European Court of Human Rights

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21072/04
by Cengiz YERLİKAYA
against Turkey

The European Court of Human Rights (Second Section), sitting on 17 February 2009 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar.

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 FACTS

1.  The applicant, Mr Cengiz Yerlikaya, is a Turkish national who was born in 1971 and lives in Istanbul. He was represented before the Court by Mrs F. Karakaş Doğan, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

A.  The circumstances of the case

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

3.  On 26 April 2003 the applicant was arrested, together with four other persons, by police officers from the Anti-Terrorist Branch of the Istanbul Security Directorate on suspicion of membership of the PKK (the Workers’ Party of Kurdistan), an illegal organisation, and was taken into custody.

4.  On the same day, the applicant underwent medical examination at the Istanbul Forensic Institute. He told the doctor that he had not been subjected to any form of ill-treatment. Having examined the applicant, the doctor stated the following:

“On the bottom external part of the right gluteus (buttock) there is an ecchymosis of 6x6 cm. The person stated that this ecchymosis had occurred when he had fallen down some fifteen to twenty days ago.

There is also an old incision scar on the right inguinal area. The person stated that he had undergone an appendix operation ten months ago. There is hernia in the operated area.”

5.  On 28 April 2003, upon the request of the anti-terrorist police, the Public Prosecutor at the Istanbul State Security Court extended the custody period for two more days.

6.  The applicant was allegedly beaten and kicked by police officers during that custody. Cold and dirty water was poured on him several times. He was insulted and sworn at and made to stand up for three days without sleep. The officers allegedly stamped on his scar from a previous operation which left him in great pain. They also allegedly gave the applicant a medication which made him more exhausted.

7.  On 30 April 2003 the applicant was taken to the Forensic Medicine Institute, where he was examined by a doctor. The applicant told the doctor that he had been beaten by the police. However, the medical report drafted on that occasion indicated that there were no signs of physical violence on the applicant’s body.

8.  Later that day, the applicant was brought before the public prosecutor and then the investigating judge at the Istanbul State Security Court. Before both he denied the statement he had made to the police. He further alleged that he had been ill-treated and had signed the statement under pressure without reading it. The investigating judge remanded him in custody the same day. He was put in Sağmalcılar Prison.

9.  On 1 May 2003, he was examined by a doctor at the Sağmalcılar Prison. The applicant’s medical report of that day noted a bruise of 5x10 cm on his right buttock and an old scar from an appendix operation.

10.  On an unspecified date, the Fatih public prosecutor launched an investigation into the applicant’s allegation of ill-treatment. In due course, on 5 June 2003 he took a statement from the applicant, in which the latter repeated the above-mentioned account of the facts with regard to the alleged ill treatment.

11.  On various dates between July and October 2003, the prosecutor took statements from the police officers who had allegedly participated in the questioning of the applicant. Two police officers stated that they had been present when a statement was taken from the applicant. However, they claimed that they had not treated him badly. They also submitted that the applicant had been medically examined upon arrest and before being taken into their custody. They maintained that the medical report prepared on that day showed that the injuries found on his body were between fifteen and twenty days old and had occurred because of a fall. They further stated that the report of 30 April 2003 given by the Forensic Medicine Institute after the end of the police custody noted no signs of ill-treatment.

12.  On 13 October 2003 the Fatih Public Prosecutor decided not to prosecute the police officers in question, for a lack of sufficient evidence. In his decision, the public prosecutor relied on the accused police officers’ statements and the medical report dated 30 April 2003 indicating the absence of any sign of ill-treatment on the applicant’s body.

13.  On 17 October 2003 the applicant’s lawyer challenged this decision before the Beyoğlu Assize Court. Referring to the applicant’s medical report dated 1 May 2003, she maintained that there was sufficient evidence for prosecution of the police officers.

14.  On 5 April 2004, having regard to reasons given by the Public Prosecutor’s office and the content of the investigation file, the Beyoğlu Assize Court dismissed the applicant’s objection and upheld the decision.

B.  Relevant domestic law and practice

15.  A full description of the domestic law and practice at the relevant time may be found in Batı and Others v. Turkey (nos. 33097/06 and 57834/00, §§ 95-99, ECHR 2004-IV).

COMPLAINTS

16.  The applicant complained under Article 3 of the Convention that he had been subjected to various forms of ill-treatment during his detention in police custody.

