CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 octobre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Published on 28 October 2024   SECOND SECTION Application no. 17585/23 Mehmet DÖNMEZ against Türkiye lodged on 20 March 2023 communicated on 9 October 2024 SUBJECT MATTER OF THE CASE The application concerns the alleged ill-treatment inflicted on the applicant during his police custody in December 2016 and the ineffectiveness of the investigation carried out into his allegations. During the course of his police custody, the applicant complained of having been heavily beaten and subjected to sexual assault by certain police officers. He was referred to a hospital for an assessment of any risk of gastrointestinal bleeding. The medical report drawn up on 14   December 2016 following his examination at the Ankara Education and Research Hospital noted that he had a periorbital ecchymosis around the left eye, as well as various symptoms of haemorrhoids. On 3 September 2018 the applicant filed a petition with the Ankara public prosecutor’s office, claiming that he had been subjected to ill-treatment during his time in police custody. On 30 January 2019 the public prosecutor’s office decided not to process his petition, pursuant to Law no. 4483 on the prosecution of civil servants, finding that there was nothing to support his claims. The applicant lodged an individual application with the Constitutional Court on account of his alleged ill-treatment and unlawful detention. By a judgment of 15   June 2022, the Constitutional Court stated that the medical reports issued regarding the applicant had made certain findings and that it could not be said that his claims were not arguable. It concluded that there had been a violation of the procedural aspect of the prohibition of ill ‑ treatment, as the application of Law no. 4483, which could not be applied to allegations of torture and passing the limits of the authority to use force, had prevented the authorities from carrying out an investigation. The Constitutional Court did not reach a finding regarding the substantive aspect of the applicant’s complaint. As for his complaints regarding his detention, the court found that they were substantially the same as those examined in its decision of 24   December 2018. Lastly, it ordered that the applicant be paid 45,000   Turkish liras (2,500 euros at the material time) in non-pecuniary damages and that a copy of the decision be transmitted to the Ankara public prosecutor’s office in order for the latter to initiate a fresh investigation. The Constitutional Court’s decision was served on the applicant on 28   November 2022. The applicant complains of a violation of Article 3 of the Convention and argues that despite the Constitutional Court’s finding, no fresh investigation has been initiated by the Ankara public prosecutor’s office. He also relies on Articles   5, 6 and 7 of the Convention, maintaining that his detention was unlawful. QUESTIONS TO THE PARTIES 1.     Can the applicant still claim to be a victim of a violation of the procedural aspect of Article 3 of the Convention, within the meaning of Article   34?   Taking into account the requirement of an effective investigation capable of leading to the identification and punishment of those responsible with regard to alleged violations of Article 3, and in the absence of a fresh investigation initiated by the investigating authorities following the Constitutional Court’s decision to that effect, can the finding of a violation and award of non-pecuniary damages by the Constitutional Court be considered to constitute sufficient redress for the applicant’s grievances under Article   3 (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010)?   2.     Has the applicant exhausted all effective domestic remedies, as required by Article   35 §   1 of the Convention?   In particular, was a new individual application before the Constitutional Court regarding the non-enforcement of that court’s judgment of 15   June 2022, in so far as it pertained to the initiation of a new investigation, an effective remedy within the meaning of this provision, in respect of the applicant’s complaint under Article 3 of the Convention (compare, mutatis mutandis , Mehmet Hasan Altan v. Turkey , no. 13237/17, §§   132-39, 20   March 2018)?   3.     Has the applicant been subjected to inhuman or degrading treatment, in breach of Article   3 of the Convention (see Bouyid v. Belgium [GC], no.   23380/09, §§ 83-84, ECHR 2015)?   Having regard to the procedural protection from inhuman or degrading treatment, was the decision of the public prosecutor’s office not to process the applicant’s petition in breach of Article   3 of the Convention (ibid., §   116)?