NEZIR ADIYAMAN v. TURKEY - 6042/09 - Chamber Judgment [2013] ECHR 1082 (05 November 2013)

SECOND SECTION

CASE OF NEZİR ADIYAMAN v. TURKEY

(Application no. 6042/09)

JUDGMENT

STRASBOURG

5 November 2013

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 Nezir Adıyaman v. Turkey,

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

          Guido Raimondi, President,
          Danutė Jočienė,
          Peer Lorenzen,
          Dragoljub Popović,
          Işıl Karakaş,
          Nebojša Vučinić,
          Paulo Pinto de Albuquerque, judges,
and Lawrence Early, Acting Section Registrar,

Having deliberated in private on 15 October 2013,

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

PROCEDURE

. The case originated in an application (no. 6042/09) 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 Nezir Adıyaman (“the applicant”), on 3 December 2008.

. The applicant was represented by Mr M. Erbil, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

. The applicant alleged under Article 3 of the Convention that he had been ill-treated while in police custody and that the investigation into the matter had not been effective.

. On 10 December 2010 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 1978 and lives in Istanbul.

. On 4 September 2005, at 10.30 p.m., the applicant was arrested and taken to the Beyazıt police station on suspicion of using explosives during a demonstration.

. According to the arrest and seizure report, at around 10 p.m., the police had been informed of a gathering which needed to be monitored. Upon their arrival, they had noticed a group of people who had gathered in the middle of the street, holding Molotov cocktails. The group had dispersed when they saw the officers. The report further indicated that the applicant, who had been among the group, had started to run away, threatened to throw a Molotov cocktail at the officers and resisted when the police tried to arrest him. According to the report, the police had used gradual force within legal limits in order to keep the applicant under control and had finally handcuffed him. They had also seized the Molotov cocktail which was ready to explode and had found a piece of fabric in his pocket which could be used as a fuse for the Molotov cocktail.

. At 11.50 p.m. the applicant underwent a medical examination at the Haseki Training and Research Hospital. The report drawn up afterwards indicated no sign of physical violence on his body.

. Following the examination, the applicant was taken back to the Beyazıt police station. In the meantime, the Istanbul public prosecutor ordered that he should be handed over to the Anti-Terrorist Branch of the Istanbul Security Directorate.

. The applicant underwent a second medical examination at the Haseki Training and Research Hospital before he was taken to the Anti-Terrorist Branch. The second report issued there on 5 September 2005, at 1.14 a.m., noted once again that there was no sign of ill-treatment on his body.

. Upon his arrival at the Anti-Terrorist Branch, the applicant was transferred to the Istanbul Forensic Medicine Institute and was examined by a doctor at 2.25 a.m. Before the examination, he claimed that he had been sworn at, stripped naked, and punched on the chin and shoulders at the Beyazıt police station. The interim forensic medical report issued afterwards noted that the applicant’s general health condition was good and that he was conscious. It stated that beside a bleeding scratch on his left hand, which he noted had occurred before his arrest, the applicant had two scratches of 1.2 x 0.8 cm and 2.5 x 1.2 cm and a lightly bleeding bruise of 2.5 x 0.8 cm on his right elbow, hyperaemia on both his wrists probably caused by the use of handcuffs and some other small scratches on his elbows, chest and shoulders. The report further noted that the movement of the applicant’s chin was found to be normal. It concluded that the applicant had several soft-tissue lesions, which did not put his life at risk and could be treated with simple medical attention.

. Another medical report drawn up at around 8 p.m. the same day indicated that the applicant had two scratches of 3 x 0.7 cm on both elbows, had difficulty in opening his jaw and pain on the frontal area of his head. This report concluded that the applicant needed to be examined by orthopaedic and neurosurgical departments in a hospital for more accurate results.

. Subsequently, at 9.30 p.m., the applicant was examined by doctors in the orthopaedics and general surgery departments of the Bakırköy State Hospital. The doctors reported that he had three 1 x 1 cm scratches on his left shoulder and right elbow and a scratch measuring 0.5 x 0.5 cm on his left side. They further stated that no urgent orthopaedic or osseous pathology could be determined.

