SECOND SECTION

DECISION

Application no . 15442/08 Mehmet Nuri TANIÅž against Turkey

The European Court of Human Rights (Second Section), sitting on 9 February 2016 as a Chamber composed of:

Julia Laffranque, President, Işıl Karakaş, Nebojša Vučinić, Paul Lemmens, Ksenija Turković, Jon Fridrik Kjølbro, Stéphanie Mourou-Vikström, judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 21 February 2008,

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 Mehmet Nuri Tan ı ÅŸ, is a Turkish national, who was born in 1975 and who is currently serving a prison sentence at the Bolu F ‑ Type Prison. He is represented before the Court by Mr R. Demir, a lawyer practising in Istanbul.

The Turkish Government (“the Government”) are represented by their Agent.

The circumstances of the case

1. The events of 31 October 2006 and the applicant ’ s ensuing medical examination

2. The events that gave rise to the present application are disputed between the parties. They will therefore be presented separately.

(a) The applicant ’ s version of the events

3. On 31 October 2006 the applicant received a parcel at the TekirdaÄŸ F ‑ Type Prison (“the TekirdaÄŸ Prison”), where he was serving his sentence at the material time. As he was being taken to the parcel room by a prison guard, he greeted a fellow inmate in the corridor, without making any physical contact. The guard reacted to their brief interaction by mocking and insulting the applicant. The applicant did not respond to the guard.

4. Once they reached the parcel room, the guard ordered the applicant to wait outside and the applicant complied. The guard then shouted at him to move further away from the door and to stand against the wall, following which he pushed the applicant forcefully against the wall. In response, the applicant told the guard that he had no right to touch him, at which point the guard allegedly started punching the applicant in the face and kicking his feet while shouting insults at him. Although the applicant restrained himself from hitting back and sought only to protect his face with his hands, the guard called on his colleagues to intervene, claiming that the applicant was attacking him. A number of other guards in the vicinity ran towards them and started hitting the applicant as well. The applicant stated that his inmate friend, M. Ö ., and the prison governor, who were in the parcel room at the relevant time, had witnessed the events.

5. After the applicant had collected his parcel, he was taken to single occupancy cell A-T-10, where he was “lynched” by a group of guards, who also insulted and threatened him. The blows he received at that time left him with a broken nose, cuts to his lips, serious wounds on his knee, swellings of various sizes on different parts of his head and visible bruises on his eyes.

6. The following day the applicant asked to be taken to the prison infirmary. The prison doctor examined him and made detailed notes. The applicant did not, however, see what the doctor ’ s notes contained as he was not allowed to see the medical report.

(b) The Government ’ s version of the events

7. The Government ’ s version of the events is based on the report prepared by three prison guards after the incident in question. The relevant parts of the report read as follows:

“... on 31 October 2006, while collecting his parcel, the detainee Mehmet Nuri Tan ış attempted to shake hands with and speak to another detainee who had received a parcel. This interaction was stopped by the officers and [the applicant] was told that such interaction and contact was not lawful. Nevertheless, the detainee did not change his attitude and [shouted]: ‘ ... Who are you to interfere in my business? I will start proceedings against you, I will see you! ’ He was placed in cell no. A-T-10 for security reasons because he [had] continued his [insults], while also trying to kick and punch the officers ...”

8. On the following day, the applicant was taken to the prison infirmary for a medical examination in connection with the disciplinary proceedings that were to be instituted in respect of the incident. According to the medical report, dated 1 November 2006, the prison doctor had noted no signs of ill ‑ treatment on the applicant ’ s body.

2. Disciplinary proceedings against the applicant

9. On 1 November 2006 disciplinary proceedings were initiated against the applicant for his misbehaviour on 31 October 2006.

10. On 3 November 2006 the applicant submitted his defence statement – containing the allegations subsequently submitted to the Court – to the Prison Disciplinary Board.

11. On 6 November 2006 the applicant was punished with five days of solitary confinement by the Prison Disciplinary Board as a disciplinary sanction for having insulted and threatened prison officers. It was noted in the disciplinary decision that, contrary to the applicant ’ s allegations of ill ‑ treatment by prison guards, the medical report issued shortly after the incident had not noted any injuries on the applicant ’ s body.

12. On 7 November 2006 the Prison Disciplinary Board ’ s decision was served on the applicant.

13. On 16 November 2006 the applicant objected to that decision.

14. The applicant ’ s objections were dismissed as groundless by the Tekirdağ Enforcement Judge and subsequently by the Tekirdağ Assize Court on 27 November and 11 December 2006 respectively.

