CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 1 mars 2001

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sE94AE824 { margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-indent:-28.35pt; text-align:justify } .sA2421EE3 { width:17.69pt; text-indent:0pt; display:inline-block } .s57345DE1 { width:15.03pt; text-indent:0pt; display:inline-block } .s9224DEB6 { width:12.36pt; text-indent:0pt; display:inline-block } .s5BC74D6D { width:11.69pt; text-indent:0pt; display:inline-block } .sF2492270 { width:14.36pt; text-indent:0pt; display:inline-block } .sAB27D11D { width:9.03pt; text-indent:0pt; display:inline-block } .sA7249FE7 { margin-top:0pt; margin-left:21.3pt; margin-bottom:0pt; text-indent:-21.3pt; text-align:justify } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     141   1.3.2001   Press release issued by the Registrar   JUDGMENT IN THE CASE OF BERKTAY v. TURKEY   In a judgment communicated today in writing [1] in the case of Berktay v. Turkey, the European Court of Human Rights: (i)   dismissed, unanimously, the Government’s preliminary objection; (ii)   held, unanimously, that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights; (iii)   held, unanimously, that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention as regards the second applicant; (iv)   held, unanimously, that there had been no violation of Article 3 of the Convention as regards the first applicant; (v)   held, by six votes to one, that there had been a violation of Article 5 (right to liberty and security) of the Convention as regards the second applicant; (vi)   held, unanimously, that there had been a violation of Article 13 (right to an effective remedy) of the Convention; (vii)   held, unanimously, that there had been no violation of former Article 25 (right to individual petition) of the Convention.   Under Article 41 (just satisfaction) of the Convention, the Court awarded Devrim Berktay 55,000 pounds sterling (GBP) for pain and suffering and non-pecuniary damage and Hüseyin Berktay GBP 2,500 for non-pecuniary damage. It awarded the applicants GBP 12,000 for legal costs and expenses, less 26,636 French francs (FRF) paid by the Council of Europe in legal aid.   1.     Principal facts   The applicants, Hüseyin and Devrim Berktay (who are father and son), are Turkish nationals. They were born in 1949 and 1976 and live in Diyarbakır.   The second applicant alleged that he had been pushed from the balcony of his home by police officers who had arbitrarily deprived him of his liberty. They had endangered his life by deliberately delaying his father when he had tried to take him to a health centre for a tomography. The first applicant complained that he had been forced by the police to sign a statement incriminating his son before being allowed to take him for urgent medical attention. He also complained about the search carried out at his home. 2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 30 July 1993 and declared admissible on 11 October 1994 It was transmitted to the Court on 1   November 1998.   Judgment was given by a Chamber of seven judges, composed as follows:   Antonio Pastor Ridruejo (Spanish), President , Jerzy Makarczyk (Polish), Volodymyr Butkevych (Ukrainian), Nina Vajić (Croatian), John Hedigan (Irish), Snejana Botoucharova (Bulgarian), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge   and also Vincent Berger , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants complained of violations of Article 2, 3, 5 and 13 and former Article 25 of the of the European Convention on Human Rights.   Decision of the Court   Court’s findings of fact   The facts of the case were disputed by the parties, particularly as regards the events of 3   February 1993, when the second applicant was arrested by the police and taken to his home where the police carried out a search during which he was seriously injured on falling from the balcony. In accordance with former Article 28 § 1(a) of the Convention, the Commission conducted an inquiry with the parties’ assistance and obtained written evidence and oral statements.   The second applicant’s arrest and detention The Court found that there was sufficient evidence before it to conclude that the second applicant was under the control of five police officers and had been deprived of his liberty when the search at his home was carried out.   Alleged assault on the second applicant The Court found that the second applicant was taken on to the balcony by police officers to look for a document and that he was under their control when the incident that resulted in his serious injury had occurred.   Article 2 of the Convention   The second applicant’s fall from the balcony and his transfer to the health centre for a tomography In the light of the circumstances of the case, the Court was not persuaded that the acts of the police officers when searching the applicant’s home at a time when the second applicant was under their control were of a type or degree that amounted to a violation of Article 2 of the Convention. Furthermore, no separate question arose in that connection regarding the alleged delay in providing the second applicant with necessary medical attention. In conclusion, there had been no violation of Article 2 of the Convention as regards the force used against the second applicant while his home was being searched.   The positive obligations and procedural obligations under Article 2 of the Convention In the light of that conclusion and the facts of the case, the Court considered that it was unnecessary for it to examine the allegations under Article 2 of the Convention that the authorities had failed to discharge their obligation to protect the second applicant’s right to life or to carry out an effective investigation regarding the use of force.   Article 3 of the Convention as regards the second applicant   The second applicant, who was aged 17 at the material time, was arrested at about 3.30 p.m. on 3 February 1993 and taken into police custody. The evidence showed that a team of four officers had gone to his home at about 5.30 p.m. to carry out a search and that another team of four officers had taken him there at about 7 p.m. so that he could show them a document relating to an offence. The record of the search and of the incidents drawn up by the eight officers stated that when the second applicant had gone to look for the document among a pile of newspapers stacked in a corner of the balcony, he had opened the balcony door and thrown himself over the rail.   