AS TO THE ADMISSIBILITY OF
by Rezzan YAĞMAKAN
The European Court of Human Rights (Second Section), sitting on 30 June 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having regard to the above application lodged on 30 November 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Rezzan Yağmakan, is a Turkish national who was born in 1981 and lives in İzmir. He was represented before the Court by Mr Z. Değirmenci, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 August 2002, at 12 noon, the applicant, who was sitting at a cafe in a park, was arrested by two police officers from the Menemen Security Directorate on suspicion of involvement with an illegal armed organisation, namely the PKK (Workers’ Party of Kurdistan) / KADEK (Kurdistan Freedom and Democracy Congress).
In the application form, the applicant alleged that the two police officers had been plain-clothed, that they had asked for his identity papers and that just as he was about to show them, they had physically and verbally attacked him. They had made him lie down in the park and kicked and punched him. The police officers had later handcuffed him and taken him to the police station. Both on the way to and inside the police station the applicant had been subjected to beatings and sworn at.
According to the record of the arrest, drafted by the police officers on the same day, the applicant resisted arrest and as a result one police officer had sustained injuries. The applicant signed the record.
At 1.35 p.m. the applicant was examined by a doctor at the Menemen State Hospital, who noted the presence of superficial scratches on the applicant’s back and a slight bruise on the right side of the back. The doctor further noted superficial scratches on both elbows and the right knee.
One of the police officers, Mr K.A., was also examined by a doctor at the Menemen State Hospital at the same time. The doctor noted that he had a 3 cm superficial cut and a graze on his left elbow, a 5 cm x 5 cm bruise on his left hand, a superficial graze on his right elbow and a 3 cm x 10 cm bruise on the left side of his neck.
Mr K.A., the police officer, gave a statement at the police station, where he submitted that the applicant had resisted arrest and, to avoid having to get inside the police car, had tried to escape, had thrown himself to the floor and had clung to a tree. He maintained that the police had had to force the applicant into the car by holding on to his arms and body and that during this time the applicant had injured him.
At 4.15 p.m. the applicant was examined for a second time at the Menemen State Hospital. The report prepared at the end of this examination did not reveal any new findings. Thereafter, the applicant was handed over to policemen from the anti-terrorism branch of the İzmir Security Directorate.
On 5 August 2002 at 5.15 p.m. the applicant was examined by a doctor at the Atatürk Eğitim Araştırma Hospital in İzmir. Referring to the findings indicated in the report of the Menemen State Hospital, the doctor stated that there were no new marks on the applicant’s body.
On 6 August 2002 at 11.30 a.m. the applicant was once again taken to the Atatürk Eğitim Araştırma Hospital in İzmir. No new marks were found on the applicant’s body.
On 6 August 2002 the applicant was questioned by Mr K.Y., a prosecutor at the Menemen public prosecutor’s office. He was told of his rights and a lawyer was assigned to him from the Bar. The applicant submitted that he was part of the İzmir HADEP1 youth committee and that his job was to organise district youth committees. He claimed that he did not earn any money but ate, drank and stayed as a guest at the places which he visited. The applicant stated that while he was sitting at a café of the president of the HADEP district headquarters, the police had come and invited him to the police station. They had told him that his statement was going to be taken. He had become angry, had told them that they could not take him until the president came and had tried to prevent them from taking him. The applicant maintained that he had not hit the police officers but had only resisted getting into the police car. He said that he regretted his acts and had apologised to the police officers.
On the same day, Mr K.Y., the prosecutor, requested the Menemen Magistrates’ Court to remand the applicant in custody. Before that court, where the applicant was told of his rights in the presence of his Bar-appointed lawyer, the applicant also admitted that he had refused to go to the police station and had resisted arrest. He further maintained that he regretted his acts and had apologised to the police officers. The court dismissed the prosecutor’s request for the applicant to be remanded in custody and he was released.
At 4.15 p.m. the applicant was examined at the Menemen State Hospital, where no signs of ill-treatment were found on his body.
On 9 August 2002 Mr K.Y., the prosecutor, upon a complaint by Mr K.A., the injured police officer, filed a bill of indictment against the applicant under Article 258 §§ 1 and 3 of the Criminal Code for using physical violence against a police officer in the course of his duties.
On the same day, the applicant contacted his legal representative before the Court and told him about the ill-treatment.
On 12 August 2002 criminal proceedings before the Menemen First Instance Court commenced against the applicant.
On 27 September 2002 the applicant lodged an official complaint with the Menemen public prosecutor’s office against the two police officers who had arrested him, alleging ill-treatment. In his complaint the applicant submitted that the police, without introducing themselves, had told him to come with them and before he understood what was happening they had started to hit and kick him and had handcuffed him. He maintained that the police had continued to beat and kick him both in the car and later at the police station. They had also sworn at him. The applicant claimed that afterwards he had been taken to İzmir, where he had also been ill-treated.
On 7 November 2002 the prosecutor, Mr M.B., examined the case file concerning the criminal proceedings brought against the applicant.
On 18 December 2002 the prosecutor, Mr M.B., heard evidence from the accused police officers. They submitted, inter alia, that they had introduced themselves and had shown their badges to the applicant and had asked him to accompany them to the police station. However, since the applicant had refused and resisted, force had had to be used to subdue him and make him get into the car. The police officers asserted that one of them had been injured during the arrest. They further noted that the applicant had not been taken into custody but had sat with them in their office until a unit of police officers from İzmir had come to pick him up.
