SECOND SECTION

DECISION

Application no . 2600/06 Hamit ÇELİK against Turkey

The European Court of Human Rights (Second Section), sitting on 8 January 2013 as a Chamber composed of:

Guido Raimondi , President, Danutė Jočienė , Peer Lorenzen , Dragoljub Popović ,

András Sajó , Işıl Karakaş ,

Paulo Pinto de Albuquerque , judges,

and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 12 December 2005,

Having regard to the decision of 9 June 2009,

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 Hamit Çelik , is a Turkish national, who was born in 1979 and lives in Mardin . He is represented before the Court by Mr E Kuzu , a lawyer practising in Mardin . The Turkish Government (“the Government”) are represented by their Agent.

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

3. On 3 March 2004 at 3.50 a.m. a police patrol from the Anti-Terrorist Branch of the Mardin Security Headquarters received information that a suspicious person on a motorbike had been seen near the Cumhuriyet Police Station. When the police officers arrived at the scene, the applicant, who was riding the motorbike, attempted to escape, and fell off the bike. This fact was uncontested by the applicant. According to the arrest report, signed by the applicant, he was arrested at 4.10 a.m. When he was arrested, the applicant said that a terrorist attack on the police station was being planned and that he had hidden the grenades that would be used in the attack in his house .

4. At 4.30 a.m. the applicant was taken to the Kızıltepe State Hospital . The doctor who examined the applicant noted a hyperaemia on his right shoulder, a healing wound of 3 x 2 cm on his right arm, and another hyperaemia of 5 x 1 cm on his left hand.

5. According to the police custody register, at 4.40 a.m. the applicant was taken into custody at the Mardin Security Headquarters.

6. At 6.15 a.m. the same day, the applicant went to his house with police officers and showed the officers where he had hidden the grenades. According to the crime scene report, the police found two Russian-made grenades in the garden of the applicant ’ s house.

7. According to police reports, the applicant had a meeting with his lawyer between 11.50 a.m. and 12.05 p.m. He subsequently made a detailed statement to the police at 3 :00 p.m., and admitted that he was involved in the activities of the PKK (the Workers ’ Party of Kurdistan), an illegal organisation.

8. On 4 March 2004 the applicant was once again examined by a forensic doctor, who noted that there were no injuries other than those observed in the medical report of 3 March 2004.

9. On the same day the applicant was brought before the Kızıltepe public prosecutor. There, in the presence of his lawyer, the applicant stated that he had made his statement to police under duress. Furthermore, he confessed to the accusations in part and stated that he had hidden the grenades in his garden.

10. The applicant was subsequently brought before the Kızıltepe Magistrates ’ Court. There, still in the presence of his lawyer, he argued that he had been ill-treated at the police station. In this connection, he alleged that the police officers had pointed a gun at his head and threatened to kill him; his genitals were also kicked. The applicant showed his back and arms to the judge, who noted in the transcript of the hearing that there was a bruise on his right arm and another on his right shoulder. At the request of the applicant ’ s lawyer, the judge ordered that the applicant be medically examined in a health establishment chosen by the public prosecutor, with a view to determining whether he had been subjected to ill ‑ treatment. The applicant was then remanded in custody on the instruction of the judge.

11. Subsequently, the Kızıltepe public prosecutor initiated his own investigation into the applicant ’ s allegations. Within the context of this investigation, on 31 March 2004 the applicant was examined by a doctor at the Diyarbakır branch of the Forensic Medicine Institute. The doctor did not observe any sign of ill-treatment on the applicant ’ s person.

12. On 7 May 2004 the applicant gave a statement to the prosecutor. He claimed first that he had been arrested at 10 :00 p.m. on 2 March 2004 at his home. He further alleged that following his arrest he was blindfolded and ill-treated. In this connection he asserted that electric shocks had been administered to him and that he had been beaten on the ribs and chest with a truncheon. He also argued that he had been subjected to falaka (beating on the soles of the feet).

13. On the same day the public prosecutor obtained statements from the two co-accused who had been arrested and put on trial with the applicant. One of them, M.A., stated that he had not seen or heard that the applicant had been ill-treated. The other, A.F., stated that they had been detained in the police headquarters for one night and two days and that he had not seen that the applicant had been subjected to ill-treatment. He stated however that the applicant had had a little difficulty in walking.

14. The public prosecutor also heard the accused officers. The officers denied the accusations and stated that the applicant had not been ill-treated as alleged.

