FOURTH
SECTION
CASE OF AKDENİZ v.
(Application no. 25165/94)
JUDGMENT
31 May
2005
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 Akdeniz v.
The European Court of Human Rights (Fourth
Section), sitting as a Chamber composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr R. Maruste,
Mr K. Traja,
Mrs L. Mijović, judges,
Mr F. Gölcüklü,
ad hoc judge,
and Mr M. O’Boyle,
Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in an
application (no. 25165/94) against the
2. The applicant was
represented by Mr Mark Muller, a lawyer practising in
3. The applicant alleged, in
particular, that her son Mehdi Akdeniz had been taken into the custody of the
soldiers who had come to her village on 20 February 1994 and that nothing has
been heard from him since that date. She invoked Articles 3, 5, 6, 13 and 14 of
the Convention.
4. The application was
declared admissible by the Commission on 1 December 1997 and transmitted
to the Court on 1 November 1999 in accordance with Article 5 § 3, second
sentence, of Protocol No. 11 to the Convention, the Commission not having
completed its examination of the case by that date.
5. The application was
allocated to the First 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. Mr
Rıza Türmen, the judge elected in respect of
6. The applicant, but not the
Government, filed observations on the merits (Rule 59 § 1).
7. On
8. On 10 May 2005 the Chamber
decided, in the light
of the principles laid down in Grand Chamber’s judgment
in the case of Tahsin Acar v. Turkey (preliminary
objection) [GC], no. 26307/95, ECHR 2003‑VI, to reject the Government’s request to strike the case out of its
list of cases on the basis of the unilateral declaration submitted by them on 9
January 2002.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant, a Turkish
citizen of Kurdish origin, was born in 1955 and lives in
A. Introduction
10. The facts of the case,
particularly concerning events which took place on
11. The facts as presented by the
applicant are set out in Section B below (paragraphs 12-18). The Government’s
submissions concerning the facts are summarised in Section C below (paragraphs 19-21).
Documentary evidence submitted by the parties is summarised in Section D
(paragraphs 22-67).
B. The applicant’s submissions on the facts
12. At the time of the events
giving rise to the present application the applicant and her family were living
in the Sesveren hamlet of Karaorman village, located within the administrative
jurisdiction of the town of
13. On
14. One of the soldiers then read out a list of names of six male villagers: Halit Akdeniz (35 years old), İrfan Akdeniz (18 years old), Mehmet Şirin Allahverdi (35 years old), Ziya Çiçek (22 years old), Faik Akdeniz (35 years old), and finally the applicant’s son Mehdi Akdeniz (22 years old) (hereinafter “the six persons”). The six persons seemed to have been identified by a masked man who was with the gendarme officers. The soldiers then beat up the six persons; the applicant’s son was the subject of the worst treatment. The six persons were then taken away, out of sight of the villagers.
15. The soldiers stayed in the
village for approximately two hours and then walked with the group of six
persons to another hamlet, approximately 1.5 kilometres away, where they got
into waiting vehicles and drove away.
16. Eye-witnesses, who were
held in detention together with the applicant’s son, subsequently informed the
applicant that Mehdi Akdeniz had been held at Kulp District Gendarme
Headquarters for five days. He had been tortured whilst being detained and
according to the eye-witnesses, he had received the worst treatment of the six
persons.
17. Eye-witnesses confirmed
that in Silvan, where he was held for one week before being taken to
18. The applicant has heard
nothing further about the whereabouts or fate of her son since that time. She has
brought several applications, both orally and in writing, to the Chief Public
Prosecutor at the Diyarbakır State Security Court (hereinafter “the
Diyarbakır Court”) and tried, unsuccessfully, to obtain information about
her son.
C. The Government’s submissions on
the facts
19. No operation was carried
out in the Kulp-Sesveren area on
20. Between 1992 and 1993 the
Sesveren hamlet was attacked by members of the PKK and the inhabitants of the
hamlet fled from their homes because of intimidation by the PKK.
21. On
D. Documentary evidence submitted by
the parties
22. The following information
appears from the documents submitted by the parties.
23. According to a record of
arrest, drawn up on
24. On unspecified dates
these five persons were questioned by a gendarme commander. All but Faik
Akdeniz denied ever having been members of the PKK. Faik Akdeniz stated that he
had been a member briefly. All five men stated that Karaorman village had often
been visited by PKK members who forced the villagers to give them food.
25. On
26. The applicant, in a
petition she submitted to the Chief Public Prosecutor at the
27. According to a
handwritten note, written by the Chief Public Prosecutor at the
28. On
29. In his letter of
30. The commander of the Kulp
District Gendarme Headquarters was requested on 6 January 1995 by the Kulp
Prosecutor to summon the applicant, as well as the five persons who had
allegedly been detained together with the applicant’s son (see paragraph 14
above), to the prosecutor’s office. The Prosecutor also asked for a certain
Cevdet Yılmaz and one Reşat Pamuk, both of whom were apparently
living in the applicant’s village, to be summoned.
