SECOND
SECTION
CASE OF ÇELİKBİLEK v.
(Application no. 27693/95)
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 Çelikbilek v.
The European Court of Human Rights
(Second Section), sitting as a Chamber composed of:
Mr J.-P. Costa,
President,
Mr I. Cabral Barreto,
Mr K. Jungwiert,
Mr V. Butkevych,
Mr M. Ugrekhelidze,
Mrs E. Fura-Sandström,
judges,
Mr F. Gölcüklü,
ad hoc judge,
and Mrs S. Dollé,
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. 27693/95) against the
2. The applicant was
represented by Dr Anke Stock, a lawyer practising in
3. The applicant alleged that
his brother had been abducted and murdered by State officials in 1994. He
invoked Articles 2, 3, 6 and 14 of the Convention.
4. The application was
transmitted to the Court on
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. By a decision of
7. The
applicant and the Government each filed observations on the merits (Rule 59 §
1). The Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in
fine), the parties replied in writing to each other’s observations.
8. On
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant, a Turkish
citizen of Kurdish origin, was born in 1951 and lives in
A. Introduction
10. The facts surrounding the
killing of the applicant’s brother, Abdulkadir Çelikbilek, are disputed by the
parties.
11. The facts as presented by
the applicant are set out in Section B below (see paragraphs 12-23). The
Government’s submissions concerning the facts are summarised in Section C below
(see paragraphs 24-28). Documentary evidence submitted by the Government is
summarised in Part D (see paragraphs 29-46 below).
B. The applicant’s submissions on the
facts
12. On
13. After having given this
statement, Abdulkadir was followed on a number of occasions. In November 1994
Aynur Çelikbilek, the wife of Abdulkadir Çelikbilek, was visited by two
policemen who asked her questions about her husband’s whereabouts.
14. At about
15. On
16. At around
17. The body of the applicant’s
brother was lying on top of a rubbish heap near the Mardinkapı cemetery.
Marks of torture could be seen all over his body. It looked as if the skin on
the soles of his feet had been pulled off with pincers. His arms, legs and head
looked as if they had been skewered on a thick skewer. His whole body was black
and blue and there were marks on his throat.
18. After the police had
shown the applicant the body of his brother, they took him in their car to his
brother’s house, where the police conducted a house search. During this search,
the applicant heard on the police radio that the Prosecutor was about to go and
see the body of his brother. The police interrupted their search in order to
join the Prosecutor. They took the applicant with them. The Prosecutor did not
put any questions to the applicant. The police recorded the location of the
body and subsequently took the body to the
19. In the morgue, some other
police officers told the applicant that village guards had burned the
20. In the morgue, an autopsy
of the body of the applicant’s brother was conducted. The applicant asked the
doctor about the marks around his brother’s throat. The doctor told him that
something must have been passed around his brother’s neck after his death and
that his body must have been dragged along by it. After the autopsy, the body
was released for burial.
21. While the applicant was
at the morgue, another group of police officers had returned to the house of
the applicant’s brother in order to finish the house search. These policemen
told Leyla that her father had told the police that he had a package, which was
likely to contain a firearm, and they asked her to give this package to them.
According to the applicant, this question indicated that the security forces
had in fact apprehended his brother and that they had interrogated, tortured
and killed him. On the same day, a statement was taken from the applicant at
the Mardinkapı Police Station (see paragraph 37 below).
22. Some time before the
events at issue, the applicant’s oldest son Fesih had joined the PKK. The
applicant had managed to keep this a secret. However, ten days after the death
of his brother, a person, who introduced himself as Cevat from the
anti-terrorism branch of the police, came to the applicant’s home. Cevat told
the applicant that his son had joined the PKK and asked the applicant to inform
the security forces when his son came home. The applicant thus became convinced
that his brother must have told the security forces about Fesih while he was
under torture.
23. In June 1996 the
applicant was himself abducted by State agents while walking in the street in
C. The Government’s submissions on
the facts
24. At around
25. After being informed by
the police, the Prosecutor in charge, Mr Mehmet Tiftikçi, and Dr Lokman
Yavuz arrived at the scene. Footprints were found which could not be analysed
as they were indistinguishable. There were no traces of any fight. Wheel traces
were examined but were found to have been made after the discovery of the body.
