THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33396/02 by Halil YILDIRIM against Turkey

The European Court of Human Rights (Third Section), sitting on 30 August 2007 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr C. Bîrsan , Mr R. Türmen , Mrs E. Fura-Sandström , Mrs A. Gyulumyan , Mr E. Myjer , Mr David Thór Björgvinsson , judges , and Mr S. Quesada , Section Registrar ,

Having regard to the above application lodged on 16 July 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 appli cant, Mr Halil Y ı ld ı r ı m , is a Turkish national who was born in 1966 and lives in Şanlıurfa . He was rep resented before the Court by Mr M. A. Altunkalem , a lawyer practising in Diyarbakır . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court .

A. The circumstances of the case

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

The applicant was working as a driver at the Şanlıurfa fire department at the time of the events.

An undercover agent of the Anti-Smuggling and Organised Crime Department of the Şanlıurfa Security Directorate (hereinafter: “the Security Directorate”) received information that the applicant was selling Kalashnikov cartridges.

After having received information that the applicant had just returned from Syria , the police officers at the Security Directorate searched the applicant ’ s house on 24 April 2002 and retrieved ninety-five Kalashnikov cartridges. The applicant was arrested.

The applicant maintains that he was beaten by 4 or 5 police officers during arrest. He further claims that while he was held in detention he was beaten, given electric shocks and hosed with cold water.

On the same day, at around 8.10 p.m., the applicant was examined by a doctor at Åžanlıurfa State Hospital . According to the medical report issued in this respect, the applicant did not bear any physical signs of ill ‑ treatment.

According to a report drafted by a police officer and signed by the applicant, co-accused and a lawyer, the applicant met with his lawyer on 26 April 2002 at 5.50 p.m.

On the same day the applicant was interrogated. He was informed of his rights, particularly his right to a lawyer, which he waived. The applicant claimed, inter alia , that S.Ç. owed him money and that he took Kalashnikov cartridges from him as a guarantee of payment. He further submitted that he later gave 1,185 of these cartridges to B.A. as a guarantee for his own debt.

In the evening of 26 April 2002 the applicant was examined by a doctor at Şanlıurfa State Hospital . According to the medical report issued the same day, the applicant did not bear any physical signs of ill-treatment.

On 27 April 2002 the applicant was brought before the Şanlıurfa public prosecutor. He was informed of his rights, particularly his right to a lawyer which he initially waived. The applicant later changed his mind and his lawyer, Mr H.A., was present at the interrogation. The applicant acknowledged his statements made to the police and reiterated that S.Ç. had given him 1,200 Kalashnikov cartridges to pay for his debt and that he had given them to B.A. as a guarantee for his own debt to him.

On 27 April 2002 the applicant was brought before the investigating judge of the Şanlıurfa Magistrate ’ s Court, who ordered his remand in custody. The applicant was placed in Şanlıurfa prison.

On 30 April 2002 the applicant was examined by a prison doctor. The medical report drafted on that occasion found signs of blows on the applicant ’ s right shin bone in 6 or 7 places.

On 24 May 2002 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment with the same court against the applicant and two others, accusing them of smuggling 1,280 Kalashnikov bullets from Syria on 24 April 2002 and of being in possession of unlicensed bullets.

On 30 May 2002 the applicant met with his lawyer. The latter petitioned the authorities for a further medical report.

On 31 May 2002 the applicant was examined by a doctor at Şanlıurfa State Hospital . According to the medical report issued the same day, the applicant had an old ecchimose below his right knee.

On 31 May 2002 the prison director sent these reports to the Şanlıurfa public prosecutor ’ s office, in order that they be deposited in the case file before the Diyarbakır State Security Court .

On 2 July 2002 the applicant ’ s lawyer submitted a petition to the court requesting the applicant ’ s release. He also stated that the applicant had been subjected to serious ill-treatment whilst in police custody, as was shown in the medical reports. He requested the prosecuting authorities to launch an investigation into the allegation of ill ‑ treatment.

In a hearing held on 9 July 2002 the applicant acknowledged the contents of his statements made to the police, the public prosecutor and the investigating judge. He reiterated that S.Ç. gave him a bag for safekeeping and that he did not know there were bullets inside. He further submitted that he did not know how the 95 cartridges ended up in his house and that they must have fallen out in the car when he and S.Ç. went to give the bullets to B.A. The medical reports issued during his detention in police custody were read out to him. He stated that he had nothing to say. He was read out the medical report of 30 April 2002. The applicant submitted that the report was correct and that he was hit on his leg but as he was blindfolded he did not see how his leg was hit.

On 10 July 2002 the applicant ’ s lawyer applied to the Diyarbakır State Security Court for a revision of the applicant ’ s continued detention. He also drew the court ’ s attention to the fact that no action had been taken in relation to the applicant ’ s complaint of ill-treatment.

By a decision of 11 July 2002 a single judge of that court rejected this request and confirmed the applicant ’ s continued detention.

In a hearing held on 6 February 2003 the applicant stated that he had been framed. On the same day, the court, taking into account the contradictions in the applicant ’ s statements throughout the proceedings, the statements of the co-accused and the material evidence, convicted the applicant of the offence and sentenced him to six years and eight months ’ imprisonment and a fine.

