SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18364/02 by Zikri YORGANLI against Turkey

The European Court of Human Rights (Second Section), sitting on 23 October 2007 as a Chamber composed of:

Mrs F. Tulkens , President , Mr A.B. Baka , Mr I. Cabral Barreto , Mr R. Türmen , Mr M. Ugrekhelidze , Mr V. Zagrebelsky , Mrs A. Mularoni , judges , and Mrs F. Elens-Passos , Deputy S ection Registrar ,

Having regard to the above application lodged on 20 February 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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

The applicant, Mr Zikri Yorganl ı , is a Turkish national who was born in 1958 and lives in I stanbul . He was repres ented before the Court by Mr E. Cinmen , a lawyer practising in İstanbul . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

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

On 19 December 1995 the applicant and H.D. were arrested and taken to the Gayrettepe Security Directorate in Ä°stanbul on suspicion of embezzlement. During his police custody , the applicant was allegedly subjected to ill ‑ treatment.

On 20 December 1995 the applicant was examined by a medical expert, Dr Bilgen , at the BeyoÄŸlu branch of the Forensic Medical Institute. The medical expert noted that there was no sign of ill-treatment on the applicant ' s body.

The applicant was released on the same day. Without submitting any medical reports, the applicant states that, following his release, he went to the ÅžiÅŸli Etfal Hospital .

On 26 December 1995 the applicant filed a petition with the BeyoÄŸlu public prosecutor ' s office, stating that he had been subjected to ill-treatment during his police custody at the Gayrettepe Security Directorate, and requested to be referred to the Forensic Medical Institute for an examination. In his petition, he maintained that he had been subjected to falaka (beating of the soles of the feet) , that he had been hung from his arms, and that electric shocks had been administered to his body through his right toe, feet and his sexual organ. The applicant further maintained that he had also been forced to jump up and down and clean the floors in the Security Directorate Building .

On the same day, the BeyoÄŸlu Public Prosecutor sent the applicant to the BeyoÄŸlu branch of the Forensic Medical Institute. The applicant was examined once again by Dr Bilgen , who noted the following:

“... A 1 x 1 cm old scabbed wound on the proximal phalanx of the right toe, a 3 x 1 cm old scabbed wound on the inner side of the malleo lus on the left foot, a few days old 2 x 1 cm hyperaemia on the right armpit and an old 1 x 1 cm hyperaemia on the left armpit were observed.”

The doctor concluded that the applicant was unfit for work for three days.

Again on the same day, the applicant applied to the Ä°stanbul branch of the Human Rights Foundation of Turkey and he was examined by another doctor. The applicant maintained before the doctor that he had been beaten, subjected to falaka , hung from his arms and that electric shocks had been administered to his body through his right toe, feet and his sexual organs. He further stated that his testicles had been squeezed and a truncheon or an unknown object had been inserted into his anus. Subsequently, he alleged that he had been forced to jump up and down. According to the doctor ' s report, the applicant was anxious. In his report, the doctor noted the following: a scabbed skin lesion of 0.3 cm in diameter on the proximal phalanx of the right toe, a 4 x 2 cm hyperaemic skin lesion on the left shoulder, a purple coloured 4 x 0.5 cm ecchymosed skin lesion on the left armpit, two parall el ecchymosed skin lesions of 5 x 2 cm and 6 x 3 cm on the right armpit, a hyperaemic skin lesion of 2 cm in diameter on the left ankle, an oedema under the left foot, a dark coloured hyperaemia on the metatarsal bone and a 4 x 2 cm purple coloured ecchymosed skin lesion under the right foot.

Following further examinations, the medical expert concluded that the applicant suffered from plexopathy (nerve damage) in his left arm, anal fissure and anxiety.

On 17 January 1996 the applicant gave a statement before the Ä°stanbul public prosecutor. He alleged that during his custody he had been stripped naked, blindfolded, and subjected to falaka . He also stated that he had been hung from his arms and electric shocks had been administrated on his body. The applicant further maintained that he had not been examined by a doctor on 20 December 1995 and that he had not filed a complaint on that day as the police officers had threatened him. He explained that he had gone to ÅžiÅŸli Etfal Hospital following his release from custody. He finally maintained that he would not be able to identify the officers who had tortured him as he had been blindfolded during the administration of ill-treatment.

On 12 June 1996 the Istanbul public prosecutor took statements from H.Y. and C.Ü., who had taken the applicant ' s statement on 19 December 1995. The police officers denied that they had ill-treated the applicant.

On 11 July 1996 the İstanbul public prosecutor filed an indictment with the İstanbul Assize Court against H.Y. and C.Ü. The charges were brought under Article 243 of the Criminal Code and the police officers were accused of having ill-treated the applicant.

On 24 October 1996 the İstanbul Assize Court held the first hearing. The applicant joined the proceedings as a civil party ( müdahil ) and reiterated his statements that he had made before the public prosecutor. The court also heard the accused police officers, who once again denied the charges against them.

On 4 December 1996 the Assize Court held the second hearing in the case and heard the applicant ' s father and H.D. as witnesses. The applicant ' s father maintained that after his son was released from custody he had marks on his body which indicated that he had been severely beaten . H.D. also contended that , when he had seen the applicant after his interrogat ion at the Security Directorate , he had injuries on his body which indicated that he had been beaten .

During the hearing, the public prosecutor requested that an expert report be obtained from the Forensic Medical Institute in order to eliminate the discrepancy between the reports of 20 and 26 December 1995. His request was dismissed by the first-instance court.

On the same day, the Ä°stanbul Assize Court acquitted the accused police officers, finding that there was insufficient evidence to convict them.

