and five years and be temporarily barred from public service...” 61.     Article 94 § 1 of the Criminal Code (Law no. 5237), which entered into force on 1 June 2005, reads as follows: Torture “Any public officer who carries out acts which cause severe bodily or mental pain or loss of consciousness or ability to act, or degrade a person shall be liable to imprisonment of between three years and twelve years.” B.     Codes of Criminal Procedure (Laws nos. 1412 and 5271) 62.     On 1 June 2005 the Code of Criminal Procedure (Law no.   5271) entered into force, repealing the former Code of Procedure (Law no.   1412). However, according to Law no. 5320 on the modalities of entry into force and application of the Code of Criminal Procedure, dated 31 March 2005, Articles   305-326 of the former Criminal Code on the procedure for appeals to the Court of Cassation remain in force until the regional appeal courts begin functioning. Articles 307 and 308 of Law no.   1412, in force at the material time, read as follows: “ Grounds for appeal on points of law Article 307 – An appeal on points of law may not concern any issue other than the allegation of unlawfulness of the impugned judgment. Non-application or erroneous application of a legal rule shall constitute unlawfulness . Instances of unlawfulness Article 308 – Unlawfulness is deemed to be manifest in the following cases: 1.     Where the court is not established in accordance with the law; 2.     Where a judge who has been involved in the decision-making process was barred by statute from participating; 3.     Where a judge, against whom a motion to disqualify him on the basis of a valid doubt submitted and accepted, or rejected unlawfully, has been involved in the decision-making process; 4.     Where a court considers that it has jurisdiction over a case in contravention of the legislation; 5.     Where a hearing has been held in the absence of the public prosecutor or other persons whose presence during the hearings is required by law; 6.     Breach of the requirement to render a public judgment in cases where oral hearings are held; 7.     Where the judgment does not contain reasoning; 8.     Where the judgment has restricted the defence rights as regards crucial issues in the judgment.” 63.     The relevant parts of Article 230 and 223 of Law no. 5271 on the requirements as to the judgments of first-instance courts acquitting the accused, are as follows: “ Points to be included in the reasoning of a judgment Article 230 – ...     (2)   The reasoning of an acquittal shall contain an explanation as to which ground listed in Article 223(2) has been taken into account in rendering the judgment. Conclusion of the trial and the judgment Article 223 – ...(2)   A judgment of “acquittal of the accused” shall be rendered in the following cases: a)     Where the act with which the accused was charged has not been defined as an offence in criminal laws; b)     Where it has been proven that the offence with which the accused was charged had not been committed by the accused; c)     Where the perpetrator had no intent or negligence vis-à-vis the offence with which the accused was charged; d)     Where there is a ground for making the accused’s conduct lawful even if he or she has committed the act in question; e)     Where it has not been proven that the offence with which the accused was charged was committed by the accused.” 64.     Article 242 of Law no. 5271, on the right of the intervening party to lodge an appeal on points of law, reads as follows: “(1)   An intervening party in criminal proceedings can lodge an appeal independently of the public prosecutor . (2)   If the judgment is quashed upon an appeal by the intervening party, the public prosecutor shall pursue the case again. ” C.     Relevant decisions of the Court of Cassation 65.     In support of their observations of 10 April 2015, the Government submitted copies of fifteen decisions of the 8 th Division of the Court of Cassation, including an examination of appeals lodged by intervening parties in cases brought against members of the security forces involving charges of ill-treatment or torture. 66.     In seven of these decisions (decision no. 2006/3712, dated 26   April 2006; decision no. 2006/6680, dated 13 September 2006; decision no.   2010/14263, dated 20 December 2010; decision no. 2011/9432, dated 14   September 2011; decision no. 2011/10943, dated 6 October 2011; decision no. 2012/21562, dated 21 June 2012; and decision no.   2013/6715, dated 27 February 2013), the 8 th Division of the Court of Cassation decided to quash the first-instance courts’ judgments, finding that the accused’s acquittal of the charges against them had been erroneous. The high court held that the evidence in the case files ‒ such as medical reports, statements by victims and intervening parties, witness statements and statements by the accused officers ‒ proved that the intervening parties had been subjected to ill-treatment and that the first-instance courts should have established the criminal responsibility of the accused and convicted them. 67.     In six of the decisions submitted by the Government (decision no.   2006/8537, dated 24 November 2006; decision no. 2012/15465, dated 8   May 2012; decision no. 2012/18138, dated 28 May 2012; decision no.   2013/29039, dated 12 December 2013; decision no. 2014/9219, dated 10   April 2014; and decision no. 2014/20207, dated 18 September 2014), the Court of Cassation considered that the first-instance courts should have obtained further evidence before delivering their judgments acquitting the accused in those cases. Noting that the enquiries conducted by the first ‑ instance courts had been inadequate, the Court of Cassation therefore quashed the judgments of the first-instance courts and remitted the cases to the first-instance courts. 68.     One Court of Cassation decision submitted by the Government (decision no. 2012/37883, dated 12 December 2012) refers to a case where the first-instance court had acquitted the accused police officers of the charge of torture, holding that they had not been the perpetrators of the crime, while at the same time noting that the intervening party had been a victim of torture while in police custody. The Court of Cassation considered that the first-instance court should have provided adequate reasoning for its conclusion that the accused officers were not responsible for the ill ‑ treatment of the complainant. 69.     