SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 37871/08
by Cüneyt ERTUŞ and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 22 June 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos, judges,
and Stanley Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 30 July 2008,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Cüneyt Ertuş, Mr Hüseyin Ertuş and Mrs Aysel Ertuş, are Turkish nationals who were born in 1993, 1965 and 1974 respectively and live in Hakkari. The second and third applicants are the parents of the first applicant. They are represented before the Court by Mr F. Timur, a lawyer practising in Hakkari.
The facts of the case, as submitted by the applicants, may be summarised as follows.
At about noon on 22 March 2008, when he was fifteen years old, the first applicant was arrested on suspicion of having participated in an unlawful demonstration in support of an illegal organisation, namely the PKK. Following his arrest, the applicant was kept by plain-clothes police officers for a while in the street while they waited for a police car.
In the video footage submitted by the applicants, the applicant is seen in the street crying, standing next to a police officer in plain clothes who is holding the applicant's right arm behind him. The officer then twists the applicant's arm right behind his back and up, as a result of which the applicant is forced to bend forward. While this is happening another police officer present calls the applicant “dishonourable” (şerefsiz).
The first applicant was subsequently placed in police custody.
At 10.30 p.m. the same day, the applicant was examined by a doctor, who observed no sign of physical violence on the applicant's person.
The applicant was once again examined by a doctor the next day at 4.55 p.m., at the end of his detention in police custody. The doctor noted that he had no new lesions.
On 23 March 2008 the applicant was brought before the Hakkari public prosecutor and the Hakkari Magistrates' Court and denied taking part in an illegal demonstration. The applicant was then released.
On 25 March 2008 the applicant was detained in relation to the incident of 22 March 2008 and placed in prison. Before being taken to the prison, he was examined by a doctor who observed no sign of physical violence on his body.
On 28 March 2008 the second applicant lodged a petition with the Human Rights Association in Hakkari and requested that it take legal action in relation to the ill-treatment that his son had been subjected to. The second applicant noted that the first applicant's arm had been broken during his arrest. On the same day, the applicants' representative lodged a criminal complaint with the Hakkari public prosecutor's office on behalf of the Hakkari branch of the Human Rights Association. He submitted that during his arrest the first applicant had suffered an injury to his arm and requested that he have a medical examination. In support of his request, Mr Timur submitted the second applicant's application to the Human Rights Association and the aforementioned video footage to the public prosecutor's office.
On the same day the first applicant was examined by a doctor at the Hakkari State Hospital, who noted a lesion of 2 x 1 cm on his right hand.
On 31 March 2008 the first applicant was once again examined by a doctor, this time in the prison, who observed a minimal oedema as a result of a soft tissue injury to the applicant's right elbow and granulation tissue on his right hand.
On 17 April 2008 the Hakkari public prosecutor decided not to bring criminal proceedings against the police officers who had arrested the first applicant. The public prosecutor considered that the treatment inflicted upon the first applicant following his arrest did not constitute use of excessive force by the security forces and noted that the medical reports did not reveal any sign of violence on his person. The Hakkari public prosecutor further noted that the video footage had been broadcast and the photographs and the news articles published by various media instructed by the terrorist organisation PKK.
On an unspecified date the applicant was released from prison.
Between 21 and 30 April 2008 the first applicant underwent a number of medical examinations, the results of which were noted in a medical report of 8 May 2008, at the Izmir branch of the Human Rights Foundation of Turkey. According to this report, the first applicant had oedema in his left ear and nose as well as effusion in his right elbow resulting from trauma. He was also found to be suffering from major depression and post-traumatic stress disorder. The doctors concluded that his physical and psychological condition was directly linked to his treatment during the arrest and his detention in prison.
On 9 May 2008 the first applicant lodged an objection with the Van Assize Court challenging the decision of the Hakkari public prosecutor dated 17 April 2008. He also submitted the medical reports of 31 March and 8 May 2008 to the assize court.
On 27 May 2008 the Van Assize court dismissed the objection.
In the meantime, an investigation initiated by the Hakkari public prosecutor into the first applicant's allegation that he had been beaten and insulted by two prison staff members was discontinued on 8 April 2008 as the first applicant withdrew his complaint. The applicant's representative objected to that decision. His objection was dismissed.
In May 2009 the applicants lodged a case with the Van Administrative Court requesting compensation for pecuniary and non-pecuniary damage they had suffered on account of the ill-treatment of the first applicant on 22 March 2008. According to the information in the case file, this case is still pending.
On an unspecified date in 2009 the applicants lodged a further criminal complaint against the prison staff and the doctors who had examined the first applicant between 22 and 28 March 2008, accusing them of insulting the first applicant and abuse of authority respectively.
On 27 August 2009 the Hakkari public prosecutor dismissed the applicants' request after obtaining an expert report for the Forensic Medicine Institution which stated that the injuries noted in the medical report of 31 March 2008 could have been the result of any daily activity and that there was no evidence demonstrating that the applicant had actually been ill-treated.
On 24 September 2009 the Van Assize Court upheld the decision of 27 August 2009.
COMPLAINTS
The applicants complained about the ill-treatment of the first applicant immediately after his arrest, during his detention in police custody and in prison and the ineffectiveness of the domestic mechanisms in respect of their allegations of ill-treatment. They rely on Articles 1, 3, 5 §§ 1 and 2, 6 §§ 1, 2 and 3, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 12 of the Convention.
THE LAW
1. The second and third applicants complained that their son had been subjected to ill-treatment and that the authorities had failed to conduct an effective investigation into their allegations of ill-treatment.
The Court observes that the second and third applicants were not involved in the circumstances giving rise to the present application on which their complaints under the Convention are based. Consequently they cannot have standing as victims within the meaning of Article 34 of the Convention. It follows that in so far as the application is lodged by the second and third applicants it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
2. The first applicant alleged that he had been ill-treated by the police officers immediately after his arrest, during his police custody and in prison. He further complained that the investigations into his allegations of
ill-treatment were ineffective. He relied on Articles 1, 3, 5 §§ 1 and 2, 6 §§ 1, 2 and 3, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 12 of the Convention.
The Court considers that these complaints should be examined from the standpoint of Articles 3 and 13 of the Convention.
As regards the applicant's allegations of ill-treatment in police custody and in prison, the Court observes that there is no concrete evidence in the case file in support of the applicant's allegations of ill‑treatment in police custody and in prison. Besides, the applicant withdrew his allegations of ill-treatment in so far as they concerned his treatment in prison. In these circumstances, the Court is led to conclude that the applicant did not lay the basis of an arguable claim that he had been ill-treated while in police custody and in prison. Therefore, this part of the application is inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.
As to the applicant's allegations of ill-treatment immediately after his arrest and the ineffectiveness of domestic remedies, the Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the first applicant's complaints under Articles 3 and 13 concerning the alleged ill-treatment inflicted on him immediately after his arrest and the alleged ineffectiveness of the domestic mechanisms in respect of his allegations of ill-treatment;
Declares the remainder of the application inadmissible.
Stanley NaismithFrançoise Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy