SECOND
SECTION
CASE OF UÇAR v.
(Application no. 52392/99)
JUDGMENT
FINAL
This judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be subject to editorial
revision.
In the case of Uçar v.
The European Court of Human Rights (Second
Section), sitting as a Chamber composed of:
Mr J.-P. Costa,
President,
Mr A.B. Baka,
Mr R. Türmen,
Mr K. Jungwiert,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
judges,
and Mrs S.
Dollé, Section
Registrar,
Having deliberated in private on
Delivers the following judgment, which was
adopted on the last‑mentioned date:
PROCEDURE
1. The case originated in an
application (no. 52392/99) against the
2. The applicant was
represented by Mr M. Muller, Mr T. Otty, Mrs L.K.N. Claridge, Mr K.
Yıldız and, until 2002, by Mr P. Leach, lawyers attached to
the Kurdish Human Rights Project (“KHRP”) in
3. The
applicant alleged that his son had been abducted and ill-treated by State
agents or persons who had acted with the support,
knowledge or acquiescence of the authorities, for twenty-eight days before he
was handed over to the police in
4. The application was
allocated to the Second Section of the Court (Rule 52 § 1 of the
Rules of Court). Within that Section, the Chamber that would consider the case
(Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. On
6. By a decision of
7. The applicant and the
Government each filed observations on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant was born in 1948
and lives in
A. The alleged abduction of Cemal Uçar
1. Facts
as presented by the applicant
9. On
10. Between 11 and
11. Between 5 October and
12. On
2. Facts
as presented by the Government
13. On
14. On
15. On 26 November 1999 the Diyarbakır Security Directorate reported to the Diyarbakır public prosecutor that Cemal Uçar had been taken into police custody on 2 November 1999 by police officers from the Diyarbakır Anti‑Terror Branch and that on 10 November 1999 his detention on remand had been ordered after he had been brought before the public prosecutor at the Diyarbakır State Security Court.
16. On
17. On
18. On
B. The detention of Cemal Uçar in police custody
1. Facts
as presented by the applicant
19. On
20. On
21. On
22. On
the same day, Cemal Uçar made statements before the public prosecutor at the
2. Facts as presented by the Government
23. On
24. On
25. In his statement to the
police dated
26. On
C. The alleged solitary confinement
and suicide of Cemal Uçar in prison
1. Facts
as presented by the applicant
27. After being transferred to
28. On
29. In
a letter dated
2. Facts as presented by the Government
30. On
31. On the same day, at
32. At
33. Subsequently, an autopsy
was carried out on the deceased. According to the autopsy report, no indication
of ill-treatment, such as scars or bruises, was identified on the corpse. The
report revealed that the cause of death was mechanical asphyxia resulting from
suspension.
34. On the same day,
statements were taken from the three prison officers who had found the body of
Cemal Uçar and from the two other inmates of the ward in which Cemal Uçar had
been found dead.
35. On
36. On the same day, the
public prosecutor at the
D. The documents submitted by the
parties
37. The parties submitted
various documents with a view to substantiating their claims. These documents,
in so far as they are relevant, may be summarised as follows.
1. The documents submitted by the Government
38. The following information
is disclosed in the documents submitted by the Government.
(a) Statement of the applicant taken
by the
39. The applicant maintained
before the
(b) Letter dated
40. The
(c) Letters dated
41. On
(d) Letters dated 26 and
42. On 26 November 1999 the Diyarbakır Security Directorate reported to the Diyarbakır public prosecutor that Cemal Uçar had been taken into police custody on 2 November 1999 by police officers from the Diyarbakır Anti‑Terror Branch, and that on 10 November 1999 his detention on remand had been ordered after he had been brought before the public prosecutor at the Diyarbakır State Security Court.
43. By a further letter dated
(e) Decision taken on
44. On
(f) Statement of Cemal Uçar taken by
police on
45. In his statement to the
police dated
(g) Medical reports dated 2 and
46. On 2 November 1999,
following his arrest, Cemal Uçar was taken to the Diyarbakır State
Hospital and examined by a doctor who noted the following:
“An abrasion on the nose, scars on the right
wrist, right hand and left foot, an oedema on the right foot and injuries to
various parts of the body have been identified...”
47. On
(h) Petition dated
48. On
(i) Reports dated
49. According to two reports drawn
up by prison officers, on
(j) On-site inspection report, dated
50. On
(k) Scene of incident report, sketch
plan, photographs and a film of the scene of the incident, dated
51. At
(l) Body examination and autopsy
report, dated
52. An autopsy was carried
out on the deceased at
(m) Statements, dated
53. According to the
documents submitted to the Court, the prison officers testified that Cemal Uçar
had taken breakfast at around
(n) Decisions dated
54. On
55. On the same day, the public prosecutor at the Diyarbakır State Security Court issued an additional non-prosecution decision in respect of the charges against Cemal Uçar, given the latter’ demise.
2. The documents submitted by the applicant
56. The following information
appears from documents submitted by the applicant.
(a) The applicant’s petitions
submitted to the public prosecutor’s office at the
57. In his petition dated
58. In his second petition dated
(b) Letter dated
59. In his letter, Mr
Ensaroğlu informed the Minister of the Interior of the disappearance of Cemal Uçar and requested that an investigation be
conducted.
(c) Statements made on 11 October 1999 by Cemal Uçar before the public prosecutor at the Diyarbakır State Security Court and the Diyarbakır State Security Court
60. In his statements to the public prosecutor,
Cemal Uçar claimed that he had been kidnapped and taken somewhere close to the
61. In
his statements before the
(d) Report dated
62. According to the report
drafted at
(e) Statement by Mr İ.
Sağlam concerning the abduction and death of Cemal Uçar
63. Mr İ. Sağlam
stated that Cemal Uçar sent a letter to his family, informing them that he had
been taken into police custody and, subsequently, detained in
(f) Expert reports dated
64. Two reports were prepared
on behalf of the applicant by Dr A.M. Anscombe, a consultant forensic
pathologist practising in the
65. In his reports Dr
Anscombe maintained that his main criticism was the absence of autopsy
photographs. He stated that autopsy photographs were a standard part of any
forensic post-mortem examination since without photographs, one was reliant
upon the description by the pathologist and there was no other means of
corroborating what the pathologist had found or described. He further
maintained that the autopsy report would be considered to be inadequate in the
II. RELEVANT DOMESTIC LAW
66. At the time of the
events, Turkish law did not contain any provision regulating communications
between persons held in custody and their relatives.
On
“When a person is arrested, following the
public prosecutor’s decision, a family member or another person designated by
the arrested person shall be promptly informed of the arrest or the
prolongation of the custody period.”
67. A description of the other
relevant domestic law at the material time may be found in the judgments of Tekdağ v. Turkey (no. 27699/95, §§ 40‑51,
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2
OF THE CONVENTION
68. The
applicant alleged that the death of Cemal Uçar in Diyarbakır E‑type prison
gave rise to a violation of Article 2 of the Convention. He further contended
that the authorities had failed to carry out an adequate and effective
investigation into his death. Article 2 of the Convention reads as follows:
“1. Everyone’s right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the execution of a sentence
of a court following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded as inflicted in
contravention of this Article when it results from the use of force which is no
more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a
riot or insurrection.”
A. Submissions
of the parties
1. The applicant
69. The
applicant maintained that the State was responsible for Cemal Uçar’s death in
prison since they could not provide a plausible explanation for it. According
to the applicant, his son was either killed by the State authorities or by the
inmates of the prison ward where he had been incarcerated. He maintained in
this connection that his son should not have been placed in the same ward as
the other persons who had been accused of membership of the Hizbullah. The applicant further
submitted that, if his son had indeed committed suicide, then the authorities
should be considered liable for his death since they had failed to safeguard
his son’s right to life.
70. The applicant further alleged
that the authorities had failed to conduct an adequate and effective
investigation into the death of Cemal Uçar in
2. The Government
71. The Government denied the
factual basis of the
applicant’s allegation that his son had been killed while in prison. They
further submitted that the investigation carried out by the security
directorate and the public prosecutor’s office in
B. The Court’s assessment
1. The death
of the applicant’s son
a. The
alleged intentional killing
72. The Court reiterates that
Article 2 of the Convention, which safeguards the right to life, ranks as one
of the most fundamental provisions in the Convention and, together with Article
3 of the Convention, enshrines one of the basic values of the democratic societies
making up the Council of Europe (see Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR
1999‑IV). In the light of the importance of the
protection afforded by Article 2 of the Convention, the Court must subject
the complaints concerning the right to life to the most careful scrutiny (see Akdoğdu, cited above, § 36).
73. The Court will examine the issues that arise in the light of the documentary evidence put forward in the present case, as well as the parties’ written observations.
74. The Court
recalls that, in assessing evidence, it adopts the standard of proof “beyond
reasonable doubt” (see Orhan v. Turkey, no.
25656/94, § 264,
75. The applicant alleged that his son was killed either by State agents or by inmates of the prison ward where he was found dead.
76. The Court considers
that the applicant’s allegation that his son was killed by agents of the
State or the inmates of the ward no. 1 of
77. It appears from the case file
that, on
78. At
79. The Court further notes
that the
80. Moreover, as to the applicant’s allegation that his son was killed by other inmates who had been accused of membership of the Hizbullah and that the authorities were responsible for his death as they placed Cemal Uçar in ward no. 1, the Court notes that Cemal Uçar had requested to be placed in the ward in question (see paragraph 48 above). The Court is not therefore convinced by the applicant’s assertion.
81. In the light of the
above, the Court finds that there is insufficient evidence to conclude that the
applicant’s son was, beyond reasonable doubt, killed by State agents or by the
two inmates of the prison ward where Cemal Uçar was found dead, as alleged by
the applicant.
82. It follows that there has
been no violation of Article 2 of the Convention on that account.
b. The
alleged failure of the authorities to supervise the detainee
83. The Court recalls that
the first sentence of Article 2 § 1 requires the State not only to refrain from
the intentional and unlawful taking of life, but also to take appropriate steps
to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, judgment
of 9 June 1998, Reports of judgments and decisions 1998-III, p.
1403, § 36). The Court’s task is, therefore, to determine whether, given the
circumstances of the case, the State did all that could have been required of
it to prevent the life of the applicant’s son from being, avoidably, put at
risk. The Court further considers that, in appropriate circumstances, Article 2
of the Convention also imposes a positive obligation on the authorities to take
preventive operational measures to protect an individual whose life is at risk
from the criminal acts of another individual, or from self‑harm (see Akdoğdu, cited above, § 44).
84. Bearing in mind the
difficulties in policing modern societies, the unpredictability of human
conduct and the operational choices which must be made in terms of priorities
and resources, the scope of the positive obligation must be interpreted in a
way which does not impose an impossible or disproportionate burden on the
authorities. Accordingly, not every claimed risk to life can entail a
Convention requirement for the authorities to take operational measures to
prevent that risk from materialising (see Keenan v. the
United Kingdom,
no. 27229/95, § 90, ECHR 2001‑III, and Akdoğdu, cited above, § 45).
85. The
Court considers that, faced with the allegation that the authorities failed to
fulfil their positive obligation to protect the life of a prisoner, in the
context of their duty to supervise detainees and prevent suicide, there must be
convincing evidence that the authorities should have known at the time that the
person concerned was at risk and that they did not take the measures which
could reasonably be expected of them to allay that risk (see Tanribilir v. Turkey, no. 21422/93, §
72, 16 November 2000, and Akdoğdu, cited above, § 46). The answer to that question
depends on all the circumstances of the case.
86. Consequently, the Court
will examine whether the authorities knew or ought to have known that Cemal
Uçar posed a real and immediate risk of suicide and, if so, whether they did
all that could reasonably have been expected of them to prevent that risk.
87. First, there is nothing in the case file which demonstrates that the prison authorities failed to conduct the routine monitoring of the prison ward in which Cemal Uçar was incarcerated. Nor is there any evidence that the prison authorities knew that Cemal Uçar posed a risk to his own life and, therefore, he should have been supervised more closely than an ordinary detainee. In this connection, the Court notes that although, following the death of Cemal Uçar, the inmates of the ward stated that he had been depressed and talked about killing himself, the two medical reports drawn up as regards the applicant’s son, which are dated 2 and 11 November 1999, did not refer to any psychological disturbance. Furthermore, the Court observes that, in the material before it, there is no evidence that Cemal Uçar gave any cause for caution or alarm to the national authorities regarding his mental state.
88. In the circumstances of
the case, the Court is not persuaded that the prison authorities knew that Cemal
Uçar’s mental state was such that he posed a potential risk to his own life.
89. Accordingly, there has
been no violation of Article 2 of the Convention on that account.
2. The
alleged inadequacy of the investigation into the death of Cemal Uçar
90. The Court recalls that,
according to its case-law, the obligation to protect the right to life under Article
2, read in conjunction with the State’s general duty under Article 1 to “secure
to everyone within [its] jurisdiction the rights and freedoms defined in [the]
Convention”, requires by implication that there should be some form of
effective official investigation when individuals have been killed. This
obligation is not confined to cases where it has been established that the
killing was caused by an agent of the State. Nor is it decisive whether members
of the deceased’s family or others have lodged a formal complaint about the
killing with the competent investigation authority. The mere fact that the
authorities were informed of the killing of an individual gives rise ipso facto to an obligation under Article
2 of the Convention to carry out an effective investigation into the
circumstances surrounding the death (see Tanrıkulu
v. Turkey [GC], no. 23763/94, §§ 101 and 103, ECHR 1999‑IV). This
involves, where appropriate, an autopsy which provides a complete and accurate
record of possible signs of ill-treatment and injury, and an objective analysis
of clinical findings, including the cause of death (see Salman v. Turkey [GC], no. 21986/93, § 105, ECHR 2000‑VII, and Akdoğdu, cited above, § 54). The nature and degree of scrutiny which
satisfies the minimum threshold of an investigation’s effectiveness depends on
the circumstances of each particular case. It must be assessed on the basis of
all relevant facts and with regard to the practical realities of investigation
work (see Velikova v. Bulgaria,
no. 41488/98, § 80, ECHR 2000-VI, and Ülkü Ekinci,
cited above, §144).
