SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 874/04 by Hasan KAYA against Turkey

The European Court of Human Rights (Second Section), sitting on 17 March 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 above application lodged on 20 October 2003,

Having regard to the partial decision of 18 September 2007 ,

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 a pplicant, Mr Hasan Kaya, is a Turkish national who was born in 1973 and lives in Istanbul . He was represented before the Court by Mr M. İriz and Mr R. Doğan, Mr Y. Aydın and Ms S. Turan, lawyers 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.

1. The arrest, detention and medical examination of the applicant

3 . According to the applicant ’ s version of the events, on 10 February 2002, at around 6.00 to 6.30 p.m., the applicant was arrested by two plain ‑ clothes policemen and one uniformed police officer on a street in the Karadeniz district of GaziosmanpaÅŸa, Istanbul , on suspicion of having participated in an illegal demonstration. He was put in a commercial taxi and taken to the Karadeniz Police Station. There, the applicant was punched, kicked and beaten with truncheons by officers, who broke his nose, which started bleeding. The officers took him to the Karadeniz Clinic. The doctors applied a bandage to his nose. He was then taken to the Emergency Clinic of the Haseki Hospital and had a nose x-ray. On the same day, at around midnight, he was handed over to police officers from the anti-terrorism branch of the Istanbul Security Directorate. The applicant was subjected to further beatings at the anti-terrorism branch and was asked to become a police informer.

4 . According to the Government, on 10 February 2002, the applicant took part in an illegal demonstration and was chanting slogans in favour of the PKK (Kurdistan Workers ’ Party). When the security forces arrived at the scene of the demonstration to disperse the crowd, the applicant attempted to escape and fell on the ground. Thereafter, he was surrounded by a group of people living in the neighbourhood and beaten. The police officers rescued him and put him in a taxi and then took him to the Karadeniz police station. He was immediately taken to the Sultançiftliği L. Nuri Burat State Hospital for medical examination and treatment before placing him in custody. According to the medical report issued by a doctor, at 8.25 p.m., the applicant bore a number of injuries. The doctor noted the presence of scratches, oedema and lesions on the nose, an ecchymosis measuring 3x1 on the side of the left eye, an ecchymosis inside his lower lip as well as haematoma measuring 2x2 on the face.

5 . Later that day the applicant was taken to the Haseki Hospital for further treatment. The medical report, issued at 10.35 p.m., stated that the applicant bore lesions and ecchymoses on his lower lip, nose and left knee.

6 . On 11 February 2002, in his statements to the anti-terrorism police, the applicant stated that he had been beaten by the local people and had been rescued by the police officers.

7 . On 12 February 2002 the applicant was taken to a branch of the Forensic Medicine Institute in Istanbul for medical examination. The medical report prepared by a forensic doctor stated that the ecchymoses, swelling and lesions observed on the applicant ’ s body as well as the broken nose were not life threatening but would prevent him to carry out his regular work for ten days. This medical report was signed by the applicant and also contained his hand written statement which read:

“The bruises, swellings and scratches on my body as well as the broken bone in my nose had been caused by the assault of a 5-10 people at the exit of the local bazaar.”

8 . On the same day, the applicant was brought before the Public Prosecutor, where he denied the charges against him. He was released the same day.

9 . On 15 February 2002 the applicant filed two separate complaints with the Gaziosmanpasa and Fatih Public Prosecutor ’ s Offices against the police officers who had allegedly ill-treated him in custody at the Karadeniz Police Station and at the anti-terrorism branch, respectively. He also claimed that his statements dated 11 February 2002 had been obtained under duress and that he had been forced to sign those statements without reading. The Public Prosecutor then sent the applicant to the Fatih Forensic Institute for medical examination.

10 . The preliminary medical report issued by the Forensic Institute on the same day indicated the presence of chest pain and an ecchymosis on the left leg, an ecchymosis of 3x2 cm under his left eye, an ecchymosis of 2x1 cm under his right eye, an ecchymosis inside his lower lip as well as an oedema. Given the applicant ’ s allegation that his nose could have been broken, the doctor recommended an x-ray examination.

11 . On 19 February 2002 the Fatih Chief Public prosecutor took statements from the applicant in relation to his allegations of ill-treatment. The applicant claimed that following his arrest he had been beaten up by the police officers and that his nose had been broken. He asked the Public Prosecutor to initiate criminal proceedings against the police officers.