After an incident report had been compiled and a sketch map had been drawn up
showing the location of the body, the corpse was taken to the morgue.
26. On the basis of the
identity card found on the body, the victim’s family was contacted. The victim’s
brother, Abdurrahman Çelikbilek, was brought to the morgue where he identified
the body as that of his brother Abdulkadir. Subsequently an autopsy was carried
out.
27. According to their
statements taken on
28. The Prosecutor opened an
investigation under file no. 1994/9249, which is currently still pending. The
Prosecutor has requested the police authorities to keep him informed on a
regular basis about this investigation.
D. Documentary evidence submitted by
the Government
29. The following information
appears from the documents submitted by the Government.
30. On
31. At
32. It was recorded in a
sketch, drawn up by a police officer at
33. According to another
on-site report drawn up the same day, the duty Prosecutor and a pathologist
attended to the body of the person, “who had been strangled by a length of
wire”. They observed a large number of footprints near the body. However, casts
of these footprints were not made because there were too many of them and also
because they were all mixed up. Similarly, no casts of the tyre marks observed
near the body were made because it was concluded that these marks had been made
by vehicles “which had nothing to do with the incident”. There was no sign of a
struggle at the scene and there was also no evidence capable of providing clues
about the perpetrator(s) of the killing. It was also noted in this report that
the body had already been photographed by the police. The Prosecutor ordered
the transfer of the body to the morgue at the
34. According to the autopsy
report, the body was taken to the hospital at around
35. It was observed by the
Prosecutor that rigor mortis had already set in. Also, a very large number of
injuries and ecchymoses were observed on the face and on the trunk of the body.
The doctor concluded that some of these injuries had been caused three days
previously and some of them between six to twelve days previously.
36. According to a full
autopsy carried out by the doctor, the cause of death was established as
mechanical asphyxiation and it was concluded that the killing had been
intentional. Taking into account the fact that rigor mortis had already set in,
the doctor concluded that the death had occurred approximately 10-15 hours
earlier. At the end of the autopsy, the body was photographed once more. The
Prosecutor issued a burial licence and instructed the police officers to carry
out a comprehensive investigation.
37. Also on
38. On the same day, the
police chief at the Mardinkapı police station took a statement from Aynur
Çelikbilek, the widow of the applicant’s deceased brother Abdulkadir.
Mrs Çelikbilek stated that her husband had left their family home at
around
39. Finally, on
40. It appears that this
report and its appendices were transferred to the Prosecutor’s office in
41. On
42. On 6 January 1995 the
Prosecutor repeated his instructions to the Diyarbakır Police Headquarters
and asked to be kept informed every three months of any possible developments
until the expiry of the statutory limitation period on
43. On 20 June 1996 the
General Security Headquarters in Ankara sent a letter to the Ministry of
Foreign Affairs in an apparent response to a request made by the latter on 10
June 1996, pursuant to which the former had been asked to “forward to the
Ministry of Foreign Affairs the criminal records showing that the deceased
brother of Abdurrahman Çelikbilek, who had made an application to the European
Commission of Human Rights, had been involved in counterfeit and drugs
dealing”. According to the letter sent to the Ministry of Foreign Affairs,
Abdulkadir Çelikbilek had been prosecuted in 1985 and 1986 for drug dealing and
counterfeit offences and imprisoned.
44. On
45. On
46. The Prosecutor in
II. RELEVANT DOMESTIC LAW AND PRACTICE
47. The relevant domestic law
and practice are set out in the judgment of Tepe v. Turkey (no.
27244/95, §§115-122,
THE LAW
I. THE GOVERNMENT’S PRELIMINARY
OBJECTION
48. The Court recalls that,
in its decision of
II. THE COURT’S ASSESSMENT OF THE
EVIDENCE AND ESTABLISHMENT OF THE FACTS
A. Arguments of the parties
1. The applicant
49. The applicant submitted
that there was sufficient evidence for the Court to conclude beyond reasonable
doubt that his brother had been intentionally killed by the police. The
applicant drew the Court’s attention to the domestic authorities’ failure to
carry out a proper investigation and also to the Government’s failure to
produce certain key documents requested by the Court. These failures, in the
opinion of the applicant, pointed to a cover-up to protect the identity of the
killers.