91. In the present case,
an investigation was indeed carried out into the death of the applicant’s son.
92. According to the
documents submitted by the parties, very shortly after the corpse of Cemal Uçar
had been found, the
93. On the same day, an
autopsy was conducted by a medical expert who concluded that the cause of death
had been mechanical asphyxia resulting from suspension. Although
photographs of the body were not taken during the autopsy, the report
explicitly stated that no indication of ill‑treatment, such as scars or
bruises, was found on the corpse.
94. The public prosecutor took statements from the inmates of the ward where Cemal Uçar had been incarcerated, as well as from three prison officers.
95. As regards the applicant’s
submissions that no
photographs of the body were taken and that there was no impartial observer
independent of the authorities present during the autopsy, the Court observes
that the applicant could have challenged the decision not to prosecute issued
by the Diyarbakır public prosecutor of 2 December 1999 before the assize
court, but he failed to do so. In fact, the applicant and his representatives
remained totally passive on the national level following the death of Cemal
Uçar.
96. In the light of the foregoing, the Court considers that the investigation conducted into the death of Cemal Uçar could be described as adequate and effective.
97. Accordingly,
the Court finds that there has been no violation of Article 2 of the
Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLES
3 AND 5 OF THE CONVENTION
98. The applicant submitted
that the abduction and torture of his son by State
agents or person acting with their support, knowledge or acquiescence,
and the suffering which he endured on account of his
son’s disappearance between 5 October and
A. The
period between 5 October and
1. Submissions of the parties
a. The applicant
99. The applicant submitted that his son had been abducted and tortured by kidnappers who were acting with the support, knowledge and acquiescence of the authorities, and that there had been no effective investigation into his son’s abduction and ill-treatment.
100. The applicant finally contended that he had suffered anguish and distress on account of the disappearance of his son and the failure of the authorities to investigate the disappearance.
b. The Government
101. The Government contended
that Cemal Uçar had not been in police custody between 5 October and
2. The Court’s assessment
a. The alleged abduction and torture
of Cemal Uçar by or with the connivance of State agents
102. The Court reiterates
that Article 3 of the Convention ranks as one of the most fundamental
provisions in the Convention, to which no derogation is permitted. It also
enshrines one of the basic values of the democratic societies making up the
Council of Europe. The object and purpose of the Convention as an instrument
for the protection of individual human rights requires that these provisions be
interpreted and applied so as to make its safeguards practical and effective
(see Avşar v. Turkey, no. 25657/94, § 390, ECHR
2001‑VII (extracts)). Where allegations are made
under Article 3
of the Convention, the Court must conduct a particularly thorough scrutiny (see Ülkü Ekinci, cited above, § 135) and
will do so on the basis of all the material submitted by the parties.
103. The Court’s case-law
also stresses the fundamental importance of the guarantees contained in Article
5 for securing the right of individuals to be free from arbitrary detention by
the authorities. It has reiterated in that connection that any deprivation of
liberty must not only have been effected in conformity with the substantive and
procedural rules of national law but must equally be in keeping with the very
purpose of Article 5 (see İpek v. Turkey, no. 25760/94, § 187, ECHR 2004‑II
(extracts)).
104. The Court further reiterates that, in assessing evidence, it adopts the standard of proof “beyond reasonable doubt” (see Orhan v. Turkey, cited above, § 264). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ülkü Ekinci, cited above, § 142).
105. In the instant case, the
Court observes that between 5 October and 2 November 1999 the applicant
filed several petitions with the national authorities, maintaining that his son
had been kidnapped by four persons and that a neighbour had witnessed the
abduction. Furthermore, according to the medical report dated
106. However, the Court
considers that, even assuming that Cemal Uçar’s assertion that he had been
abducted by persons describing themselves as working for Mahmut
Yıldırım were accurate, in the light of the evidence in the case
file it cannot be established that the kidnappers were State officials. Nor
could it be shown that State officials were implicated in the abduction.
107. The Court therefore
concludes that the actual circumstances and the identity of the kidnappers
remain a matter for speculation and assumption. Accordingly, it finds that
there is insufficient evidence on which to conclude that the applicant’s son
was, beyond reasonable doubt, abducted and tortured by or with the connivance
of State agents in the circumstances alleged by the applicant.