31. According to a report,
which was drawn up on 17 March 1995 by three gendarme soldiers from the Sivrice
gendarme station – located near the applicant’s village of Karaorman – and
which was submitted to the Kulp Prosecutor, the persons referred to in the Kulp
Prosecutor’s letter of 6 January 1995 had left the village for an unknown
destination because of terrorist incidents. This report was subsequently sent
to the Prosecutor’s office at the
32. On
33. According to a report, drawn up on
34. Similar correspondence
between the Prosecutors and the gendarmerie setting out the former’s
unsuccessful attempts to find the applicant and the other seven persons
continued until June 1996, when Halit Akdeniz, one of the six persons who was
allegedly detained at the same time as the applicant’s son, was located.
35. In a statement taken by
the Kulp Prosecutor on
36. Also on
37. On
38. On
39. The Kulp Prosecutor took
a statement from the applicant on
40. On
41. Faik Akdeniz was
questioned on
42. On
43. On
44. Another statement was
taken from the applicant on
45. On
46. The applicant was
questioned on
47. On
48. On that same day the Kulp
Prosecutor also took a statement from Ziya Çiçek, the fifth person who had
allegedly been detained together with the applicant’s son. Mr Çiçek confirmed
the version of events given by the other four persons who claimed to have been
detained with the applicant’s son.
49. The Kulp Prosecutor
informed the Prosecutor at the
50. On 14 January 1998 the
Kulp Prosecutor asked the Kulp and Silvan District Gendarme Headquarters, the
Diyarbakır Provincial Gendarme Headquarters and also the Diyarbakır
Police Headquarters to send to his office copies of custody records showing the
names of persons who had been taken into custody between 20 February 1994 and
10 January 1995 at their respective Headquarters.
51. On
52. On
53. The Prosecutor at the
54. On
55. In a reply of
56. Also on
57. On
58. According to a set of
custody records, showing the names of those detained at the Diyarbakır
Provincial Gendarme Headquarters between
59. On
60. On
61. On
62. Mehmet Nuri Sansar, the
headman (muhtar) of the Karaorman village at the time of the alleged
events, was questioned by the Kulp Prosecutor on
63. Cevdet Yılmaz (see
paragraphs 30 and 38 above) was questioned by a Prosecutor on
64. On 22 May 1998 the Kulp
Prosecutor asked his opposite number in the town of Silvan to enquire with the
Gendarme Headquarters in the latter’s town to verify whether, as alleged by a
number of eye-witnesses, Mehdi Akdeniz had ever been detained there.
65. On
66. On
67. On
II. RELEVANT DOMESTIC LAW
68. A description of the relevant law may be found in İpek v.
THE LAW
I. THE COURT’S ASSESSMENT OF THE
EVIDENCE AND ESTABLISHMENT OF THE FACTS
A. Arguments of the parties
1. The applicant
69. In her observations
submitted to the Commission prior to the decision on admissibility, the
applicant submitted that her son had been beaten up and then taken away by a
number of soldiers who had come to their village on 20 February 1994, and that
nothing had been heard from him since that date. She invoked Articles 3, 5, 6,
13 and 14 of the Convention.
2. The Government
70. In their observations
submitted to the Commission on
B. The Court’s evaluation of the
facts
71. The Court observes that
the Government, in their two sets of observations submitted in 1995, i.e. prior
to the admissibility of the application, submitted that neither the applicant’s
son nor any of the five men whom the applicant alleged had been detained
together with her son, had ever been detained. In support of their submission,
the Government appended to their observations copies of two pages of the
custody ledger of the Diyarbakır Provincial Gendarme Headquarters. In
these pages the names of those detained there between
72. However, the Court
observes that according to the next four pages of the same custody ledger, the
five persons whose detentions was denied by the Government, were in fact
detained there between 5 March 1994 and 8 March 1994. These four pages
were submitted to the Commission by the Government on
73. Furthermore, according to
the copies of the custody ledger of the Kulp Central Gendarmerie Station (see paragraphs 51 and 57 above), the
five persons were detained there between
74. Similarly, the Government’s
submission that no operation had been carried out in Karaorman village in
February 1994 appears to be refuted by the record of arrest drawn up on 28
February 1994 by officers from the Kulp gendarmerie, according to which Halit
Akdeniz, M. Şirin Allahverdi, Ziya Çiçek, Faik Akdeniz and İrfan
Akdeniz were arrested in an operation carried out by the gendarmerie (see paragraph 23 above). A number of
them were subsequently tried and acquitted (see paragraph 59 above).
75. Finally, the Court cannot
but note that notwithstanding the existence of an arrest report which clearly
states that there had been an operation on 28 February 1994 (see paragraph 23 above), both the
commander of the Kulp District Gendarme Headquarters and the deputy commander
of the Diyarbakır Provincial Gendarme Headquarters denied that such an
operation had been carried out (see,
respectively, paragraphs 43 and 67 above).
76. The Court is thus
confronted with a situation where State agents, as well as the respondent
Government in their observations, have provided conflicting information and
documents relating to the facts of the case. No explanation, let alone a
satisfactory one, has been given for this. The Court considers that such a
serious contradiction directly affects the credibility of the version of the
facts as presented by the Government and, moreover, justifies the drawing of
inferences as to the well-foundedness of the applicant’s allegations (see Timurtaş
v. Turkey, no. 23531/94, § 66, ECHR 2000-VI).
77. As regards the
allegations made by the applicant in her application form, the Court observes
that they are consistent with the petition she had already submitted to the Prosecutor
at the Diyarbakır Court (see
paragraph 26 above) and also with the four statements she subsequently
made on various dates before a number of prosecutors (see paragraphs 39, 44, 46 and finally 47 above).