50. The applicant argued that,
in case the Court was not satisfied beyond reasonable doubt that his brother
had been killed in police custody, this had to be considered established on the
balance of probabilities, which, he suggested, was the appropriate test in
cases of deaths in custody. The duties and resources of the authorities were
such that they alone, and not the family of his brother, were in a position to
obtain evidence of the cause of his death. The family was reliant upon the
authorities to carry out an effective investigation. However, the investigation
had been utterly inadequate and therefore, as a result of the failings of the
responsible authorities, the family were not in a position to produce further
evidence.
2. The Government
51. The Government submitted
that there was no evidence that Abdulkadir Çelikbilek was killed by members of
the security forces. In support of their submissions, the Government argued that
there were serious contradictions between the statements given by the applicant
to the Prosecutor and the allegations he had made in his application form
submitted to the European Commission of Human Rights. In particular, the
applicant had never brought to the attention of the Prosecutor the allegations
set out in the application form. The authorities only became aware of those
allegations when the Commission gave notice of the application to the
Government.
52. Furthermore, the information
allegedly received by the applicant from the people in the café was second hand
and could not be taken as conclusive. When the applicant went to apply to the
53. The criminal record of
the applicant’s brother disclosed that several criminal investigations had been
opened against him in the past for narcotics and counterfeit offences. On
54. The Government further submitted that, according to information supplied by the Ministry of the Interior, investigations had been opened against the applicant himself for membership of the PKK, and that it had been established that his son, Fetih, was an active member of that organisation.
55. Moreover, the applicant
had been questioned and detained on remand in the course of an operation conducted
against the PKK in 1996. Criminal proceedings had been brought against him for
membership of the PKK. The
B. Article 38 § 1 (a) and consequent
inferences drawn by the Court
56. Before proceeding to
assess the evidence, the Court reiterates that it is of the utmost importance
for the effective operation of the system of individual petition instituted
under Article 34 of the Convention that States should furnish all necessary
facilities to make possible a proper and effective examination of applications
(see Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR
1999–IV). It is inherent in proceedings relating to cases of this nature, where
an individual applicant accuses State agents of violating his rights under the
Convention, that in certain instances solely the respondent Government have
access to information capable of corroborating or refuting these allegations. A
failure on a Government’s part to submit such information which is in their
hands without a satisfactory explanation may not only give rise to the drawing
of inferences as to the well‑foundedness of the applicant’s allegations,
but may also reflect negatively on the level of compliance by a respondent
State with its obligations under Article 38 § 1 (a) of the Convention (see Timurtaş
v. Turkey, no. 23531/94, §§ 66 and 70, ECHR 2000-VI).
57. In this context, the
Court has noted with concern a number of matters relating to the Government’s
response to the Court’s requests for documents and information. Apart from
individual requests for specific documents, the Government were also requested
on a number of occasions to submit the entire investigation file.
58. As regards the domestic
investigation file, the Court observes that the Government were requested by
the Court on
59. In any event, the Court
observes that the documents submitted by the Government do not constitute the
entire investigation file. It appears from the documents summarised above that
a number of documents from the domestic investigation file were sent neither to
the Commission nor to the Court.
60. First, the above
mentioned on-site report of
61. Secondly, the letter sent
to the General Security Headquarters in Ankara by the Ministry of Foreign
Affairs on 10 June 1996 (see paragraph 43
above), inquiring about the past criminal activities of the applicant’s
deceased brother, was not submitted to the Convention bodies.
62. Finally and more
importantly, the Court observes that on
63. The Court observes that
the Government have not advanced any explanation for their omissions in
response to the Court’s requests for relevant documents and information.
Accordingly, it finds that it can draw inferences from the Government’s conduct
in this respect. Furthermore, and referring to the importance of a respondent
Government’s cooperation in Convention proceedings (see paragraph 56 above), the Court finds that the Government have
fallen short of their obligations under Article 38 § 1(a) of the Convention to
furnish all necessary facilities to the Court in its task of establishing the
facts.
C. The Court’s evaluation of the facts
64. The applicant maintained that his brother was taken away
by plain clothes police officers on
65. The Government denied the
involvement of any State agents in the kidnap and subsequent killing of the
applicant’s brother, and argued that the killing had resulted from a mafia-type
vendetta.
