Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22493/93

by Hüseyin and Devrim BERKTAY

against Turkey

The European Commission of Human Rights sitting in private on

11 October 1994 , the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 July 1993 by

Hüseyin Berktay against Turkey and registered on 20 August 1993 under

file No. 22493/93;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant, Hüseyin Berktay, a Turkish national, of

Kurdish origin, born in 1949, is self-employed. He lives in Diyarbakir.

The second applicant, Devrim Berktay, is the son of the first

applicant. He is aged 17 (age at the time of introduction of the

application) and lives in Diyarbakir.

On 3 February 1993, at about 5.30 p.m., the first applicant's

wife called the first applicant at his work. She informed him that his

son Devrim had been arrested in town having forgotten to take with him

his identification card. Police had arrived at their house and were

conducting a search.

The first applicant immediately closed his premises and came to

his home by taxi. When he arrived at his home he found three police

officers engaged in the search.

At about 7 p.m. a member of the police party searching the house

used the telephone to report to his superiors that the search had

disclosed nothing incriminating.

After the telephone conversation between the police officer and

his superior, other policemen (about six or seven the first applicant

estimates) arrived at the house with his son Devrim, the second

applicant.

The first applicant told his son: "Look my son if there is

anything bring it out and don't be afraid". He did not believe that his

son had committed a crime. Then, the police drove the first applicant

and his wife out of the living room and shut the door on them. A few

minutes later, the first applicant heard the screams of his son and

forced the door. The policeman tried to stop him from opening the door.

As the first applicant and his wife were trying to open the door the

policeman opened it and said that their son had jumped off the balcony.

The balcony was four floors up.

The applicant ran down the stairs to ground level and found his

son unconscious on the asphalt road. He put his son on his back and

took him by taxi to the State Hospital.

After the duty doctor had intervened as necessary, he said he

would have to take a tomography. Because the tomography was to be taken

at Günsag Health Centre the first applicant wanted to take his son

there but police officers insisted that he should first go the

Yenisehir police station and make a statement. Despite his appeals as

to the need for him to bring his son to receive urgent medical care at

the Health Centre, the police insisted he should first accompany them

to the police station.

At Yenisehir station the police told him to sign a report which

they had prepared themselves. The text of this report accused his son

of being a militant. He refused to sign the report without having the

incriminating parts removed. But he was told he could not leave the

police station until he signed. The first applicant signed the report

unwillingly and left the police station.

The tomography was taken at the Günsag Health Centre and the

first applicant took his son to the State Hospital. After the doctor

had seen the tomography, stating that the second applicant would have

to be under constant observation, he referred him to the Medical

Faculty Hospital. There the second applicant was under intensive care

for four days and was in a coma for at least 26 days.

Following the incident, the first applicant complained in person

to the Public Prosecutor and asked that the necessary enquiry and

investigation be conducted. He is awaiting action by him.

COMPLAINTS

The applicants complain of violations of Articles 2, 3 and 5 of

the Convention and Article 1 of the First Protocol.

As to Article 2 the second applicant refers to the assault which

resulted in his being thrown over a balcony, four floors from ground

level, by a group of police officers. The second applicant also

maintains that the same evening he was subject to a second life-

threatening episode at the hands of the police, when his father was

deliberately delayed from bringing him to the health centre for his

tomography.

As to Article 3 the second applicant refers to the police actions

in throwing him from the balcony. The first applicant complains that

he was forced by the police to sign a report incriminating his son; he

was told that until he did so he would be unable to bring his son to

receive the emergency medical treatment.

As to Article 5 the second applicant complains that his liberty

and security of person were denied arbitrarily through the behaviour

of the police in detaining him with violence within his own home.

As to Article 1 of the First Protocol the first applicant

complains that his property and possessions were arbitrarily interfered

with by the police during the search of his house.

As to the exhaustion of domestic remedies the first applicant

states that he complained to the Public Prosecutor and awaits action

by him and that no further action or remedy on his part is possible

without the Prosecutor making a decision. In the alternative he argues

that there is an administrative practice of frustration of remedies in

south-east Turkey which is approved or tolerated by those in authority,

including at high levels of the police.

PROCEDURE BEFORE THE COMMISSION

The application was introduced on 30 July 1993 and registered on

4 August 1993.

On 11 October 1993 the Commission decided to communicate the

application to the Turkish Government and to invited them to submit

their observations on the admissibility and merits and to deal, in

particular with the following questions:

"1. Could the applicants be considered to have exhausted domestic

remedies or, alternatively, to be dispensed from the obligation

to exhaust such remedies (Article 26 of the Convention)?

2. Have there been violations of any of the Articles invoked by

the applicant?"

The Government were requested to submit these observations within

a time-limit of 12 weeks, which expired on 18 January 1994.

