European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21281/02
by Ünal ARSLAN
against Turkey

The European Court of Human Rights (Second Section), sitting on 4 December 2007 as a Chamber composed of:

Mrs F. Tulkens, President,
Mr A.B. Baka,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mr V. Zagrebelsky,
Mrs D. Jočienė,
Mr D. Popović, judges,
and Mrs Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 27 February 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ünal Arslan, is a Turkish national who was born in 1978 and lives in Istanbul. He is represented before the Court by Mr C. Güngördü, a lawyer practising in Istanbul.

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

On 19 December 2000, as a protest against the F-Type Prisons, a group of people, including the applicant, raided the Istanbul Beyoğlu Branch of the Democratic Left Party and held three persons hostage. Despite warnings from the police, the group did not surrender and continued shouting slogans. The police subsequently entered the building and arrested the protesters, including the applicant. The incident report, which was prepared by four police officers, was also signed by the three persons who had been taken hostage.

On 19 December 2000 the applicant was examined by a doctor twice, i.e. at 3 p.m. and 6.50 p.m. respectively. In both reports, the doctors concluded that the applicant did not bear any signs of ill-treatment.

The applicant refused to give a statement during his police custody.

On 22 December 2000 the applicant was examined by a medical doctor at the Istanbul Forensic Medicine Institute. In her report, the doctor noted that the applicant complained of ill-treatment. She also stated that the applicant described pain and sensitivity on his nose. No other signs of ill-treatment were noted. The applicant was subsequently transferred to the Ear, Nose and Throat Service at the Taksim Ilkyardım Hospital for an x-ray to establish whether or not he suffered from a nose fracture. The result of the x-ray revealed that there was no nasal fracture.

On the same day, the applicant was interrogated by the public prosecutor at the Istanbul State Security Court. Before the public prosecutor, the applicant complained that he had been beaten during his arrest. The applicant was subsequently taken before the investigating judge at the Istanbul State Security Court, where he stated that he had been beaten during his interrogation in police custody. Taking into account the seriousness of the charges against the applicant, the judge ordered that the applicant be placed in detention on remand.

By an indictment dated 31 December 2000, the Istanbul State Security Court Public Prosecutor initiated criminal proceedings against the applicant, and five other accused, accusing them, inter alia, of aiding and abetting an illegal organisation, namely the MLKP (Marxist-Leninist Communist Party). The prosecution requested that the applicant be convicted and sentenced pursuant to Article 169 of the Criminal Code.

On 10 January 2001 the trial commenced before the Istanbul State Security Court. In the subsequent four hearings, the court, taking into account the nature of the alleged offence and the state of the evidence, refused to release the applicant pending trial.

On 13 March 2001, 9 July 2001, 12 September 2001 respectively the applicant’s lawyer asked the court to release his client on bail and invoked Article 5 of the Convention. The court refused the requests on the basis of the nature of the alleged offence and the state of the evidence.

On 16 November 2001 the applicant was released pending trial.

In the meantime, on 9 April 2001 the applicant filed a criminal complaint with the Fatih Public Prosecutor against the police officers who had allegedly ill-treated him during his arrest and subsequent police custody.

On 12 April 2001, referring to a previous non-prosecution dated 6 April 2001, the Fatih Public Prosecutor held that the applicant failed to provide any medical or other convincing evidence in support of his allegations and issued a decision of non-prosecution. A copy of the non-prosecution decision dated 6 April 2001 has not been submitted to the Court.

The applicant appealed against this decision. On 29 August 2001 the Beyoğlu Assize Court dismissed the appeal.

COMPLAINTS

THE LAW

The Court notes in the first place that the applicant’s complaints should be examined from the standpoint of Articles 3 and 13 of the Convention.

As regards Article 3, the Court recalls that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, it has generally applied the standard of proof “beyond reasonable doubt” (see Talat Tepe v. Turkey, no. 31247/96, § 48, 21 December 2004). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000 IV).

In the instant case, the applicant alleged that he had been beaten during his arrest and subsequent police custody, as a result of which his nose was allegedly broken. The Court notes that the applicant was medically examined twice on the day of his arrest, i.e. on 19 December 2000. Both medical reports indicated that there were no signs of ill-treatment on his body. The applicant was further examined by a doctor on 22 December 2000, namely on the last day of his police custody. The doctor who examined the applicant noted in her report that the applicant complained of ill-treatment and included in her report that he described pain and sensitivity on his nose. However, she did not find any signs of ill-treatment on his body. The applicant was subsequently transferred to the Ear, Nose and Throat Service at the Taksim Ilkyardim Hospital to determine whether or not he suffered from a nasal fracture. The result of the x-ray revealed no such fracture.

In view of the foregoing, the Court concludes that the evidence in the case file does not demonstrate that any excessive force was inflicted on the applicant when he was arrested or during his subsequent police custody. It follows that this part of the application is manifestly ill founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

As regards the applicant’s complaint concerning Article 13 of the Convention, the Court reiterates that this provision cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be. The grievance must be an arguable one in terms of the Convention (see, in particular, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). In view of its conclusions above, the Court considers that the applicant has no arguable claim of a violation of his rights under Article 3, which would have required a remedy within the meaning of Article 13 (see Künkül v. Turkey (dec.), no. 57177/00, 30 November 2006). Consequently, this part of the application should also be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

The Court observes that the applicant’s police custody ended on 22 December 2000. However, the application was lodged with the Court on 27 February 2002, which is more than six months from the date of the facts giving rise to the alleged violation.

It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

In the light of the applicant’s submissions and having regard to the evidence in its possession, the Court finds nothing in the proceedings which can be considered as discrimination. This complaint is therefore unsubstantiated.

It follows that this complaint is manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Decides to adjourn the examination of the applicant’s complaints concerning the length of his detention on remand and the right to have the lawfulness of his detention decided by a court;

Declares the remainder of the application inadmissible.

F. Elens-Passos F. Tulkens
Deputy Registrar President