66. In assessing evidence,
the Court has generally applied the standard of proof “beyond reasonable doubt”
(see Ireland v. the United Kingdom, judgment of 18 January 1978, Series
A no. 25, pp. 64-65, § 161). Such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar unrebutted
presumptions of fact. 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 custody, strong presumptions of fact will arise in
respect of injuries and death occurring during such detention. Indeed, in that
case the burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII, § 100).
67. The Court has already noted
the Government’s failure to submit to the Court the relevant custody records (see paragraph 62 above). In the Court’s
opinion, these records would have been crucial in the verification of the
accuracy of the applicant’s allegations (cf. Tepe case, cited above, §§ 48 and 163).
68. The Court further points
out that the Government have not submitted any information or documents which
would suggest that the custody records were brought to the attention of the
investigating authorities. In particular, there is no evidence to suggest that
these reports were consulted by either the police officer who informed the
applicant at the Diyarbakır Court that his brother had not been detained
by the police (see paragraphs 15 and 52
above), or by the Prosecutor in charge of the investigation (see paragraph 40 above). In these
circumstances, neither the applicant, nor indeed the Convention institutions,
had any means of access to these documents without the Government’s
cooperation.
69. The Court considers that,
in order to prove his allegations, the applicant has done everything that could
reasonably and realistically be expected of him. In the circumstances of
the present case, the Court finds it inappropriate to conclude that the
applicant has failed to submit sufficient evidence in support of his
allegations, given that such evidence was in the hands of the respondent
Government. At this stage the Court would once more reiterate (see paragraph 56 above) that, where
it is solely the respondent Government who have access to information capable
of corroborating or refuting allegations made by an individual applicant, a
failure on that Government’s part – without a satisfactory explanation – to
submit such information may give rise to the drawing of inferences as to the
well-foundedness of the applicant’s allegations.
70. It is appropriate,
therefore, that in cases such as the present – where it is the non-disclosure
by the Government of crucial documents in their exclusive possession which
puts obstacles in the way of the Court’s establishment of the facts –, it is
for the Government to argue conclusively why the documents in question cannot
serve to corroborate the allegation made by the applicant (see Akkum
and Others v. Turkey, no. 21894/93, § 211, 24 March 2005).
71. The Court observes in
this regard the Government’s submission that the competent authorities examined
the relevant custody records at some stage between
72. In the light of the
foregoing, the Court finds that the Government’s submission that the custody
records were examined by their authorities is insufficient to consider them
discharged of their above mentioned burden of proving that the custody records
in question cannot serve to corroborate the allegation made by the applicant.
It can only conclude, therefore, that the applicant’s brother was indeed
arrested and detained by agents of the State, as alleged by the applicant. It
follows that the Government’s obligation is engaged to explain how Abdulkadir
Çelikbilek was killed while still in the hands of State agents. Given that no
such explanation has been put forward by the Government, the Court concludes
that the Government have failed to account for the killing of Abdulkadir
Çelikbilek.
III. ALLEGED VIOLATION OF
ARTICLE 2 OF THE CONVENTION
73. Article 2 of the
Convention 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. The killing of Abdulkadir
Çelikbilek
1. Submissions
of the parties
74. The applicant submitted
that his brother had been killed by agents of the State, in violation of
Article 2 of the Convention.
75. The Government denied the
allegation.
2. The Court’s assessment
76. 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, to 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 a 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 (see McCann and
Others v. the United Kingdom, judgment of 27 September 1995, Series A
no. 324, pp. 45-46, §§ 146-147).
77. The text of Article 2,
read as a whole, demonstrates that it covers not only intentional killing but
also the situations where it is permitted to “use force” which may result, as
an unintended outcome, in the deprivation of life. The deliberate or intended
use of lethal force is only one factor, however, to be taken into account in
assessing its necessity. Any use of force must be no more than “absolutely
necessary” for the achievement of one or more of the purposes set out in
sub-paragraphs (a) to (c). This term indicates that a stricter and more
compelling test of necessity must be employed from that normally applicable
when determining whether State action is “necessary in a democratic society”
under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently,
the force used must be strictly proportionate to the achievement of the
permitted aims (ibid., p. 46, §§ 148-149).
78. 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. The use of force by State agents in pursuit of one of the aims
delineated in paragraph 2 of Article 2 may be justified where it is based on an
honest belief which is perceived, for good reasons, to be valid at the time but
which subsequently turns out to be mistaken (ibid., pp.58-59, § 200).