12 . On 27 February 2002 the applicant was referred for a further medical examination by the Gaziosmanpasa Public Prosecutor. On 20 March 2002 the Forensic Medicine Institute issued a definitive report on his medical condition, which made reference to the findings of a report dated 15 February 2002 by the Haseki Hospital . In the latter, it was stated that the applicant had an ecchymosis of 1.5x1.5 cm under his left eye, estimated to be three or four days old, an ecchymosis of 1x1 cm under his right eye, an ecchymosis of 1x1 inside his lower lip as well as an oedema, estimated to be three or four days old, and pain in the nose. His injuries were not regarded as life threatening but were classified as sufficient to render him unfit for ten days.

2. The criminal proceedings against the police officers from the Karadeniz Police Station

13 . On 9 May 2002 the Gaziosmanpasa public prosecutor filed an indictment with the Gaziosmanpasa Assize Court , charging twelve police officers from the Karadeniz Police Station with inflicting ill-treatment on the applicant, under Article 245 of the former Criminal Code.

14 . On 15 May 2002 the Assize Court commenced the trial and scheduled the first hearing for 11 July 2002.

15 . During the hearing of 11 July 2002, the Assize Court heard statements from the accused police officers and the applicant as the complainant. All defendants denied the allegations. The applicant identified a police officer, A.G., as being one of the officers who had arrested him and had beaten him at the Karadeniz Police Station. The same day, the public prosecutor submitted to the court that the offence in question fell within the scope of Law no. 4483 (the Law on the Prosecution of Civil Servants and Public Officials). Accordingly, he requested that the case file be sent to the District Governor for leave to prosecute the police officers under that law. The court complied with this request, stopped the trial and sent the case file to the District Governor ’ s Office. The District Governor then appointed an investigator to conduct an investigation into the applicant ’ s allegations.

16 . On 5 August 2002 the investigator also heard Mr E.S., the taxi driver who took the applicant to the Karadeniz police station. The latter stated that he had parked his car in the area and had been watching the applicant being beaten up by the local people. Two police officers arrived at scene and had rescued him from the assault of the crowd. They then put the applicant in his car and had asked him to drive to the police station. He submitted that the applicant ’ s face had been covered with blood when he had been put in his car.

17 . On 6 September 2002 the investigator took statements from twelve police officers who were on duty that day at the aforementioned police stations. The accused police officers claimed that, contrary to the applicant ’ s allegations, they had rescued him from the angry crowd and had brought him to the police station.

18 . On 10 September 2002, relying on the investigation report prepared by the investigator, the District Governor decided not to permit the prosecution of the officers. This decision stated that the police officers, who had been patrolling after an illegal demonstration in the Karadeniz district, had seen some local people beating the applicant. The officers had put the applicant into a taxi and had taken him to the police station, and later that night they had handed him over to the anti-terrorism branch. The District Governor concluded that, apart from the applicant ’ s allegations, there was no evidence to prosecute the accused.

19 . The applicant challenged this decision before the Istanbul Regional Administrative Court .

20 . On 25 February 2003 the Regional Administrative Court upheld the Governor ’ s decision. It noted that the taxi driver that day had testified that the applicant ’ s face had been covered in blood when the police officers had put him into his vehicle. Moreover, the applicant, in his statement to the anti-terrorism police, had admitted that he had been beaten by some locals who had caught him as he was running away.

3. The investigation concerning th e police officers from the anti ‑ terroris m branch

21 . On 6 June 2002 the Fatih Public Prosecutor issued a decision of non ‑ prosecution concerning the applicant ’ s complaint against the police officers from the anti-terrorism branch. He noted that in his statement of 11 February 2002 to the anti-terrorism police, the applicant had maintained that he had been rescued by the officers from local people who had been beating him. On 12 February 2002 he had been examined by the Forensic Medicine Institute at the State Security Court . The applicant had written in the medical report of that day that the injuries on his body and the fracture to his nose had been inflicted by some local people, and had added his signature.

22 . The applicant appealed against this decision before the BeyoÄŸlu Assize Court , which on 20 March 2003 upheld the decision.

B. Relevant domestic law and practice

23 . 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

24 . 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 . In particular, he alleged that he had been beaten with truncheons, punched on the nose, threatened with electric shocks and death, and that the police offices has spat in his mouth.

25 . He alleged under Article 13 of the Convention that ineffective criminal proceedings against the police officers had prevented him from bringing further actions for compensation.

THE LAW

26 . The applicant complained under Articles 3 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, which had prevented him from claiming compensation in domestic law.

