CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 octobre 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)