79. The Court has already
established that the Government have failed to account for the death of
Abdulkadir Çelikbilek (see paragraph 71
above). It follows that there has been a violation of Article 2 of the
Convention in respect of the killing of Abdulkadir Çelikbilek.
B. Alleged inadequacy of the
investigation
80. The applicant submitted
that there had been a violation of Article 2 of the Convention on account of
the authorities’ failure to carry out an adequate and effective investigation
into the killing of his brother. The applicant identified, inter alia,
the following shortcomings in the investigation:
(a) there was a failure to
preserve the scene where the body was found, notably in relation to footprints
and car-tyre marks, samples of which by the Government’s own admission were not
taken;
(b) there was no evidence of any
tests for fingerprints having been carried out, despite the finding that the
victim was strangled;
(c) the Prosecutor failed to take
statements from the owner and the customers of the café, from local residents,
from the officers in charge of the police establishments in the vicinity of
Diyarbakır and the members of the public who informed the police on 21
November 1994 when the body was found;
(d) the photographs of the body
and also the records of the detention places in the district of Diyarbakır
have never been disclosed to the applicant; and, finally,
(e) the length of time taken to
investigate the killing.
81. The Government submitted
that no evidence was found next to the body of Abdulkadir Çelikbilek capable of
shedding light on the perpetrators of the killing. The Prosecutor instigated an
investigation by carrying out an autopsy and by questioning the wife and the
brother of the deceased man. This investigation would continue until
82. 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”, 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; see also Kaya v. Turkey, judgment of 19 February 1998, Reports of
Judgments and Decisions 1998-I, § 105). In that connection, the Court
points out that this obligation is not confined to cases where it is apparent
that the killing was caused by an agent of the State (see Salman, cited above, § 105).
83. The Court observes at the
outset that the applicant submitted that he had gone to the office of the Prosecutor
at the Diyarbakır Court on 15 December 1994 in order to file a
petition but that the policeman at the door of the Court building had told him
that his brother’s name was not on their list (see paragraph 15 above). The
Court also observes that the applicant gave a statement to this effect before
the Prosecutor on
84. The applicant’s
submission that he had gone to the
85. The Government’s claim,
to the effect that the applicant never brought the allegation of his brother
having been detained by police officers to the attention of the investigating
authorities (see paragraph 51 above), therefore sits ill with their above concession
that the applicant was in fact told at the Diyarbakır Court that his
brother had not been detained (see paragraph 52 above). Such an answer could
only have been given in response to an inquiry whether a person had been
detained by the police.
86. According to Article 153
of the Code of Criminal Procedure in force at the time of the events, a
public prosecutor who is informed by any means whatsoever of a situation that
gives rise to the suspicion that an offence has been committed is obliged to
investigate the facts in order to decide whether or not there should be a
prosecution. Furthermore, Article 179 of the Criminal Code in force at the time
of the events made it an offence to deprive an individual unlawfully of his or
her liberty. The Court finds it established that the applicant promptly and
adequately informed the competent judicial authorities. It follows that, from
that moment, these authorities had a duty to carry out an effective
investigation into the disappearance of Abdulkadir Çelikbilek.
87. No documents were
submitted by the Government to indicate that steps were taken by these
authorities in the crucial days immediately after the disappearance. In
particular, as the applicant pointed out, there were no documents to indicate
that either the owner or customers of the café or any members of the police
were questioned by the Prosecutor. Furthermore, there is no evidence showing
that the relevant custody records were examined by the Prosecutor to verify the
accuracy of the allegations. Similarly, no statements were taken from the
applicant or from his brother’s wife.
88. The Court concludes that
the investigating authorities remained completely inactive in the course of those
crucial days, during a period in which a large number of persons were being
killed in the south-east region of
89. As regards the
investigation into the killing of the applicant’s brother, the Court finds that
the discovery of Abdulkadir Çelikbilek’s body gave 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 mutatis
mutandis, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV
§ 82; Yaşa v. Turkey, judgment
of 2 September 1998, Reports 1998-VI § 100).
90. It appears from the on-site reports (see paragraphs 31-33 above) that there was no meaningful examination of the scene where the body was found. In this regards the Court refers to the defects and omissions as emphasised by the applicant (see paragraph 79 above).