3 . Criminal proceedings against the prison guards

15. On 1 November 2006 the applicant lodged the following criminal complaint with the TekirdaÄŸ public prosecutor, via the prison administration, against the prison guards who had allegedly ill-treated him:

“Yesterday afternoon (on 31 October 2006) at approximately 3 p.m. I was taken out of my cell ... to collect a parcel. The officer who accompanied me insulted me for having said “hello” to a friend passing by in the corridor ... I did not see the need to respond to him.

Once we reached the parcel room, [the officer] told me to wait outside as there was someone else in the room [collecting a] parcel. I complied. He told me to move [and stand] by the door. I moved. He insisted that I stand near the wall ... and then pushed me against the wall.

[In response] I said to him: ‘ Do not touch me; talk to me like a human being. ’ Upon my response, he ... started attacking me physically; he punched me in the face, and started kicking my foot. I then told him that he did not have the right to [use] physical force and that he could institute proceedings against me if I had done something wrong. I also told him that I would institute proceedings against him.

Thereupon he said: ‘ Who are you to talk, to say that you will report me? ’ , and started attacking me again. My only response was to protect my face ...

But the ‘ officer ’ (I do not know his name but I can identify him) did not stop there; he distorted the situation by telling the other officers in the corridor [that I was] threatening and attacking him. Upon [hearing him] another officer also attacked me (he punched and kicked me). The other officers tried to stop the attackers.

I was then taken to the parcel room, and after I had collected my parcel four or five officers took me not to my own cell but to a small room. They insulted me ... and tried to provoke me ... They then put me in an individual cell (TEK 10).

...After they had brought my belongings to me in the [individual] cell, four or five officers attacked me physically in the cell. For a few minutes these four or five officers punched and kicked me.

They also threatened me and said: ‘ we ’ ll show you ’ , ‘ you are done ’ , and ‘ we will destroy you ’ . They also said: ‘ this is how we start proceedings ’ , and left.

I have thus been subjected to torture, physical attacks and insults.

...

In short, I am not safe here ... A new round of torture may be imminent if no precautions are taken.

...

[I therefore request]:

...

- The identification of the relevant individuals, the institution of legal proceedings against them, and their punishment, as necessary...”

16. On 3 November 2006 the governor of the Tekirdağ Prison forwarded the applicant ’ s criminal complaint to the Tekirdağ public prosecutor, along with his medical report (dated 1 November 2006), statements taken from three prison guards after the incident, and two incident reports. The governor also informed the public prosecutor that administrative proceedings in respect of the incident had been instituted.

17. On 27 November 2006 the TekirdaÄŸ public prosecutor requested information from the TekirdaÄŸ Prison administration regarding the outcome of the administrative proceedings instituted in respect of the incident of 31 October 2006. On 4 December 2006 the TekirdaÄŸ Prison administration furnished the public prosecutor with the information requested.

18. On 29 December 2006 the applicant made the following statement to the TekirdaÄŸ public prosecutor:

“As I have already explained in my criminal complaint, on 31 October 2006 I was taken to the parcel room to collect my parcel ... As I was waiting outside the parcel room, the ... officer standing next to me told me to lean against the wall ... I told him: ‘ do not touch me! I will do what is necessary if you tell me like a human being. ’ He then attacked me and called on the other officers [to help] as he was being attacked [by me]. They arrived and one of them [joined] the officer who had attacked me while the others separated us. After I had collected my parcel, they took me to room no. A ‑ tek-10, where they beat me ... I saw the doctor on 1 November 2006 in relation to this incident. The doctor examined me and saw my injuries. I do not understand why [he then] reported no signs of blows. I have lodged a separate complaint; I would also like to complain about the doctor. The prison governor was also there at the time of the event but he did not intervene ... therefore, I am also making a complaint against him.”

19. On 22 and 24 January 2007 the public prosecutor took statements from the prison governor and the two prison guards who had allegedly been involved in the incident. They all stated that the applicant had not been beaten up as alleged but had only been warned orally not to interact with another detainee and had then been restrained when he had started attacking one of them. They stated that had the applicant been ill-treated in any way, this would have been determined by the medical examination to which he had been subjected shortly after the alleged incident.

20. On 24 January 2007 the public prosecutor took a statement from the doctor who had examined the applicant on 1 November 2006. The doctor, who worked at the TekirdaÄŸ State Hospital but who had been on temporary duty at the TekirdaÄŸ F-Type Prison at the relevant time, made the following statement:

“... [He] was brought to the prison infirmary by the prison officers. He said that he had been beaten up and requested a report. I examined the individual but there were no signs of beating or the use of force on his body. I prepared my report accordingly. He showed me where he had allegedly been hit but I did not see any [injuries]. I [do] not understand why he lodged a complaint against me. I carried out my duty in accordance with the law. I do not accept the accusations against me.”

