Ersin ERKUS v Turkey - 38381/06 [2009] ECHR 1650 (6 October 2009)

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The European Court of Human Rights (Second Section), sitting on 6 October 2009 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

The applicant, Mr Ersin Erkuş, is a Turkish national who was born in 1985 and lives in Izmir. He was represented before the Court by Mr S. Çetinkaya, a lawyer practising in Izmir.

On 20 August 2002 the applicant, who was seventeen years old at the time, and three other persons were arrested by officers from the Narlıdere police station in Izmir on suspicion of having been involved in a theft. According to the arrest report, during their arrest the arrestees cut themselves with pieces of glass which they had on them in protest at their arrest. The arrest report was not signed by the applicant or the other arrestees.

On the same day the applicant was examined by a doctor, who noted a graze of 1x2 cm on his left shoulder blade. The doctor also noted that the applicant was not fully conscious.

On 21 August 2002 the applicant was once again examined by a doctor, who noted that there were incisions on the applicant’s abdomen and two superficial grazes of 1 cm on his left shoulder blade and left shoulder. According to the medical report, the applicant stated to the doctor that the incisions had occurred when he had cut himself. He further stated he had been hit on the head. Noting that the applicant was not fully conscious, the doctor referred the applicant to a hospital for a neurological consultation.

On the same day the applicant underwent a neurological examination, following which the director of the Izmir branch of the Forensic Medicine Institute informed the police that no objective neuropathological finding had been observed on the applicant and that there had not been any trace of trauma on the applicant’s head. The director further informed that there was a graze of 1 cm on the applicant’s left shoulder. The applicant was subsequently detained within the context of the criminal proceedings brought against him, which resulted in his acquittal on 12 May 2003.

Meanwhile, on 14 October 2002 the applicant submitted to the Izmir public prosecutor’s office that he had been beaten while in police custody. He claimed that the police officers had thrown him on to the floor and kicked him. He had also been hit on the head. In support of his allegations, the applicants referred to the grazes found on his left shoulder blade and left shoulder. The applicant noted that one police officer, İ.S., had rescued him from another officer who had been beating him. On an unspecified date one of the other arrestees, S.A., also made a formal allegation of ill-treatment.

On 13 March 2003 the Izmir public prosecutor filed a bill of indictment with the Izmir Criminal Court of First Instance, charging eight police officers with inflicting ill-treatment upon the applicant and S.A.

During the trial, the Izmir Criminal Court heard the complainants, the accused and certain witnesses, including S.A.’s brother, who noted that S.A. had been under the influence of drugs and had not been ill-treated when he had seen him in the police station. A certain O.Y. submitted that he was a friend of the applicant and that he had not observed that any ill treatment had been inflicted on the applicant when he had gone to the police station. Finally, İ.S. stated before the court that he had not been in the police station on 20 August 2002. The court also took the medical reports of 20 and 21 August 2002 into consideration.

On 23 December 2003 the Izmir Criminal Court acquitted the police officers, holding that there was insufficient evidence against them. The court noted that the complainants’ statements had been contradictory and that the witness statements did not correspond to the complainants’ allegations.

The applicant appealed. On 23 May 2006 the Court of Cassation upheld the judgment of the first-instance court.

The applicant complained under Articles 3 and 6 of the Convention that he had been subjected to ill-treatment, in particular that he had been kicked and hit on the head, while in police custody, and that there had not been a fair trial before the Izmir Criminal Court.

The applicant submitted that he had been ill-treated while in police custody and that the Izmir Criminal Court had failed to punish those responsible for his ill-treatment. He relied on Articles 3 and 6 of the Convention.

The Court considers that the applicant’s complaint regarding the proceedings brought against the police officers should also be examined from the standpoint of Article 3 of the Convention.

As regards the applicant’s allegations of ill-treatment, the Court observes at the outset that the ill-treatment complained of by the applicant consisted of severe beatings. The Court observes in this connection that the applicant has not produced any conclusive or convincing evidence in support of this allegation. The medical reports dated 20 and 21 August 2002 indicate that the applicant sustained two grazes of 1 cm on his left shoulder blade and left shoulder, and some incisions on his abdomen. The Court notes that on 21 August 2002 the applicant told the doctor who had examined him that he had inflicted these incisions on himself. As to the grazes noted in the medical reports, the Court considers that such indications are insufficient to substantiate the severe beatings described by the applicant. Moreover, the applicant was transferred to a hospital for a neurological consultation immediately after his allegations of beatings to the head, but no objective neuropathological finding was observed. The Court therefore finds that there is no evidence demonstrating that the partial loss of consciousness which the applicant had apparently suffered was a result of ill treatment inflicted on him by the police. In sum, the Court is of the opinion that any ill-treatment inflicted in the way alleged by the applicant would have left marks other than two grazes on his body which would have been observed by the doctors on 20 and 21 August 2002 (see Tanrıkulu and Others v. Turkey (dec.), no. 45907/99, 22 October 2002, and Yıldırım v. Turkey (dec.), no. 33396/02, ECHR 30 August 2007). Thus, there is nothing in the case file to show that the applicant was ill-treated as alleged.

As regards the applicant’s complaint regarding the alleged ineffectiveness of the criminal proceedings brought against the police officers, the Court observes that, following the applicant’s petition to the public prosecutor’s office, an investigation was initiated and criminal proceedings were subsequently brought against eight police officers. The Izmir Criminal Court included the medical reports in the file, heard the applicant, S.A., the police officers and witnesses who had been in the police station at the relevant time. Therefore, the Court finds that, even assuming that the applicant’s allegations of ill treatment were “arguable” and “raised a reasonable suspicion” (see, in particular, Ay v. Turkey, no. 30951/96, §§ 59 60, 22 March 2005), the obligation of the national authorities under Article 3 of the Convention to conduct an effective investigation into the applicant’s complaints 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.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Ersin ERKUS v Turkey - 38381/06 [2009] ECHR 1650 (6 October 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/1650.html Cite as: [2009] ECHR 1650