. After that examination, the Istanbul Forensic Medicine Institute issued a final report, stating that as there was no orthopaedic or neurosurgical pathology, the superficial scratches and bruises on the applicant’s body did not put his life at risk and could be cured with simple medical attention.

. Finally, on 6 September 2005 the applicant underwent two examinations at the Beşiktaş Branch of the Forensic Medicine Institute. The medical report repeated the findings of the first examination performed in the Istanbul Forensic Medicine Institute. It also referred to a dental report, made on the same day on account of the applicant’s allegations of having been punched on the chin, which stated that there was no indication that such external force had been applied to his mouth. Consequently, the applicant was diagnosed as suffering from a soft-tissue lesion which could be cured with simple medical attention.

. On the same day, following the medical examinations, the applicant made his submissions before the Istanbul public prosecutor, to whom he complained that he had been ill-treated while in police custody. He also denied the contents of the arrest and seizure report and stated that when the police had arrested him, he had been on his way to inform his employees’ families that the employees would stay late that night.

. Later on, the applicant was questioned by the investigating judge at the Istanbul Assize Court. Repeating the statements he had given before the public prosecutor, he maintained that he had been walking along with three of his employees when the police had pushed him to the ground and handcuffed him. He added that the piece of fabric found in his pocket, which the police claimed was a fuse, was merely a sample he had carried with him for an order, as he worked in the textile business. The investigating judge decided to remand the applicant in custody on suspicion of being a member of an illegal organisation, namely the PKK (the Kurdistan Workers’ Party), and of threatening to cause fear and panic.

. On 15 September 2005 the Istanbul public prosecutor separated the investigation into the applicant’s allegation of ill-treatment from that regarding the applicant.

. On 6 October 2005 the Istanbul public prosecutor invited thirteen police officers from the Beyazıt police station to attend within fifteen days at the prosecutor’s office, in order to give their statements on the matter.

. On 12 October 2005 the Istanbul public prosecutor questioned the applicant once again. The applicant submitted that he had been punched, slapped and pushed against the wall by ten to fifteen officers for about twenty minutes during his time at the Beyazıt police station. He added that he had not been subjected to ill-treatment during his arrest and while at the Anti-Terrorist Branch.

. On 1 and 2 December 2005 respectively, five police officers, who had carried out the applicant’s arrest, were questioned by the Istanbul public prosecutor. Denying the applicant’s allegations, they maintained that they had arrested the applicant using gradual force and had taken him to the police station in order to draw up an arrest report. They added that subsequently they had taken the applicant for a medical examination, brought him back to the police station and left. The other officers, who had been at the station while the applicant had been there, denied the allegations as well and maintained that no one at the station had inflicted physical violence on the applicant. Two of them further referred to the second medical examination, performed right before the applicant had been transferred to the Anti-Terrorist Branch, and maintained that the second report did not indicate any sign of ill-treatment on the applicant either. The officers noted, lastly, that the injuries to the applicant must have occurred during his arrest as he had resisted the officers.

. On 29 June 2006 the applicant checked photographs of some of the police officers before the Tekirdağ public prosecutor. He maintained that he could not identify the officers who had beaten him from the photographs that were shown to him. He added that he still suffered from pain in his ear as a result of the ill-treatment.

. On 31 May 2007 the Istanbul public prosecutor’s office asked the director of the Beyazıt police station to provide him with the names and photographs of all officers on duty at the police station on 4 September 2005 between 8 p.m. and midnight. The prosecutor’s office further wrote to various security headquarters in other cities, to which some of the police officers had been assigned, and requested their photographs.

. Subsequently, on an unspecified date and on 5 November 2007 respectively, the applicant was taken twice to the Tekirdağ public prosecutor’s office with a view to checking the photographs of all the officers on duty at the time of the alleged incident. The applicant maintained that he had failed to identify the officers who had ill-treated him from their photographs on account of the passage of time but that he was certain that some, with whom he had been acquainted before his arrest, had not been among them. He added that he would have been able to identify the officers who had beaten him, in person, through an identification parade.

. On 3 October and 13 December 2007 respectively, two officers from the Istanbul Anti-Terrorist Branch gave their statements before the public prosecutor. They indicated that before the applicant had been handed over to them, they had asked the police officers from the Beyazıt police station to obtain a medical report and had placed the applicant in custody only after that report had been provided.