78. Furthermore, the accuracy
of her allegations is corroborated by the statements given by the five men
before the Kulp Prosecutor on various dates (see paragraphs 35, 36, 37, 41 and 48 above).
79. The applicant’s
allegations were also confirmed by Cevdet Yılmaz, who was detained in
February 1994 in his own village located near to the applicant’s hamlet. He
confirmed in his statement to a Prosecutor that he had seen the applicant’s son
Mehdi Akdeniz in the custody of soldiers (see paragraph 63 above).
80. Finally, the applicant’s
allegations found confirmation in the statement of the muhtar of her
village, Mr Mehmet Nuri Sansar. Mr Sansar, like the applicant, submitted that
the soldiers had come to the village during prayer time (see paragraph 62 above). He confirmed that the applicant’s son
had been taken away by the soldiers.
81. The Court observes that
all these statements, made by different persons on various dates, were made
before public prosecutors. They are consistent with the applicant’s allegations
and consistent with each other. The Court finds them convincing. Indeed, on the
basis of these statements, the Kulp Prosecutor himself reached the conclusion
that they corroborated the applicant’s allegation that her son had been taken
into detention by the gendarmerie (see
paragraph 53 above).
82. The Court, in the light
of the above-mentioned statements, the authenticity and the accuracy of which
have not been challenged by the Government, finds it established that the
applicant’s son was detained by the gendarme soldiers together with the five
villagers.
83. On the basis of this
finding, the Court will proceed to examine the applicant’s complaints under the
various Articles of the Convention.
II. ALLEGED VIOLATIONS OF
ARTICLE 2 OF THE CONVENTION
84. The applicant argued in
her observations submitted to the Court on
85. The Government denied
that the applicant’s son had been detained by soldiers.
86. The Court observes at the
outset that the applicant did not invoke Article 2 of the Convention in her
application form; this Article was invoked for the first time in the applicant’s
above mentioned observations of
87. In
this context, Article 32 of the Convention provides as follows:
“1. The jurisdiction of the Court
shall extend to all matters concerning the interpretation and application of
the Convention and the Protocols thereto which are referred to it as provided
in Articles 33, 34 and 47.
2. In the event of dispute as to
whether the Court has jurisdiction, the Court shall decide.”
88. The Court reiterates that
since it is master of the characterisation to be given in law to the facts of
the case, it does not consider itself bound by the characterisation given by an
applicant, a government or the Commission. By virtue of the jura novit curia
principle, it has, for example, considered of its own motion complaints under
Articles or paragraphs not relied on by those appearing before it and even
under a provision in respect of which the Commission had declared the complaint
to be inadmissible while declaring it admissible under a different one. A
complaint is characterised by the facts alleged in it and not merely by the
legal grounds or arguments relied on (see Guerra and Others v. Italy,
judgment of 19 February 1998, Reports 1998-I, § 44; Powell and Rayner v. the United Kingdom,
judgment of 21 February 1990, Series A no. 172, p. 13, § 29; see
also, Assenov and others v. Bulgaria, judgment of 28
October 1998, Reports of Judgments and Decisions 1998-VIII, §
132).
89. The Court has full
jurisdiction only within the scope of the “case”, which is determined by the
decision on the admissibility of the application. Within the compass thus
delimited, the Court may deal with any issue of fact or law that arises during
the proceedings before it (see, among many other authorities, Philis v. Greece (no. 1), judgment of 27
August 1991, Series A no. 209, p. 19, § 56).
90. In the instant case,
while the applicant in her application to the Commission may not expressly have
invoked Article 2 of the Convention, she has raised in substance – both before
the national authorities and also in her observations submitted to the
Commission – the basis of her complaint in relation to this Article.
91. In this regard the Court
observes that in her petition submitted to the Chief Public Prosecutor at the
92. The Court would further emphasise
that it has, since the adoption of its judgment in the above mentioned case of Timurtaş, taken into account the effective protection of the right to life
as afforded by Article 2 of the Convention by holding that lengthy periods of
unacknowledged detentions go beyond a mere irregular detention in violation of
Article 5 of the Convention (see, Timurtaş,
cited above, § 83). It has examined such allegations from the standpoint of
Article 2 as well as Article 5 of the Convention (see, inter alia, Orhan v.
93. It follows that it is
open to the Court to consider the applicant’s allegations concerning her son’s
detention in the light of the protection of the right to life within the
meaning of Article 2 of the Convention which provides 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. General considerations
94. Article 2, which
safeguards the right to life and sets out the circumstances when deprivation of
life may be justified, ranks as one of the most fundamental provisions in the
Convention, from which no derogation is permitted. Together with Article 3, it
also enshrines one of the basic values of the democratic societies making up
the Council of Europe. The circumstances in which deprivation of life may be
justified must therefore be strictly construed. The object and purpose of the
Convention as an instrument for the protection of individual human beings also
requires that Article 2 be interpreted and applied so as to make its safeguards
practical and effective (McCann and
Others v. the United Kingdom, judgment of 27 September 1995, Series A
no. 324, §§ 146-147).