By letter of 17 January 1994 the Government asked for an

extension of the time-limit for two months. On 9 February 1994 the

Government were informed that the President of the Commission had

granted the requests for extension of time-limits in the present case

and in a number of other cases and decided that the observations in all

these cases should be submitted, in half of the cases not later than

21 February 1994 and in the other half of the cases not later than 21

March 1994.

By letter of 11 March 1994 the Government asked for a further

extension of the time-limit for one month as from 21 March 1994. On 13

April 1994 the Government were informed that the President had agreed

to extend the time-limit until 22 April 1994.

No further communication having been received from the

Government, the Secretary to the Commission informed the Government,

by letter of 18 July 1994, that the Commission was expected to again

examine the admissibility of the application at its session beginning

on 10 October 1994 and that, if the Government submitted any

observations before 18 August 1994, it would be possible for the

Commission to take them into account together with any observations in

reply received from the applicants.

No observations were received from the Government before 18

August 1994. However, by telefax of 10 October 1994, the Government

submitted "preliminary observations" regarding the present case.

THE LAW

The applicants complain of violations of Articles 2, 3 and 5

(Art. 2, 3, 5) of the Convention and Article 1 of the First Protocol

(P1-1).

As to Article 2 (Art. 2) the second applicant complains of an

assault which resulted in his being thrown over a balcony by police

officers and of delay in bringing him to a health centre, both

constituting life-threatening treatment.

As to Article 3 (Art. 3) the second applicant again complains of

the assault to which he was subjected, whereas the first applicant

complains of having been forced by the police to sign a report

incriminating his son under the threat that his son would not otherwise

receive the necessary medical treatment.

As to Article 5 (Art. 5) the second applicant complains of having

been detained with violence by the police in his own home.

As to Article 1 (Art. 1) the first applicant complains that his

property and possessions were arbitrarily interfered with by the police

during the search of his house.

Article 2 (Art. 2) of the Convention protects everyone's right

to life, and Article 3 (Art. 3) of the Convention provides that no one

shall be subjected to torture or to inhuman or degrading treatment or

punishment. According to Article 5 (Art. 5) of the Convention, everyone

has the right to liberty and security of person. Article 1 of the First

Protocol (P1-1) provides that every person is entitled to the peaceful

enjoyment of his possessions.

The Commission recalls that the application was communicated to

the Turkish Government on 11 October 1993, that the Government were

requested to submit their observations on the admissibility and merits

not later than 18 January 1994, that the time-limit for the submission

of observations in this case and in a number of other cases was

subsequently extended, in half of the cases until 21 February 1994 and

in the other half of the cases until 21 March 1994, and that the time-

limit for the submission of observations in the present case was again

extended until 22 April 1994.

The Commission further notes that no observations were submitted

before 22 April 1994, nor was any further extension of the time-limit

requested before that date. Furthermore, the Government were informed,

by letter of 18 July 1994, that the Commission was expected to examine

the admissibility of the case at its session beginning on 10 October

1994 and that, if the Government submitted any observations before

18 August 1994, it would still be possible for the Commission to take

them into account together with any observations in reply received from

the applicants.

However, no observations were submitted by the Government before

18 August 1994.

By telefax of 10 October 1994, the Government presented

"preliminary observations", in which they indicated that a preliminary

investigation against the security officers concerned was still going

on and that, for that reason, the domestic remedies had not yet been

exhausted. Moreover, the Government declared that observations on the

facts of the case could only be submitted after the investigation had

been completed. Consequently, the Government asked for the examination

of the case to be adjourned until the investigation had been concluded.

The Commission recalls that, despite two extensions of the time-

limit originally fixed, the Government did not submit any observations

within the final time-limit which was 22 April 1994. Nor did the

Government present any observations before 18 August 1994, this being

the date indicated in the Commission's communication to the Government

of 18 July 1994. The observations which were received on

10 October 1994 arrived so late that it was not possible for the

Commission to obtain a reply from the applicants before examining the

case during its session beginning on that same date.

The Commission further notes that the events which are the

subject of the present application occurred in February 1993, i.e. one

year and eight months ago, and that the application was communicated

to the Government in October 1993, i.e. one year ago. In these

circumstances, the Commission, having regard to the serious character

of the complaints, does not consider it justified further to postpone

its examination of the admissibility of the application. The

Government's request for an adjournment of this examination cannot

therefore be granted.

Moreover, as the Government's objection relating to the

exhaustion of domestic remedies was raised long after the expiry of the

time-limits fixed by the Commission in the present case and at such a

late stage that it was not possible to obtain the applicants' comments

on this objection, the Commission is of the opinion that the

application cannot be rejected on that ground.

The Commission further finds that this application raises

important questions of fact and law which cannot be resolved at the

stage of the admissibility but require an examination of the merits.

Consequently, the application cannot be considered manifestly ill-

founded.

No other ground of inadmiisibility is applicable to the present

case.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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BERKTAY v. TURKEY

BERKTAY v. TURKEY

LEXI