Hüseyin and Devrim Berktay v Turkey (TORTURE)

Earlier this afternoon, in a judgment handed down by the European Court of Human Rights in the case of Berktay v Turkey, the Turkish State was found in violation Articles 3 (prohibition of torture), Article 5 (right to liberty and security) and Article 13 (right to an effective remedy) of the European Convention on Human Rights for the injuries and ill treatment suffered by Devrim Berktay, a Kurdish teenager who fell from a fourth-floor balcony while under police custody.

The Kurdish Human Rights Project lodged an application with the European Commission of Human Rights on 30 July 1993 on behalf of Huseyin and Devrim Berktay, who are father and son, in relation to events which occurred on 3 February 1993 when Devrim Berktay was arrested by police on suspicion of involvement in terrorist activities. The teenager was taken to his family home, situated on the fourth floor of an apartment block, where six police officers embarked on a search for prohibited publications. Huseyin Berktay and his wife were not permitted to be present. The applicants alleged that the police pushed Devrim Berktay from the balcony. The Turkish Government contended that he jumped. The applicants further alleged that, following Devrim Berktay's fall, the police deliberately endangered his life by obstructing Huseyin Berktay's attempts to take him to hospital. Huseyin Berktay further complained that he was forced to sign a statement incriminating his son before being permitted to take him to hospital.

On arriving at the State hospital of Diyarbakir, Devrim Berktay was diagnosed as having a fractured skull, bruises to the head, and a fractured humerus. He also was in a coma. He remained in hospital for thirty-two days. Devrim Berktay's mother gave evidence that events of the 3 February 1993 and the injuries he sustained have left Devrim Berktay a changed man.

In their application to the European Commission of Human Rights, the applicants contended that the Turkish State was in breach of Articles 2, 3, 5, 13 and 25 of the European Convention on Human Rights.

In finding Turkey to be in violation of Article 3, the Court stressed that people in police custody were vulnerable and the authorities had a duty to protect them. 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, it was up to the Government to produce evidence establishing facts that cast doubt on a victim's version of events. In this instance, the Government had solely relied on the outcome of domestic criminal proceedings in which the police officers were acquitted. On the basis of all the evidence before it, the Court found that the Government was responsible for the injuries caused by Devrim Berktay's fall when under the control of six police officers. It held that the fight against crime and terrorism did not justify any reduction in the protection of individuals.

In finding a violation of Article 5, the Court held that the Turkish Government had failed to provide sufficient evidence for suspecting Devrim Berktay, and concluded that the deprivation of Devrim Berktay's liberty while his home was being search had not been prescribed by law nor was it attributable to reasonable suspicion of his having committed an offence.

The Court held that the applicants were entitled to an explanation from the police officers in adversarial proceedings. However, in the State's criminal trial of the police officers, no evidence was given by the applicants. The police officers were acquitted solely on the basis of their own evidence, and were not required to provide an explanation as to how Devrim Berktay came to fall whilst in their custody. The Court consequently found that the applicants had been deprived of an effective remedy, and that the Turkish State had violated Article 13.

The Court awarded compensation in the sum of £55,000 to Devrim Berktay and £2,500 to Huseyin Berktay. It further ordered the Government to pay an additional £12,000 in legal costs.

NOTES FOR EDITORS:

1. The Kurdish Human Rights Project works for the promotion and protection of human rights within the Kurdish regions of Turkey, Iraq, Iran, Syria and the former Soviet Union.

2. The case of Berktay v. Turkey concerns the fall of Devrim Berktay, a seventeen year old boy, from the balcony of his home when in police custody.

3. The application was made by the Kurdish Human Rights Project on 30th July 1993 on behalf of Devrim Berktay and his father Huseyin.

4. The Court, in a judgment handed down on 1st March 2001, found Turkey to be in violation of Articles 3, 5, and 13 of the European Convention on Human Rights.

5. Under Article 41 (just satisfaction), the Court awarded Devrim Berktay £55,000 for pain, suffering and non pecuniary damage, and £2,500 to Huseyin Berktay for non pecuniary damage.