In his petition for appeal to the Court of Cassation dated 10 May 2003, the applicant ’ s lawyer repeated the allegation of ill-treatment.

On 18 August 2003 the Court of Cassation dismissed the appeal and upheld the judgment of the Diyarbakır State Security Court .

B. Rele vant domestic law and practice

A description of the relevant domestic law at the material time can be found in Batı and others v. Turkey (nos. 33097/96 and 57834/00, §§ 96 ‑ 100, 3 June 2004).

COMPLAINTS

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

The applicant complained under Articles 6 and 13 of the Convention that there had been no adequate or effective investigation into his complaints of ill-treatment.

THE LAW

The applicant complained that he had been subjected to ill-treatment while he was held in police custody and that there had been no adequate or effective investigation into his complaints in this respect. He relied on Articles 3, 6 and 13 of the Convention.

The Court considers that these complaints should be examined from the standpoint of Article 3 alone, which provides:

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

A. Parties ’ submissions

The Government contested the applicant ’ s allegations . In particular, they noted that the medical reports referred to by the applicant were issued after his stay in custody ended and that in the course of the criminal proceedings against him the applicant had only complained of ill ‑ treatment without giving any details as to how this ill-treatment had occurred.

The applicant maintained his allegations. In particular, relying on the medical reports of 30 April 2002 and 31 May 2002, the applicant reiterated the seriousness of the ill-treatment to which he had been subjected while in custody. He challenged the accuracy of the medical reports issued while he was in detention. In addition, he complained of the passivity of the public prosecutor in the face of his numerous complaints.

B. Court ’ s assessment

1. The applicant ’ s alleged ill-treatment

The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V, and Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3288, § 93).

In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” ( Avşar v. Turkey , no. 25657/94, § 282, ECHR 2001-VII, extracts; 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 ( Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV).

The Court is sensitive to the subsidiary nature of its task and recognises that it 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, McKerr v. the United Kingdom ( dec .), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention, as in the present case, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis , Ribitsch v. Austria , judgment of 4 December 1995, Series A no. 336, § 32, and Avşar , cited above, § 283).

In the instant case, the ill-treatment complained of by the applicant consisted of beatings, electric shock treatment and being hosed with cold water. Nonetheless, several elements cast doubt on the veracity of the applicant ’ s claims.

The Court notes that the applicant has not produced any conclusive or convincing evidence in support of his allegations of ill-treatment. It is observed that the applicant was examined by a doctor four times - on 24 April 2002, 26 April 2002, 30 April 2002, and 31 May 2002. The first two reports issued during the applicant ’ s detention in police custody indicate that there were no signs of ill-treatment on the applicant ’ s body. The medical report of 31 May 2002 was established a month after his stay in custody ended and referred only to an old bruise under the right knee. Therefore, the only concrete evidence submitted to the Court is the medical report dated 30 April 2002, which noted signs of blows on the applicant ’ s right shin bone. However, the Court considers that such indications are insufficient to substantiate the severe ill-treatment described, in very brief and general terms, by the applicant (see Ahmet Mete v. Turkey (no. 2) , no. 30465/02, § 33 , 12 December 2006 ) . The Court reiterates 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 on 30 April 2002, i.e. three days after the end of his stay in police custody (see Tanrıkulu and Others v. Turkey ( dec .), no. 45907/99, 22 October 2002). Thus, there is nothing in the case file to show that the applicant was ill ‑ treated as alleged.

In conclusion, the material submitted by the applicant is not sufficient to enable the Court to find beyond all reasonable doubt that he was subjected to ill-treatment as alleged.

2. The lack of an investigation

The Court reiterates that Article 3 of the Convention also requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see, in particular, Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, p p . 3289-90 , § § 101-102) . However, the Court does not consider that the applicant has laid the basis of an arguable claim that he was ill-treated at the hands of the police. In this connection, it notes, firstly, that the applicant allowed a considerable period of time to elapse before complaining briefly about the alleged ill-treatment. In particular, it is noteworthy that during his questioning on 27 April 2002, when he was assisted by counsel, the applicant did not make any reference whatsoever to his allegations. The Court further notes that, throughout the proceedings before the domestic courts, the applicant only complained of having been subjected to torture in general terms without giving any details as to the kind of treatment which he had allegedly sustained. Even when the applicant stated, in his brief submission on 9 July 2002, that he had been hit on the leg, he failed to provide details as to where and when. There is also no indication in the case file that the applicant sought to provide the authorities with any physical or other identifying details as regards the alleged perpetrators (see, in particular, Çevik v. Turkey ( dec .), no. 57406/00, 10 October 2006).

In these circumstances, even assuming that the authorities were effectively put on notice of the applicant ’ s allegations of ill-treatment, he could not legitimately claim that an in-depth investigation be carried out into his complaints of ill-treatment, without him or his lawyer having furnished to the authorities a reliable starting point for their inquiries. Therefore, in the particular circumstances of the case, the Court considers that the procedural obligation of the authorities of the respondent State under Article 3 of the Convention cannot be said to have been breached.

It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. It is appropriate, therefore, to discontinue the application of Article 29 § 3 of the Convention in the present case.

For these reasons, the Court unanimously

Declares the application i nadmissible .

Santiago Quesada Boštjan M. Zupančič Registrar President