SECOND SECTION

DECISION

Application no . 40314/08 Sinan TEKPETEK against Turkey

The European Court of Human Rights ( Second Section ), sitting on 25 November 2014 as a Chamber composed of:

Guido Raimondi , President, Işıl Karakaş , András Sajó , Nebojša Vučinić , Egidijus Kūris , Robert Spano , Jon Fridrik Kjølbro , judges, and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 13 August 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 Sinan Tekpetek , is a Turkish national, who was born in 1980 and lives in Istanbul . He is represented before the Court by Mr M. Kaya , a lawyer practising in Istanbul .

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

The circumstances of the case

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

1. The applicant ’ s apprehension and ill-treatment

4. According to the applicant, o n 26 Ju ly 2007, at approximately 11.15 p.m., he was stopped by the police for a routine identity check in Taksim Square, Istanbul. After examining his identity card and running his information through the police database, the police let the applicant go. However, as he was leaving Taksim Square, a police car approached him from behind and a number of police officers grabbed him and shoved him into the police car. Once inside the car, three police officers sprayed him with pepper gas and beat him, whil st swearing at him. The applicant ’ s pleas to find out the reason for this treatment were left unanswered.

5. The applicant claimed that f ollowing a fifteen-minute drive, during which he continued to be assaulted, he was taken out of the car to find himself in a secluded area by the old city walls which he identified as the Yedikule or Yenikapı district of Istanbul, where two more police cars were waiting. There, the applicant was once again insulted, threatened at gunpoint, kicked, punched and beaten with a truncheon and subjected to pepper gas by a total of ten to twelve police officers for over one hour. He was eventually put back in the car where the beatings continued until he was thrown out of the moving car somewhere near Karaköy around 1.45 a.m. that same night. The applicant was subsequently taken to the Haydarpaşa Numune Hospital by some friends whom he contacted for help.

6. The Government disputed the facts as submitted by the applicant. They claimed that he had not even been stopped for an identity check on the relevant night as alleged.

2. The applicant ’ s medical examinations and the criminal investigation

7. After preliminary examinations at the Emergency Room at the HaydarpaÅŸa Numune Hospital, the applicant was referred to the Siyami Ersek Thoracic and Cardiovascular Surgery Training and Research Hospital (“the Siyami Ersek Hospital”) with suspected chest trauma. At an unspecified time on 27 July 2007 the applicant was examined by a specialist at the Siyami Ersek Hospital, who noted the following injuries on his body: an ecchymosis of 20 x 3 cm on the left arm; an ecchymosis of 10 x 3 cm on the left cervical area behind the left ear; haematoma on the left ear; an ecchymosis of 3 x 1 cm on the left scapula, at the level of the spine of the scapula; a number of ecchymotic patches on the back measuring between 1 ‑ 5 x 0.5 cm; an ecchymosis of 5 x 2 cm at the level of the right spine of the scapula; an ecchymosis of 2 x 2 cm on the right arm joint, at the posterior side; an ecchymosis of 10 x 3 cm on the right lateral arm starting from the shoulder level; ecchymotic patches spread over an area of 10 x 5 cm on the corpus sternum; two lesions of 5 cm, located 10 cm below the right patella; and a fracture of the sixth and seventh ribs on the right side.

8. On 30 July 2007 the applicant lodged a criminal complaint with the Beyoğlu p ublic p rosecutor ’ s office against the police officers who had allegedly assaulted him. The applicant stated in his complaint that he did not remember all the details of the ill-treatment he had received at the hands of the police officers, as he had passed out a number of times on account of the physical trauma and pepper gas he had been subjected to, but he believed that the police car in which he had been kidnapped was a Renault Clio. He added that the police might have targeted him upon finding out during his identity check that he was standing trial for assaulting several police officers and/or that he was the managing editor of a number of well-known opposition publications. The applicant asked the public prosecutor to summon the police officers on duty at the place of the incident on the night of 26 July 2007 for an identification parade and to examine images from the security cameras of the banks and other buildings in the area.

9. On the same day, the Beyoğlu p ublic p rosecutor ’ s office filed an urgent request with the Haydarpaşa Numune and the Siyami Ersek Hospitals for the submission of the medical reports documenting the injuries sustained by the applicant as a result of the alleged incident.

10. On 31 July 2007 the Beyoğlu p ublic p rosecutor took the applicant ’ s statement in relation to his complaints ; the applicant reiterated his previous allegations. He added that the police officers involved in the incident were between the ages of 20 and 25, that he clearly remembered the face of one of the officers and could identify another one by his distinct accent. The public prosecutor subsequently referred the applicant to the Beyoğlu Branch of the Forensic Medicine Institute for further medical examinations.

