SECOND
SECTION
CASE OF SÜHEYLA AYDIN v.
(Application no. 25660/94)
JUDGMENT
24 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 Süheyla
Aydın v.
The European Court of Human Rights (Second
Section), sitting as a Chamber composed of:
Mr J.-P. Costa,
President,
Mr A.B. Baka,
Mr K. Jungwiert,
Mr V. Butkevych,
Ms D. Jočienė,
Mr D. Popović,
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. 25660/94) against the
2. The applicant was
represented by Mr Kevin Boyle and Ms Françoise Hampson, lawyers practising
in the
3. The applicant alleged, in
particular, that she and her husband had been taken into police custody where
she had been subjected to inhuman and degrading treatment and her husband to
torture. She also alleged that her husband had subsequently been killed by
agents of the State and that the authorities had failed to carry out an
effective investigation into the circumstances of his killing. She invoked
Articles 2, 3, 6, 11, 13 and 14 of the Convention. However, in her observations
on the merits the applicant did not maintain her complaint under Article 6 of
the Convention.
4. The application was
declared admissible by the Commission on 12 January 1998 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 Second Section of the Court (Rule 52 § 1 of the Rules of
Court). Within that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr
Rıza Türmen, the judge elected in respect of
6. The applicant and the Government each filed observations on the merits (Rule 59 § 1).
7. On
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant, a Turkish
citizen of Kurdish origin, was born in 1966 and lives in
A. Introduction
9. The facts of the case, particularly
those events which occurred between
10. The facts as presented by
the applicant are set out in Section B below (paragraphs 14-30). The
Government’s submissions concerning the facts are summarised in Section C below
(paragraphs 31-37). The documentary evidence submitted by the applicant and the
Government is summarised in Section D (paragraphs 38-73).
11. The Commission, in order
to establish the facts disputed by the parties, conducted an investigation with
the assistance of the parties, pursuant to former Article 28 § 1 (a) of the
Convention. It appointed three delegates (Mr Jean-Claude Geus, Mr Marek Nowicki
and Mr Marc Vila Amigó) who took evidence in
12. Three other witnesses, Mr Osman Yetkin, Mr Raif Kalkıcı and Mr Tahir Baboğlu, were also summoned but did not appear before the Commission’s delegates.
13. Following the questioning
of the above mentioned witnesses, the Commission considered it important to
hear two police officers who had accompanied Necati Aydın and Mehmet Ay to
the
B. The applicant’s submissions on the
facts
14. In 1994 the applicant was
working as an anaesthetics nurse, and her husband, Necati Aydın, as an
environmental technician. They were civil servants. Necati was also the
president of the Health Workers’ Trade Union (Tüm Sağlık Sen). Previously, the applicant and her
husband had been subjected to harassment and arrest by the security forces.
Their activities on behalf of the trade union had drawn the unwelcome attention
of the security forces and the police to them.
15. In March 1994 the
applicant and her husband did not have a permanent residence as they had been
subjected to several transfer orders and had been moving around
16. On
17. The detainees were placed
in vehicles. The applicant was placed in a car by herself and was accompanied
by at least two police officers. In the vehicles the detainees were blindfolded
and they were then brought to the rapid response force building (Çevik Kuvvet) for interrogation. The
applicant was not feeling well due to her pregnancy.
18. When they arrived at the
rapid response force building, the applicant was made to sit in a corridor
waiting to be brought in for interrogation. As she sat in the corridor she
could hear the screams of her husband as he was being tortured.
19. The applicant was taken
in for interrogation at least three times. The first time, the applicant was
questioned about where her husband had been during certain periods. The second
time she was taken in, her husband was also present. Her blindfold was removed
momentarily so that she could see her husband. She saw him naked and
blindfolded in the middle of the room. His body was wet and he was crouched
over, shivering. The applicant was made to listen while he was interrogated.
