THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57177/00 by Nezir KÜ NK Ü L against Turkey

The European Court of Human Rights (Third Section), sitting on 30 November 2006 as a Chamber composed of:

Mr B.M. Zupančič , President, Mr R. Türmen , Mr C. Bîrsan , Mr V. Zagrebelsky , Mrs A. Gyulumyan , Mr David Thór Björgvinsson , Mrs I. Ziemele , judges, and Mr V. Berger , Section Reg i strar ,

Having regard to the above application lodged on 10 February 2000 ,

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, Nezir Künkül , is a Turkish national who was born in 1949 and lives in Batman . He was represented before the Court by Mr M . Beştaş and Mrs M. Bektaş , lawyer s practising in Diyarbakır .

A. The circumstances of the case

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

The applicant was a driver working for the Turkish telecom at the time of the events. On 4 June 1998 the applicant was arrested by gendarmes at the Suçeken Gendarmes Station. The applicant claims that he had been beaten during his interrogation at the Suçeken Gendarmes Station.

According to the medical report drafted and issued by a doctor at the Batman State Hospital on 5 June 1998, the applicant did not bear any physical signs of ill-treatment.

On 5 June 1998 the applicant was transferred over to the Batman Gendarmes Station where he was held for three days. He alleges that during this time he was subjected to torture, insults and death threats.

On 8 June 1998 the applicant was taken before a doctor at the Batman State Hospital for a medical examination. According to the medical report he did not bear any physical signs of ill-treatment.

On the same day, the applicant was brought before the Batman public prosecutor where he denied the statements he had given to the gendarmes. He claimed that he had been forced to carry supplies to the PKK because Mr N.K. had threatened his life and that of his children.

On the same day, the applicant appeared before the Batman Magistrates ’ Court where he denied the statements he had given to the gendarmes and claimed to have signed his deposition under duress. The court ordered his release. The public prosecutor objected to this decision.

The applicant claimed that despite the court ’ s order for release, he had been taken back to the Batman Gendarmes Station and was subjected to constant beatings.

On 9 June 1998 the Batman Criminal Court of First Instance ordered the applicant ’ s remand in custody.

According to the medical report of 9 June 1998 the applicant did not bear any physical signs of ill-treatment.

On 26 June 1998 the public prosecutors ’ office at the Diyarbakır State Security Court filed a bill of indictment with the latter, accusing the applicant of aiding and abetting an illegal organisation. The public prosecutors ’ office requested that the applicant be convicted and sentenced under Article 169 of the Criminal Code.

On 2 September 1998 the Diyarbakır State Security Court , following the erratic behaviour of the applicant during questioning, ordered the transfer of the applicant to the Elazığ Mental Hospital in order to establish whether he was mentally fit. The applicant ’ s representative claimed that the applicant ’ s state of mental health had suffered as a result of the treatment he had received in custody.

On 27 October 1998 the applicant was committed to the Elazığ Mental Hospital for treatment. According to the medical report drafted by the doctors at the Elazığ Mental Hospital , the applicant was diagnosed as suffering from an anxiety reaction.

On 26 November 1998 the Elazığ Mental Hospital Health Commission issued a report stating that the applicant was suffering from an anxiety reaction. He was released from the hospital the same day.

On 4 January 1999 the applicant filed a petition with the Batman public prosecutors ’ office requesting that the gendarmes at the Batman Gendarmerie Commandership be prosecuted for ill-treatment.

On 7 June 1999 the public prosecutors ’ office, after having heard a neurology expert, issued a decision of non ‑ prosecution on account of lack of evidence. According to the doctor ’ s testimony, it was impossible to determine at what date the applicant ’ s disturbance commenced and that it was possible to have this kind of disturbance in healthy persons. Moreover the doctor concluded that similar symptoms could also be found in a football fan whose team had lost a match.

The applicant filed an objection with the Midyat Assize Court against the decision of the public prosecutor. He stated that he had lost his mental health as a result of the ill-treatment he had been subjected to during his interrogation. He submitted that the decision of non-prosecution was given without an adequate investigation since the public prosecutor had not heard to some of the witnesses.

On 23 July 1999 the Midyat Assize Court , referring to the time elapsed between the dates of the alleged offence and that of the complaint, the medical report of 8 June 1998 and testimonies of witnesses and that of the expert, dismissed the applicant ’ s objection. This judgment was served on the applicant on 7 September 1999.

The criminal proceedings against the applicant were pending at the time of the application. No further information or documents were submitted in respect of these proceedings.

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, ECHR 2004 ‑ IV (extracts) ).

COMPLAINTS

Th e applicant complained under Article 3 of the Convention that he was subjected to ill-treatment while he was held in custody.

