SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33658/04 by Mustafa Ä° LHAN against Turkey

The European Court of Human Rights (Second Section), sitting on 5 May 2009 as a Chamber composed of:

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

Having regard to the above application lodged on 11 August 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 FACTS

1 . The applicant, Mr Mustafa İlhan, is a Turkish national who was born in 1968 and lives i n I stanbul . He is represented before the Court by Mr M. Muller and Mr Tim Otty, lawyers practising in London , and Mr Kerim Yıldız. 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.

1. The applicant ’ s version of the events

3 . On 11 February 2004 between 9.00 and 9.30 am, the applicant was waiting at a petrol station in the Sultanbeyli district when four policemen forced him into a car. He was blindfolded and driven by the policemen for approximately 30 or 40 minutes. On arrival at their destination, the police directed the applicant into a room and forced him to strip and change into clothes which resembled a pair of pyjamas.

4 . The applicant was questioned about his and his brother ’ s detention two months previously in relation to the bombings of synagogues, the British Consulate and HSBC bank in Istanbul in November 2003. He was questioned about the purposes of his supposed travel abroad and his knowledge of a man named “Parmaksız” (“Fingerless”). In total he was questioned for approximately 12 hours.

5 . The applicant was allegedly subjected to the following treatment during that period: he was kept blindfolded and beaten with a truncheon on his buttocks. He was forced to kneel and beaten on the soles of his feet and prevented from falling by threats. He was placed in a prone position and threatened with rape with a truncheon and a bottle. He was left with his pyjama trousers pulled down and prevented from pulling them up to cover himself. He was forced to listen to the cries of other detainees being tortured. He was locked in a small cupboard and threatened to the effect that he would be kept there for a week.

6 . After 12 hours, the applicant was asked to sign for his belongings and was then blindfolded again, before being driven to an unknown destination in a forest where he was left, still blindfolded. Two passers-by stopped to assist the applicant because they had noticed that he was blindfolded. They informed him that he was in Bahçeköy in the Belgrad forest in the Sarıyer District. It was between 9.00 and 10.00 pm. With the assistance of the passers-by, the applicant telephoned the gendarmes, who arrived and transported him to the Gendarmerie Station. There, the applicant made a statement, but when he explained the nature and subject of the complaint, the gendarme who was taking the statement ushered the applicant out of the building, and referred him to a police station.

7 . The applicant ’ s lawyer contacted the public prosecutor in order to make a complaint, but the prosecutor refused to deal with the complaint as it was 1.00 am the next day. However, the gendarme relented and took a statement from the applicant.

8 . On 12 February 2004 the applicant and his lawyer were taken to Tarabya Police Station where the applicant made a statement about the events of the evening. In the following days the applicant attempted to follow up the complaint with the public prosecutor so that a legal action could be initiated against the alleged perpetrators who had mistreated him. The applicant was re-directed from the Sarıyer Public Prosecutor ’ s Office to the Sultanbeyli Public Prosecutor ’ s Office, then from there to a police station.

9 . On 19 February 2004 the Kartal public prosecutor referred the applicant for a medical examination. The applicant ’ s medical report of that day noted a triangular ecchymosis of approximately 10x10x10cm in the mid-lateral area of the left hip and some green and yellow coloured ecchymoses around it.

2. The Government ’ s version of the events

10 . On 11 February 2004 the applicant ’ s brother, Mehmet Ä°lhan, applied to the Sultanbeyli Chief Public Prosecutor ’ s office, complaining that his brother Mustafa Ä°lhan (the applicant) had been abducted at a petrol station where he had gone to wash his car. He claimed that the persons who had abducted him had driven a car with the registration number 34 UVG 10. He explained that one of the suspects had got into the applicant ’ s car and had driven away. He had watched the events from his own car, then followed them for a while, but lost track of them on the way. He asked the Public Prosecutor to help him find his brother. The Public Prosecutor immediately launched an investigation and ordered the Sultanbeyli Security Director to interview the complainant, to send the victim, when found, for a medical examination and also to take statements from suspects. Meanwhile, the vehicle bearing the above ‑ mentioned registration number was found. It was not a car, as alleged by the applicant ’ s brother, but a trailer.