21. On the same day, the Tekirdağ public prosecutor decided not to prosecute the prison officers and the doctor. The public prosecutor found that, contrary to his allegations, the applicant had not been assaulted by the prison guards on the day in question but had only been warned a number of times to stop interacting with other inmates while waiting outside the parcel room. Instead of complying with these orders, the applicant had threatened and attempted to attack the guards. On account of his rowdy behaviour he had been placed in a single-person cell for security reasons. The doctor who had examined him the next day had moreover noted no signs of physical violence on the applicant ’ s body. The public prosecutor highlighted in this connection that he had questioned the prison doctor in relation to the applicant ’ s allegations and that the doctor had testified to the accuracy of his medical findings and had denied the applicant ’ s accusations. Lastly, the public prosecutor referred to the outcome of the disciplinary investigation instituted against the prison guards involved in the incident (see paragraph 25 below for details), which had found that the guards had acted lawfully. In the light of the evidence before him, the public prosecutor concluded that the applicant ’ s allegations of ill-treatment were unfounded.

22. On 19 February 2007 the applicant lodged an objection with the Çorlu Assize Court against the decision of the Tekirdağ public prosecutor. He argued that the public prosecutor had failed to establish the facts accurately and had, in particular, not examined with sufficient care his allegations of ill-treatment in cell no. A-T-10. A review of the footage from the surveillance cameras in the corridors would have verified the accuracy of his allegations. He further maintained that the prison doctor had initially noted the injuries on his body, lips and eyes, but that he might have subsequently changed his medical report under duress from the prison authorities.

23. On 13 March 2007 the Çorlu Assize Court requested the relevant investigation file from the Tekirdağ public prosecutor in order to be able proceed with the examination of the applicant ’ s objection. On 10 September 2007 the Assize Court repeated its request.

24. On 2 October 2007, following the receipt of the investigation file, the Çorlu Assize Court upheld the Tekirdağ public prosecutor ’ s decision not to prosecute on the basis of the contents of the investigation file and the reasoning in that decision, and dismissed the applicant ’ s objection.

4. Disciplinary proceedings against the prison guards

25. In the meantime, disciplinary proceedings were also instituted against the prison guards. However, on the basis of the statements given by the relevant guards and the applicant ’ s medical report dated 1 November 2006, the Prison Disciplinary Board decided on 22 November 2006 that the officers had acted in accordance with the law and that they had not committed any wrongdoings.

5. Other medical examinations and treatments received by the applicant prior and subsequent to the incident on 31 October 2006

26. On 17 May 2006 the applicant was diagnosed with acute sinusitis by the Tekirda ÄŸ Prison doctor and was prescribed medication to ease his breathing difficulties.

27. On 1 December 2006, prior to the execution of his disciplinary sanction, the applicant was subjected to a general medical check. The prison doctor who examined the applicant noted that his breathing and heartbeat were normal, that his blood pressure was 12/7, and that he was medically fit to serve his sanction.

28. On 26 June 2007 the applicant was once again examined by the prison doctor and given different medicine to provide relief for nasal congestion.

29. On 15 January 2008 the applicant was prescribed new medication for acute sinusitis. The prison doctor also asked for him to be referred for further examination to the ear, nose and throat clinic at the TekirdaÄŸ State Hospital.

30. On 17 January 2008 the applicant was examined at the ear, nose and throat clinic at the TekirdaÄŸ State Hospital, where he was prescribed a different nasal spray.

31. Apart from the examinations noted below, the applicant was admitted to the TekirdaÄŸ Prison infirmary on fifteen other occasions between 25 December 2003 and 26 June 2007, all at his request, with complaints such as vitamin deficiency, constipation, nausea, fatigue, gastritis and nail fungus.

32. It appears that on 2 February 2008 the applicant was transferred from the Tekirdağ F-Type Prison to the Bolu F-Type Prison. On the same day, the applicant was subjected to a medical examination, during which no injuries were noted on his body. The medical report, which bore the applicant ’ s signature, did not refer to any health complaints made by the applicant, and only mentioned that he suffered from sinusitis.

