AHMET DURAN v. TURKEY - 37552/06 - HEJUD [2012] ECHR 1684 (28 August 2012)

SECOND SECTION

CASE OF AHMET DURAN v. TURKEY

(Application no. 37552/06)

JUDGMENT

STRASBOURG

28 August 2012

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ahmet Duran v. Turkey,

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

         FrançoiseTulkens, President,
         DanutėJočienė,
         IsabelleBerro-Lefèvre,
         AndrásSajó,
         IşılKarakaş,
         PauloPinto de Albuquerque,
         HelenKeller, judges,
andFrançoise Elens-Passos, Deputy Section Registrar,

Having deliberated in private on 10 July 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 37552/06) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ahmet Duran (“the applicant”), on 7 September 2006.

The applicant was represented by Mr K. Fırtına, a lawyer practising in Van. The Turkish Government (“the Government”) were represented by their Agent.

The applicant complainedunder Article 3 of the Convention that he had been subjected to ill-treatment during his time in custody at the Çaldıran district gendarmerie command and that the investigation into his allegations had been ineffective.

On 11 May 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

The applicant was born in 1953 and lives in Van.

On 18 April 2005 the Çaldıran Magistrates’ Court issued an arrest warrant in respect of the applicant in absentia, on suspicion of his involvement in the trafficking of illegal immigrants between Iran and Turkey.

According to the applicant’s submissions, on the same day at 5 p.m. he was arrested by gendarmerie officers and was taken to the Çaldıran district gendarmerie command, where he was allegedly beaten by the gendarmerie station commander, Y.A.

The Government maintained, however, that the applicant had been taken to the gendarmerie command at around 7.35 p.m.

As soon as he was brought to the gendarmerie command, the applicant was examined by a doctor upon a letter from the district gendarmerie commander, which stated that the applicant was due to be taken into custody. The doctor indicated in his medical report that there wasa graze of 2 cm and a scab caused by bleeding on the applicant’s right tibia, a bruise and sensitivity on the left side of his nose, lesions on both sides of his back and sensitivity under his right nipple.

Following the medical examination, the applicant was taken into custody. The official custody record noted the time of his placement in custody as 8 p.m. and indicated that there was no sign of physical violence on his body.

On 19 April 2005 at 9 a.m. the applicant had a meeting with his representative. Subsequently, the latter filed a petition with the Çaldıran public prosecutor’s office, stating that the applicant had alleged he had been ill-treated at the gendarmerie command. The lawyer indicated that he had observed bruises on the applicant’s face and requested that the applicant be medically examined in order to establish whether he had sustained the injuries as a result of physical violence in custody.

At 10.25 a.m. the applicant was examined by another doctor following the request ofthedistrict gendarmerie commander, who noted that the applicant was due to be released from custody. The second medical report indicated exactly the same findings as those mentioned in the initial report.

On the same day the applicant was brought before the Çaldıran Magistrates’ Court, which ordered his pre-trial detention.

At 7.10 p.m., prior to his detention in Muradiye Prison, the applicant was once again examined by a doctor at the MuradiyeStateHospital. The medical report drawn up by that doctor indicated a slightly swollen lesion measuring 0.5 x 0.1 cm on the applicant’s left cheekbone, a 3 x 4 cm lesion on the right side of his nose, a lesion of 2 x 3 cm under his left nipple and a sensitive area of 2 x 0.2 cm on his right tibia. The doctor concluded that the injuries would render the applicant unfit for work for one day.

On 22 April 2005 the applicant sent a petition to the Çaldıran public prosecutor’s office. He claimed that he had been beaten at the district gendarmerie commandand requested that an investigation be initiated into the matter.

On 17 November 2005 the public prosecutor heard the applicant’s statements. The applicant submitted that he had been beaten and cursed by Y.A., who had also threatened him by pointing a gun at his head.

On 7 December 2005 Y.A. told the public prosecutor that the applicant had been examined by a doctor before his detention in custody and found to have been injured. He stated that he could not be held liable of those findings in that they had apparently been sustained before the applicant’s arrest. He furtherargued that all kinds of evidence had already been obtained against the applicant beforehand and that therefore it would be irrational to conclude that he had been ill-treated in order to obtain evidence.

On 13 December 2005 the Çaldıran public prosecutor decided not to prosecute Y.A. On the basis of the three medical reports issued prior to and after the applicant’s custody, hefound that the injuries on the applicant had existed before he had been taken to the gendarmerie command. He further maintained that the applicant had failed to raise his allegations of ill‑treatment before the Çaldıran Magistrates’ Court on 19 April 2005, the day he had been placed in detention on remand. The prosecutor concluded that there was insufficient evidence to charge Y.A. with the alleged offence.

On 20 February 2006 the applicant’s representative objected to the decision of theÇaldıran public prosecutor. He argued that on the day of the events, the applicant had been taken into custody at 5 p.m. and had been beaten in the gendarmerie command until the time he had been brought before a doctor. He maintained that the two identical medical reports, drawn up immediately before and after the applicant’s custody, proved that point and that there was also a witness who had seen the applicant’s arrest at5 p.m. The representative finallysubmitted that contrary to the public prosecutor’s findings, he had raised the applicant’s complaint on19 April 2005 before the relevant authorities.

On 15 March 2006 theVan Assize Court dismissed that objection, holding that the investigation conducted by the public prosecutor had been adequate.

By a letter dated 23 July 2009 the applicant’s representative submitted the Court statements from two residents of the applicant’s village, who maintained that they had witnessed the applicant’s arrest at 4.30 p.m. on 18 April 2005.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

The applicant complained that he had been subjected to ill-treatment during the first hours of his unacknowledged custody at the Çaldıran district gendarmerie command and that the perpetrator of that offence had not been punished. He relied upon 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 contested the applicant’s arguments.