91. Furthermore, although it
was stated in the on-site report, drawn up in the presence of the local
Prosecutor, that Abdulkadir Çelikbilek had been strangled by a length of wire,
the Government have provided no information from which it can be deduced that a
search for this wire or any other related evidence was carried out, such as
forensic tests for finger prints or DNA.
92. As regards the subsequent
investigation carried out by the Prosecutor, the Court observes that no
meaningful steps were taken, according to the documents submitted to the
Convention bodies. The investigation consisted of, and was limited to, the
autopsy and the taking of statements from the applicant and the wife of the
deceased.
93. The Court notes that the
investigation will be ongoing until the expiry of the statutory limitation
period in 2014. However, so far, this part of the investigation seems to have
been limited to a number of letters exchanged between the Prosecutor and the
police, with the latter regularly stating, in standard terms, that they are
still searching for the perpetrators (see paragraphs 41-42 and 44-46 above). In
the absence of any information in these letters about the actual steps which have
been or are being taken, the Court finds that they cannot be taken as proof of
any meaningful investigation.
94. In the light of the very
serious shortcomings identified above, the Court concludes that the domestic
authorities have failed to carry out an adequate or effective investigation
into the killing of the applicant’s brother, as required by Article 2 of the
Convention.
95. It accordingly dismisses
the Government’s preliminary objection based on non-exhaustion of domestic
remedies (see paragraph 48 above) and holds that there has been a violation of
Article 2 of the Convention under its procedural limb.
IV. ALLEGED VIOLATION OF ARTICLE
3 OF THE CONVENTION
96. The applicant complained
under Article 3 of the Convention that the abduction and murder of his brother,
and the indifference displayed by the authorities, have caused him grief and
torment amounting to inhuman treatment. Article 3 of the Convention provides as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
97. The Government, beyond denying the factual basis of the applicant’s allegations, did not specifically deal with the complaint under Article 3 of the Convention.
98. While the Court does not
doubt that the death of his brother caused the applicant profound suffering, it
nevertheless finds no basis for finding a violation of Article 3 in this
context (see, a contrario, disappearance
cases; Tanlı v. Turkey, no. 26129/95, § 159, ECHR 2001-III
(extracts)).
99. Consequently, the Court concludes that there has been no violation of Article 3 of the Convention.
V. ALLEGED VIOLATIONS OF
ARTICLES 6 AND 13 OF THE CONVENTION
100. The applicant complained
under Article 6 of the Convention that, as a result of the inadequate criminal
investigation into the murder of his brother, he had no access to court to
bring civil proceedings against the perpetrators who have remained
unidentified.
101. In his observations
submitted to the Commission and subsequently to the Court, the applicant argued
that the failures in the investigation also constituted a violation of
Article 13 of the Convention.
102. The Government did not
specifically comment on the applicant’s submissions.
103. The Court observes at
the outset that the applicant did not invoke Article 13 of the Convention in
his application form; this Article was invoked for the first time in the
applicant’s observations of
104. However, the Court recalls
that since it is the master of the characterisation to be given in law to the
facts of a 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. 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 1998-VIII, § 132).
105. In
any event, the Court observes that it has examined similar complaints under
Article 13 of the Convention instead of Article
6 because it held that such grievances were inextricably bound up with
the applicants’ more general complaints concerning the manner in which the
authorities had conducted investigations. Article 13 was deemed to be the
pertinent provision, particularly as a violation of Article 2 of the Convention cannot be remedied
exclusively through an award of compensation to the relatives of the victim
(see, mutatis mutandis, Kaya,
cited above, §§ 104-105).
106. In
the present case the Court notes that the applicant’s
complaint is entirely directed against the investigation carried out by the
Prosecutor into the killing of his brother, and that he did not attempt to
bring any civil proceedings himself. The complaint is therefore to be examined
under Article 13 of the Convention alone, which 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.”
107. The Court reiterates
that Article 13 of the Convention 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 an “arguable complaint” under the
Convention 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 omissions of the authorities
of the respondent State (see Aksoy v.
Turkey, judgment of 18 December 1996, Reports
1996-VI, p. 2286, § 95; Aydın
v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96,
§ 103; Kaya, cited above, § 106).
108. Given the fundamental
importance of the right to life, Article 13 requires, 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 for the deprivation of life, including effective access for the
complainant to the investigation procedure (see Kaya, cited above, § 107).