11 . On the same day, the applicant ’ s brother applied to the Sultanbeyli Police Headquarters again, seeking help in finding his brother. He claimed that two persons had approached his brother, that one of them made him get into their car and that the other had driven away in his brother ’ s car. He also noted that there was no one whom he suspected of abducting his brother.

12 . On 12 February 2004 the applicant first applied to the Gendarmerie and then to the Tarabya Security Directorate complaining that he had been abducted by unknown persons with his car and that his car had been left in the parking lot of a plant owned by a holding company called Vi-Kor Nur Elektrik. The gendarme officers took statements from the applicant about the course of the events and suspects. Furthermore, a sketch map of the plant was drawn up by the gendarmes indicating the location of the plant and the place where the applicant ’ s car was parked. The gendarmes then retrieved the video footage recorded by the security camera of the plant and took it for examination. The applicant ’ s car was returned to him. He was then sent to the Istinye State Hospital for a medical examination. The report drawn up by a medical doctor stated that the applicant ’ s general condition was good but that there was an ecchymosis on his left hip. Since the applicant complained of a pain in his nose, the doctor sought an expert report from an otolaryngologist. After examining the applicant, the otolaryngologist opined that there was no anomaly in the applicant ’ s nose.

13 . On the same day, the police officers took statements from the applicant, his brother and the two witnesses who had found the applicant blindfolded in Sarıyer. The witnesses stated that they had seen two persons, who had left the applicant in the forest and had run away. However they did not see the faces of the suspects.

14 . Again on the same day, the Sarıyer Chief Public Prosecutor ’ s office issued a permanent search warrant to find the persons who had abducted the applicant.

15 . On 19 February 2004 the applicant was sent to the Forensic Institute for further examination. The medical doctor found a triangle shaped ecchimosis measuring 10x10x10cm on the applicant ’ s left hip. No other injuries were found on his body. The applicant did not object to the findings contained in this report.

16 . On 25 February 2004 the Sultanbeyli Chief Public Prosecutor issued a decision of non-jurisdiction since the events in question had occurred within the borders of the Sarıyer district.

17 . On 9 April 2004 three gendarme officers and two security officers from the Vi-Ko Nur Elektrik Company watched the video footage recorded by the security cameras. The report prepared by them stated that a white car whose registration number could not be seen had entered the parking lot of the plant and had been parked, and that a man of 30-35 years of age wearing dark clothes had left the car and walked away.

18 . On 22 April 2004 a public prosecutor took statements from the applicant. The applicant gave detailed information about the events. He claimed that he had been abducted by four policemen and had been detained and tortured while blindfolded at an unknown place. He alleged that he had made statements at the Tarabya Security Directorate and that some police officers, whom he had understood to be from the anti-terrorism department, had tried to influence and direct his statements to the effect that the suspects had attempted to extort money. He asked the authorities to identify and bring the policemen to justice.

19 . On 13 May 2004 a public prosecutor from the Sarıyer Chief Public Prosecutor ’ s office sent a letter to the anti-terrorism department of the Istanbul Security Directorate, requesting them to show the applicant and his lawyer photographs of all the police officers working in their department.

20 . On the same day, the applicant was shown the photographs of 689 police officers attached to the anti-terrorism police department. He identified two officers whom he suspected of being the perpetrators of his abduction, and stated that if he saw them in person he would recognise them.

21 . On 25 May 2004 the Sarıyer Chief Public Prosecutor summoned the applicant and the two police officers identified by him to his office for a meeting on 27 July 2004.

