THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55938/00 by Emine YAÅžAR against Turkey

The European Court of Human Rights (Third Section), sitting on 22 June 2006 as a Chamber composed of:

Mr B.M. Zupančič , President, Mr J. Hedigan , Mr L. Caflisch , Mr R. Türmen , Mr C. Bîrsan , Mr V. Zagrebelsky , Mrs A. Gyulumyan , judges, and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 17 November 1999 ,

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, Ms Emine YaÅŸar, is a Turkish national who was born in 1976 and lives in Istanbul . She is represented before the Court by Ms F. KarakaÅŸ and Ms E. Keskin, lawyer s practising in Istanbul .

A. The circumstances of the case

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

1. The detention in police custody

In the course of an operation carried out against the activities of an illegal organisation, namely the PKK ( Workers Party of Kurdistan) , the applicant was arrested and taken into custody by police officers at the Anti-terror Branch of the Istanbul Security Directorate on 28 September 1995.

The applicant alleged that during her stay in custody she had been subjected to various forms of ill-treatment. In this regard, she maintained that she was blindfolded, given electric shocks, hung, beaten, sexually harassed, forced to watch four police officers rape a 60 year old woman and subjected to anal rape with a truncheon.

On 12 October 1995 the applicant was examined by a doctor from the Forensic Medicine Department of the Istanbul State Security Court . According to the medical report issued in respect of the applicant, together with twenty-two other suspects, she bore no signs of ill-treatment apart from subjective pain on her back and right leg.

On the same day, the applicant was brought before the public prosecutor at the State Security Court and a judge at the State Security Court . The latter ordered her remand in custody.

2. Criminal proceedings against the applicant

On 27 November 1997 the public prosecutor at the Istanbul State Security Court filed a bill of indictment accusing the applicant of aiding and abetting an illegal organisation. The charges were brought under Article 169 of the Criminal Code.

On an unspecified date, criminal proceedings against the applicant and other suspects commenced before the Istanbul State Security Court.

In a hearing held on 1 March 1996 the applicant refut ed the accusations against her. In particular, she denied that the documents found in her bag were hers, claiming that the police had put them in there and had beaten and tortured her. She contended that she did not sign her deposition in police custody because it was not hers. Finally, she refuted the findings of the medical report of 12 October 1995 and claimed that she had been tortured and given electric shocks and that she still had a swelling on her leg.

On 6 February 1997 the applicant was released pending trial. On 17 October 1997 the Istanbul State Security Court acquitted the applicant of all charges. The public prosecutor appealed against this judgment. No further information was submitted by the parties as to subsequent events.

3. The medical certificates of the applicant after her release from remand in custody

On an unspecified date, the applicant applied to the Turkish Human Rights Association for treatment. She gave a detailed description of the alleged ill-treatment she had been subjected to while held in custody.

On 26 March, 7 April and 9 June 1997 the applicant was examined by a general surgeon, gynaecologist and orthopaedist. The gynaecologist concluded that the applicant suffered from amenorrhoe [1] which was due to high levels of prolactin hormone in her body. On 15 May 1997 she was examined by a physiatrist. The orthopaedist noted that the applicant, who was working at a clothes factory, complained of back and shoulder pain. He concluded that she was suffering from spondylitis [2] .

On 29 March 1997 the applicant was admitted to Huzur Hospital , where she was diagnosed as suffering from anal fissur [3] . The applicant was operated on and released from the hospital on the same day.

According to the medical report issued by the Turkish Human Rights Association on 15 September 1997 at the request of the applicant ’ s representative and signed by two doctors, the applicant was diagnosed as suffering from perianal fissure , secondary ameno r r ho e , gastroduodenal [ulcer] [4] and spond ylitis . The report further noted that she was suffering from depression. The doctors considered that the findings were consistent with the applicant ’ s story of ill ‑ treatment.

4. Investigation instigated into the alleged ill-treatment

In the meantime, on 24 September 1997 , the applicant filed an official complaint with the Fatih public prosecutor ’ s office. In her petition, the applicant submitted a detailed account of the ill-treatment she had been subjected to while she was held in police custody. She further claimed that she had been raped three times with a truncheon by police officers at the Security Directorate. She maintained that she would be able to identify them if she saw them. The applicant claimed that she had been unable to talk about the rape until that time but that she had previously complained to the State Security Court that she had been ill-treated. Finally, she submitted that she was unable to tell the doctor who had examined her at the end of her stay in custody because she had been afraid of the police officers who had accompanied her.

On an unspecified date, the Fatih public prosecutor (hereinafter: “the prosecutor”) instigated an investigation into the applicant ’ s allegations.

Upon the request of the prosecutor dated 25 September 1997 , the Ä°stanbul Security Directorate submitted, on 15 October 1997 , documents pertaining to the arrest and detention of the applicant and informed him of the identities of the police officers who had interrogated the applicant.

On 13 and 15 October 1997 the prosecutor took the statements of two police officers who had interrogated the applicant. They both refuted the allegations of the applicant.

On 13 November 1997 the prosecutor took the statement of the applicant. In her deposition, the applicant gave a detailed description of the ill ‑ treatment inflicted upon her in custody. She submitted that she couldn ’ t complain of the ill ‑ treatment before the public prosecutor and the State Security Court because the police officers who had accompanied her had threatened her. She claimed that the doctor who had examined her was also afraid of the police officers and therefore failed to conduct a detailed examination on her person. The applicant submitted that while in prison she stopped having her periods and was constantly ill. She claimed that she saw a doctor in prison who told her that there was nothing he could do.