95. In the light of the importance
of the protection afforded by Article 2, the Court must subject
deprivations of life to the most careful scrutiny, taking into consideration
not only the actions of State agents but also all the surrounding
circumstances. Detained persons are in a vulnerable position and the
authorities are under a duty to protect them. Consequently, where an individual
is taken into police custody in good health and is found to be injured on
release, it is incumbent on the State to provide a plausible explanation of how
those injuries were caused (see, amongst other authorities, Orhan, cited above, § 326 and the
authorities cited therein). The obligation on the authorities to account for
the treatment of a detained individual is particularly stringent where that
individual dies or disappears thereafter.
96. Where the events in issue
lie wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of persons within their control in detention,
strong presumptions of fact will arise in respect of injuries and death
occurring during that detention. Indeed, the burden of proof may be regarded as
resting on the authorities to provide a satisfactory and convincing explanation
(Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; Çakıcı
v. Turkey [GC],
no. 23657/94, § 85, ECHR 1999‑IV, and Timurtaş,
cited above, § 82).
B. Whether Mehdi Akdeniz can be
presumed dead
97. In the Timurtaş judgment (cited above, §§
82-83) the Court stated the following:
(...) 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, failing which an issue arises under Article 3 of the Convention
(...). In the same vein, Article 5 imposes an obligation on the State to
account for the whereabouts of any person taken into detention and who has thus
been placed under the control of the authorities (...). Whether the failure on
the part of the authorities to provide a plausible explanation as to a detainee’s
fate, in the absence of a body, might also raise issues under Article 2 of the
Convention will depend on all the circumstances of the case, and in particular
on the existence of sufficient circumstantial evidence, based on concrete
elements, from which it may be concluded to the requisite standard of proof
that the detainee must be presumed to have died in custody (...).
In this respect the period of time which
has elapsed since the person was placed in detention, although not decisive in
itself, is a relevant factor to be taken into account. It must be accepted that
the more time goes by without any news of the detained person, the greater the
likelihood that he or she has died. The passage of time may therefore to some
extent affect the weight to be attached to other elements of circumstantial
evidence before it can be concluded that the person concerned is to be presumed
dead. In this respect the Court considers that this situation gives rise to
issues which go beyond a mere irregular detention in violation of Article 5.
Such an interpretation is in keeping with the effective protection of the right
to life as afforded by Article 2, which ranks as one of the most fundamental
provisions in the Convention (...).”
98. The Court considers that
there are a number of elements distinguishing the present case from cases such
as Kurt v. Turkey (judgment of
99. The Court also notes that
the Akdeniz family was suspected by the authorities of aiding and abetting the
PKK, and a number of them were arrested at the same time as Mehdi Akdeniz and
have subsequently been charged with and tried for that offence (see paragraph 59
above). Indeed, as established by the Court, the applicant’s son was detained
together with five others who were suspected of having aided and abetted the
PKK. In the general context of the situation in south-east
100. It is further to be
recalled that the Court has held in previous judgments that defects undermining
the effectiveness of criminal-law protection in the south-east during the
period relevant also to this case, permitted or fostered a lack of
accountability of members of the security forces for their actions (Kılıç
v. Turkey, no. 22492/93, § 75, ECHR 2000-III, and Mahmut Kaya v.
Turkey, no. 22535/93, § 98, ECHR 2000-III). This lack of
accountability is evidenced in the present case by the fact that none of the
gendarmes working in Kulp where the applicant’s son was detained has been
questioned by the Kulp Prosecutor despite the latter’s conclusion that the
applicant’s allegation of her son having been detained by gendarmes was
corroborated by the statements of a number of other detainees (see paragraph 53 above).
101. For the reasons above,
and taking into account the fact that no information has come to light
concerning the whereabouts of Mahdi Akdeniz for more than 11 years, the Court
is satisfied that he must be presumed dead following an unacknowledged detention
by the security forces. Consequently, the responsibility of the respondent
State for his death is engaged. Noting that the authorities have not provided
any explanation as to what occurred following Mehdi Akdeniz’s detention, and
that they do not rely on any ground of justification in respect of any use of
lethal force by their agents, it follows that liability for his death is
attributable to the respondent Government (Timurtas, § 86, Orhan, §
331, and Çiçek, § 147, all cited above).
102. Accordingly, there has
been a violation of Article 2 on that account in respect of Mehdi Akdeniz.
C. The alleged inadequacy of the
investigation
103. The Court reiterates
that the obligation to protect the right to life under Article 2 of the
Convention, read in conjunction with the State’s general duty under Article 1
of the Convention to “secure to everyone within [its] jurisdiction the rights
and freedoms defined in [the] Convention”, also requires by implication that
there should be some form of effective official investigation when individuals
have been killed as a result of the use of force (see, mutatis mutandis,
McCann and Others, cited above, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports
1998-I, § 105). The essential purpose of such investigation is to secure the
effective implementation of the domestic laws which protect the right to life
and, in those cases involving state agents or bodies, to ensure their
accountability for deaths occurring under their responsibility. What form of
investigation will achieve those purposes may vary in different circumstances.
However, whatever mode is employed, the authorities must act of their own
motion, once the matter has come to their attention. They cannot leave it to
the initiative of the next of kin either to lodge a formal complaint or to take
responsibility for the conduct of any investigatory procedures (see, for
example, mutatis mutandis, İlhan v.
104. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, §§ 81-82, and Oğur v. Turkey [GC], no. 21954/93, §§ 91-92, ECHR 1999-III). The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances (Kaya, cited above, § 87) and to the identification and punishment of those responsible (Oğur, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eye-witness testimony (see, concerning witnesses, for example, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard.