22 . On 23 July 2004 one of the public prosecutors from the Sarıyer Chief Public Prosecutor ’ s office sent the VHS 240 XS brand cassette containing footage recorded by the security cameras of the Vi-Kor Nur Elektrik Company to a person called Ibrahim Yüzer and asked him to copy the footage onto a CD.

23 . On 27 July 2004 the applicant met the two police officers whom he had identified from the photographs. He stated that these were not the same officers who had abducted him.

24 . On 12 August 2004 the Sarıyer Public Prosecutor took statements from the applicant ’ s younger brother, Mr Hamit Ilhan, who, together with Mehmet Ilhan, allegedly witnessed the abduction of the applicant.

25 . On the same day, the Sarıyer Public Prosecutor, the applicant, his lawyer and his brother Hamit Ilhan watched the video footage of the security camera, which had been copied onto a CD. The applicant and his lawyer claimed that the video footage which they had watched was not the same as the original video footage recorded by the security cameras. The Public Prosecutor then decided to watch the original video cassette containing the footage recorded by the security cameras. In this connection he asked the Sarıyer Security Directorate to send the original video cassette and its copies, recorded on 8 CDs, to his office.

26 . On 20 October 2004 the Sarıyer Public Prosecutor issued a permanent search warrant for the persons who had abducted the applicant.

27 . On 27 December 2007 the Sarıyer Public Prosecutor, together with a police officer and a secretary, watched the original video cassette and 8 CDs. However, they concluded that it was not possible to make any finding given the poor quality footage. The Sarıyer Public Prosecutor then sent the original video cassette and 8 CDs to the photograph and film department of the Istanbul Security Directorate. He requested a technical analysis of the video cassette and the CDs, and a report on whether the footage was clear enough to enable the identification of the person who had abandoned the car in the parking lot.

COMPLAINTS

28 . The applicant complained under Article 3 of the Convention that he had been ill-treated at the hands of the police. He further alleged that in the present case there had been no investigation into his complaint of ill ‑ treatment.

29 . He alleged under Article 5 § 1 of the Convention that his arrest and detention had not been effected in accordance with a procedure prescribed by law and that there was no justification for the former under any grounds permitted by sub-paragraphs (a) to (f) of this Article, particularly in respect of sub-paragraph (c).

30 . The applicant contended under Article 5 § 2 of the Convention that he had not been informed promptly of the reasons for his arrest and of any charge against him.

31 . He further complained under Article 5 §§ 4 and 5 of the Convention that he was unable to challenge the lawfulness of his detention and that he did not have an enforceable right to compensation in relation to his Article 5 grievances.

32 . The applicant maintained under Article 6 § 1 of the Convention that he had been denied legal assistance while in police custody and that he did not have access to a court for the determination of his civil rights, such as to pursue an action for compensation.

33 . Finally, taken in conjunction with the above Articles, the applicant claimed that there had been a violation of Article 13 of the Convention on account of the failure of the authorities to provide an effective remedy in respect of his Convention grievances.

THE LAW

34 . The applicant complained that, following his abduction by police officers, he had been subjected to ill-treatment, and that the national authorities had failed to conduct an effective investigation into his complaints. He alleged a violation of Articles 3, 5, 6 and 13 of the Convention.

A. The establishment of the facts

1. The parties ’ submissions

a) The applicant

35 . The applicant alleged that, although he had reported his unlawful abduction and ill-treatment by police officers to the authorities, no attempt had been made to investigate his complaints. He had met resistance and unwillingness from the gendarmes, the police and the public prosecutor when he had attempted to lodge his complaint and pursue legal action against the perpetrators of his abduction and ill-treatment. In particular, he had sought to register complaints about his detention and mistreatment with the police, the authorities and the public prosecutors, but to no avail. No action had been pursued by the authorities in an attempt to investigate and hold accountable the police officers responsible. The response by the police that he should give up because it sounded like an “unknown perpetrator” case demonstrated not only a cynical attempt by the authorities to evade culpability, but also a flippant and unsystematic attitude to the applicant ’ s complaint. The applicant concluded that, for there to be an effective investigation, the authorities must hear evidence from all relevant witnesses, offer complainants the opportunity to state their case, examine witnesses, and be represented by legal advisers, and provide relevant information and evidence to the complainants. The investigation should also be conducted by independent authorities and their findings should be made public.