108. Accordingly, there has
been no violation of Articles 3 and 5 of the Convention on that account.
b. The suffering that the applicant
endured on account of his son’s disappearance
109. The Court reiterates that whether a family member may be
considered to be a victim of a violation of Article 3 of the Convention, on
account of a relative’s disappearance, will depend on the existence of special
factors giving his or her suffering a dimension and character distinct from the
emotional distress which may be regarded as inevitably caused to relatives of a
victim of a serious human rights violation. Relevant elements will include the
proximity of the family tie – in this context, a certain weight will attach to
the marital bond –, the particular circumstances of the relationship, the
extent to which the family member witnessed the events in question, the
involvement of the family member in the attempts to obtain information on the missing
person and the way in which the authorities responded to those enquiries. The
essence of such a violation does not so much lie in the fact of the
“disappearance” of the family member but rather concerns the authorities’
reactions and attitudes to the situation when it is brought to their attention
(Çakıcı, cited above, § 99).
110. In
the instant case, the Court observes that there is nothing in the content or
tone of the authorities’ replies to the enquiries made by the applicant that
could be described as inhuman or degrading treatment. Although the alleged
inadequacy of the investigation into the disappearance of his son may have
caused the applicant feelings of anguish and mental suffering, the Court
considers that it has not been established that there were special factors
which would justify finding a violation of Article 3 of the Convention in
relation to the applicant himself (see Tahsin Acar v. Turkey [GC], no. 26307/95, § 239, ECHR
2004‑III).
111. Accordingly,
there has been no violation of Article 3 of the Convention on that account.
c. The alleged inadequacy of the
investigation into the abduction and ill‑treatment of Cemal Uçar
112. The Court considers that
the applicant’s allegation concerning the authorities’ failure to carry out an
adequate and effective investigation into the abduction and ill-treatment of
Cemal Uçar is more appropriately examined under Article 13 of the Convention.
B. Cemal Uçar’s detention in
police custody
1. Submissions of the parties
a. The applicant
113. The applicant submitted
under Article 3 of the Convention that Cemal Uçar had been subjected to
coercion while in police custody. He further maintained under Article 5 § 3 of
the Convention that his son had been kept in police custody for nine days
without being brought before a judge or other officer authorised by law to exercise judicial
power. The applicant finally contended under Article 5 § 5 of the Convention
that there was no remedy in domestic law to obtain compensation for the alleged
violation of Article 5 § 3.
b. The Government
114. As to the applicant’s
allegation under Article 3, the Government submitted that the medical reports
reveal that the applicant’s son had not been ill‑treated in police
custody. As regards the complaints under Article 5 of the Convention,
the Government argued that the length of the applicant’s detention in police
custody was in conformity with the legislation in force at the time.
2. The Court’s assessment
a. The alleged ill-treatment of
Cemal Uçar while in police custody
115. The Court reiterates
that where an individual is taken into custody in good health but is found to
be injured at the time of release, it is incumbent on the State to provide a
plausible explanation of how those injuries were caused and to produce evidence
casting doubt on the veracity of the victim’s allegations, particularly if
those allegations are supported by medical reports. Failing this, a clear issue
arises under Article 3 of the Convention (see, among others, Çolak and Filizer v. Turkey,
nos. 32578/96 and 32579/96, § 30,
116. In
the instant case, the Court observes that according to the medical report of
117. The Court concludes that
there is no evidence to support this complaint. Accordingly, there has been no
violation of Article 3
of the Convention in respect of the ill-treatment to which Cemal Uçar was
allegedly subjected while in police custody.
b. The length of Cemal Uçar’s detention in police custody
118. The Court repeats that Article
5 in general aims to protect the individual against arbitrary interference by
the State with the right to liberty. Article 5 § 3 is intended to
secure the rule of law by requiring the judicial control of the interference by
the executive (see the Sakık and
Others v. Turkey, judgment of 26 November 1997, Reports 1997- VII, p. 2623, § 44).
119. The Court notes that
Cemal Uçar’s detention in police custody lasted nine days. It recalls that in
the case of Brogan and Others v. the United
Kingdom (judgment of 29 November 1988, Series A no. 145‑B) it
held that detention in police custody which had lasted four days and six hours
without judicial control fell outside the strict time constraints of Article 5
§ 3 of the Convention, even though its purpose was to protect the community as
a whole against terrorism (Brogan and
Others, cited above, § 62).
120. In the light of the
principles enunciated in the Brogan
case, the Court cannot accept that it was necessary to detain the applicant’s
son for nine days without judicial intervention. The Court therefore concludes
that there has been a breach of Article 5 § 3 of the Convention.
c. The inability to obtain
compensation for the excessive length of detention in police custody
121. The Court reiterates
that Article 5 § 5 of the Convention guarantees an enforceable right to
compensation only to those who have been the victims of arrest or detention
contrary to Article 5 of the Convention (see Benham v. the United Kingdom,
judgment of 10 June 1996, Reports 1996‑III,
p. 755, § 50, and İkincisoy, cited above, § 111).