17.  He alleged under Articles 6 and 13 of the Convention that he had been denied an effective remedy before the national authorities in respect of his complaint of ill-treatment.

THE LAW

18.  The applicant complained under Articles 3, 6 and 13 of the Convention that he had been subjected to ill-treatment during his detention in police custody and that the authorities had failed to conduct an effective investigation into his allegations of ill-treatment.

A.  The parties’ submissions

19.  The Government submitted that the applicant had failed to exhaust the domestic remedies available to him within the meaning of Article 35 § 1 of the Convention. In this connection, they maintained that the applicant had not availed himself of the civil and administrative law remedies which could have provided reparation for the harm he had allegedly suffered. They claimed, in the alternative, that the findings contained in the medical report dated 1 May 2003 were the same as those noted in the medical report issued at the beginning of the custody period. There was no medical evidence proving that he had been subjected to ill treatment at the police station. Therefore the applicant’s allegations were unsubstantiated.

20.  The applicant claimed that he had exhausted all available remedies in domestic law but that they had proven to be ineffective. He alleged that he had been subjected to severe ill treatment by police officers during his detention at the Anti-Terrorist Branch of the Istanbul Security Directorate. In particular, he claimed that the police officers had beaten and kicked him, that cold and dirty water had been poured on him several times, and that he had been insulted, sworn at and been made to stand up for three days without sleep. The police officers had also stamped on his scar from a previous operation. The applicant referred to the findings contained in the medical report dated 1 May 2003 in support of his allegations. Despite his repeated requests for a proper investigation, the prosecuting authorities had terminated the proceedings without any meaningful inquiry.

B.  The Court’s assessment

21.  The Court reiterates that it has already examined and rejected the Government’s preliminary objections in similar cases (see, in particular, Karayiğit v. Turkey (dec.), no. 63181/00, 5 October 2004). It finds no particular circumstances in the present application which would require it to depart from its findings in the above-mentioned case. It therefore rejects the Government’s preliminary objection.

22.  Turning to the examination of the applicant’s complaints, the Court observes that these complaints should be examined from the standpoint of Articles 3 and 13 of the Convention.

23.  As regards Article 3, the Court reiterates 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).

24.  In the instant case, the applicant alleged that he had been beaten, kicked and subjected to various other forms of inhuman treatment by police officers during his detention in their custody. The Court notes that the applicant was medically examined prior to his being placed in police custody, on 26 April 2003, and the doctor who examined him noted the presence of old bruising caused by his fall some fifteen to twenty days earlier and an incision scar from appendix surgery (see paragraph 4 above).

25.  Following his release from police custody, the applicant underwent two more medical examinations at the Forensic Medical Institute and Sağmalcılar Prison, on 30 April 2003 and 1 May 2003 respectively. Although the first medical report indicated that there were no signs of ill treatment on the applicant’s body, the second showed the presence of ecchymoses and an operation scar. In the course of the domestic proceedings and before the Court, the applicant claimed that the findings contained in the second report proved that he had been subjected to acts of ill treatment at the hands of the police officers.

26.  The Court notes that the first medical report, obtained immediately after the applicant’s release from police custody, does not indicate the presence of any sign of physical violence on the applicant’s body (see paragraph 7 above). Furthermore, the findings noted in the second medical report are same as those indicated in the medical report dated 26 April 2003 since they both refer to ecchymoses in the buttock area and an old operation scar (see paragraphs 4 and 9 above). Accordingly, the findings contained in those reports are not consistent with the applicant’s allegation of having been subjected to beatings and kicking. The Court considers that had the applicant been subjected to the above-mentioned forms of ill treatment, as alleged, this would have left visible marks which could have been identified by the forensic doctors.

27.  In the light of the parties’ conflicting submissions as regards the events in question, and particularly taking into account the lack of any sign of ill-treatment corresponding to the alleged ill-treatment suffered by the applicant, the Court concludes that the applicant has failed to adduce sufficient evidence to substantiate his allegations. It finds therefore that the material in the case file does not enable it to conclude to the required standard of proof that there has been a violation of Article 3 of the Convention as a result of the treatment allegedly sustained by the applicant.

28.  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.

29.  As regards the applicant’s complaint under 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, 27 April 1988, § 52, Series A no. 131).

30.  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). Nor is there any substantiated issue arising under Article 6 in this respect.

31.  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.

For these reasons, the Court unanimously;

Declares the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President