During this time Necati gave a response to the police which contradicted an
answer provided by the applicant. When this happened, Necati was removed from
the room and the applicant was grabbed by the hair and slapped in the face.
20. On the third occasion the
applicant was taken in for interrogation, the police ordered her to strip
naked. Her husband was also in the room. The police threatened him that they
would harm her if he did not answer their questions. The applicant was
frightened and her condition deteriorated. She was removed from the room.
Outside the room, the applicant was told by the police officers, “Do you know
Yusuf Ekinci? His body was found in an empty lot. I do not think you want your
husband to end up the same way”. On each occasion that she was removed from the
room, she could hear the screams of her husband as he was being tortured.
21. The applicant was taken
from the rapid response force building to the
22. Ms Yasemin Aydın, a
relative of the applicant’s husband who, as president of the Patriotic Women’s
Association, was politically active on behalf of Kurdish women, was also detained
and was tortured during her detention. This torture included hanging, beatings,
electric shocks, insults and threats of rape. During her detention she was
asked questions about the activities of Necati Aydın and Mehmet Ay. She
was released on
23. On 4 April 1994 the
applicant’s husband and his cousin Mehmet Ay were finally brought before the
Diyarbakır State Security Court (hereinafter “the Diyarbakır Court”).
At
24. The records from the
proceedings show that the Prosecutor demanded that they remain in custody, but
the duty judge ordered their release that day. The Prosecutor lodged an
objection to Mehmet Ay’s release with the Third Chamber of the
25. At the time of their
appearance before the judge, no lawyer was allowed to be present.
26. Despite the order of
release from the
27. The following day,
28. On
29. On the evening of
30. The families retrieved
the bodies the following day from the morgue at
C. The Government’s submissions on
the facts
31. Having been arrested on
32. On
33. At
34. On
35. The autopsies performed
concluded that they had been summarily executed, as the bodies were found with
the hands tied behind their backs. As rigor mortis had not yet completely set
in, the autopsy report stated that Necati Aydın had been dead for about 24
hours. This meant that the killing must have taken place some four or five days
after the release of the applicant’s husband.
36. An ex officio investigation was opened under file no. 1994/2233 in
order to identify the PKK terrorists who were the perpetrators of the murders.
The investigation progressed very slowly, as the terrorists who had executed
the applicant’s husband were very mobile and often hid in neighbouring
countries. They did not tend to return to the scene of the crime and witness
statements were difficult to come by, since potential witnesses preferred to
keep silent for fear of repercussions and intimidation.
37. Following the lodging of
the application to the Commission, another ex
officio investigation was opened in relation to the allegations of
ill-treatment and torture during detention. However, on
D. Documentary evidence submitted by
the parties
38. The following information
appears from the documents submitted by the parties.
39. According to a report of the
arrest and house search, drawn up on
40. A single sentence in a
document dated
41. Also on
42. On 23 March 1994 Kerime
Aydın, the sister of Necati Aydın, submitted a petition to the Public
Prosecutor’s Office at the Diyarbakır Court in which she expressed her
concerns about her brother and asked to be provided with information about him.
43. On
44. On
45. A statement was taken
from Necati Aydın on
46. According to a medical
report drawn up at the
47. At
48. It appears from a letter
signed by Ramazan Sürücü, the chief of the anti-terrorism branch of the
Diyarbakır Police, that on
49. On
50. Finally, on
51. On
52. On 9 April 1994 a report
was drawn up by two gendarme officers, Ali Uslu and Cemil Çelik (see paragraphs 120-25 and 126-29 below),
and signed by two gendarme privates. The report stated that a certain Mr Mehmet
Korucu had come to their gendarmerie station and had informed them that he had
found a body, buried in the Pamukçay area. The soldiers had visited the area at
53. On the same day
Rıdvan Yıldırım, the Public Prosecutor of the Bismil
district in whose jurisdiction the bodies had been found, visited the area
together with Feyzi Kaymak, a doctor. The Prosecutor and the doctor drew up a
report in which they recorded that each of the three men had been killed by a
single gun shot to the head and that the bullets had exited the bodies. Rigor
mortis had not yet set in at the time of the examination, and therefore it was
estimated that the victims had been dead for about 24 hours. The doctor
concluded on the spot that the cause of death was the destruction of the brain
and that there was no need, therefore, for full autopsies to be carried out.