b) The Government

36 . The Government submitted that the applicant had failed to prove that he had been abducted and subjected to ill-treatment by State officials. The medical report he obtained was far from being proof of his allegations of ill ‑ treatment. Nonetheless, on receipt of the applicant ’ s complaints the authorities had conducted a meticulous investigation into the alleged events. They had held an identification parade and a confrontation with the suspected police officers, obtained the video recording of the security cameras of the plant where the applicant ’ s car was abandoned by the suspects, invited the applicant and his brother to watch the cassettes, obtained witness statements and made inquiries in respect of the vehicle which had allegedly followed the applicant. However, even if this incident had taken place, as alleged by the applicant, there was no evidence that the abduction and ill-treatment suffered by the applicant had been perpetrated by State officials. Finally, none of the prosecuting authorities had discouraged the applicant from pursuing his complaints.

2. The Court ’ s assessment

37 . The Court reiterates that, in assessing evidence, it adopts the standard of proof “beyond reasonable doubt” (see Orhan v. Turkey , no. 25656/94, § 264, ECHR 2002). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. The Court is sensitive to the subsidiary nature of its role and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, the McKerr v. the United Kingdom decision, no. 28883/95, 4 April 2000). Where domestic proceedings have taken place, it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic authorities and, as a general rule, it is for those authorities to assess the evidence before them (see Klaas v. Germany , 22 September 1993, § 29, Series A no. 269). Although the Court is not bound by the latter ’ s findings, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact they have reached (ibid., § 30).

38 . In the instant case, the applicant alleged that he had been abducted by four police officers, held in detention for almost twelve hours, during which time he had been questioned about his involvement in terrorist attacks, that he had been subjected to ill-treatment and that the authorities had not conducted any investigation into his complaints. The Government, for their part, denied the involvement of any State official in the alleged events and claimed that the authorities had carried out a meticulous investigation into the applicant ’ s allegations.

39 . In the light of the parties ’ conflicting submissions on the events in question, the Court must ascertain whether the applicant was indeed abducted and ill-treated by police officers and whether the investigation conducted by the national authorities was adequate and effective in the circumstances of the case. In carrying out this scrutiny, the Court will rely on the documentary evidence submitted by the parties.

40 . It appears that subsequent to the complaint of the applicant ’ s brother to the Sultanbeyli Chief Public Prosecutor ’ s office about the abduction, the authorities immediately commenced a comprehensive investigation. In this respect, they took statements from the brother about the possible suspects who could have perpetrated the abduction. The brother told the authorities that there was no one whom he suspected of abducting the applicant (see paragraph 11 above). The next day, following the applicant ’ s request to the authorities, the gendarme officers took statements from him, found his car in the parking lot of a plant, seized the video footage recorded by the security cameras of that plant with a view to identifying the suspects, drew up a sketch map of the area where the car had been found, returned the car to the applicant and sent him to the Istinye State Hospital for a medical examination and treatment (see paragraph 12 above). The prosecuting authorities also identified the vehicle which had the registration number indicated by the applicant ’ s brother. However, this was not a car but a trailer (see paragraph 10 above).