109. On the basis of the
evidence adduced in the present case, the Court has found that the respondent
State is responsible under Article 2 of the Convention for the death of the
applicant’s brother. The applicant’s complaints in this regard are therefore
“arguable” for the purposes of Article 13 (see Salman, cited above, § 122, and the authorities cited therein).
110. The authorities thus had
an obligation to carry out an effective investigation into the circumstances of
the death of the applicant’s brother. For the reasons set out above (see
paragraphs 86-93), no effective criminal investigation can be considered to
have been conducted in accordance with Article 13, the requirements of which
may be broader than the obligation to investigate imposed by Article 2 (see Kaya, cited above, § 107). The Court
finds, therefore, that the applicant has been denied an effective remedy in
respect of the death of his brother, and has thereby been denied access to any
other available remedies at his disposal, including a claim for compensation.
111. Consequently, there has
been a violation of Article 13 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE
14 IN CONJUNCTION WITH ARTICLES 2, 3 AND 6 OF THE CONVENTION
112. The applicant maintained
that, because of their Kurdish origin, he and his deceased brother had been
subjected to discrimination in breach of Article 14 of the Convention, in
conjunction with Articles 2, 3 and 6 of the Convention. Article 14 provides as
follows:
“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.”
113. The Court notes its
findings of a violation of Articles 2 and 13 of the Convention and does not
consider that it is necessary also to consider these complaints in conjunction
with Article 14 of the Convention.
VII. APPLICATION OF ARTICLE 41
OF THE CONVENTION
114. 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
115. The applicant submitted
that his deceased brother, who was 38 years old at the time of his death, was
married with one-year old twin daughters. He worked as a broker between sellers
and buyers at the cattle market in
116. The Government submitted
that no compensation should be awarded to the applicant as he had failed to
prove his allegations. They also disputed the applicability of the actuarial tables
used by the applicant which were designed for use in
the
117. 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, Barberà, Messegué and
Jabardo v. Spain (Article 50),
judgment of 13 June 1994, Series A no. 285‑C, pp. 57-58, §§ 16-20).
118. The Court notes the
family situation and age of the applicant’s deceased brother Abdulkadir
Çelikbilek. The Court also recalls its finding that the authorities were liable
under Article 2 of the Convention for the death (see paragraph 78 above). In
these circumstances, there was a direct causal link between the violation of
Article 2 and the loss suffered by Abdulkadir Çelikbilek’s family of the
financial support provided by him.
119. In the light of the
foregoing the Court, deciding on an equitable basis, awards the applicant the
sum of 60,000 euros (EUR), to be held by him for the widow and children of
Abdulkadir Çelikbilek.
B. Non-pecuniary damage
120. The applicant claimed
the sum of GBP 40,000 in relation to the killing of his brother and the sum of GBP
10,000 for himself in relation to the violations of Article 3 and 13 of the
Convention.
121. The Government submitted
that no compensation should be awarded to the applicant as he had failed to
prove his allegations.
122. The Court observes that
it has found that the authorities were accountable for the death of Abdulkadir
Çelikbilek. In addition to the violation of Article 2 in that respect, it has
further found that the authorities failed to provide an effective investigation
and remedy in respect of that violation, 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 him for the widow
and children of Abdulkadir Çelikbilek. It also awards the applicant the sum of
EUR 3,500 for the non-pecuniary damage sustained by him in his personal
capacity.
C. Costs and expenses
123. The applicant claimed a
total of GBP 11,966.90 for the fees and costs incurred in bringing the
application. His claim comprised:
(a) GBP 3,080 for the fees of his
United Kingdom-based lawyers;
(b) GBP 2,970 for the fees of his
lawyers based in
(c) GBP 510 for translation costs
incurred by the United Kingdom-based lawyers;
(d) GBP 156.90 for administrative costs incurred by the United
Kingdom-based lawyers;
(e) GBP 950 for administrative
costs incurred by the lawyers based in
(f) GBP 2,500 for the legal and
administrative fees of the staff employed by the Kurdish Human Rights Project
(KHRP);
(g) GBP 375 for administrative
costs incurred by the KHRP; and, finally,
(h) GBP 1,425 for translation
costs incurred by the KHRP.
