SECOND SECTION

DECISION

Application no. 3533/10 Ergin ATABEY against Turkey

The European Court of Human Rights (Second Section), sitting on 29 March 2022 as a Committee composed of:

Egidijus Kūris, President, Pauliine Koskelo, Gilberto Felici, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 3533/10) against Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 November 2009 by a Turkish national, Mr Ergin Atabey, who was born in 1973 and was detained in Bolu prison at the time of lodging the application (“the applicant”) and who was represented by Ms S. Kaya, a lawyer practising in Istanbul;

the decision to give notice of the complaints concerning Articles 3 and 6 of the Convention to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey , and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the applicant’s alleged ill-treatment during his police custody between 25 and 30 April 1999; the alleged unfairness of the ensuing criminal proceedings against him on account of the trial court’s use of evidence given by his co-defendants A.Y., A.I. and M.Y. under alleged duress; and the trial court’s alleged failure to explain why it had relied on the statements made by the witnesses during the preliminary investigation stage, despite the fact that they had either retracted those statements when testifying during the trial or had given an account that was inconsistent with their earlier statements.

2. On 7 May 2007 the Istanbul Assize Court delivered a judgment in the case, finding it established that on 13 March 1999 the applicant had thrown Molotov cocktails in the Mavi Bazaar, which resulted in the death of thirteen persons, and convicted the applicant, sentencing him to aggravated life imprisonment under Article 125 of the former Criminal Code. The trial court based its decision on several items of evidence, such as the co-defendants’ statements to the police, public prosecutor and investigating judge; video recordings and written records of visits to the crime scene; autopsy reports; eyewitness identification; and ballistic reports. The trial court further held that neither the medical reports obtained at the beginning and end of the arrests of the applicant and his co ‑ defendants, namely A.G., A.I. and M.Y., nor the Forensic Medicine Institute’s report dated 15 May 2006, had contained any finding that these persons had been subjected to ill-treatment during their police custody. The trial court found that the fact that the applicant had not given any incriminatory evidence was proof that he had not been subjected to ill ‑ treatment while in police custody.

3. On 7 May 2009 the Court of Cassation upheld the trial court’s judgment.

THE COURT’S ASSESSMENT

4. The applicant submitted under Article 3 of the Convention that even though he had been subjected to torture during police custody and had raised that complaint at the beginning of his trial, it had never received a proper legal or medical examination at the domestic level. In particular, the trial court had only referred him to the Forensic Medicine Institute for a medical examination eight years after his arrest and had refused to refer him for a psychological examination, impeding his ability to show the psychological effects of being tortured.

5. The Government raised a plea of non-exhaustion and further argued that the applicant had failed to comply with the six-month time-limit under Article 35 of the Convention. The Court does not find necessary to address those objections as this complaint is, in any event, inadmissible for the following reasons.

6. General principles concerning the substantive and the procedural limb of Article 3 of the Convention in so far as it concerns the ill-treatment allegations of applicants in custody are set out in detail in paragraphs 81 ‑ 90 and 114 ‑ 23 of the Court’s judgment in Bouyid v. Belgium ([GC], no. 3380/09, 28 September 2015).

7. The Court has already examined under Article 3 of the Convention the ill ‑ treatment allegations of the applicant’s co-defendant A.I., who was in police custody at the same period as the applicant, and declared them inadmissible as being manifestly ill-founded, having regard to the absence of any proof establishing the existence of such treatment (see Işık v. Turkey (dec.), no. 63900/00, 3 April 2007).

8. In his application form, the applicant did not set out his ill-treatment allegations in any detail, limiting his complaints in that regard to the absence of an effective investigation into his alleged ill-treatment. Nevertheless, the medical reports drawn up at the beginning and end of the applicant’s police custody attested that there were no signs of ill-treatment on his body. Similarly, the Forensic Medicine Institute’s medical report dated 15 May 2006, drawn up pursuant to the trial court’s decision to that effect, concluded that neither the applicant nor his co-defendants had been subjected to external trauma during their police custody. Furthermore, the applicant did not file an official complaint with the public prosecutor’s office with a view to elucidating the circumstances surrounding his ill-treatment claims. On the basis of these elements, the trial court also found the applicant’s complaint unsubstantiated, adding that the fact that he was able to exercise his right to remain silent during police custody was proof that no undue pressure was applied to him (see Utvenko and Borisov v. Russia , nos. 45767/09 and 40452/10, §§ 171-175, 5 February 2019). In view of the above, the Court concludes that the applicant has failed to make out a prima facie case that he was ill-treated by police officers during his police custody (see Martinez Sala and Others v. Spain , no. 58438/00, § 145, 2 November 2004). Accordingly, there is nothing to indicate that the domestic authorities acted contrary to their positive obligations arising from Article 3 of the Convention. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