. On 17 January 2008 another police officer from the Istanbul Anti-Terrorist Branch was questioned by the public prosecutor, in order to clarify why the applicant had undergone several medical examinations in two days. The officer claimed that the applicant must have been taken to the doctor several times because of his requests to that effect.

. On 5 February 2008 the Istanbul public prosecutor asked the Istanbul Forensic Medicine Institute to explain whether the injuries to the applicant could have occurred as a result of the use of handcuffs during his arrest and whether they might have become visible only later on, so that the doctors at the Haseki Training and Research Hospital, who had conducted the initial examinations, could not have noticed them.

. In response to the public prosecutor’s request, on 7 February 2008 the Istanbul Forensic Medicine Institute assessed all the medical reports and concluded that the lesions on the applicant’s body could not have occurred merely from the use of handcuffs and that he must have been subjected to trauma. The report also noted that such lesions might have been unnoticeable during the initial medical examinations as it was usual for them to become visible only after twenty-four hours.

. After having examined the last report, the Istanbul public prosecutor requested further clarification from the Istanbul Forensic Medicine Institute, maintaining that its conclusion referring to trauma conflicted with the previous findings, which indicated that the lesions on the applicant’s body merely necessitated simple medical attention. Subsequently, on 10 March 2008 the Forensic Medicine Institute reported that the lesions must have resulted from injuries which had occurred before the applicant’s police custody and that such lesions might not have been immediately visible. The Institute also added that the last medical reports issued in respect of the applicant noted a reduced number of lesions.

. On 11 March 2008 the Istanbul public prosecutor issued a decision not to prosecute. He stated that the police officers had denied the accusations and that the applicant had not been able to identify any of the officers involved even though he had been shown pictures of all the suspects along with several other officers from the Beyazıt police station. He further indicated that the applicant’s injury must have been caused by force lawfully employed by the officers during his arrest, which was within the scope of their duties and proportionate to the danger caused by the applicant as he was threatening to throw a Molotov cocktail at the officers. The public prosecutor concluded that the evidence obtained was not sufficient to conclude that members of the security forces had ill-treated the applicant.

. The applicant lodged an objection with the Beyoğlu Assize Court against the decision of the public prosecutor.

. On 28 May 2008 the Assize Court rejected the objection. The final decision was served on the applicant on 8 September 2008.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

. Relying upon Articles 3 and 13 of the Convention, the applicant complained that he had been subjected to ill-treatment at the Beyazıt police station on 4 September 2005 and that the investigation into his allegation had not been effective. The Court considers that these complaints should be examined from the standpoint 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. 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

. The Government argued that the alleged ill-treatment did not fall within the ambit of Article 3 of the Convention as it had not attained a minimum level of severity. They further stated that in any event the reports drawn up following the applicant’s medical examinations had not established beyond reasonable doubt that the applicant had been subjected to any physical violence by police officers, who had been merely exercising their statutory power of arrest. With regard to the effectiveness of the investigation carried out by the Istanbul public prosecutor, the Government maintained that the public prosecutor had started an investigation in a timely manner, examined the medical reports issued in respect of the applicant, obtained photographs of all officers involved in order for the applicant to identify those who had ill-treated him and taken the statements of those officers to clarify the issue.

. The applicant maintained that the ill-treatment inflicted on him had been proven by the medical reports drawn up following the incident. He submitted that the Istanbul public prosecutor had failed to conduct an effective investigation in that he had disregarded the findings of the medical examinations and focused on his failure to identify the police officers involved. In this connection, he alleged that he had been unable to identify the officers because he had been shown old photographs which had not shown the way the officers looked at the time. The applicant added that the public prosecutor had not provided an identification parade, through which he would have been able to recognise the police officers concerned.

. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, in particular, Tanrıkulu and Others v. Turkey (dec.), 45907/99, 22 October 2002). In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII (extracts)). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). 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 in custody, strong presumptions of fact will arise in respect of injuries occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

. In this connection, where an individual is taken into custody in good health but is found to be injured by the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused and to produce evidence casting doubt on the victim’s allegations, particularly if those allegations were corroborated by medical reports, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-11, Series A no. 241-A, Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, Aksoy v. Turkey, 18 December 1996, § 62, Reports of Judgments and Decisions 1996-VI, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).