124. The Government argued
that the fees claimed by the applicant were excessive and fictitious. Moreover,
the Government considered that no documentary substantiation of the costs
allegedly incurred had been provided.
125. Making its own estimate
based on the information available, the Court awards the applicant EUR 8,000,
in respect of costs and expenses – exclusive of any value-added tax that may be
chargeable – the net award to be paid in pounds sterling into the bank account
of the applicant’s representative in the United Kingdom, as was requested and
identified by the applicant.
D. Default interest
126. 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. Dismisses the Government’s preliminary objection;
2. Holds that the respondent State has failed to fulfil its obligation
under Article 38 of the Convention to furnish all necessary facilities to
the Court in its task of establishing the facts;
3. Holds that the Government are liable for the death of the applicant’s
brother in violation of Article 2 of the Convention;
4. Holds 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 effective investigation into the circumstances of the murder of
the applicant’s brother;
5. Holds that there has been no violation of Article 3 of the
Convention;
6. Holds that there has been a violation of Article 13 of the
Convention;
7. Holds that it is unnecessary to determine whether there has been a
violation of Article 14 of the Convention in conjunction with Articles 2, 3 and
6 of the Convention;
8. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 60,000 (sixty thousand euros) and any tax that may be chargeable on this amount, in respect of pecuniary damage; this sum is to be converted into new Turkish liras at the rate applicable at the date of settlement and held by the applicant for the widow and children of Abdulkadir Çelikbilek;
(b) that the respondent State is
to pay the applicant in respect of non-pecuniary damage, within the
aforementioned 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 widow and children of Abdulkadir Çelikbilek;
(ii) EUR 3,500 (three thousand
five hundred euros) in his 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 him in the United Kingdom, EUR 8,000 (eight 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;
9. 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
In accordance with Article 45 § 2 of the
Convention and Rule 74 § 2 of the Rules of Court, the following partly
concurring opinion of Mr Costa is annexed to this
judgment.
PARTLY CONCURRING OPINION OF JUDGE COSTA
I am in agreement with the conclusions of the judgment. On one point, however, I found it difficult to agree with my colleagues, since the case-law is, in my opinion, harsh and open to change. I refer to the applicant’s allegation that his brother’s abduction and death, and the indifference displayed by the authorities, had caused him grief and torment amounting to inhuman treatment. The Court dismissed this complaint.
The case-law is indeed full of nuances, and
only rarely accepts that a family member of a victim is himself or herself the
victim of a violation of Article 3 of the Convention. It accepted such a
complaint, for instance, in the case of Kurt
v. Turkey (judgment of 25 May 1998, Reports
of Judgments and Decisions 1998-III), where the mother of an arrested
person, who was present at the moment of arrest and was left without news of
him (the prosecutor having not even examined her complaint), was considered to
be the victim of a violation of Article 3 in her own right, on account of the
prolonged anxiety that she had suffered.
In contrast, in the case of Çakici v. Turkey (no. 23657/94, ECHR
1999‑IV), the Court did not accept that the applicant had been the victim
of a violation of Article 3, since he had not been present when the security
forces had taken his brother, had not personally borne the brunt of making
petitions and enquiries to the authorities, and there had not been any
aggravating features arising from the response of the authorities (see Çakici, § 99). I note that the
Commission, by a very large majority, had expressed the opposite view.
In this case, the applicant, the victim’s
brother, was not present during the latter’s abduction by the police, which was
witnessed by several others. However, he himself took numerous steps,
particularly in contacting the prosecutor and the court. A week after the
abduction, alerted by the police, he saw his brother’s corpse, which showed
particularly horrible signs of torture. In addition, the present judgment finds
that the Government were responsible for the death and that their authorities
failed to carry out an effective investigation into the circumstances of the
murder (a two-fold violation of Article 2).
In those circumstances, one could have argued
that the applicant’s sufferings in the present case amounted to inhuman
treatment.
I have not gone that far, for two reasons.
Firstly, the distress arising from a lengthy disappearance, which,
incidentally, prevents a family from going through what is known as the
grieving process, is probably more inhuman than rapid discovery of a murder,
although grief itself may give rise to very great suffering. Secondly, the
case-law takes account of the proximity of the family tie and attaches greater
weight to the parent-child bond than to the sibling bond (see Çakici, § 98). Nonetheless, I remain
very hesitant in the present case.