122. In the instant case, the Court notes that the length of Cemal Uçar’s custody period was in conformity with the domestic law in force at the material time. Accordingly, a request for compensation for a period of nine days in police custody would not have succeeded before the domestic courts.
123. In the absence of an
enforceable right to compensation in the circumstances of the present case, there
has been a violation of Article 5 § 5 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE
6 OF THE CONVENTION
124. The applicant complained
that his son had been denied access to a lawyer when he was in police custody.
He invoked Article 6 of the Convention, which, in relevant part, provides as
follows:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair ... hearing ...
3. Everyone charged with a criminal
offence has the following minimum rights: ...
(c) to defend himself in person or
through legal assistance of his own choosing or, if he has not sufficient means
to pay for legal assistance, to be given it free when the interests of justice
so require; ...”
125. The Government contended
that Cemal Uçar had not made a request to consult a lawyer. They submitted that
detainees in police custody had the opportunity to see their lawyers.
126. The applicant maintained
his allegation.
127. The Court recalls that
whether Article 6 § 3 (c) applies to the preliminary investigation stage
depends on the special features of the proceedings involved and the circumstances
of the case. In order to determine whether the aim of Article 6 – a fair
trial – has been achieved, regard must be had to the entirety of the
proceedings conducted in the case (see Dikme v. Turkey, no. 20869/92, § 109, ECHR 2000‑VIII).
128. In this connection, the
Court observes that the charges against the applicant’s son were dropped after
his death. Consequently, the Court is not in a position to make an examination
of the proceedings as a whole or assess the impact of the absence of
representation at the initial stage of the proceedings.
129. Accordingly, there has
been no violation of Article 6 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE
8 OF THE CONVENTION
130. The applicant submitted
under Article 8 of the Convention that he had not had access to his son when he
had been in police custody. Article 8 reads as follows:
“1. Everyone has the right to respect for
his private and family life,...
2. There shall be no interference by a
public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society ... for the
prevention of disorder or crime ...”
131. The Government contended
that Cemal Uçar had not made any attempt to see his family members while police
custody.
132. The applicant maintained his allegation.
133. The Court underlines the
essential object of Article 8 - to protect the individual against arbitrary
interference by public authorities. There may in addition be positive
obligations inherent in effective “respect” for family life. Whilst the
boundaries between the State’s positive and negative obligations under this provision
do not lend themselves to precise definition, the applicable principles are
similar. In both contexts regard must be had to the fair balance that has to be
struck between the competing interests of the individual and the community as a
whole, and in both contexts the State is recognised as enjoying a certain
margin of appreciation (see Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000‑VIII).
134. Furthermore,
in the Court’s opinion, "family life", within the meaning of Article
8 of the Convention, includes at least the ties between close relatives.
Respect for family life implies an obligation for the State to act in a manner
calculated to allow such ties to develop normally (see Marckx v. Belgium, judgment of
135. Since the concept of
respect is not precisely defined, States have a wide margin of appreciation
regarding the choice of the means to be employed to discharge such obligations
in relevant legislation (see Zehnalova and
Zehnal, cited above).
136. The Court considers that
when a person is arrested his ability to communicate rapidly with his family
may be of great importance. The unexplained disappearance of a family member,
even for a short period of time, may provoke great anxiety (see McVeigh and Others, O’Neill, and Evans v. the United Kingdom, nos.
8022/77, 8025/77 and 8027/77, Commission’s report of 18 March 1981, Decisions
and Reports (DR) 25, p. 52, § 237).
137. The Court further
considers that the situation complained of in the instant case concerns not an
interference with the applicant’s right under Article 8, but the State’s
inaction to regulate the communications between persons in custody and their
relatives. Therefore, the Court will examine the applicant’s complaint in the
light of the general rule enunciated in the first paragraph of Article 8, which
protects the right to respect for private and family life.
138. In the instant case, the
Court notes that Cemal Uçar disappeared on
139. The Court further notes that
Cemal Uçar’s detention in police custody lasted nine days, between 2 and
11 November 1999 (see paragraphs 19, 22 and 26 above), which undoubtedly caused
anxiety for the applicant, bearing in mind the unexplained disappearance of his
son since 5 October 1999. Furthermore, at the material time there was no legal
provision in Turkish law governing the question of contact between a person
held in police custody and the members of his or her family. The legislative
amendment which provided the notification of the arrest of a person to a family
member or another person designated by the detainee only entered into force in
2002.
