SECOND SECTION

Application no. 12923/12 Ali KESKÄ°N against Turkey lodged on 9 January 2012

STATEMENT OF FACTS

The applicant, Mr Ali Keskin , is a Turkish national, who was born in 1969 and lives in Erzurum .

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 21 August 2006 the applicant claims to have found his seven-year-old son, A.K., at home, alone and injured.

According to his submissions, two days later, on 23 August 2006, he filed a complaint against his then wife, the child ’ s mother, N.K., before the public prosecutor. He alleges that the public prosecutor told him that no medical examination was required.

On 29 August 2006 the applicant took A.K. to the Oltu Health Clinic of his own accord. Following a medical examination, a doctor at the Clinic drew up a report to be submitted to the public prosecutor. The doctor indicated that A.K. had suffered a fracture of the vertex of the skull measuring 1,5 x 2 cm, which appeared to have occurred some time before as a result of trauma. He also noted numerous scars on the child ’ s body (two of 2 cm on both sides of the navel, one of 3 x 1,5 cm below the right ribs, two measuring 0,5 cm between the top of the right ribs and the right armpit and one of 3 x 1 cm on the right wrist, which the applicant claimed had occurred as a result of a burn). The medical report further indicated that there was a round area of scar tissue measuring 1,5 x 1,5 cm on the child ’ s left side which had resulted from trauma, a 2 cm long scar on the right buttock which had been caused by a sharp object and a 10 x 3 cm lump on the right femur, which according to the applicant had resulted from A.K. being stabbed. The doctor concluded that the child ’ s general state of health was good. He added, however, that the skull fracture must have put the child ’ s life at risk at the time it happened and that it required further examination.

Following a request by the Oltu public prosecutor, on 11 September 2006 A.K. underwent several medical examinations conducted by doctors from the departments of traumatology, thoracic surgery, neurology and psychiatry.

Subsequently, on 15 September 2006 another medical report was drawn up in respect of the child. The findings in that report included several scars caused by cigarette burns on both arms, scar tissue on the right leg caused by trauma, a 2,5 cm long scar on the left buttock and several other scars on both armpits, on the abdomen and near the right knee, all caused by a sharp object, and a fracture of the vertex of the skull. The psychiatrist indicated that the child had stated that his mother had beaten him with an iron rod and found that he was suffering from childhood depression and anxiety. The medical report finally stated that the fracture of the vertex had put the child ’ s life at risk. It noted that the other scars found could be cured by simple medical attention and that it was not possible to determine the date they had been incurred, as they had already healed at the time of examination.

On 9 January 2007 the Oltu public prosecutor issued a decision not to prosecute N.K.

On 18 January 2007 N.K. initiated divorce proceedings before the Oltu Family Court.

During the course of the proceedings, the Family Court heard A.K. and noted that although the child claimed to have been beaten by his mother, he appeared to have been directed to say so.

Nevertheless, on 9 April 2008, having regard to the injuries on A.K. ’ s body and noting that his mother had not provided proper care for her children, the Family Court held that custody of the couple ’ s two children should be given to the applicant following their divorce.

On 14 August 2008 the Oltu public prosecutor filed an indictment with the Oltu Assize Court , accusing N.K. of assaulting A.K. and murdering the couple ’ s deceased son, M.K.

The applicant joined the criminal proceedings against N.K. as a civil party.

During the course of the proceedings, the Oltu Assize Court heard statements from several witnesses, N.K., the applicant and their two sons. In his statements, A.K. ’ s elder brother maintained that N.K. used to beat him and A.K. with iron rods and had threatened them. He claimed to have once overheard his mother confessing that she had killed their late brother and that, when he asked more about the matter, she stated that she had strangled him. He further alleged that N.K. had once stabbed A.K. on his leg and burned him with the heated tip of an iron rod.

A.K. corroborated his brother ’ s statements before the court and added that N.K., together with her sister, used to extinguish cigarettes on his body.

On 4 March 2010, after having evaluated the medical reports, the witness statements and the public prosecutor ’ s written opinion, the Oltu Assize Court acquitted N.K. of the charges against her. The court held that the alleged assault had not been established beyond reasonable doubt, as the medical reports concerning the child indicated that the exact time of the injuries could not be determined. It found that the statements of A.K. and his brother were not reliable, as they lived with their father and could have been manipulated by him.

On 25 May 2011 the Court of Cassation upheld the judgment of the Assize Court .

The applicant claims to have learnt of the final decision on 6 January 2012.

COMPLAINT

The applicant complains under Articles 6 and 13 of the Convention that the domestic authorities did not conduct an effective investigation into his allegations that his son, who was seven years old at the time of the events, was seriously injured by his mother. In this connection, he argues that the Oltu public prosecutor did not act promptly in arranging the child ’ s medical examination, that the criminal proceedings against the child ’ s mother lasted too long and that the domestic court failed to examine the evidence diligently.

QUESTION TO THE PARTIES

Having regard to the States ’ positive obligation under Article 3 of the Convention, has the manner in which the criminal-law mechanisms have been applied in the present case by the domestic authorities been in breach of Article 3 of the Convention (see Beganović v. Croatia , no. 46423/06 , §§ 69-71 and 75, 25 June 2009)?

The Government are requested to inform the Court of the date when the applicant was notified of the Court of Cassation ’ s decision dated 25 May 2011.