After having been photographed in situ, the bodies were transferred to
the morgue in
54. According to this report,
drawn up by the Prosecutor and the doctor, the body which had been found with
the rings, bore a number of ecchymoses. There was a mark on the left shoulder,
measuring 3x3 cm, that had been caused by a blow; two ecchymosed areas on the
scapular region on the back of the left shoulder, measuring 5x5 cm and 3x3 cm,
had been caused by blows; an ecchymosed area on the right scapular region of
the shoulder, measuring 4x4 cm, had been caused by a blow; and finally an
ecchymosed area on the chondral rib, measuring 6x6 cm, was noted.
55. On
56. On
57. On
58. Also on
59. On
60. On 3 May 1995 Bekir
Selçuk, the Chief Public Prosecutor at the Diyarbakır Court, sent a reply
to a letter which had apparently been sent to him by the Ministry of Justice’s
International Law and Foreign Relations Directorate (hereinafter “the
Directorate”) on 4 April 1995 and which concerned the application made to the
Commission by the applicant. Mr Selçuk stated in this letter that his
office was overseeing the investigation into the killings. Mr Selçuk was of the
opinion that Mehmet Ay and Necati Aydın, both of whom had stopped working
for the PKK, had been killed by members of the PKK with the aim of attributing
their killings to the State and then making an application to the European
Commission of Human Rights. The investigation into the killings was being
conducted in the light of this information, but it had not yet been possible to
apprehend the members of the PKK who had perpetrated the killings. Mr Selçuk
finally stated that an indictment had been filed with the
61. On
62. On
63. On
64. In his reply of
65. On
66. On
67. On
68. On
69. On
70. On
71. On
72. According to a number of
documents drawn up by public prosecutors and soldiers between 1996 and 1999,
each of which is one paragraph long and most of which are identical pro-forma
documents, it had not been possible to find the perpetrators of the killings
despite the investigations carried out and the visits made to the area where
the bodies had been found. These documents contained no information indicating
what specific steps had been taken.
73. On
E. Oral evidence
1. Süheyla Aydın, the applicant
74. At the time of the
events, the applicant was working as a nurse in
75. She and her husband were
both civil servants, and on a number of occasions they had been posted to
different cities which made it difficult for them to live together. When they
had challenged their repeated postings through the courts, they were told that
their existence in
76. However, that day she was
taken into detention, together with her husband and a number of other persons,
including a five year old girl. At the time of their arrest, they were in the
house of Hafif Ay in
77. During her detention, which
lasted four days, she was questioned three times. She was asked why she kept
coming back to
78. Those questioning Necati
repeatedly told him that they would harm Süheyla and strip her naked if he did
not cooperate. She was also told by those detaining her to behave herself if
she did not want her husband to end up like Yusuf Ekinci who had been killed in
79. On
80. When Necati and Mehmet
were not released that day, their families assumed that the judge had ordered
their detention on remand and that they were transferred to the prison. When
they contacted the prison that evening they were told, however, that the two
men were not there.
81. The following day, i.e.
on
2. Yasemin Aydın
82. The witness was also in
the house of Hafif Ay on the evening of
83. On
84. After Necati’s
disappearance, when a number of family members were making enquiries into his
fate, the witness was unable to join them as she was being treated by doctors because
she had fallen seriously ill after the torture inflicted on her during her
detention.
85. On
86. Three days after the
bodies were found Yasemin was asked to meet with the Mr Yetkin and the Chief Public
Prosecutor once again. During this meeting she was asked how the family was
coping with their loss. They then apologised for having failed to do more to
find the men alive.
