SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31950/05 by Gökhan YILDIRIM against Turkey

The European Court of Human Rights (Second Section), sitting on 30 September 2008 as a Chamber composed of:

Françoise Tulkens , President, Ireneu Cabral Barreto , Danutė Jočienė , Dragoljub Popović , András Sajó , Nona Tsotsoria , Işıl Karakaş , judges, and Françoise Elens-Passos, Deputy Section Registrar ,

Having regard to the above application lodged on 4 July 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Gökhan Yıldırım, is a Turkish national who was born in 1976 and lives in Kayseri . He is represented before the Court by Mr U. Altun, a lawyer practising in Kayseri .

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

In February 2001, the Kayseri Law and Order Department received intelligence that the applicant was involved in fraud.

On 22 February 2001 , when police officers arrived at the building where the applicant lived, he tried to escape and broke into his neighbours ' flat, taking them hostage. According to the police reports, the applicant had a knife and resisted the police officers. The police entered the flat with the help of the fire brigade and arrested the applicant.

At 10.15 a.m. the same day, the applicant was taken to the Barbaros Health Clinic, where a medical report was issued. According to this report, there was no sign of ill-treatment on the applicant ' s body.

The applicant was subsequently taken to the police station for questioning . He was allegedly beaten while in police custody.

At 8.15 p.m. the same day, the applicant was taken to the Kayseri State Hospital , where he was examined by a doctor once again. According to the doctor ' s report, the applicant was anxious and there was a 0.5 cm x 2 cm patch of erythema on his forehead, which had been possibly caused by a blow with a blunt object.

On 23 February 2001 at 5.45 p.m. the applicant was taken to the Kayseri Forensic Medical Institute. Following a medical examination, it was re co r ded that the applicant had a 3 cm x 3 cm ecchymosed skin lesion on his forehead and scratches on both wrists.

Following his medical examination, the applicant was handed over to the military officials, as he was found to be a deserter .

On 28 February 2001 the applicant was examined at the Sivas Military Hospital . The doctor who examined the applicant found that there was a lesion in his abdomen and further noted the presence of ha e maturia (presence of blood in urine). The applicant underwent an ultraso und scan and it was re co r ded that he had a 21 mm x 18 mm hypoechoic lesion on his left kidney. As the possible presence of a h a ematoma was suspected , the applicant was sent for a computed tomography scan . The test results were normal.

1. Criminal proceedings against the applicant

On an unspecified date, the Kayseri p ublic p rosecutor initiated criminal proceedings against the applicant, accusing him of resist ing police officers with a knife and breaking into his neighbours ' flat.

On 23 December 2002 the Kayseri Criminal Court found the applicant guilty as charged and sentenced him to seven months and seventeen days ' imprisonment.

On 21 March 2005 the Court of Cassation refused the applicant leave to appeal.

2. Proceedings against the accused police officers

In the meantime, on 26 March 2001 the applicant filed a criminal complaint against the police officers. On 20 March 2001 the Kayseri p ublic p rosecutor decided not to prosecut e . On 31 May 2001 the Boğazlıyan Assize Court refused the applicant leave to appeal.

On 2 July 2001 the applicant further applied to the Ministry of Justice and requested that the decision of the Boğazlıyan Assize Court be quashed ( yazılı emir ).

On an unspecified date, the Minister of Justice issued a writ of mandamus and , as a result, the Court of Cassation quashed the decision of the Boğazlıyan Assize Court .

On 18 February 2002 the Kayseri p ublic p rosecutor filed an indictment with the Kayseri Assize Court against eight police officers from the Kayseri Security Directorate, accusing them of ill-treating the applicant during his time in police custody.

Throughout the proceedings, the police officers denied the accusations. They stated that when the applicant was arrested he had been anxious, and he had banged his head on the bars and walls of his cell. The court obtained three medical reports from the Forensic Medicine Institute, on 11 March 2002, 21 May 2003 and 29 January 2004. In the final report, the Forensic Medical Institute made an assessment of the medical reports concerning the applicant. It was concluded that the injuries referred to in the medical report dated 23 February 2001 could have been the result of a blow with a blunt object or could have been caused by the applicant himself if he had banged his head on the bars and walls, as alleged. The report further stated that , as the result of the computed tomography scan was normal, the finding s of the ultraso und scan of 28 February 2001 could not have resulted from a haematoma, but could have result ed from a blow with a blunt object. Nevertheless, according to the Forensic Medicine Institute , it was not possible to determine the date on wh ich these injuries had been sustained.

On 30 March 2004 the court acquitted the police officers of the offences with which they had been charge d . It held that the findings indicat ed in the medical reports dated 22 and 23 February 2001, namely the erythema on the applicant ' s forehead, were consistent with the accused officers ' contention that the applicant had banged his head on the bars of his cell. It further held that , as the other symptoms recorded in the medical report of 28 February 2001 had appeared after the applicant ' s time in police custody, the accused police officers could not be held responsible for the applicant ' s injuries. It therefore held that the evidence in the case file did not suffice to convict the se officers.

On 5 June 2006 the Court of Cassation upheld the judgment of the Kayseri Assize Court .

COMPLAINTS

1. The applicant alleged that he had been ill-treated in police custody and that the ensuing criminal proceedings against the accused police officers had not been fair or effective. In this connection , he relied on Articles 3, 6 and 13 of the Convention.

2. Relying on Article 5 of the Convention, the applicant complained that his arrest had been unlawful.

3. The applicant maintained under Article 6 of the Convention that the criminal proceedings against him had not been fair.

4 . Finally, the applicant maintained that , as the police officers had entered his neighbours ' flat without having obtained prior authorisation from a judge, his rights under Article 8 had been breached.

THE LAW

1. Relying on Articles 3, 6 and 13 of the Convention, the applicant alleged that he had been ill-treated in police custody and that the criminal proceedings against the accused police officers had not been fair.

The Court holds that these complaints should be examined from the standpoint of Article 3 of the Convention alone.

It further considers that it cannot, on the basis of the case file, determine the admissibility of th ese complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of t hem to the respondent Government.

2. The Court has also examined the remainder of the applicant ' s complaints as submitted by him. However, having regard to all the material in its possession, it finds that those complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ' s complaint s concerning Article 3 of the Convention;

Declares the remainder of the application inadmissible.

             Françoise Elens-Passos Françoise Tulkens Deputy Registrar President