105. There is also a
requirement of promptness and reasonable expedition implicit in this context (Yaşa v. Turkey, judgment of 2
September 1998, Reports 1998-VI, § 102-104; Çakıcı,
cited above, at §§ 80, 87, 106; Tanrıkulu, cited above, § 109; and Mahmut
Kaya, cited above, §§ 106-107). It must be accepted that there may be
obstacles or difficulties which prevent progress in an investigation in a
particular situation. However, a prompt response by the authorities in
investigating a use of lethal force or disappearance may generally be regarded
as essential in maintaining public confidence in their maintenance of the rule
of law and in preventing any appearance of collusion in, or tolerance of,
unlawful acts (see, in general, McKerr v. the United Kingdom, no. 28883/95,
§§ 108-115, ECHR 2001‑III). The need for promptness is especially
important when allegations are made of a disappearance in detention.
106. The Court finds that the
applicant’s allegations were brought to the attention of the investigating
authorities on
107. No further action was
taken until after the communication of the application by the Commission to the
respondent Government. On
108. The Kulp Prosecutor, who
was entrusted with the duty to carry out the investigation, spent the first two
years of the investigation taking statements from the applicant and also from
eye-witnesses who all confirmed the applicant’s allegations. It appears that it
did not occur to this Prosecutor to verify with the security forces the
accuracy of the applicant’s allegations until
109. In addition, it also took
the Kulp Prosecutor more than three years to obtain the custody records of the
Kulp District Gendarme Headquarters (see paragraph 51 above), even though this
would seem to have been the logical starting point in an investigation of this
nature.
110. The Court is further
alarmed by the Kulp Prosecutor’s failure to confront the commanders of the Kulp
District Gendarme Headquarters and the Diyarbakır Gendarme Headquarters
with the military report of 28 February 1994 which stated that an
operation had been carried out, and which thus contradicted these commanders’
letters of 27 December 1996 and 29 June 1998 respectively, in which they
informed the Prosecutor that no operation had been conducted in the applicant’s
village in February 1994.
111. The Court finds that the
investigation which was conducted into the disappearance of the applicant’s son
is similar to other investigations carried out at the relevant time in
south-east of
112. For the reasons outlined
above, the Court finds that the investigation carried out into the
disappearance of the applicant’s son was seriously inadequate and deficient.
There has accordingly been a violation of Article 2 of the Convention in
respect of Mehdi Akdeniz on this account.
III. ALLEGED VIOLATIONS OF
ARTICLE 3 OF THE CONVENTION
113. The applicant submitted
that there was substantial evidence in the form of eye-witness statements that
her son had been subjected to treatment amounting to torture whilst being held
in custody by the gendarmerie.
114. She further submitted
that she had suffered distress and anguish as a result of her inability to find
out what had happened to her son and of the way in which the authorities
responded and treated her in relation to her enquiries. She submitted that this
treatment constituted inhuman treatment.
115. In respect of these two
complaints the applicant invoked Article 3 of the Convention which provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
116. The Government, beyond
denying the factual basis of the applicant’s submissions, did not specifically
deal with this complaint.
A. In
respect of Mehdi Akdeniz
117. The
Court’s case-law indicates that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The assessment of this
minimum is relative: it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and/or mental effects and, in some
cases, the sex, age and state of health of the victim (see, amongst other
authorities, Tekin v. Turkey,
judgment of 9 June 1998, Reports 1998-IV, § 52).
118. The
Court recalls that it has found it established, on the basis of the statements
given by the eye-witnesses – including the applicant –, that the applicant’s
son was taken into custody. According to the statements given by these
witnesses – including the five men who were detained at the same time as the
applicant’s son – the six persons were ill-treated and Mehdi Akdeniz in
particular received the most severe beating at the time of arrests. These witnesses also stated that the ill-treatment had continued
during their detention. Indeed,
the allegations of ill-treatment at the time of arrest are supported by the
arrest report drawn up on
119. The Court, as it has
already made clear above, does not doubt the accuracy of these statements.
Indeed, it is to be noted that neither the authenticity nor the accuracy of the
contents of these statements has been challenged by the Government. It
concludes, therefore, that the applicant’s son was subjected to ill-treatment,
which, at the least, reaches
the threshold of inhuman and degrading treatment and discloses in that respect
a violation of Article 3 of the Convention (see, mutatis mutandis, Akdeniz and Others v.
Turkey, no. 23954/94, § 98, 31 May 2001).
120. It
follows therefore that there has been a violation of Article 3 in respect of
the treatment to which the applicant’s son was subjected.
B. In respect of the applicant
121. The Court reiterates
that the question whether a family member of a “disappeared person” is a victim
of treatment contrary to Article 3 will depend on the existence of special
factors which gives the suffering of the applicant 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 that context, a certain
weight will attach to the parent-child 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 about the disappeared person and the way in which the authorities
responded to those enquiries (İpek,
cited above, §§ 181-183, and the authorities cited therein). The Court would
further emphasise that 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. It is especially in respect of the latter that a relative may
claim directly to be a victim of the authorities’ conduct (see Çakıcı,
cited above, § 98).
122. In the present case, the
Court notes that the applicant is the mother of the disappeared Mehdi Akdeniz.
