CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 10 octobre 2006

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Costa , President ,   Mr   A.B. Baka ,   Mr   R. Türmen ,   Mr   M. Ugrekhelidze ,   Mrs   E. Fura-Sandström ,   Ms   D. Jočienė ,   Mr   D. Popović, judges , and Mrs S. Dollé , Section Registrar , Having regard to the above application lodged on 20 October 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, Dursun Çevik, is a Turkish national who was born in 1956 and lives in Erzincan. He is represented before the Court by Mr Z. Polat, a lawyer 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 events of 4 January 1999 In the course of an investigation carried out into the activities of an illegal organisation, namely the TKP/ML-TIKKO [1] , the applicant’s name was mentioned by a suspect, Ms E.B., as having aided and abetted this organisation. On 4 January 1999 at around 6.30 p.m., the applicant was taken to Erzincan Central Gendarmerie Station (hereinafter “the gendarmerie”) for the purposes of confronting him with Ms E.B. and taking his testimony. The applicant was confronted with Ms E.B. in the presence of Mr M.K. (senior master sergeant) and Mr İ.T. (master sergeant). The applicant also gave a short deposition in which he denied the accusations brought against him by Ms   E.B. This deposition was taken by Mr   M.K., written by Mr. A.A.Ç. (gendarme) and signed by the applicant. On the same day at around 11.00   p.m., the applicant was released. The applicant alleges that, during this time, he was severely beaten and sworn at by a master sergeant and threatened by a plain ‑ clothes officer. 2.     Investigation instigated into the alleged ill-treatment and the criminal proceedings against Mr İ.T. By a petition dated 6 January 1999, the applicant lodged a complaint with the Erzincan public prosecutor’s office against two officers who had allegedly ill ‑ treated him on 4 January 1999. On the same day, the Erzincan public prosecutor (hereinafter “the prosecutor”) took the applicant’s testimony. The applicant submitted that on 4 January 1999 at 6.30 p.m. he was taken from his home by a senior sergeant, Mr M.K., who told him that they were going to confront him with Ms E.B. He claimed that when he arrived at the gendarmerie he was blindfolded and interrogated. He was later confronted with Ms. E.B. Afterwards, he was blindfolded and interrogated again. The applicant maintained that at about 10.30 p.m. he was taken into a room where he was beaten, sworn at and threatened with a gun by a master sergeant on duty. He further maintained that when Mr   M.K. took him into his room to sign two documents, he was also threatened by a plain-clothes officer who told him to be careful because there were lot of unresolved murders in Turkey and in the world. The applicant requested that proceedings be brought against the master sergeant and the plain-clothes officer. On the same day, at around 12 noon, upon the request of the prosecutor, the applicant was examined by a doctor at the Erzincan State Hospital, who noted sensitivity on the left part of the applicant’s mandibular joint [2] and on the left of the costo-lumbar area [3] . He concluded that the injuries rendered the applicant unfit for work for three days. On 27 January 1999 the prosecutor requested the gendarmerie to inform him whether the applicant had been taken into custody, the names of the officers who were present and the officer who took the applicant from his home on 4   January 1999. On 9 February 1999 the prosecutor received the requested documents, together with a note informing the prosecutor that the applicant had not been taken into custody on 4 January 1999. On 3 February 1999 the prosecutor heard Mr M.K., who submitted, in particular, that the applicant was held in his own room, that there was no plain-clothes officer present in the room and that he did not hear or see the master sergeant beating or swearing at the applicant. On 9 February 1999 the prosecutor heard Mr İ.T., who refuted the allegations of ill-treatment. On 10 February 1999 the prosecutor filed a bill of indictment with the Erzincan Criminal Court of First Instance against Mr   İ.T. On 12 February 1999 the criminal proceedings against Mr İ.T. commenced. The applicant did not intervene as a third-party in the criminal proceedings. In a hearing held on 22 April 1999, the court heard the accused sergeant, who contested the charges against him. It also heard the applicant and the senior sergeant, Mr M.K. In his testimony, the applicant reiterated his previous statements. In particular, he maintained that he had been taken into another room and beaten by a master sergeant, although he could not be sure whether it was the accused. He submitted that he had not been taken to a doctor upon his release from the gendarmerie. He maintained that he had not been able to complain the day immediately after his release since he could not contact his lawyer earlier. Finally, he said that since he could not identify the accused he was unable to accuse him. In his testimony, Mr M.K. submitted, inter alia , that he had not witnessed the alleged ill-treatment of the applicant and that the accused was the master sergeant on duty at the time of the events. Upon a question by the court, Mr M.K. affirmed that there was no other master sergeant at the gendarmerie at the time of the event. The court asked the applicant whether he had anything to say regarding the witness testimony. The applicant replied that he had nothing to say to the testimony of the witness. However, he reiterated that he had been beaten in the gendarmerie. He further claimed that there was another person in civilian clothes named “Ahmet” and working at the peace branch of the Security Directorate who had sworn at him. Finally, he said that no one witnessed the beatings because he and the perpetrator were alone in the room. On the same day, the Erzincan Criminal Court of First Instance, relying on the date of the medical report and the fact that the applicant was unable to confirm whether the accused had ill-treated him, acquitted Mr İ.T. on account of the lack of evidence. The judgment of the Erzincan Criminal Court of First Instance became final as neither the prosecutor nor the accused appealed. On 2 and 3 May 2005 three non-commissioned officers examined the gendarmerie’s custodial and crime records. They found no record of the applicant having being taken into custody in 1999. B.     