11. In its report dated 31 July 2007 the Forensic Medicine Institute made the following findings: bruising and ecchymosis of 3 x 3 cm, 1 x 1 cm and 2 x 1 cm on the left scapula; scabbed scratches of 1 x 1 cm and 3 x 1 cm on the waist; scabbed scratches of 1 x 1 cm and 2 x 1 cm on the right elbow; ecchymosis on the right and left arms; ecchymosis around the left eye and ear; scabbed scratch on the front side of the right leg; a wide-spread yellow ‑ purple ecchymosis of 15 x 15 x 20 cm at the centre o f the left gluteal region; an ecchymosis of 3 x 1 cm on the right gluteal region; and ecchymosis and pain on the right side of the chest. The report noted that the injuries sustained by the applicant could not be treated by simple medical intervention and recommended that a radiologist examine his head and chest scans. There is no information in the case-file as to any further examinations of the head or the chest as suggested.

12. In the meantime, the applicant ’ s alleged ill-treatment by the police was covered in a number of national newspapers. In the issue of 29 July 2007 of the daily Radikal , the police authorities were reported as stating that they had no knowledge of the incident but that they would investigate the allegations.

13. O n 29 November 2007 the BeyoÄŸlu p ublic p rosecutor requested the BeyoÄŸlu Security Directorate to make available any CCTV footage of the place of the alleged incident from 11.30 p.m. until midnight on the relevant night.

14. On the same day the BeyoÄŸlu p ublic p rosecutor also requested from the BeyoÄŸlu Security Directorate the list of police officers on duty at Taksim Square on 26 and 27 July 2007 between 11.15 p.m. and 1.45 a.m., along with their respective photographs.

15. Upon the public prosecutor ’ s request, three police officers, namely S.Ç., M.K. and S.C., were identified as being on duty at Taksim Square at the indicated time. On 5 December 2007 the Beyoğlu Security Directorate informed the Beyoğlu p ublic p rosecutor that while the officer S.Ç. had been instructed to report to the prosecutor ’ s office with a photo, the remaining two officers had changed departments and could not be contacted at their new places of duty.

16. On 4 January 2008 the Istanbul Security Directorate advised the BeyoÄŸlu p ublic p rosecutor that , although a CCTV camera was in place at the place of incident, there was no recording available from the relevant night , as CCTV footage was preserved for only ten days.

17. On 10 January 2008 the two remaining police officers, namely M.K. and S.C., were successfully notified of the instruction to present themselves at the Beyoğlu p ublic p rosecutor ’ s office.

18. On 15 February 2008, following S.Ç. ’ s failure to report, the Beyoğlu p ublic p rosecutor summoned him once again to take his statement.

19. On 14 May 2008 the Beyoğlu p ublic p rosecutor requested the Bayrampaşa Branch of the Rapid Response Force to arrange for the applicant to review the photographs of all the officers and their chiefs on duty at the Rapid Response Force for identification of the suspects who had allegedly carried out the assault. A copy of this request was given to the applicant ’ s lawyer in person. The Government alleged that, despite being aware of the public prosecutor ’ s instruction, the applicant never applied to the Bayrampaşa Branch of the Rapid Response Force with a view to identifying the suspects.

20. On 14 May 2008 and 8 February 2009, respectively, the Beyoğlu public prosecutor reissued summons in relation to S.Ç., M.K. and S.C., none of whom had reported to give a statement as ordered.

21. On 12 February 2009 the Beyoğlu Security Directorate informed the Beyoğlu p ublic p rosecutor that the summons of 8 February 2009 could not be notified to S.Ç. as he had since been appointed to the Sarıyer Security Directorate (in Istanbul).

22. On 24 April 2009 the Beyoğlu Security Directorate notified the Beyoğlu p ublic p rosecutor that the officer M.K. had been instructed to report to the prosecutor ’ s office as requested, but S.C. could not be reached as he had been appointed to the Esenler Security Directorate (in Istanbul). Accordingly, on 28 May 2009, the public prosecutor ’ s office forwarded the summons in relation to S.C. to th e Esenler Security Directorate and also reiterated t h e request regarding M.K. t o the Beyoğlu Security Directorate.

23. On 9 November 2009 the Beyoğlu p ublic p rosecutor issued an order t o bring S.Ç., M.K. and S.C. to his office, by force, to give statements.