The applicant witnessed her son being taken away by soldiers eleven years ago
and she has not heard from him since. It further appears from the documents
submitted by the Government that the applicant was asked to make numerous
statements to the prosecutors and on many occasions she asked them to find out
what had happened to her son (see paragraphs 39, 44, 46 and 47 above). Despite
having approached the Prosecutor to inform him of the disappearance of her son
and also of her concerns about his life, the Prosecutor took no action other
than telling her that her son’s name did not feature in the custody records
(see paragraphs 26 and 27). The Prosecutors took action not on the basis of her
petition but only on the basis of the Directorate’s letter in which they were
informed of the application introduced with the Commission (see paragraph 28
above).
123. The applicant has never
received any plausible explanation or information from the authorities as to
what became of her son following his apprehension by the soldiers. On the
contrary, the authorities’ reaction to the applicant’s grave concerns was
limited to denials that her son had ever been detained by the security forces
(see paragraphs 27, 55 and 66 above).
124. In view of the above, the Court finds that the applicant suffered, and continues to suffer, distress and anguish as a result of the disappearance of her son and of her inability to find out what has happened to him. The manner in which her complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3.
125. The Court concludes therefore that there has been a violation of Article 3 of the Convention in respect of the applicant.
IV. ALLEGED VIOLATION OF ARTICLE
5 OF THE CONVENTION
126. The applicant submitted
that the disappearance of her son gave rise to a violation of Article 5 of the
Convention, which provides:
“1. Everyone has the right to
liberty and security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a
person after conviction by a competent court;
(b) the lawful arrest or detention
of a person for non- compliance with the lawful order of a court or in order to
secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention
of a person effected for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence or fleeing
after having done so;
(d) the detention of a minor by
lawful order for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons
for the prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention
of a person to prevent his effecting an unauthorised entry into the country or
of a person against whom action is being taken with a view to deportation or
extradition.
2. Everyone who is arrested shall
be informed promptly, in a language which he understands, of the reasons for
his arrest and of any charge against him.
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this Article
shall be brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a reasonable time
or to release pending trial. Release may be conditioned by guarantees to appear
for trial.
4. Everyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful.
5. Everyone who has been the victim
of arrest or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
127. The applicant argued
that this provision had been violated on account of the unlawful detention of
her son, the failure of the authorities to inform her son of the reasons for
his detention and to bring him before a judicial authority within a reasonable
time, as well as his inability to bring proceedings to have the lawfulness of
his detention determined.
128. The Government denied
the detention of the applicant’s son.
129. The Court stresses the
fundamental importance of the guarantees contained in Article 5 for securing
the rights of individuals in a democracy to be free from arbitrary detention at
the hands of the authorities. It has stressed 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, namely to protect the individual from
arbitrary detention. In order to minimise the risks of arbitrary detention,
Article 5 provides a corpus of substantive rights intended to ensure that the
act of deprivation of liberty is amenable to independent judicial scrutiny and
secures the accountability of the authorities for that measure. The
unacknowledged detention of an individual is a complete negation of these
guarantees and discloses a most grave violation of Article 5. Bearing in mind
the responsibility of the authorities to account for individuals under their
control, Article 5 requires them to take effective measures to safeguard
against the risk of disappearance and to conduct a prompt and effective
investigation into an arguable claim that a person has been taken into custody
and has not been seen since (Kurt, cited above, §§ 122-125; see also İpek, cited above, §§ 187-191 and the authorities cited
therein).
130. The Court has already
found that the applicant’s son was apprehended and taken away from his village
by security forces in February 1994 and that he was last seen in the hands of
those forces at a military detention facility. His detention there was not
logged in the relevant custody records and there exists no official trace of
his subsequent whereabouts or fate. In the view of the Court, this fact in
itself must be considered a most serious failing since it enables those
responsible for an act of deprivation of liberty to conceal their involvement
in a crime, to cover their tracks and to escape accountability for the fate of
a detainee. Furthermore, the absence of holding data recording such matters as
the date, time and location of detention, the name of the detainee as well as
the reasons for the detention and the name of the person effecting it must be
seen as incompatible with the very purpose of Article 5 of the Convention (see
judgments of Kurt, § 125; Timurtaş, § 105; Çakıcı,
§ 105; Çiçek, § 165, and Orhan, § 371, cited above).
131. The Court further considers that the authorities should have been alert to the need to investigate more thoroughly and promptly the applicant’s complaints that her son was taken away in life-threatening circumstances and held in detention by the security forces. However, its reasoning and findings in relation to Article 2 above leave no doubt that the authorities failed to take effective measures to safeguard Mehdi Akdeniz against the risk of disappearance.
132. In view of these
considerations, the Court concludes that the authorities failed to provide a
plausible explanation for the whereabouts and fate of Mehdi Akdeniz after he
had been taken away from his village, and that the investigation carried out
into his disappearance was neither prompt nor effective. It considers that it
is confirmed in this conclusion by the prosecuting authorities’ failure to take
statements from members of the security forces and by their unwillingness to go
beyond the military authorities’ assertion that the custody records showed that
Mehdi Akdeniz had neither been apprehended nor held in detention. The
unreliability and inaccuracy of custody records must also be considered of
relevance in this connection.
133. Accordingly, the Court
finds that Mehdi Akdeniz was held in unacknowledged detention with a complete
absence of the safeguards contained in Article 5 and that there has been a
violation of the right to liberty and security of person guaranteed by that
provision.