On 5 August 1998 the Second Section of the Forensic Medicine Institute, after examining the applicant on 13 February 1998 and evaluating the medical reports of the applicant, in particular, that of the Turkish Human Rights Association, concluded that the applicant ’ s ameno r r ho e was due to a hormonal disorder (high level of prolactin hormone). It further noted that there were no traumatic signs on the sexual organs of the applicant and that she had a cystic lesion on her right ovaries. The report also mentioned that the applicant failed to submit the results of her latest tests as regards her amenorrhoe .

On 16 February 1999 the prosecutor, taking into account the submissions of the applicant and the police officers together with the medical reports contained in the case-file, decided that no prosecution should be brought against the accused police officers on the ground that there was insufficient evidence in support of the allegations.

On an unspecified date the applicant objected to the decision of the prosecutor. In her petition, the applicant submitted, inter alia , that the prosecutor failed to conduct an effective investigation into her complaints.

On 31 May 1999 the Beyoğlu Assize Court dismissed the applicant ’ s objections.

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 ).

COMPLAINTS

The applicant complained under Article 3 of the Convention that she had been subjected to torture while held in police custody.

The applicant submitted under Articles 6 and 13 of the Convention that the inadequacy of the investigation carried out by the public prosecutor rendered impossible the identification and punishment of the persons responsible for the ill-treatment inflicted on her and also to bringing civil proceedings against them.

The applicant maintained in her initial application form that she had been harassed, threatened and beaten by police officers a number of times to compel her to withdraw her complaint to the public prosecutor. In her additional observations dated 18 September 2003 the applicant, relying on the same facts, complained that she had been hindered in the exercise of her right of individual application. She invoked Article 34 of the Convention.

THE LAW

1. The applicant complained that the treatment to which she 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.”

a. The p arties ’ submissions

The Government, referring to the case Zeynep Avcı v. Turkey , no. 37021/97 , 6 February 2003 , maintained that the applicant had failed to provide any evidence in support of her complaint. In this regard, they referred to the medical report established at the end of her stay in custody. They noted that the applicant did not challenge this report when she lodged her complaint to the public prosecutor or appealed to the Assize Court . Furthermore, they noted that following her complaint the applicant had undergone a medical examination, which had not been able to establish any signs resulting from rape.

The applicant refuted the arguments of the Government. In particular, she submitted that the medical report of 12 October 1995 had established that she had subjective pain on her back and right leg. In this respect, the applicant pointed out that this medical report was inadequate and superficial. The applicant pointed out that it had been established that she suffered from perianal fissure , for which she had been operated on and treated for. The applicant further claimed that she suffered from amenorrhoe due to the beatings and stress. Finally, the applicant maintained that it would have been impossible to provide evidence supporting her allegations either while she was in custody or when she was in prison.

b . The Court ’ s assessment

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 ).

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 ).

The Court observes that the medical report established at the end of the applicant ’ s stay in custody does not contain any indication, apart from subjective pain felt by the applicant, that she was ill-treated while she was held in police custody. The Court holds that any ill ‑ treatment inflicted in the way alleged by the applicant would have left marks on her body, in particular being subjected to electric shocks, hung and beaten, and those marks would have been observed by a doctor who examined her at the end of her detention in police custody, some fourteen days later, before she was formally remanded in custody (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 this report. 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 the medical report of 15 September 1997 contains certain physical and mental findings which could be the consequences of acts of ill ‑ treatment. It observes, however, that the report was drawn up around two years after the applicant ’ s stay in police custody. In view of this fact, the Court considers that there is no evidence that the physical and mental findings described in this medical report are the consequences of the treatment, in particular, the forcible insertion of a truncheon in her anal passage, which the applicant was allegedly subjected to while she was held in police custody. In this connection, the Court observes that no medical reports were submitted either to the Court or to the domestic authorities, indicating that during the time the applicant was remanded in custody she was suffering from ill ‑ health as a result of the alleged ill-treatment. There is also no indication in the case-file that the applicant requested to see a doctor and was refused during this time.

In view of the above, the Court is of the opinion that the applicant has not laid the basis of an arguable claim that s 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.

2. The applicant submitted that the inadequacy of the investigation carried out by the public prosecutor rendered impossible the identification and punishment of the persons responsible for the ill-treatment inflicted on her and the bringing civil proceedings against them. She relied on Articles 6 and 13 of the Convention.

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.”

The Government disputed the applicant ’ s allegations.

The Court reiterates that Article 13 of the Convention 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 her 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.

3. In her initial application form the applicant complained that she had been harassed, threatened and beaten by police officers a number of times to compel her to withdraw her complaint to the public prosecutor. In her additional observations dated 18 September 2003 the applicant, relying on the same facts, complained that she had been hindered in the exercise of her right of individual application. The applicant relied on Article 34 of the Convention, which provides:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Government refuted the allegations.

The Court observes, firstly, that the applicant ’ s complaint as laid down in the application form is not related to the hindrance of her right to an individual petition by the respondent Government within the meaning of Article 34 of the Convention. In so far as the applicant now complains of the same facts as having relevance for the proceedings before the Court, it must be observed that there is no indication in the case-file that the applicant brought the conduct of the police officers to the attention of the authorities. Moreover, the applicant was able to lodge her application to the Court and submit to the Court a number of observations. She has also continued to correspond with the Court without any obstacles (see, in particular, Toğcu v. Turkey , no. 27601/95, § 148 , 31 May 2005 ).

It follows that 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

[1] 1. The absence of the menstrual period.

[2] 2. A type of arthritis that affects the spine or backbone.

[3] 3. A type of benign perianal disease whereby a tear or superficial laceration occurs in the mucosa that lines the anal canal.

[4] 4. Inflammation of the stomach and intestines.