The applicant submitted under Articles 6 and 13 of the Convention that the authorities had failed to conduct an effective investigation into his complaints of ill-treatment and that this had rendered impossible the identification and punishment of the persons responsible for the ill ‑ treatment inflicted on him and the possibility of bringing civil proceedings against them. In his observations on the admissibility and merits, dated 11 April 2006 , the applicant also complained under Article 6 of the Convention that the evidence obtained under torture had been used against him and other co-accused during the criminal proceedings. On this point, he also pointed out that he had been tried by the State Security Court and had been deprived of his liberty for a long time.

THE LAW

1. The applicant complained that the treatment to which he had been subjected while held in police custody amounted to torture and inhuman and degrading treatment, in violation of Article 3 of the Convention, which reads as follows:

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

The applicant further submitted under Articles 6 and 13 of the Convention that the authorities had failed to conduct an effective investigation into his complaints of ill-treatment and that this had rendered impossible the identification and punishment of the persons responsible for the ill ‑ treatment inflicted on him and the possibility of bringing civil proceedings against them.

The Court considers that these complaints should be examined from the standpoint of Article 13 alone, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The p arties ’ submissions

The Government first maintained that the applicant had failed to comply with the six-month rule, as required by Article 35 § 1 of the Convention since he had failed to lodge his complaint regarding the alleged ill ‑ treatment with the Court within six months following the date when he was released from police custody. As to the merits, the Government submitted that the applicant ’ s allegations of ill-treatment were unsubstantiated and that he did not have an arguable claim within the meaning of Article 13 of the Convention.

The applicant maintained that he had complied with the six months ’ rule. As to the merits, the applicant claimed that he had been held in a dark cell in isolation and blindfolded while he was in custody. He alleged that he had been physically and mentally attacked in the gendarmerie. He noted that he had complained to the domestic authorities and had given a detailed description of the ill-treatment he had been subjected to. The applicant challenged the veracity of the medical reports drafted while he was in custody. He maintained that he had suffered from an anxiety attack due to the treatment he had received in custody. Finally, he reiterated that the prosecutor failed to conduct an effective investigation into his allegations, which deprived him of the right to claim compensation.

B. The C ourt ’ s assessment

The Court considers it unnecessary to determine whether the applicant has complied with the six months ’ rule wit hin the meaning of Article 35 § 1 of the Convention, since the a pplicant ’ s complaints under Articles 3 and 13 of the Convention are in any event inadmissible for the following reasons.

As regards the applicant ’ s complaint under Article 3, the Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within its scope. 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 ).

The Court further reiterates that allegations of ill-treatment must be supported by appropriate evidence ( ibid , § 121 ). To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt”, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom , judgme nt of 18 January 1978, Series A no. 25, pp. 64-65, § 161 in fine ).

In the instant case, the Court observes that the medical reports established in the beginning and at the end of the applicant ’ s stay in custody, do not contain any indication that he was physically ill-treated by the gendarmes. The Court notes that the applicant without any particular details complains of having been beaten both at the Suçeken Gendarmes Station and at the Batman Gendarmes Station. The Court reiterates that any ill-treatment inflicted in such a way would have left marks on his body and those marks would have been observed by the doctors who examined him on 8 and 9 June 1999 respectively (see Tanrıkulu and Others v. Turkey ( dec .), nos. 29918/96, 29919/96 and 30169/96 , 24 February 2005 ). The Court is aware of the lack of details in these reports. Nevertheless, it notes that there is no material in the case file which could call into question the findings in this report or add probative weight to the applicant ’ s allegations.

On this point, the Court notes that, according to the medical report of 26 November 1998, the applicant was diagnosed as suffering from an anxiety reaction. It observes, however, that there is no evidence in the case file which lends support to the applicant ’ s argument that this condition was the result of the alleged ill-treatment he had been inflicted upon while in custody. In particular, there is no indication in the case file that the applicant was suffering from ill-health prior to the hearing held before the State Security Court on 2 September 1998, i.e. three months after he was remanded in custody.

In view of the above, the Court is of the opinion that the applicant has not laid the basis of an arguable claim that he was subjected to ill-treatment whilst in police custody. It follows that this part of the application is manifestly ill- founded and must be rejecte d in accordance with Article 35 §§ 3 and 4 of the Convention.

As to the applicant ’ s complaint under Article 13 of the Convention, the Court reiterates that this Article 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, judgment of 27 April 1988 , Series A no. 131, § 52). 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. Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

2. In his observations dated 11 April 2006, the applicant complained that the evidence obtained under torture had been used against him and other co ‑ accused during the criminal proceedings. On this point, he also pointed out that he had been tried by the State Security Court and had been deprived of his liberty for a long time. The applicant relied on Article 6 of the Convention.

In the absence of any documents supporting his arguments, the Court finds the applicant ’ s complaints under this head to be unsubstantiated. Therefore , this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančič Registrar President