A. The parties ’ submissions

27 . The Government submitted that the applicant had failed to observe the six months ’ rule laid down in Article 35 § 1 of the Convention. In this connection, they maintained that the last domestic decision had been given by the Beyoğlu Assize Court on 20 March 2003, whereas the application had been submitted to the Court on 21 October 2003, which was more than six months after that decision. They claimed, in the alternative, that the applicant ’ s allegations were unsubstantiated. The investigation conducted by the authorities concluded that the applicant had not been beaten by the police officers but other people and that the police officers had rescued him.

28 . The applicant claimed that the BeyoÄŸlu Assize Court ’ s decision had been served on his lawyer on 21 April 2003 and the Istanbul Regional Administrative Court ’ s decision on 26 May 2003. Accordingly, the application had been filed within the required time-limit. The applicant maintained that subsequent to his arrest he had been severely beaten up by the police officers from Karadeniz police station and anti-terrorist department of the Security Directorate. He alleged that on the day of the events, he had not participated in any demonstration. Furthermore, the statements taken from Erol Sungur, the alleged taxi driver who took him to the police station, were not true. Bearing in mind that those statements had been taken more than six months after the impugned events, it was clear that this was an effort to support the Government ’ s submissions. The applicant thus claimed that there was sufficient evidence proving his allegations of ill ‑ treatment inflicted upon him by the police officers.

B. The Court ’ s assessment

29 . The Court notes that the Government did not dispute the applicant ’ s assertion that the final domestic decisions issued by the Regional Administrative Court and Beyoğlu Assize Court had been served on the applicant ’ s representative on 26 May 2003 and 21 April 2003, respectively. Considering that the six months ’ period had started running as from the aforementioned dates and that the application had been submitted to the Court on 20 October 2003, the Court concludes that the application had been lodged within the required time-limit laid down under Article 35 § 1 of the Convention.

30 . Turning to the examination of the applicant ’ s complaints, 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).

31 . In the instant case, the applicant alleged that he had been punched, kicked and beaten with truncheons subsequent to his arrest by police officers. He relied on the medical reports indicating a number of bruises on his body and a broken nose. The Government, for its part, claimed that the injuries mentioned in the medical reports had been caused prior to the applicant ’ s arrest by police officers who had rescued him from the hands of an angry crowd who had been beating him.

32 . Having regard to the parties ’ submissions on the course of events leading to the injuries suffered by the applicant and bearing in mind the applicant ’ s allegations that the alleged ill-treatment occurred during his detention in police custody, the Court considers that the crucial question in the present case is whether the applicant was in good health prior to his arrest, on 10 February 2002.

33 . The Court notes that subsequent to the applicant ’ s criminal complaints to the Public Prosecutor ’ s office, the authorities have carried out a comprehensive investigation. However, relying on the statements given by the accused police officers, the taxi driver ’ s statements, the applicant ’ s own statements at the anti-terrorist police department and his hand written statements in the medical report dated 12 February 2002, the prosecuting authorities concluded that the injuries on the applicant ’ s body had been caused by a group of people who had beaten him and that, contrary to the applicant ’ s assertions, the police officers had not ill-treated him but had rescued him (see paragraphs 13-22 above).

34 . The applicant challenged the authorities ’ conclusions and claimed that the alleged statements taken at the anti-terrorist department were not his own because those statements had been taken under duress and that he had been forced to sign them without reading (see paragraph 28 above). He also challenged the statements given by Mr E.S . alleging that this was an attempt to cover up the events in question.

35 . In the Court ’ s opinion, even assuming that the statements taken at the anti-terrorist department and the taxi driver Mr E.S . ’ s statements could not be relied on for the reasons given by the applicant, the latter has failed to provide any explanation concerning his own statements contained in the medical report dated 12 February 2002 where he himself wrote that the injuries in question had been caused when he had been beaten up by 5 ‑ 10 people and had added his signature to that report (see paragraph 7 above). Nor did he submit any evidence capable of casting doubt on the national authorities ’ findings and proving that he had been taken into custody in good health and that the injuries on his body had occurred during his detention in police custody.

36 . In view of the foregoing, the Court concludes that the applicant has failed to adduce sufficient evidence to substantiate his allegations that the injuries found on his body had been the result of the alleged ill-treatment inflicted upon him by the police officers during his detention in their custody.

37 . 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.

38 . 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).

39 . 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).

40 . Consequently, this part of the application should also be declared inadmissible as being manifestly ill-founde d within the meaning of Article 35 §§ 3 and 4 of the Convention .

For these reasons, the Court unanimously ;

Declares the a pplication inadmissible.

Sally Dollé Françoise Tulkens Registrar President