V. ALLEGED VIOLATION OF ARTICLE 6 OF
THE CONVENTION
134. The applicant alleged a
breach of Article 6 of the Convention on behalf of her son on the ground that
he had not had a trial before an independent and impartial tribunal established
by law, in the event that the Government were to claim that the arrest and
detention of her son were lawful and that he was guilty of an offence under
domestic law. The relevant parts of Article 6 of the Convention provide as
follows:
“In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by [a] ...
tribunal...”
135. The Court observes that
the Government have not claimed that the applicant’s son was lawfully arrested
or detained or that he was guilty of an offence under domestic law. It follows
that the applicant’s complaint under Article 6 does not fall to be examined.
VI. ALLEGED VIOLATION OF ARTICLE 13 OF
THE CONVENTION
136. The applicant submitted
that she had no effective remedy in south-east
“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.”
137. The Government, beyond
denying the factual basis of the applicant’s submissions, did not specifically
deal with this complaint.
138. 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 the acts or the omissions of the authorities of the respondent
State (see Aksoy v. Turkey,
judgment of 18 December 1996, Reports 1996-VI, § 95; and Kaya, cited above, § 89).
139. In addition, where the
relatives of a person have an arguable claim that the latter has disappeared at
the hands of the authorities, 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 including effective
access for the relatives to the investigatory procedure (see mutatis
mutandis, the above-mentioned Aksoy, Aydın and Kaya judgments, § 98, §
103 and §§ 106-107, respectively). The Court further reiterates that the
requirements of Article 13 are broader than a Contracting State’s obligation
under Article 2 to conduct an effective investigation into the disappearance of
a person last seen in the hands of the authorities (see Kılıç, cited above, § 93).
140. The Court has found that
the applicant’s son was taken away from his village by the gendarme soldiers
and held in unacknowledged detention at a military detention facility by the
security forces and that he can be presumed to be dead (see paragraphs 82 and 101
above). It has also established that the distress and anguish suffered by the
applicant on account of the disappearance of her son and the manner in which
the authorities dealt with her complaint constituted inhuman treatment (see
paragraph 124 above). The complaints under Articles 2, 3 and 5 are therefore
clearly arguable for the purposes of Article 13 of the Convention (see Boyle
and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131,
§ 52, together with Kaya and Yaşa judgments, § 107 and
§ 113, respectively, cited above).
141. The authorities thus had an obligation to carry out an effective investigation into the disappearance of Mehdi Akdeniz. Having regard to its findings under Article 2 (see paragraphs 106-112 above), the Court concludes that no effective investigation was conducted into the applicant’s complaints in accordance with Article 13.
142. Accordingly, there has
been a violation of Article 13 of the Convention.
VII. ALLEGED VIOLATION OF
ARTICLE 14 OF THE CONVENTION
143. The applicant complained
that she and her son had been discriminated against on the ground of their
Kurdish origin in violation of 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.”
144. The Government did not
address these issues beyond denying the factual basis of the substantive
complaints.
145. Having regard to its findings under
Articles 2, 3 and 13 above, the Court does not find it necessary to determine
whether the applicant and her son were also subjected to discriminatory
treatment in the enjoyment of their Convention rights.
VIII. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
146. 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. Pecuniary damage
147. The applicant submitted
that her son was 22 years old at the time of his disappearance and, as the oldest
son of the family, he was looking after the family. He was a farmer and was involved
in stockbreeding with his family. As a result of his disappearance the family
was deprived of his loss of earnings in the amount of 67,838 euros (EUR).
148. The Government submitted
that there was no causal link between the damage claimed by the applicant and
her complaints. Furthermore, the Government disputed the applicability of the actuarial tables relied on by
the applicant which were designed for use in the
149. As regards the applicant’s
claim for loss of earnings, the Court’s case-law has established that there
must be a clear causal connection between the damage claimed by the applicant
and the violation of the Convention and that this may, in appropriate cases,
include compensation in respect of loss of earnings (see, among other
authorities, Barberŕ, Messegué and
Jabardo v. Spain (Article 50), judgment of 13 June 1994, Series A
no. 285-C, pp. 57-58, §§ 16-20, and Çakıcı, cited above,
§ 127). The Court has found (see
paragraphs 101-102 above) that the authorities were liable under Article
2 of the Convention for the death of the applicant’s son. It also notes that the
applicant’s submission that her son had been looking after the family was not
disputed by the Government. In these circumstances, a direct causal link has
been established between the violation of Article 2 and the applicant’s loss of
the financial support provided by her son.
150. In the light of the
foregoing the Court, deciding on an equitable basis, awards the applicant the
sum of EUR 16,500. It holds that this sum is to be converted into new Turkish
liras (YTL) at the rate applicable at the date of payment.
B. Non-pecuniary damage
151. The applicant, without
specifying any amount, also claimed non-pecuniary damages.
152. The Government submitted
that it was unnecessary to make any award in respect of non-pecuniary damage
since, in their opinion, any finding of a violation would afford sufficient
redress.