Relevant 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). COMPLAINT The applicant complained under Article 3 of the Convention that he had been subjected to inhuman and degrading treatment while held in custody. THE LAW The applicant complained that the treatment to which he had been subjected while held in custody amounted to 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 Government asked the Court to dismiss the application as being inadmissible for failure to comply with the requirement of exhaustion of domestic remedies under Article   35   §   1 of the Convention. In this respect, they submitted that the applicant had failed to intervene as a third party and therefore could not lodge an appeal against the judgment of the first ‑ instance court. The Government further argued that the applicant could have sought reparation for the harm he allegedly suffered by instituting an action in the civil or administrative courts. As to the merits, the Government maintained that the applicant’s allegations were not supported by any concrete evidence, that the applicant was never held in custody and that an effective investigation had been carried out in respect of the applicant’s allegations. The applicant maintained that he had exhausted all the effective domestic remedies. In particular, he claimed that he was not aware that it was possible for him to intervene in the proceedings since the court did not inform him of this fact and because he did not have a lawyer. He further claimed that since the prosecutor failed to conduct an effective investigation there was no possibility for him to obtain redress through administrative or civil courts. As to the merits, the applicant claimed that the injuries noted in the medical report proved that he had been ill-treated while he was held in custody. He affirmed that he should have been taken before a doctor at the end of his detention. The applicant claimed that he had been released late at night and was unable to do anything right away because he was suffering from shock. He also stated that since he was unable to reach his lawyer the next day he did not go to a hospital until 6   January 1999. The Court considers it unnecessary to determine whether the applicant has exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention, since the application is anyway inadmissible for the following reasons. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, in particular, Tanrıkulu and Others v. Turkey (dec.), no. 45907/99, 22   October 2002). 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 , judgment of 18 January 1978, Series   A   no. 25, pp. 64-65, § 161 in fine ). In the instant case, the Court notes that the medical report of 6 January 1999 contains certain findings which could be the consequences of acts of ill-treatment. However, the Court observes, firstly, that the applicant failed to provide any details as regards the manner in which the beatings were inflicted upon him which could confirm or match the findings noted in the medical report. Moreover, it notes that the medical report was drawn up approximately thirty-eight hours after the applicant was released from the gendarmerie. In view of the above, the Court finds that there is no evidence that the physical findings described in the medical report of 6   January 1999 existed at the time of his release from the Gendarmerie Station (see, in particular, Olszewski v.   Poland (dec.), no. 55264/00, 13 November 2003). In addition, even assuming that the applicant was subjected to threats and/or verbal abuse as alleged, and as a result he felt apprehension or disquiet, the Court recalls that such feelings are not sufficient to amount to degrading treatment, within the meaning of Article 3 (see, in particular, Hüsniye Tekin v. Turkey , no. 50971/99, §   48, 25 October 2005 and mutatis mutandis, Campbell and Cosans v.   the United Kingdom, judgment of 25   February 1982, Series A no. 48, §§   27 and 28). 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 treatment which amounted to inhuman and degrading treatment on 4   January 1999 at the gendarmerie. 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 Assenov and Others   v.   Bulgaria , judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, pp. 3289-90, §§ 101-02). The Court considers that the medical evidence, the applicant’s testimony and the fact that he was held at the gendarmerie for about four and a half hours in the course of an investigation against an illegal organisation, together raise a reasonable suspicion that these injuries may have been caused by the gendarmes. An investigation was therefore required. In the instant case, the Court notes that an investigation into the allegations of the applicant was initiated promptly by the prosecutor. This preliminary investigation led to the committal for trial of Mr İ.T., identified by the prosecutor as the master sergeant who was on duty on the day of the incident. Moreover, the Court notes that the applicant was able to participate in the criminal proceedings against Mr İ.T., which resulted in his acquittal for lack of evidence. On this point, the Court observes that the applicant was unable to recognise whether Mr İ.T. was the officer who had allegedly ill ‑ treated him. He also failed to provide the authorities with any physical or other distinctive details as regards the alleged perpetrators of the ill ‑ treatment, save for the rank of one of them. In these particular circumstances, 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 by a majority Declares the application inadmissible.   S. Dollé   J.-P. Costa   Registrar   President 1.     Turkish Communist Party/Marxist and Leninist-Turkish Workers and Peasants’ Liberation Army. 1.     The mandibular joint is situated where the lower jaw bone is connected to the temporal bone of the skull. 2.     The costo-lumbar area is situated at the lower back below the ribs.