On 3 December 1997 the Court of Cassation quashed the judgment of the first-instance court, holding that the latter should have heard the medical expert, Dr Bilgen , as a witness in order to eliminate the inconsistency between the two medical reports that he had drafted.

On 21 September 1998 the Ä°stanbul Assize Court issued a summons requiring Dr Bilgen to give evidence on 16 November 1998.

On 10 November 1998 Dr Bilgen attended at the court and informed it that she would not be in Ä°stanbul on 16 November 1998. The first-instance court proceeded to hear her in the absence of the applicant and his representative. Before the court, the doctor maintained, inter alia , that there was no inconsistency between the two reports and that the applicant ' s injuries were su stained after his release on 20 December 1995.

In the next hearing held on 16 November 1998, the statement of Dr Bilgen was read out to the applicant ' s representative and he was requested to submit his replies. The applicant ' s lawyer stated that he objected to the statement of the doctor and requested time to prepare his written submissions.

On an unspecified date, the applicant submitted to the first-instance court an expert report dated 10 December 1998, drawn up by three forensic medicine experts from the CerrahpaÅŸa Faculty of Medicine. The doctors opined that the report of 26 December 1995 was inadequate and concluded that the applicant might have sustained the injuries 3 to 15 days prior to 26 December 1995.

On 26 May 1999 the Ä°stanbul Assize Court requested the Forensic Medicine Institute to submit its opinion as to the date on which the applicant had possibly sustained the injuries in question.

On 16 June 1999 five experts from the Forensic Medicine Institute submitted that it was not possible to identify the exact timing of the injuries on the applicant ' s right toe and on his left foot; however, it was stated that they might have occurred between 19 and 26 December 1995 or before 19 December 1995. As regards the hyperaemic skin lesions described in the report of 26 December 1995, the experts opined that as such lesions would disappear within a few hours; it was not medically possible that they had been sustained before 26 December 1995. Furthermore, referring to the injuries to the applicant ' s armpit, the doctors concluded that it was not possible to assess when they had occurred.

On 20 April 2000, having regard to the witness statements and the medical reports, the İstanbul Assize Court acquitted the accused police officers. It held, inter alia , that in view of the report of the Forensic Medicine Institute, it was not possible to determine when the applicant had sustained the injuries in question and that there was therefore insufficient evidence to conclude that H.Y. and C.Ü. had actually committed the offence that they were charged with.

On 19 September 2001 the Court of Cassation upheld the judgment of the first-instance court.

COMPLAINT

The applicant complain ed under Article 3 of the Convention that he had been subjected to ill-treatment while in police custody.

THE LAW

1. The applicant complained that he had been subjected to ill-treatment during his police custody. He invoked Article 3 of the Convention, which provides as follows:

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

The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative. It depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some instances, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV).

Where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).

The Court notes that the applicant was released from custody on 20 December 1995. However, he filed a criminal complaint with the public prosecutor and obtained a medical certificate only on 26 December 1995, namely six days after his release. The applicant has failed to submit any convincing explanation for the delay in obtaining the certificate apart from alleging that he had been threatened by the police officers before his release. In particular, he has failed to substantiate his claim that on 20 December 1995 he went to a doctor in the ÅžiÅŸli Etfal Hospital .

Furthermore, in none of the medical reports submitted to the Court were the doctors able to identify the exact timing of the injuries cited in the medical report dated 26 December 1995. These medical reports were also examined by the domestic courts, which concluded that it was not possible to make an assessment of when the injuries observed on the applicant ' s body had been sustained. No material has been adduced in the course of the Strasbourg proceedings that would call into question the findings of the domestic authorities or add weight to the applicant ' s allegations before the Court.

The Court also considers that any ill-treatment inflicted in the way alleged by the applicant would have left marks on his body, which would have been observed by the doctor who examined him at the end of his detention in custody on 20 December 1995. In this respect, it sees no reason why the doctor who examined the applicant following his release from custody would not have noted the alleged signs of physical violence, particularly bearing in mind that it was the same doctor who recorded such signs on 26 December 1995.

The Court further notes that the applicant ' s statements before the domestic authorities are not consistent. While before the public prosecutor and the domestic court, the applicant alleged that he had been hung from his arms, had been subjected to electric shocks and to falaka , in his statement before the Human Rights Foundation, he stated that he had been beaten, that his testicles had been squeezed and that a truncheon or an unknown object had been inserted into his anus. Furthermore, his two witnesses, namely his father Mr Yorganlı and Mr H.D, who had also been arrested with him, stated before the domestic courts that when they had seen the applicant after his police interrogation, he bore marks on his body indicating that he had been severely beaten. None of the four medical reports submitted before the domestic authorities and the Court lend substance to these allegations. Furthermore, although the applicant submitted before the Court that , following his release on 20 December 1995 he had gone to the Ş i ş li Etfal Hospital , he failed to submit a medical report to this effect. In these circumstances, the Court is not convinced that there is any evidence that the injuries described in the medical certificate of 26 December 1995 existed at the time of his release from detention. It further finds no reason to depart from the findings of the domestic courts which examined the applicant ' s allegations of ill-treatment.

In view of the above, the Court concludes that the applicant has not substantiated his claim and th is complaint should therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. On communication of the application to the respondent Govern ment, a question was raised ex officio concerning compliance with Article 6 § 1 of the Convention in regard to the hearing, in the absence of the applicant and his lawyer, of a witness in the criminal proceedings against the police officers. Having regard to the fact that the applicant's complaints focussed on his allegations of ill-treatment and noting the submissions of the parties, the Court finds it unnecessary to examine this matter further.

Accordingly, Article 29 § 3 of the Convention should no longer apply to the case.

For these re asons, the Court unanimously

Declares the application inadmissible.

F. Elens-Passos F. Tulkens Deputy Registrar President