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)
Full & Egal Universal Law Academy