153. The Court observes that
it has found that the authorities were accountable for the death of the applicant’s
son and also for the ill-treatment to which he was subjected both before and
during his unacknowledged detention. In addition to the violation of Articles 2,
3 and 5 in those respects, it has further found that the authorities failed to
undertake an effective investigation or to provide a remedy in respect of those
violations, contrary to the procedural obligation under Article 2 of the
Convention and in breach of Article 13 of the Convention. In these
circumstances, and having regard to the awards made in comparable cases, the
Court, on an equitable basis, awards the applicant the sum of EUR 20,000 for
non-pecuniary damage, to be held by her for the heirs of her deceased son.
154. It also awards the
applicant the sum of EUR 13,500 for non-pecuniary damage sustained by her in
her personal capacity in relation to the violations of Articles 3 and 13 of the
Convention.
155. Finally the Court
determines that the above sums are to be converted into new Turkish liras at
the rate applicable at the date of payment.
C. Costs and expenses
156. The applicant claimed
EUR 8,479.39 and 6,457.50 pounds sterling (GBP) for the fees and costs incurred
in bringing the application. Her claim comprised:
(a) GBP 5,582.50 for the fees of her lawyers working for the Kurdish
Human Rights Project (KHRP) in the
(b) EUR
4,410.91 for the fees of her lawyers based in
(c) GBP 875 for administrative
costs incurred by the United Kingdom-based lawyers; and
(d) EUR 4,068.48 for administrative
costs incurred by the lawyers based in
157. In support of her claims
for the fees of her lawyers the applicant submitted a detailed schedule of
costs.
158. The Government submitted
that the applicant had failed to submit any documents to support her request
for the fees and costs incurred by her lawyers based in
159. As regards the applicant’s
claim for the fees and the costs incurred by her lawyers employed by the KHRP,
the Government argued that there was no justification for awarding costs and
expenses to the KHRP.
160. Having regard to the sums above and making its own estimate based on the information available, the Court awards the applicant EUR 15,000 in respect of costs and expenses, plus any tax that may be chargeable, to be paid in pounds sterling into the bank account of the applicant’s representatives in the United Kingdom, as identified by the applicant.
D. Default interest
161. 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
1. Holds unanimously that there has been a violation of Article 2 of
the Convention on account of the presumed death of the applicant’s son;
2. Holds
unanimously that there has been a violation of Article 2 of the Convention
on account of the failure of the authorities of the respondent State to conduct
an adequate and effective investigation into the disappearance of the applicant’s
son and his subsequent presumed death;
3. Holds unanimously that
there has been a violation of Article 3 of the Convention in respect of the
treatment to which the applicant’s son was subjected at the time of his arrest
and during his detention;
4. Holds unanimously that
there has been a violation of Article 3 of the Convention in respect of the
applicant;
5. Holds unanimously that there has been a violation of Article 5 of the Convention in respect of the applicant’s son;
6. Holds unanimously that it is not necessary to examine the complaint under Article 6 of the Convention;
7. Holds unanimously that
there has been a violation of Article 13 of the Convention in respect of the
applicant and her son;
8. Holds unanimously that it
is unnecessary to determine whether there has been a violation of Article 14 of
the Convention;
9. Holds by six votes to one
(a) that the respondent State is
to pay the applicant for pecuniary damage, within three months from the date on
which the judgment becomes final according to Article 44 § 2 of the Convention,
the sum of EUR 16,500 (sixteen thousand five hundred euros) and any tax that
may be chargeable on this amount, to be converted into new Turkish liras at the
rate applicable at the date of settlement;
(b) that
the respondent State is to pay the applicant in respect of non-pecuniary
damage, within the same three month period, the following sums, to be converted
into new Turkish liras at the rate applicable at the date of settlement:
(i) EUR 20,000 (twenty thousand euros) to be held for the heirs of her deceased son;
(ii) EUR 13,500 (thirteen thousand five
hundred euros) in her personal capacity; and
(iii) any tax that may be
chargeable on the above amounts;
(c) that
the respondent State is to pay the applicant, within the same three month
period, and into the bank account identified by her in the United Kingdom, EUR
15,000 (fifteen thousand euros) in respect of costs and expenses, together with
any value-added tax that may be chargeable, to be converted into pounds
sterling at the rate applicable at the date of settlement;
(d) 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;
10. Dismisses unanimously the remainder of
the applicant’s claim for just satisfaction.
Done in English, and notified in writing
on
Michael O’Boyle Nicolas
Bratza
Registrar President
In accordance with Article 45 § 2 of the
Convention and Rule 74 § 2 of the Rules of Court, the following partly
dissenting opinion of Mr Gölcüklü is annexed to this judgment.
N.B.
M.O.B.
PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ
(Translation)
To my great regret, I do not share the views of the majority concerning the application of Article 41 with regard to the compensation awarded for non-pecuniary damage. Allow me to explain.
I assume that the majority reasoned as though the missing son were alive. In that case an award would certainly have been made [to the applicant] for non-pecuniary damage.
Unfortunately, however, the missing son is
presumed dead. He was not married; he had neither wife nor child. Accordingly,
his heirs have been awarded EUR 20,000 in his stead. According to the case
file, the sole heir is none other than his mother, in other words, the
applicant (see paragraph 152 of the judgment).
At the same time, however, the applicant has
been awarded, under the same head, EUR 13,500 “in her own right” (see paragraph
153).
Thus, the applicant has been granted two
separate but cumulative awards of compensation in respect of one and the same
event. This is a conclusion which I am unable to accept, and is nothing other
than pure speculation and supposition.