European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31950/05
by Gökhan YILDIRIM
against Turkey

The European Court of Human Rights (Second Section), sitting on 30 September 2008 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 4 July 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Gökhan Yıldırım, is a Turkish national who was born in 1976 and lives in Kayseri. He is represented before the Court by Mr U. Altun, a lawyer practising in Kayseri.

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

In February 2001, the Kayseri Law and Order Department received intelligence that the applicant was involved in fraud.

On 22 February 2001, when police officers arrived at the building where the applicant lived, he tried to escape and broke into his neighbours' flat, taking them hostage. According to the police reports, the applicant had a knife and resisted the police officers. The police entered the flat with the help of the fire brigade and arrested the applicant.

At 10.15 a.m. the same day, the applicant was taken to the Barbaros Health Clinic, where a medical report was issued. According to this report, there was no sign of ill-treatment on the applicant's body.

The applicant was subsequently taken to the police station for questioning. He was allegedly beaten while in police custody.

At 8.15 p.m. the same day, the applicant was taken to the Kayseri State Hospital, where he was examined by a doctor once again. According to the doctor's report, the applicant was anxious and there was a 0.5 cm x 2 cm patch of erythema on his forehead, which had been possibly caused by a blow with a blunt object.

On 23 February 2001 at 5.45 p.m. the applicant was taken to the Kayseri Forensic Medical Institute. Following a medical examination, it was recorded that the applicant had a 3 cm x 3 cm ecchymosed skin lesion on his forehead and scratches on both wrists.

Following his medical examination, the applicant was handed over to the military officials, as he was found to be a deserter.

On 28 February 2001 the applicant was examined at the Sivas Military Hospital. The doctor who examined the applicant found that there was a lesion in his abdomen and further noted the presence of haematuria (presence of blood in urine). The applicant underwent an ultrasound scan and it was recorded that he had a 21 mm x 18 mm hypoechoic lesion on his left kidney. As the possible presence of a haematoma was suspected, the applicant was sent for a computed tomography scan. The test results were normal.

1.  Criminal proceedings against the applicant

On an unspecified date, the Kayseri public prosecutor initiated criminal proceedings against the applicant, accusing him of resisting police officers with a knife and breaking into his neighbours' flat.

On 23 December 2002 the Kayseri Criminal Court found the applicant guilty as charged and sentenced him to seven months and seventeen days' imprisonment.

On 21 March 2005 the Court of Cassation refused the applicant leave to appeal.

2.  Proceedings against the accused police officers

In the meantime, on 26 March 2001 the applicant filed a criminal complaint against the police officers. On 20 March 2001 the Kayseri public prosecutor decided not to prosecute. On 31 May 2001 the Boğazlıyan Assize Court refused the applicant leave to appeal.

On 2 July 2001 the applicant further applied to the Ministry of Justice and requested that the decision of the Boğazlıyan Assize Court be quashed (yazılı emir).

On an unspecified date, the Minister of Justice issued a writ of mandamus and, as a result, the Court of Cassation quashed the decision of the Boğazlıyan Assize Court.

On 18 February 2002 the Kayseri public prosecutor filed an indictment with the Kayseri Assize Court against eight police officers from the Kayseri Security Directorate, accusing them of ill-treating the applicant during his time in police custody.

Throughout the proceedings, the police officers denied the accusations. They stated that when the applicant was arrested he had been anxious, and he had banged his head on the bars and walls of his cell. The court obtained three medical reports from the Forensic Medicine Institute, on 11 March 2002, 21 May 2003 and 29 January 2004. In the final report, the Forensic Medical Institute made an assessment of the medical reports concerning the applicant. It was concluded that the injuries referred to in the medical report dated 23 February 2001 could have been the result of a blow with a blunt object or could have been caused by the applicant himself if he had banged his head on the bars and walls, as alleged. The report further stated that, as the result of the computed tomography scan was normal, the findings of the ultrasound scan of 28 February 2001 could not have resulted from a haematoma, but could have resulted from a blow with a blunt object. Nevertheless, according to the Forensic Medicine Institute, it was not possible to determine the date on which these injuries had been sustained.

On 30 March 2004 the court acquitted the police officers of the offences with which they had been charged. It held that the findings indicated in the medical reports dated 22 and 23 February 2001, namely the erythema on the applicant's forehead, were consistent with the accused officers' contention that the applicant had banged his head on the bars of his cell. It further held that, as the other symptoms recorded in the medical report of 28 February 2001 had appeared after the applicant's time in police custody, the accused police officers could not be held responsible for the applicant's injuries. It therefore held that the evidence in the case file did not suffice to convict these officers.

On 5 June 2006 the Court of Cassation upheld the judgment of the Kayseri Assize Court.

COMPLAINTS

THE LAW

The Court holds that these complaints should be examined from the standpoint of Article 3 of the Convention alone.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints concerning Article 3 of the Convention;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Françoise Tulkens
Deputy Registrar President