33. Documents submitted by the Government reveal that between 4 February 2008 and 28 October 2013 the applicant underwent some sixty ‑ five medical examinations, all at his request, at the Bolu F-Type Prison infirmary in relation to various health complaints, mostly concerning his dermatological and eye problems. Between the same dates, he was referred to the Bolu Ä° zzet Baysal State Hospital on at least twelve occasions in relation to the same problems.

COMPLAINTS

34. The applicant complained under Articles 3 and 13 of the Convention that he had been beaten, threatened and insulted by the prison guards at the TekirdaÄŸ Prison and that in the absence of an in-depth investigation he had not had an effective remedy in respect of his complaints of ill-treatment.

35. The applicant also maintained under Article 3, that he had not been provided with proper medical treatment for his broken nose after his alleged ill-treatment, which had caused him severe breathing problems and psychological distress.

THE LAW

A . The applicant ’ s alleged ill-treatment

1. The parties ’ submissions

36. The applicant alleged under Articles 3 and 13 of the Convention that he had been insulted, threatened and beaten at the TekirdaÄŸ F-Type Prison, as a result of which he had sustained a broken nose, cuts to his lips, serious injury to his knee, swellings of various sizes on his head and bruising on his eyes, none of which had been noted in the medical report issued by the prison doctor on 1 November 2006. The applicant stated at the time that he lodged his application on 21 February 2008 that his nose was still broken. He did not, however, provide any details in respect of the alleged threats and insults of the prison guards. The applicant further complained that he had not had an effective remedy in respect of his allegations of ill-treatment, despite the criminal complaint that he had lodged with the TekirdaÄŸ public prosecutor and that, in particular, the public prosecutor had refused to examine the surveillance camera footage, despite his persistent requests.

37. The Government denied the applicant ’ s allegations of ill-treatment, which they claimed were unsubstantiated. The Government stressed in this connection that the medical report that had been issued the day after the relevant incident had found no signs of beatings on the applicant ’ s body. The statements taken from the prison guards also supported the medical findings. The Government further claimed that an investigation had been promptly conducted by the Tekirdağ public prosecutor into the applicant ’ s allegations. After taking the applicant ’ s statement, the public prosecutor had questioned all the suspects personally, including the prison doctor. On the basis of those statements and the medical report of 1 November 2006, the public prosecutor had decided not to prosecute the implicated prison officers and the doctor. A separate administrative investigation had also been carried out into the matter, which had similarly found that the prison guards had not ill-treated the applicant. The Government argued that in the light of all the evidence available in the case file, the fact that the camera footage had not been examined could not have prejudiced the effectiveness of the investigation.

2. The Court ’ s assessment

38. The Court considers at the outset that the applicant ’ s 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 applicant ’ s alleged ill-treatment

39. The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV ; and Bouyid v. Belgium [GC], no. 23380/09, § 81, 28 September 2015).

40. The Court further reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court has adopted the standard of proof “beyond reasonable doubt” (see, among many other authorities, AvÅŸar v. Turkey , no. 25657/94, § 282, ECHR 2001 ‑ VII (extracts)). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita , cited above, § 121, and Bouyid , cited above, § 82).

41. In the instant case, the ill-treatment complained of by the applicant mainly consisted of beatings, which had allegedly left him with a broken nose and serious injuries to his lips, face, head and knees. The Court, however, considers that several elements cast doubt on the veracity of the applicant ’ s claims.

42. The Court notes first and foremost that the medical report issued the day after the incident in question indicated no signs of ill-treatment on the applicant ’ s body. The Court considers in this connection that any ill ‑ treatment such as that alleged by the applicant, which he went so far as to describe as “lynching” (see paragraph 5 above), would have left marks on his person that would have been easily observed by the prison doctor during the examination carried out the very next day (see, for example, Ahmet Mete v. Turkey (no. 2) , no. 30465/02, § 33, 12 December 2006 ; and Ç elik v. Turkey (dec.), no. 2600/06, 8 January 2013). The Court is mindful of the applicant ’ s allegation that the prison doctor altered his initial report, which had duly noted his injuries. There is, however, no material in the case file to corroborate those allegations, which were also denied by the prison doctor and subsequently dismissed as unfounded by the TekirdaÄŸ public prosecutor.

43. The Court stresses in particular that the applicant had become aware of the findings of the impugned medical report on 7 November 2006 at the latest, when he received the decision of the Prison Disciplinary Board (see paragraph 12 above). However, despite the clear indication in the disciplinary decision that the medical report in question had recorded no signs of ill-treatment, the applicant did not request a new medical examination, which at that point could still have revealed at least some of the injuries he had allegedly sustained. Nor did he argue that he had been refused permission to see a doctor (see Labita , cited above, § 125; Cenbauer v. Croatia (dec.), no. 73786/01, 5 February 2004; and Arzu v. Turkey , no. 1915/03, § 34, 15 September 2009).