140. The Court observes that
there is nothing in the case file which would prove that the applicant and his
son had requested to be authorised to contact each other and that their
requests had been dismissed. However, given the absence of pertinent
regulations, the Government have not specified the means at Cemal Uçar’s
disposal which would have enabled him to communicate rapidly with his family
following his detention in police custody.
141. In the absence of a legislative framework providing concrete and effective protection against a violation of Article 8 of the Convention at the material time, the Court considers that, in the circumstances of the case, the detention of Cemal Uçar in police custody for nine days without contact with his family constituted a violation of Article 8.
V. ALLEGED VIOLATION OF ARTICLE
13 OF THE CONVENTION
142. The applicant alleged that he
had been denied an effective domestic remedy in respect of his complaints
concerning Cemal Uçar’s abduction and ill-treatment, in violation of Article 13
of the Convention. He further complained under the same head about the
ineffectiveness of the investigation into the death of his son. Article 13 of
the Convention provides as follows:
“Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been committed by
persons acting in an official capacity.”
A. Submissions of the parties
1. The applicant
143. The applicant maintained
that neither of the investigations had met the require
2. The Government
144. The Government maintained that the domestic authorities had conducted
effective investigations into the abduction, the allegations of ill‑treatment
and the death of the applicant’s son.
B. The Court’s assessment
1. The alleged inadequacy of the investigation into the death of Cemal Uçar
145. Having regard to its
conclusion on the applicant’s complaint under Article 2 of the Convention (see
paragraph 97 above), the Court does not consider it necessary to examine the
applicant’s complaint under Article 13 of the Convention separately.
2. The alleged inadequacy of the investigation into the abduction and the alleged ill-treatment of Cemal Uçar
146. The Court recalls that
Article 13 guarantees the availability at the national level of a remedy to
enforce the substance of the Convention rights and freedoms in whatever form
they might happen to be secured in the domestic legal order. The effect of Article
13 is thus to require the provision of a domestic remedy to deal with the
substance of the relevant Convention complaint and to grant appropriate relief,
although Contracting States are afforded some discretion as to the manner in
which they conform to their Convention obligations under this provision. The
scope of the obligation under Article 13 varies depending on the nature of the
applicant’s complaint under the Convention. Nevertheless, the remedy required
by Article 13 must be “effective” in practice as well as in law, in particular
in the sense that its exercise must not be unjustifiably hindered by acts or
omissions of the authorities of the respondent State (Aksoy v. Turkey, judgment of
18 December 1996, Reports
1996-VI, § 95, Aydın v. Turkey, judgment of 25 September
1997, Reports 1997‑VI, § 103, and
Kaya v. Turkey, judgment of 19 February 1998, Reports 1998‑I, § 89).
147. In addition, where the relatives of a person have an arguable claim that the latter has disappeared and/or been subjected to ill-treatment, the notion of an effective remedy for the purposes of Article 13 entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and effective access for the relatives to the investigatory procedure (see İpek, cited above, § 198, and Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR 2000‑III).
148. On the basis of the evidence
adduced in the present case, the Court observes, at the outset, that Cemal Uçar
had been abducted and subjected to ill-treatment between 5 October and
149. The
Court observes that no attempts were made to find the applicant’s son. The
authorities, in particular the security forces, remained passive between 11
October and
150. Furthermore,
no attempts were made to obtain evidence in respect of the alleged abduction.
In particular, no attempts were made to take the testimony of Cemal Uçar’s
neighbour, who allegedly witnessed the event.
151. The
Court further notes that, after having been arrested by police officers on
152. The
Court is struck by the fact that although Cemal Uçar’s medical examination of
153. The serious shortcomings
thus identified are sufficient for the Court to conclude that the applicant was
denied an effective remedy in respect of the disappearance and ill-treatment of his
son between 5 October and
154. Consequently, there has
been a violation of Article 13 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE
14 OF THE CONVENTION
155. The applicant alleged
that there was an administrative practice of discrimination on grounds of
ethnic origin. He relied on Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set forth
in [the] Convention shall be secured without discrimination on any ground such
as sex, race, colour, language, religion, political or other opinion, national
or social origin, association with a national minority, property, birth or
other status.”
156. The applicant maintained that his son’s disappearance, ill‑treatment, subsequent death and the failure of the authorities to conduct an effective investigation were motivated by his ethnic origin.
157. The Government submitted
that the applicant’s allegations were untrue and
unsubstantiated.
158. The Court has examined
the applicant’s allegation. However, it finds that no violation of this
provision can be established on the basis of the evidence before it.
159. It follows that there
has been no violation of Article 14, read in conjunction with Articles 2 and 3
of the Convention.