9. The Government raised a plea of non-exhaustion in respect of the alleged breach of the principle of equality of arms on account of the applicant’s inability to question witnesses, arguing that he had not raised that complaint either before the Court of Cassation or before the Court. As regards the complaints relating to the use of evidence obtained allegedly under torture, the Government submitted that there was no evidence capable of substantiating the contention that either the applicant or his co-defendants had been ill-treated. As regards the witness statements, the Government submitted that the domestic courts had made sure to resolve the discrepancies contained in those statements.

10. The applicant did not comment on the Government’s preliminary objections, but complained that his right to a fair trial had been breached owing to the trial court’s use of evidence obtained under the torture of his co-defendants A.G., A.I., and M.Y., and inconsistent witness statements, to convict him.

11. The Court upholds the Government’s plea of non-exhaustion and declares the complaint relating to the principle of equality of arms inadmissible owing to the applicant’s failure to raise it before the domestic courts.

12. As regards the use of the evidence given by the co-defendants, the Court has already found that the co-defendant A.G. had failed to lay the basis of an arguable claim that he had been ill-treated or that his conviction had been based on evidence obtained through ill-treatment (see Günay v. Turkey (dec.), no. 31596/07, 12 January 2010). The Court has also reached a similar conclusion in respect of the co-defendant A.I.’s complaints under Article 3 of the Convention (see Işık , cited above). As regards M.Y., whose situation was comparable to that of A.G. and A.I., the applicant did not submit any argument or evidence enabling the Court to assess whether his situation was different from those of A.G. and A.I. (compare Gökbulut v. Turkey , no. 7459/04, §§ 65-67, 29 March 2016). Accordingly, this complaint must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention (compare and contrast Vanjak v. Croatia , no. 29889/04, § 59, 14 January 2010).

13. As regards the domestic courts’ erroneous interpretation of the evidence, in particular the witness statements, by virtue of their failure to resolve the contradiction between the statements that had been made during the investigation stage and those made during the trial, the Court reiterates that the assessment of evidence, including in particular that of eyewitnesses, is primarily a matter for the jurisdiction of the domestic courts, unless their findings can be regarded as arbitrary or manifestly unreasonable so as to prejudice the fairness of the proceedings in that either no reasons were provided for them or the reasons given were based on a manifest factual or legal error committed by the domestic court, resulting in a “denial of justice” (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 85, 11 July 2017). It is not appropriate for the Court to rule on whether the available evidence was sufficient for an applicant’s conviction and thus to substitute its own assessment of the facts and the evidence for that of the domestic courts (see Murtazaliyeva v. Russia [GC], no. 36658/05, § 149, 18 December 2018). Having regard to those principles and the absence of any arbitrariness in the way in which the witness evidence was assessed by the domestic courts, the Court declares this complaint inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

14. In his observations in response to those of the Government, the applicant complained, for the first time, that the fairness of his trial had also been tainted owing to the use by the trial court of the police statements of A.G. and A.I., which had been taken without a lawyer being present owing to the systemic restriction imposed on their right to a lawyer. In that connection, the applicant referred to (i) Işık v. Turkey ([Committee], no. 49009/09, § 25, 27 February 2018), in which the Court found a violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of A.I., on account of the systemic restriction imposed on her right of access to a lawyer and the subsequent use by the domestic courts of her statements made without a lawyer being present for her conviction, and to (ii) Günay and Yamalak v. Turkey ((dec.) [Committee], no. 6675/10, 30 April 2019), where the Government submitted unilateral declarations recognising the violation of those applicants’ rights of a access to a lawyer; those applicants were the present applicant’s co ‑ defendants.

15. However, this new complaint is not an elaboration of the applicant’s original complaint under Article 6 § 1 of the Convention relating to the use of the statements of A.G. and A.I. which were reportedly extracted under torture, notice of which was given to the Government. That being the case, it was lodged more than six months after the final domestic decision. It follows that this part of the application was introduced out of time and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 May 2022.

Hasan Bakırcı Egidijus Kūris Deputy Registrar President