44 . Admittedly, the applicant challenged the accuracy of the medical report in question. However, the Court cannot ascertain the date on which the applicant brought that challenge for the first time. The information and documents submitted by the Government, which were not contested or supplemented by the applicant, suggest that he brought this issue to the attention of the Tekirda ÄŸ public prosecutor during his interview on 29 December 2006 – that is to say, almost two months after his alleged ill ‑ treatment – when any signs of beating would most likely have disappeared.

45. The Court notes in any event that on 1 December 2006, prior to the execution of his disciplinary sanction, the applicant was subjected to a general medical check, during which no signs of ill-treatment or other injuries were noted on his body. This is at odds with the applicant ’ s allegation that his nose had still been broken at the time that he lodged his application with the Court on 21 February 2008. The Court notes likewise that – contrary to his allegations – none of the subsequent medical examinations that the applicant underwent in the following months, including an examination conducted by an ear, nose and throat specialist, found that he was suffering from a serious injury to his nose.

46. All in all, the Court considers that there is no medical evidence in the case file to support the applicant ’ s allegations of ill-treatment.

47. As for any other evidence that might corroborate the applicant ’ s claims, the Court notes the applicant ’ s statement in the application form that his friend, M. Ö ., had witnessed his ill-treatment outside the parcel room (see paragraph 4 above). However, the applicant made no such claim to the public prosecutor, who could otherwise have called M.Ö. as a witness, which further undermines the plausibility of his claims.

48. The Court recognises that it may prove difficult for prisoners to obtain evidence of ill-treatment by their prison officers (see Labita , cited above, § 125, and Cenbauer (dec.), cited above). It nevertheless considers that on the particular facts of the instant case, the applicant has not taken all steps that could have been reasonably expected of him to substantiate his allegations of ill-treatment.

49. In the light of the foregoing, the Court cannot but conclude that the applicant has failed to lay the basis of an arguable claim in respect of his allegations of ill-treatment. This part of the application should therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

(b) The lack of an effective investigation

50. The applicant considered the investigation carried out by the Tekirdağ public prosecutor to have been ineffective mainly on account of the latter ’ s failure to examine footage from the surveillance cameras in the prison corridors, despite his allegedly persistent requests.

52. Accordingly, in the particular circumstances of the present 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 (see S.T. v. Turkey (dec.), no. 28310/95, 9 November 1999, and D.E. v. Bulgaria (dec.), no. 44625/98, 1 July 2004). It follows that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.

B . The alleged inadequacy of the medical assistance provided

53. The applicant alleged under Article 3 of the Convention that he had not received adequate medical care in respect of his nose, which had been broken as a result of the ill-treatment he had been subjected to on 31 October 2006, and that he suffered from breathing problems as a result. The applicant stressed that he had experienced no breathing problems prior to the impugned incident.

54. The Government argued that the applicant had undergone many medical examinations after the incident in question, including in hospitals. However, on none of those occasions had he requested a special examination in respect of the injuries resulting from his alleged ill ‑ treatment. The Government added that the medical reports in the case file revealed that the applicant ’ s breathing problems did not result from any ill ‑ treatment but had been caused by other respiratory disorders.

55. The Court reiterates that Article 3 of the Convention imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Mouisel v. France , no. 67263/01, § 40, ECHR 2002 ‑ IX; KudÅ‚a v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000 ‑ XI; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 128, ECHR 2009). Hence, a lack of appropriate medical care may in principle amount to treatment contrary to Article 3 (see Ä°lhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000-VII). In determining whether the authorities have discharged their health-care obligations vis-à-vis a detainee in their charge, the Court ’ s task is to assess the quality of the medical services provided to the detainee in the light of his state of health and “the practical demands of imprisonment” and to determine whether, in the circumstances of a particular case, the health-care standard applied was compatible with the human dignity of the detainee (see, for instance, Kaverzin v. Ukraine , no. 23893/03, § 138, 15 May 2012, with further references).

56. The Court notes that it has already rejected the applicant ’ s complaint about his alleged ill-treatment by prison officers on 31 October 2006 as manifestly ill-founded (see paragraph 49 above). There is, therefore, no evidence to support his allegation that his nose had been broken by prison officers on 31 October 2006 and that he had suffered from breathing problems as a result.

57 . It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 3 March 2016 .

             Stanley Naismith Julia Laffranque Registrar President