VII. ALLEGED VIOLATION OF
ARTICLE 38 OF THE CONVENTION
160. In his
post-admissibility observations, the applicant invited the Court to find that
the respondent Government had failed in its duty to assist the Court in the
case. He maintained that the respondent State failed to disclose all the
evidence and information requested by the Court on
“1. If the Court declares the
application admissible, it shall
(a) pursue the examination of the
case, together with the representatives of the parties, and if need be,
undertake an investigation, for the effective conduct of which the States
concerned shall furnish all necessary facilities; ...”
161. The Government
maintained that they had replied to the questions put by the Court and
submitted the evidence requested.
162. The Court observes that on
VIII. APPLICATION OF ARTICLE 41
OF THE CONVENTION
163. Article 41 of the
Convention provides:
“If the Court finds that there has been a violation of
the Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
164. The applicant sought
reparation for pecuniary and non-pecuniary damage, but left the amount to the
discretion of the Court.
165. The Government submitted
that the applicant had not provided any evidence in support of any alleged
damage and requested the Court not to accede to the applicant’s claims.
166. As regards the alleged
pecuniary damage sustained by the applicant, the Court observes that he has not
produced any documentation in support of his claim, which the Court, accordingly,
dismisses.
167. With regard to the
non-pecuniary damage, the Court notes that it has found violations of Articles
5 §§ 3 and 5, 8 and 13 of the Convention. Making its assessment on an equitable
basis, the Court awards the applicant 10,500 euros (EUR) under this head.
B. Costs and expenses
168. The applicant claimed a
total of 8,981.50 pounds sterling (GBP) (approximately EUR 13,171) for fees and
costs incurred in respect of his lawyers in the
169. The Government contested these claims.
170. The Court will make an award in respect of costs and expenses in so far as these were actually and necessarily incurred and were reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). The Court is not satisfied that in the instant case all the costs and expenses were necessarily and actually incurred. In particular, it finds that it has not been proved that all these legal costs, including the total number of hours of legal work effected by four different lawyers, were necessarily and actually incurred.
171. Making its own
assessment based on the information available, the Court awards the applicant
EUR 8,000 for costs and expenses – exclusive of any value-added tax that may be
chargeable – in respect of his lawyers attached to the Kurdish Human Rights
Project, to be paid into the bank account of the applicant’s representatives in
the United Kingdom, as indicated by the applicant. The Court further awards the
applicant EUR 2,500 for the costs and expenses incurred in respect of Mr
İ. Sağlam.
C. Default interest
172. The Court considers it
appropriate that the default interest should be based on the marginal lending
rate of the European Central Bank, to which should be added three percentage
points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been no violation of Article 2 of the
Convention;
2. Holds that there has been no violation of Article 3 of the
Convention;
3. Holds that there has been no violation of Article 5 of the
Convention in respect of the disappearance of the applicant’s son between 5
October and
4. Holds that there has been a violation of Article 5 § 3 of the
Convention with respect to the length of the detention of the applicant’s son
in police custody;
5. Holds that there has been a violation of Article 5 § 5 of the
Convention as regards the inability of the applicant’s son to obtain
compensation for the excessive length of detention in police custody;
6. Holds that there has been no violation of Article 6 of the
Convention;
7. Holds that there has been a violation of Article 8 of the
Convention;
8. Holds that there has been a violation of Article 13 of the
Convention in respect of the disappearance
and ill‑treatment of the applicant’s son between 5 October and
9. Holds that there has been no violation of Article 14 of the
Convention;
10. Holds
that there has been no violation of Article 38 of the Convention;
11. Holds
(a) that the respondent State is
to pay the applicant, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, the following amounts:
(i) EUR 10,500 (ten thousand and
five hundred euros) in respect of non-pecuniary damage to be paid into the bank
account of the applicant; this sum is to be converted into new Turkish liras at
the rate applicable at the date of settlement;
(ii) EUR 2,500 (two thousand and
five hundred euros) for costs and expenses incurred in respect of Mr İ.
Sağlam, one of the applicant’s representatives in Turkey, to be paid into
the bank account of the applicant; this sum is also to be converted into new
Turkish liras at the rate applicable at the date of settlement;
(iii) EUR 8,000 (eight thousand
euros) for costs and expenses in respect of the applicant’s representatives in
the United Kingdom; this sum is to be converted into pounds sterling at the
rate applicable at the date of settlement and to be paid into the applicant’s
representatives’ sterling bank account in the United Kingdom;
(iv) any tax that may be
chargeable on all the above amounts;
(b) that from the expiry of the
above-mentioned three months until settlement simple interest shall be payable
on the above amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points;
12. Dismisses the remainder of the applicant’s claim for just
satisfaction.
Done in English, and notified in writing
on
S. Dollé J.-P.
Costa
Registrar President