24. On 25 December 2009 the Sarıyer Security Directorate advised the Beyoğlu p ublic p rosecutor ’ s office that S.Ç. could not be forcibly brought to the prosecutor ’ s office as he had been assigned outside Istanbul and was now stationed at t he Van Security Directorate, as of 18 June 2009. Accordingly, on 13 January 2010 the Beyoğlu p ublic p rosecutor ’ s office contacted the Van p ublic p rosecutor ’ s office to arrange for the questioning of S.Ç.

25. In the meantime, on 29 December 2009 the Esenler Security Directorate similarly informed the Beyoğlu p ublic p rosecutor that S.C. had been appointed to the Tunceli Security Directorate in the east of Turkey. Accordingly, on 13 January 2010 the Beyoğlu p ublic p rosecutor ’ s office contacted the Tunceli p ublic p rosecutor ’ s office to take S.C. ’ s statement.

26. On 16 February 2010 the Van public prosecutor took S. Ç . ’ s statement. S.Ç. indicated that he had no recollection of an incident from the indicated date and that he could possibly remember more if he were given the incident report or other records from the relevant night.

27. On 12 May 2010 the BeyoÄŸlu p ublic p rosecutor took the statement of M.K., who briefly denied all the allegations against him. He said that as a stationary unit, they could only leave their posts at Taksim Square in response to a call. He also asserted that the police car in their service at the relevant time was a Mercedes Vito.

28. On 21 May 2010 S.C. reported to the Tunceli p ublic p rosecutor ’ s office to give his statement in connection with the applicant ’ s complaints. He noted at the outset the considerable amount of time that had lapsed since the alleged incident . He then stated that he had not taken part in any such incident and added that his unit, stationed constantly at Taksim Square, rarely used any vehicles.

29. On 10 June 2010 the Beyoğlu p ublic p rosecutor decided not to bring a prosecution against the police officers S.Ç., M.K. and S.C. in connection with the applicant ’ s alleged ill-treatment on the night of 26 July 2007. Relying on the statements made by the three officers, the public prosecutor held that there was insufficient evidence or suspicion to proceed with the prosecution of these officers. The applicant did not appeal against the public prosecutor ’ s decision.

30. On the same date the Beyoğlu p ublic p rosecutor issued a permanent search warrant, in effect until 26 July 2022, which instructed the Beyoğlu Security Directorate to continue its search for the perpetrators and to report to the prosecutor ’ s office every three months with an update on the investigation.

31. It appears that the investigation, which is still open, has n ot yielded any results thus far.

COMPLAINTS

32. The applicant complain ed under Article 3 of the Convention that he had been severely beaten, insulted and threatened by police officers who abducted him in Istanbul on the night of 26 July 2007.

33. He moreover contend ed under Articles 3 and 6 § 1 of the Convention that the domestic authorities had failed to conduct an effective investigation into his allegations of ill-treatment and had allowed the evidence to perish by failing to act promptly.

THE LAW

34. The applicant alleged under Article 3 of the Convention that he had been ill-treated by the police . He further maintained under Articles 3 and 6 § 1 that the national authorities had failed to investigate his allegations of ill ‑ treatment in an effective manner .

35. The Government argued in the first place that the application should be rejected as being incompatible ratione personae with the provisions of the Convention , as the authority form submitted to the Court had only been signed by the applicant and did not bear his representative ’ s signature. Alternatively, they claimed that the applicant had failed to exhaust the available domestic remedies in that he had not objected to the decision of the Beyoğlu public prosecutor not to bring a prosecution against the three police officers and that he had, moreover, not brought his complaints before the Constitutional Court, which had been entrusted with the power to provide redress for violations of the rights and freedoms protected by the Convention as acknowledged by the Court in its decision of Hasan Uzu n v. Turkey ((dec.), no. 10755/13, §§ 68-71, 30 April 2013).

36. The applicant did not comment on the Government ’ s objections.

37. The Court considers at the outset that the applicant ’ s complaints should be examined under Article 3 of the Convention alone.

38. Turning to the Government ’ s preliminary objections, t he Court does not consider it necessary to examine each one of them, as it considers that the application should be rejected in any event for non-exhaustion of domestic remedies in view of the applicant ’ s failure to appeal against the decision of the Beyo ğ lu public prosecutor.

39. In this connection, the Court recalls that the purpose of the exhaustion rule under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Thus, the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and wit hin the prescribed time-limits (see, among many authorities , Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts)).

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Stanley Naismith Guido Raimondi Registrar President