On 23 December 2002 the prosecutor, Mr M.B., taking into account, in particular, the criminal proceedings brought against the applicant for using physical violence against a police officer in the course of his duties, decided not to prosecute the two police officers who had arrested the applicant, on the ground that the latter had acted within the scope of their duties in accordance with section 6 of Law no. 2559 on the duties and powers of the police. An objection by the applicant to that decision was dismissed by the İzmir Assize Court on 21 May 2004. Its decision was served on the applicant on 1 June 2004.
In his observations the applicant submitted that, subsequently, he had been convicted by the Menemen First-Instance Court.
The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment during his arrest and while in police custody.
He further complained under Article 13 of the Convention that the domestic authorities had failed to conduct an effective investigation into his allegations.
The applicant complained that the treatment to which he had been subjected during his arrest and while he was held in police custody amounted to torture and inhuman treatment. He further complained about the manner in which the investigation into his allegations of ill-treatment had been conducted by the authorities. The applicant relied on Articles 3 and 13 of the Convention.
The Court considers that these complaints should be examined from the standpoint of Article 3 alone, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
The Government contested the applicant’s allegations. In particular, they submitted that the physical findings noted in the medical reports did not attain a sufficient level of severity to fall within the scope of Article 3 of the Convention. They further considered that, in the circumstances of the present case, the force used on the applicant had been proportionate and strictly necessary. In addition, the Government maintained that an effective investigation had been conducted into the circumstances of the case.
The applicant claimed that both his arrest and his subsequent detention in police custody had been unlawful. In this connection, he stated that he had not been told of his rights or even why he had been arrested and he had not been allowed to see his family. He further claimed that he had been subjected to violence both during his arrest and later on in police custody. The applicant maintained that, despite the fact that they were cursory, the medical reports supported his allegations of ill treatment. Moreover, referring to the statement of the police officers, the applicant maintained that he had shown passive and not active resistance during his arrest. In addition, the applicant claimed that the same prosecutor had investigated both his own allegations of ill treatment and the allegation that he had used violence during his arrest. Lastly, he maintained that, although he had told his lawyer on 9 August 2002 about the ill-treatment, he had given a different statement before the court which had convicted him on the charges under Article 258 of the Criminal Code because he had been ill-treated and under the pressure of being remanded in custody.
B. The Court’s assessment
At the outset, the Court notes that, in his observations at the post communication stage, the applicant alluded to the unlawfulness of his arrest and detention. However, the Court considers that, even assuming that this was raised as a new complaint and that there were no domestic remedies to exhaust, it relates to events or decisions which occurred more than six months before it was lodged with the Court on 15 April 2009, and should therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
The Court reiterates the basic principles laid down in its judgments concerning Article 3 (see, in particular, Orhan Kur v. Turkey, no. 32577/02, § 40, 3 June 2008, and K.Ö. v. Turkey, no. 71795/01, §§ 35-37, 11 December 2007, and the references therein).
The Court observes that the documentary evidence submitted by the parties does not allow it to conclude beyond reasonable doubt that, subsequent to his arrest on 5 August 2002, the applicant was subjected to any kind of ill-treatment at the hands of State agents, either in Menemen or in İzmir, which fell within the scope of Article 3.
The Court further reiterates that Article 3 does not prohibit the use of force in certain well-defined circumstances, such as to effect an arrest. However, such force may be used only if indispensable and must not be excessive (see, among others, Kurnaz and Others v. Turkey, no. 36672/97, § 52, 24 July 2007, and the references therein).
In the instant case the Court observes that it is undisputed that the applicant’s injuries, as shown by the medical report of 5 August 2002, arose from the use of force by the police officers in the performance of their duties, namely while effecting an arrest. However, differing versions of how the applicant had actually sustained the injury were put forward by the parties.
Having regard to the fact that the injuries sustained by the applicant on the day of his arrest appear to have been superficial with no lasting consequences; that such findings are insufficient to substantiate or confirm the applicant’s allegation that he had received indiscriminate punches and kicks during his arrest; that one of the police officers also sustained injuries of a similar nature, consistent with a minor physical confrontation between the applicant and the two police officers; and that, despite stating that his resistance was passive, the applicant admitted resisting arrest, the Court finds that there is no evidence that the police used excessive force when they were confronted in the course of their duties with the applicant’s resistance to his arrest.
The Court reiterates that Article 3 of the Convention also requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see, in particular, Assenov and Others v. Bulgaria, 28 October 1998, §§ 101-102, Reports of Judgments and Decisions 1998-VIII).
In the instant case, however, in view of its considerations above and for the reasons stated below, the Court does not consider that the applicant has laid the basis of an arguable claim that he was ill-treated at the hands of the police. The Court notes, firstly, that the applicant allowed a significant period of time to elapse before lodging an official complaint about the alleged ill treatment. Moreover, when he gave evidence to the prosecutor and the Menemen Magistrates’ Court in the course of the criminal proceedings concerning the events surrounding the arrest, the applicant, who was assisted by counsel, did not make any reference whatsoever to his allegations of ill treatment; on the contrary, he admitted to resisting arrest. When the applicant lodged a complaint on 27 September 2002, he did not seek to provide the prosecutor with any explanation on these points. In such circumstances, and in the absence of cogent medical or other data, the applicant could not legitimately claim that an in-depth investigation should be carried out into his complaints of ill-treatment, without having furnished to the relevant authorities, either personally or through his lawyer, a reliable starting point for their inquiries. Therefore, in the particular circumstances of the case, the Court considers that the procedural obligation of the authorities of the respondent State under Article 3 of the Convention cannot be said to have been breached.
It follows that the application must be rejected as being manifestly ill founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Sally Dollé Françoise Tulkens
1 People’s Democracy Party (Halkın Demokrasi Partisi).