A. Admissibility

The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The substantive aspect of Article 3

The Government argued that the alleged ill-treatment did not fall within the ambit of Article 3 of the Convention in that it had not attained the minimum level of severity. They submitted that the said treatment had not been proven beyond reasonable doubt as three medical reports, drawn up by different doctors and obtained before and after the applicant’s custody, indicated the same findings and as the applicant had failed to describe the alleged acts in detail. In this respect, the Government also contended that the case differed from other cases concerning ill-treatment in police custody, since in the applicant’s case there had already been adequate evidence to charge him with an offence prior to his arrest.

The Court recalls that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Talat Tepe v. Turkey, no. 31247/96, § 48, 21 December 2004). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact(see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control, strong presumptions of fact will arise in respect of injuries occurring during such control (see, mutatis mutandis, Maslova and Nalbandov v. Russia, no. 839/02, § 99, 24 January 2008).

The Court observes that although the medical reports as to the applicant’s condition before and after his custody at the gendarmerie command indicated several lesions and sensitive areas on his body(see paragraphs 9 and 14 above), it cannot establish on the basis of the case file whether those injuries were the result of the alleged physical violence inflicted on the applicant between 5 p.m. and 7.35 p.m. on the day of his arrest. In this respect, it notes that the applicant was examined by a doctor for the first time at 7.35 p.m. that day. Moreover, according to the official record held at the gendarmerie command, he was taken into custody at8 p.m. The Court contends that despite the applicant’s allegations and the statements of two persons from his village, it cannot conclude beyond reasonable doubt that the applicant had been taken into custody at the gendarmerie command before he was examined by a doctor. Accordingly, the first medical report, which appears to have been issued before the applicant’s custody, indicates the same findings with those drawn up afterwards.

In the light of the foregoing and having regard to the applicant’s failure to describe the alleged acts in detail, the Court finds it impossible to conclude that the injuries on the applicant’s body were caused by the gendarmerie station commander, Y.A. (see, mutatis mutandis, Assenov and Others v. Bulgaria, 28 October 1998, § 100, Reports of Judgments and Decisions 1998‑VIII; and Halat v. Turkey, no. 23607/08, § 49,8 November 2011). In these circumstances, the Court cannot consider it established beyond reasonable doubt that the applicant was subjected to treatment contrary to Article 3 of the Convention.

It follows that there has been no violation of Article 3 of the Convention under its substantial aspect.

2. The procedural aspect of Article 3

The Government argued that the investigation conducted by the domestic authorities into the applicant’s allegations of ill-treatment was thorough and effective. They submitted that the effectiveness of a remedy did not depend on the certainty of a favourable outcome for the applicant (Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 122, Series A no. 215) and that the domestic authorities were better placed to assess criminal liability.

The Court reiterates that Article 3 of the Convention requires the authorities to carry out an effective official investigation into allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see, in particular, Assenov and Others, cited above, §§ 101-102).

In the present case, the Court has not found it proved, on account of lack of evidence, that the applicant was ill-treated as alleged. Nevertheless, as it has held in previous cases, that does not preclude the applicant’s complaint in relation to Article 3 from being “arguable” for the purposes of the positive obligation to investigate (see, Böke and Kandemir v. Turkey, nos. 71912/01, 26968/02 and 36397/03, § 54, 10 March 2009; andAysu v. Turkey, no. 44021/07, § 40, 13 March 2012). In reaching this conclusion, the Court has had regard to the findings in the medical reports drawn up in respect of the applicant, which indicate several lesions and sensitive areas on his body.

The Court recalls that the minimum standards as to the effectiveness of an investigation include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, among others, Çelik and İmret v. Turkey,no. 44093/98, § 55, 26 October 2004; and Hürriyet Yılmaz v. Turkey, no. 17721/02, § 46, 5 June 2007).

It cannot be overlooked that an investigation into the applicant’s allegations of ill-treatment was initiated by the Çaldıran public prosecutor. During the course of that investigation, the public prosecutor heard the statements of the applicant and Y.A. and assessed the three medical reports issued before and after the applicant’s custody. The Court observes nevertheless that in his decision not to prosecute Y.A., the prosecutor relied completely on the validity of the medical reports without questioning the identical wording of the first two, despite their having been drawn up by different doctors.

In this connection, the Court contends that in order to assess the possible causes of the injuries found on the applicant’s body, the public prosecutor could have requested another medical report immediately after the petition of the applicant’s representative on 19 April 2005, or following the applicant’s own petition dated 22 April 2005. However, he failed to do so. Instead, the prosecutor briefly referred to the three medical reports, which did not indicate anything as to how or when those injuries might have been sustained.

The Court notes furthermore that although the applicant’s representative filed a complaint on 19 April 2005, the public prosecutor did not take any stepsto pursue the investigation until the time he took the statements of the applicant and Y.A., almost seven months later. It considers that that delay, together with the Van Assize Court’s failure to hear the witness mentioned by the applicant’s representative (see paragraph 19 above), as indications of the authorities’ failure to conduct an effective investigation into the applicant’s allegations of ill-treatment in a “prompt and diligent” manner.

There has therefore been a violation of Article 3 of the Conventionunder its procedural aspect.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been no violation of Article 3 of the Convention under its substantive aspect;

3. Holds that there has been a violation of Article 3 of the Convention under its procedural aspect.

Done in English, and notified in writing on28 August 2012, pursuant to Rule77§§2 and3 of the Rules of Court.

Françoise Elens-Passos Françoise Tulkens
Deputy Registrar President

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