15. On 18 May 2005 the Kızıltepe public prosecutor issued a decision of non-prosecution in relation to the applicant ’ s allegations, holding that there was insufficient evidence to bring criminal proceedings. On the basis of the police custody records and witness statements, the public prosecutor found it established that the applicant had been arrested on 3 March 2004. She further opined that the injuries noted in the medical report of 3 March 2004 could have occurred prior to the applicant ’ s arrest. Indicating that the statements made by the applicant during the investigation were contradictory, the prosecutor concluded that the applicant had made a false allegation of ill-treatment to avoid conviction by the criminal court.

16. The applicant lodged an objection, which on 6 July 2005 was dismissed by the Midyat Assize Court .

COMPLAINT

17. The applicant complained under Article 3 of the Convention that he had been ill-treated and that the ensuing investigation into his allegation had not been conducted diligently.

THE LAW

18. The applicant alleged that he had been ill-treated and that his complaint had not been examined thoroughly by the domestic authorities. In that regard, he relied on Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

19. The Government maintained that the applicant ’ s allegations were unsubstantiated.

20. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court 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).

21. In his application form the applicant complained that he had been beaten, threatened, and subjected to electric shocks during his police custody. The Court however considers that several elements cast doubt on the veracity of the applicant ’ s claims.

22. The applicant alleged in the first place that he had been arrested at 10 :00 p.m. on 2 March 2004 in his house. The Government denied this. The Court observes at the outset that, according to official documents, including the arrest report which was signed by the applicant himself, he was arrested at 4.10 a.m. near the Cumhuriyet Police Station in Mardin on 3 March 2004. This fact is further supported by the police custody records. Having examined the case file, the Court finds no reason to dispute the findings of the prosecutor (see paragraph 15 above).

23. The Court further finds it striking that during the domestic proceedings the applicant ’ s statements about the ill-treatment he had alleged were not consistent with each other. In this connection, it observes that while before the public prosecutor the applicant maintained that he had given his police statement under duress, during his interrogation by the investigating judge he alleged that a gun had been pointed at his head and that his genitals had been kicked. Finally, when the Kızıltepe public prosecutor took his statement on 7 May 2004, he stated that he had been subjected to electric shocks, that his ribs and chest had been beaten with truncheons, and that he had been subjected to falaka (see paragraphs 10 and 12 above).

24. The Court also observes that the first medical report, drawn up before the applicant was placed in police custody, namely at 4.30 a.m. on 3 March 2004, noted a hyperaemia on the applicant ’ s right shoulder, a healing wound of 3 x 2 cm on his right arm, and another hyperaemia of 5 x 1 cm on his left hand. Moreover, the second medical report, drawn up on the last day the applicant was in police custody, revealed no new signs of ill-treatment on his body. The Court further notes that the applicant was also examined at the Diyarbakır Forensic Medicine Institute on 31 March 2004 and the medical report concluded that there were no signs of ill-treatment on his body. The Court considers that the indications noted in these medical reports are insufficient to substantiate the severe ill-treatment alleged by the applicant (see Ahmet Mete v. Turkey (no. 2), no. 30465/02, § 33, 12 December 2006). In this respect, the Court notes that any ill-treatment inflicted in the manner described by the applicant would have left serious marks on his body and would have been observed by the doctors who examined him. Therefore, the findings of the medical reports issued on 3 and 4 March 2004 do not confirm or match the applicant ’ s description of ill-treatment. Furthermore, the witnesses heard by the prosecutor stated that they had not seen or heard that the applicant had been ill-treated at the police station. In the light of the foregoing, the Court concludes that there is nothing in the case file to show that the applicant was ill-treated as alleged.

25. As regards the applicant ’ s allegation that the domestic investigation was ineffective, the Court notes that the investigation in the instant case was initiated by the Kızıltepe public prosecutor of his own motion. In the course of the investigation, the prosecutor heard the applicant, the accused police officers and the two co-accused who had been held in custody with the applicant in connection with the same offence. The prosecutor further took into consideration the applicant ’ s allegation regarding his unacknowledged detention period, but found that claim unsubstantiated. The Court has examined those actions from the standpoint of the requirements of an effective investigation required under Article 3 of the Convention (see Batı and Others v. Turkey , nos. 33097/96 and 57834/00, §§133-137, ECHR 2004 - IV (extracts)), and it does not discern any shortcomings.

26. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares inadmissible the remainder of the application.

Stanley Naismith Guido Raimondi Registrar President