Lexploria

Information Note on the Court’s case-law 28

March 2001

Berktay v. Turkey - 22493/93

Judgment 1.3.2001 [Section IV]

Article 2

Article 2-1

Life

Serious injuries sustained by applicant while under control of police officers: no violation

Article 3

Inhuman treatment

Serious injuries sustained by applicant while under control of police officers: violation

Degrading treatment

Mental suffering of fathe r impeded by police officers when trying to get medical help for his injured son: no violation

Article 5

Article 5-1

Lawful arrest or detention

Insufficient explanations for the grounds for arrest and the existence of reasonable suspicion: violation

Article 34

Hinder the exercise of the right of application

Alleged intimidation and harassment: no violation

Facts : In 1993 the second applicant, D., was arrested by the police and taken to his home so that it could be searched. During the search he was seriously injured after falling from the balcony. He alleged that it was the police officers who caused his fall. Th e first applicant was prevented by the police from taking his son to a health centre for the tomography, which according to the duty doctor consulted at the public hospital, his condition required as a matter of urgency. The first applicant was first force d to accompany the police to security headquarters to sign a form incriminating his son. The second applicant was put into intensive care and remained in a coma for approximately two weeks. Six days after the incident the first applicant lodged a complaint with the public prosecutor's office requesting an investigation. He and his wife were heard by the public prosecutor. They said that they had signed their deposition under duress. The six police officers who had carried out the search were prosecuted for negligently performing their duties. In July 1996 they were acquitted by the criminal court. The Government contested the applicants’ allegations and their version of events. The Commission assembled documentary evidence and heard a number of witnesses in Turkey.

Law : Preliminary objection (non-exhaustion) – The Government was estopped from raising objections regarding the admissibility of the application at that stage.

Assessment of the evidence – It appeared, firstly, that after his arrest and during the search at his home the second applicant was under the control of five police officers and in custody. Secondly, in the light in particular of the shortcomings and inconsistencies in the police officers’ statements, the evidence indicated that the applicant had been taken on to the balcony by the police officers to look for a document and was under their control when the incident that resulted in his being seriously injured occurred.

Article 2 – Although the seriousness of the second applicant’s injuries had endangered his life, the Court was not persuaded that the acts of the police officers when searching his home when the second applicant was under their control were of such type or degree to amount to a violation of Article 2 of the Convention. No separat e question arose in that connection with regard to the alleged delay in providing him with necessary medical attention. Those aspects would be considered further under Article 3. It did not appear necessary to examine whether for the purposes of Article 2 of the Convention the authorities had failed to discharge their obligation to protect the second applicant’s right to life or to carry out an effective investigation into the use of force.

Conclusion : no violation (unanimously).

Article 3 – As regards the second applicant, it was for the Government to provide a reasonable explanation as to the cause of his injuries. However, they had confined themselves to alluding to the outcome of the domestic criminal proceedings in which decisive weight had been attache d to the allegation that the second applicant had thrown himself off the balcony. That account did not appear convincing, however. Regard being had to the fact that the authorities were accountable for persons in their control and to all the evidence that had been adduced, the respondent State was responsible in the circumstances of the case for the injuries caused by the second applicant’s fall while in the control of six police officers.

Conclusion : violation (unanimously).

While it had to be recognised t hat the first applicant had suffered anguish and distress when he was taken to the police station and forced to sign a previously prepared deposition while his son was in a coma, it nonetheless appeared that D. had received suitable medical attention from the hospital doctors. Having examined all the circumstances of the case, the Court held that it had not been established that the treatment concerned had attained the minimum level of severity required by Article 3.

Conclusion : no violation (unanimously).

In view of the special circumstances of the case, the alleged lack of an effective investigation had to be examined under Article 13.

Article 13 – On the basis of the evidence before it, the Court had held that the respondent State’s responsibility had bee n engaged under Article 3. The second applicant’s complaints were accordingly “arguable” for the purposes of Article 13 and the authorities were under an obligation to conduct an effective investigation into the circumstances in which D. had been injured. In the case before the Court, depositions had been obtained by the public prosecutor after the incident and an administrative inquiry started. It was particularly striking that the applicants were at no stage informed of progress in the criminal proceeding s before the criminal court. The criminal court had not summonsed them to attend and they had not been permitted to see the evidence in the file. The applicants had deposed before police officers in 1994 in connection with the investigation of the case and the first applicant said he had been made to sign under duress. In addition, the criminal court had obtained depositions only from the three police officers concerned and one of them had deposed through the letters rogatory procedure. Despite significant discrepancies between their versions of events, the criminal court had not instigated an investigation. Nor had it sought to hear either evidence from the police officers or the complainants’ version of the incident; it had relied instead entirely on the a ccounts of the three police officers and, while noting that the second applicant had been in the custody of the defendant officers just before his fall, had acquitted them without any further explanation on the ground that there had been no causal link bet ween their actions and the second applicant’s injuries. Thus, irrespective of whether or not they would have succeeded in persuading the criminal court that the police had committed a tort, the applicants had been entitled to an explanation in adversarial proceedings from the police regarding their acts or omissions.

Conclusion : violation (unanimously).

Article 5 – The second applicant had been in the control and custody of five police officers while his home was being searched. The reasons for his arrest a re not clearly apparent from the case file. Likewise, there was insufficient evidence on the case file to give rise to reasonable suspicion against him. Furthermore, since the Government had furnished no evidence apart from the arrest warrant as grounds fo r suspecting the second applicant of an offence, their explanations did not satisfy the minimum requirements of Article 5 § 1 (c).

Conclusion : violation (six votes to one).

Article 34 (former Article 25) – The applicants had not adduced concrete independe nt evidence of measures of intimidation or harassment aimed at preventing their pursuing their proceedings before the Convention institutions. Furthermore, the first applicant had said that no pressure had been brought to bear on him to withdraw his applic ation. As regards the second applicant, there was nothing in the custody record of the incident to suggest that he had been questioned about lodging his application with the Commission.

Conclusion : no violation (unanimously).

Article 41 – although the seco nd applicant had not established any direct causal link between the violations that had been found and the loss of earnings that had allegedly been caused by his mental illness, he had nevertheless sustained bodily injury as well as non-pecuniary damage. T he Court decided to award him the sum of GBP 55,000 under that head. Reiterating its finding of a violation of Article 13, it also awarded the first applicant GBP 2,500 for non-pecuniary damage. The Court awarded an amount on account of costs and expenses.

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