41 . On the same day, police officers from the Tarabya Security Directorate questioned the applicant, his brother and the two witnesses who had found the applicant blindfolded. However, no information came to light because the witnesses did not see the faces of the suspects (see paragraph 13 above). A week after the events, the applicant was sent by the Public Prosecutor ’ s office for a further medical examination to the Forensic Institute, where the doctor found an ecchymosis on his left hip. In this connection, the Court observes that while the injury in question could be considered to be consistent with the applicant ’ s allegation of having been hit on the hip with a truncheon, the medical findings contained in this forensic medical report and the first medical report (see paragraph 12 above) do not entirely correspond to the ill-treatment allegedly inflicted on him. In particular, although the applicant alleged that he had been beaten on the soles of his feet, there was no such medical finding. It is to be noted in this connection that the applicant did not contest the findings contained in the medical reports at any stage of the proceedings before the domestic authorities or the Court.

42 . Furthermore, the video footage recorded by the security cameras of the plant was examined several times by the investigating authorities, the applicant and his lawyer. Again the person who left the applicant ’ s car in the parking lot of the plant could not be identified (see paragraphs 17, 25 and 27 above). Meanwhile, the Sarıyer Chief Public Prosecutor ’ s office issued a permanent search warrant to find the persons who had abducted and ill ‑ treated the applicant (see paragraph 14 above).

43 . Given the applicant ’ s allegations that the perpetrators were police officers from the anti-terrorist department of the Istanbul Security Directorate, the prosecuting authorities showed the applicant and his lawyer photographs of all the police officers working in that department (see paragraph 20 above). An identification parade was also organised to allow the applicant and his lawyer to see the police officers whom he had identified from the photographs in person. The applicant stated that the suspects were not the same police officers who had abducted and ill-treated him (see paragraphs 20 and 23 above).

44 . Be that as it may, having examined the investigation file submitted by the Government, and contrary to the applicant ’ s allegations, the Court finds that it does not appear that the prosecuting authorities displayed any unwillingness or resistance to initiate a criminal investigation against police officers. Nor does it appear that they refused to question any witness or to follow-up any possible lead suggested by the applicant which could help find the perpetrators.

45 . Although the applicant claimed that his abduction was related to his detention two months prior to the events in question, on suspicion of his alleged involvement in the bombings of synagogues, the British Consulate and HSBC Bank in Istanbul in November 2003, the Court notes that he did not submit any evidence proving that he had indeed been held in police custody or that he was a suspected terrorist who would have attracted the attention of the anti-terrorist police (see paragraph 4 above).

46 . In view of the foregoing, the Court is unable to make a finding as to who might have been responsible for the alleged abduction, detention and ill-treatment of the applicant. It notes that the only evidence that State officials could have been involved is the testimony of the applicant and his brothers. Nor can it be said, other than by conjecture or speculation, that there was any connivance of the State authorities with the applicant ’ s abduction, detention and ill-treatment through contra-guerrillas.

47 . As regards the investigation conducted into the alleged events in question, the Court is satisfied that the prosecuting authorities gave a prompt and sufficient response to the applicant ’ s complaints with a view to identifying the perpetrators of the crime in question. It is true that the investigation in question did not yield any results. However, the investigating authorities interviewed all the relevant witnesses and suspects, and followed up all allegations made by the applicant and his brothers. The applicant was offered the opportunity to state his case, was given full access to the investigation, and was also represented by a lawyer. Furthermore, it has not been alleged that there was a problem of independence on the part of the investigating authorities. In this connection, the Court reiterates that while an effective investigation must be capable of leading to the identification and pu nishment of those responsible, it should be borne in mind that t his is not an obligation of result, but of means (see, for example McKerr v. the United Kingdom , no. 28883/95, § 113 , ECHR 2001 ‑ III ) .

B. Alleged violation of Articles 3, 5, 6 and 13 of the Convention

48 . In view of its conclusions above, the Court considers that the applicant has no arguable claim of a violation of his rights under Articles 3, 5 and 6 of the Convention which would have required a remedy within the meaning of Article 13.

49 . Co nsequently, the application should be declared inadmissible as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention .

For these reasons, the Court by a majority

Declares the application inadmissible.

Sally Dollé Françoise Tulkens Registrar President