The Court stressed that people in police custody were vulnerable and the authorities had a duty to protect them. States were morally responsible for all detained persons, since such persons were entirely in the hands of police officers. When only the authorities were aware of all or part of the events concerned, as was the case with people held under their control in custody, any injury to such persons during that period gave rise to a strong factual presumption. It was for the Government to produce evidence establishing facts that cast a doubt on the victim’s version. The Court said that the police officers’ acquittal in criminal proceedings did not relieve the respondent State of its responsibility under the Convention. It was therefore incumbent on the Government to provide a reasonable explanation as to how the second applicant’s injuries had been caused. However, the Government had confined themselves to referring to the outcome of the domestic criminal proceedings in which decisive weight had been attached to the police officers’ account that the second applicant had thrown himself from the balcony.   The Court reiterated that the authorities were accountable for persons under their control. On the basis of all the evidence before it, the Court therefore found that in the circumstances of the case the respondent State was responsible for the injuries caused by the second applicant’s fall while under the control of six police officers. It stated that the investigative   imperatives and the indisputable difficulties that arose in the fight against crime, and particularly the fight against terrorism, could not justify any reduction in the protection of an individual’s physical integrity.   The Court concluded that there had been a violation of Article 3 of the Convention.   Article 3 of the Convention as regards the first applicant   The Court noted that the first applicant had alleged that he had also been a victim of inhuman and degrading treatment as a result of the distress and anguish he had been caused by the police officers’ acts in forcing him to go to the Yeneşehir Police Station to sign a deposition which they had prepared despite his having insisted on the need to take his seriously injured son to a health centre for a tomography. Having examined the circumstances of the case taken as a whole, the Court held that it had not been established that the treatment concerned had attained the minimum level of severity required by Article 3 of the Convention. Consequently, there had been no violation of that provision as regards the first applicant.   Lack of an effective investigation   The Court considered that it was appropriate to examine that complaint under Article 13 of the Convention. It pointed out in that connection that it was for the Court to decide on the legal qualification to be given to the facts of the case and that it did not consider itself bound by the qualification proposed by the applicants or the Government. On the basis of the jura novit curia principle, it had examined of its own initiative more than one complaint under an Article or paragraph that had not been invoked by the parties.   Article 5 of the Convention as regards the second applicant   Referring to its findings on the evidence concerning the second applicant’s arrest and detention, the Court noted that the evidence on the case file did not allow it to conclude that there was ground for reasonable suspicion. Furthermore, since the Government had furnished no evidence apart from the arrest warrant as grounds for suspecting the second applicant of an offence, their explanations did not satisfy the minimum requirements of Article   5 § 1(c). Under those circumstances, the Court did not consider that the deprivation of Devrim Berktay’s liberty while his home was being searched had been “ prescribed by law” or was attributable to “ reasonable suspicion of [his] having committed an offence”. Consequently, there had been a violation of Article 5 § 1 of the Convention.   Article 13 of the Convention   The Court found that all the versions of the incident offered by the police officers contained discrepancies on important details. Despite that troublesome fact, the criminal court had not carried out an investigation. Nor had it sought to hear evidence from the police officers or the complainants’ version of the incident; it had relied instead entirely on the explanations 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 between 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 fault, the applicants had been entitled to an explanation in adversarial proceedings from the police regarding their acts or omissions.   Consequently, the Court found that the applicants had been deprived of an effective remedy satisfying the requirements of Article 13 regarding their allegations against the police officers. Accordingly, there had been a violation of Article 13 of the Convention.   Former Article 25 of the Convention   In the light of the material before it, the Court considered that there was insufficient evidence for it to conclude that the authorities of the respondent State had intimidated or harassed the applicants in circumstances intended to cause them to withdraw or modify their application or in any other way hinder them in the exercise of their right to individual petition. Consequently, there had been no violation of former Article 25 of the Convention.   Article 41 of the Convention   The Court held that the respondent State must pay the applicants the following sums: (i)     to Devrim Berktay (for pain and suffering and non pecuniary damage), GBP 55,000 and to Hüseyin Berktay (for non-pecuniary damage), GBP 2,500; (ii)     for costs and expenses, GBP 12,000 for both applicants, less 26,636 French francs paid by the Council of Europe in law aid.   Judge Gölcüklü expressed a partly dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court.   In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.   [2] .     This summary by the Registry does not bind the Court.