In the last decision submitted by the Government (decision no.   2013/29039, dated 12 December 2013), the Court of Cassation quashed a judgment by a first-instance court as it considered that the latter had failed to classify the ill-treatment meted out to the intervening party as torture. 70.     Aside from the decisions submitted by the Government, the Court of Cassation quashed first-instance court judgments in a number of other decisions. In its decisions dated 10 June and 12 October 1998 (decisions nos. 1998/8692 and 1998/12819), the Court of Cassation quashed the first ‑ instance courts’ judgments acquitting the accused police officers, finding that those judgments had been erroneous. In these two decisions of 1998, the Court of Cassation found, on the basis of the medical reports, victims’ allegations and witness statements in the case file, that the accused police officers had tortured the intervening parties. It considered that the first ‑ instance courts should have established the criminal responsibility of the accused and convicted them of torture. In a third decision dated 26   December 2002 (decision no. 2002/12044), the Court of Cassation held that the evidence in the case file – that is to say, the medical reports, the victim’s allegations, witness statements and records of identification parades – proved that the accused police officers had subjected the intervening party to ill-treatment. As a result, the high court considered that the reasoning of the first-instance court was flawed and quashed its judgment. THE LAW I.     GOVERNMENT’S PRELIMINARY OBJECTION 71.     The Government claimed that the applicant’s first representative had failed to submit an authority form to the Court when he lodged the application, which should therefore be rejected for failure to observe Article   45 § 3 of the Rules of Court. 72.     The Court observes that the applicant’s first representative did submit a duly completed authority form to the Court together with the application form at the time of the application to the Court. It therefore rejects the Government’s plea on this point. II.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 73.     In his application form dated 16 November 2004 the applicant complained that he had been subjected to ill-treatment while in police custody. In his submissions dated 13 April 2011, relying on Article 3 of the Convention, the applicant reiterated his allegation of ill-treatment and also submitted that the domestic authorities had failed to conduct an effective investigation into those allegations. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     The parties’ submissions 74.     The Government submitted that the applicant’s complaints under Article   3 of the Convention had been submitted too late, as they had not been included in the original application form. They also maintained that the submissions of 13 April 2011 should in any case be dismissed as they failed to comply with the requirements of Article 47 of the Rules of Court. The Government further contended that if the date of introduction of the application was accepted as being 16 November 2004, then the application should be rejected for failure to exhaust domestic remedies since at the material time the criminal proceedings against the police officers were still pending. 75.     The Government submitted that in any event the applicant had failed to exhaust the domestic remedies as he had failed to lodge a cassation appeal in accordance with the procedural requirements against the judgment of 27 December 2005 acquitting the police officers. In their observations dated 10   April 2015, the Government argued that, although the Court of Cassation did not conduct any research for the purposes of obtaining evidence in order to ascertain the material facts of a case, within the scope of its examination of the alleged unlawfulness of the first-instance courts’ judgments, the Court of Cassation had the competence to review those courts’ findings concerning the facts of the case. According to the Government, the Court of Cassation had the competence to quash the first ‑ instance judgments if it considered that the legislation had been implemented on the basis of an incorrect assessment of fact by the first-instance courts. 76.     As regards the Government’s objection concerning the six-month rule, the applicant submitted that he had stated in his application form that he had been subjected to torture during his detention in police custody and had therefore raised the substance of his complaint under this head. 77.     As to the Government’s objection that the applicant had failed to exhaust domestic remedies, the applicant claimed that according to the provisions of the Codes of Criminal Procedure the assessment of evidence lay within the competence of the first-instance courts. The Court of Cassation only had the authority to review the alleged unlawfulness of the impugned judgments. The applicant submitted that the Court of Cassation could examine or assess neither the material facts of a given case nor the evidence. The applicant also contended that in any case, the aim of the complaint under Article 3 of the Convention was not to challenge the judgment of 27 December 2005 acquitting the police officers, but rather the judgment of 18 July 2003 convicting him, given that the statements that had been taken in police custody ‒ where he had been subjected to ill ‑ treatment ‒ had been used against him in that judgment. He submitted that the main issue in the present case was the unfairness of his trial on account of the use of statements taken from him whilst in police custody. B.     The Court’s assessment 78.     The Court does not consider it necessary to examine the Government’s objection regarding the six-month rule, since it finds that this part of the application is inadmissible for non-exhaustion of domestic remedies for the reasons set out below. 79.     It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §   69, 25 March 2014; Mocanu and Others v.   Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 220, ECHR 2014 (extracts); and Gherghina v. Romania (dec.) [GC], no.   42219/07, § 83, 9 July   2015). 80.     States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. It should be emphasised that the Court is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Vučković and Others , cited above, § 70, and the cases cited therein; Mocanu and Others, cited above, § 221; and Gherghina , cited above, § 84). 81.     The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others , cited above, § 71; Mocanu and Others, cited above, §   222; and Gherghina , cited above, § 85). However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Vučković and Others , ci