. Furthermore, the Court notes that Article 3 of the Convention requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see, in particular, Assenov and Others v. Bulgaria, 28 October 1998, §§ 101-2, Reports 1998-VIII).

. In the instant case, the Court observes that no medical report had been obtained before the applicant was taken to the Beyazıt police station at 10.30 p.m. According to the submissions of the police officers who had conducted the arrest, the applicant underwent a medical examination immediately after the officers had drafted the arrest and seizure report. The medical report, which noted the time of that initial examination as 11.50 p.m., indicated that there was no sign of physical violence on the applicant’s body (see paragraph 8 above). The applicant was then taken back to the police station but was immediately transferred again to the hospital to undergo a second medical examination before he was handed over to officers from the Anti-Terrorist Branch. The second medical report, drawn up at 1.14 a.m. the same night, noted no sign of ill-treatment on the applicant’s body either. From that point on, during the following two days, four medical examinations were performed on the applicant. In contrast to the two initial reports, doctors conducting those latter examinations, the first of which was performed at 2.25 a.m., reported several injuries on the applicant’s body, including lightly bleeding bruises and scratches. Nevertheless, the discrepancy between the initial reports and the others was later clarified by the Istanbul Forensic Medicine Institute, which concluded that soft-tissue lesions such as those found on the applicant might not be visible immediately after the incident (see paragraph 27 above). In that connection, the Court also points out that at no stage of the domestic proceedings or during the Strasbourg proceedings has the applicant challenged the veracity of the initial reports or alleged that the doctors who issued them had failed to examine his injuries (see Coşar v. Turkey, no. 22568/05, § 33, 26 March 2013). There is also no indication in the case file that he requested or was refused permission to see another doctor (see Aysu v. Turkey, no. 44021/07, § 35, 13 March 2012).

41. Although the applicant claimed to have been beaten at the Beyazıt police station and not during his arrest or while at the Anti-Terrorist Branch, the Court cannot give weight to his allegations, as the two medical reports, obtained during and after his approximately three-hour spell in custody in the police station, noted no sign of ill-treatment on his body. Moreover, the Court considers that the alleged beating, which, according to the applicant was inflicted on him by ten to fifteen officers for about twenty minutes, would have left different marks from the easily treatable soft-tissue lesions found on his body (see Milan v. France, no. 7549/03, § 61, 24 January 2008, and İz v. Turkey (dec.), no. 9830/07, 5 July 2011). It observes that the applicant also complained about having been punched several times on the chin, which was later rebutted by a dental report, noting that there was no indication that such external force had been applied to his mouth (see paragraph 15 above).

. With regard to the investigation initiated into the matter by the Istanbul public prosecutor, the Court takes note of the fact that an investigation was started shortly after the applicant’s complaint about the police officers from the Beyazıt police station. During the course of that investigation, which lasted for a period of two years and six months, the public prosecutor obtained the statements of all police officers on duty on the night of the alleged incident, some of whom had been assigned to various other places in the country by that time. He also took the statements of three officers from the Anti-Terrorist Branch, provided photographs of all officers in order for the applicant to identify those who had ill-treated him and requested more photographs following the applicant’s failure to identify the officers concerned during the first session (see paragraphs 22-26 above). Although the applicant claimed that he could have identified the police officers involved had he seen them in person or been shown more recent photographs, the Court finds that assertion questionable as the applicant had not been able to recognise any of the fifteen officers who, according to him, had inflicted physical violence on him, despite checking the officers’ photographs during three sessions.

. Having regard to the foregoing, the Court cannot but take account of the Government’s arguments to the effect that the injuries found on the applicant’s body resulted from the gradual force employed on him during his arrest, which was proportionate and was rendered necessary by his resistance. Accordingly, it cannot consider it established beyond reasonable doubt that the applicant was subjected to ill-treatment during his time in police custody at the Beyazıt police station. Nor can the Court conclude that the authorities failed to conduct an effective investigation into the applicant’s allegations.

. There has accordingly been no violation of Article 3 of the Convention.

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.

Done in English, and notified in writing on 5 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence Early Guido Raimondi
Acting Registrar President

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