3. Şemsettin Aydın
87. The witness is the father
of Necati Aydın. His son and a number of others were arrested in March
1994 and detained. All those detained, with the exception of his son and Mehmet
Ay, were subsequently released. After the arrest of his son, the witness began
waiting for him outside the
88. On
89. During the time he spent
waiting outside the court building, he had not seen any detainees being
released; detainees whose release had been ordered by the court would be taken
back to the detention places and be released after
90. According to the witness,
his son was killed because of his leftist views and also because of his
involvement in trade union activities. A number of his son’s friends and in
particular a relative, Vedat Aydın, had also been murdered in similar
circumstances.
4. Sezgin Tanrıkulu
91. The witness is an
advocate practising in
92. At the time of the events
giving rise to the present application, the court building was located in a
courtyard which was surrounded by a wall. There were two gates opening into the
courtyard. One of these gates was used by personnel working at the court and
also by officials when transporting defendants who were detained on remand and
suspects who were detained in police custody. The other gate was used by
lawyers and the general public. The court building had three doors, two of
which were for official use and the third door was used by lawyers and the
general public. Lawyers were not allowed to speak with their clients who were
brought to the court from police custody and the detainees did not have access
to a lawyer.
93. A person taken to the
court from police custody could be released by a prosecutor or judge. In that
event, the suspect would be escorted by police officers to the door of the
building, the one used by the general public, and released there. In 1994 it
was not the practice of the court to draw up a release document; such a
practice was not introduced until 1995. Personal belongings such as belts,
money, watches, rings, etc., were returned to the detainees before they were
brought before the judge at the court building.
94. On
95. Family members waiting
for detainees were a familiar sight outside the
96. In the evening of
97. The
5. Arif Altınkalem
98. This witness is also an
advocate practising in
99. On
100. The witness was informed
on
6. Bekir Selçuk
101. The witness was the Chief
Public Prosecutor of the
102. It was not the practice
at the time of the events to draw up release documents. Sometimes a detainee,
whose release was ordered by a prosecutor or judge, was escorted by police
officers to a safe place and released from there. Otherwise a detainee was
simply released outside the court building. In any event, detainees were not
allowed to wander around freely inside the court building.
103. It would have been
possible for him, as a Public Prosecutor, to find out the identities of the
police officers who had accompanied Necati Aydın to the court building on
104. The opinions expressed
in the document which he had drawn up on
105. Neither the fact that
the release of Necati Aydın and his wife had been ordered by the judge for
lack of evidence, nor the fact that neither Necati nor Süheyla had ever been
convicted of an offence involving the PKK, had a bearing on the witness’
opinion that Necati and his wife were PKK members. The acquittal of Süheyla
Aydın on charges of aiding and abetting PKK members was the personal
opinion of the trial court judge. That acquittal did not mean that she was not
involved in PKK activities.
106. The witness denied having been approached by family members of the deceased men (see paragraphs 85-86 above) and he did not remember whether he had met with advocates Sezgin Tanrıkulu and Arif Altınkalem and discussed the disappearance of Necati Aydın (see paragraphs 96 and 100 above).
107. His office would
sometimes receive intelligence indicating that certain civil servants had been
in contact with members of the PKK. In such circumstances, and when he was
unable to obtain any evidence to indict such civil servants, he would ensure
their transfer to other cities.
108. The witness still held
the opinion that Necati Aydın had been killed by members of the PKK so
that a complaint could be lodged against
7. Rıdvan
Yıldırım
109. The witness was the Public
Prosecutor of the town of
110. He did not deem it
necessary to carry out a full autopsy in order to establish the circumstances
leading up to the killings; the cause of death was established and that was
sufficient. The way the killings had been carried out – in particular, the
single gun shot to the head and the bodies being dumped at a roadside – led the
witness to form the opinion that the perpetrators of the killings were members
of the PKK.
111. Prosecutors would investigate a killing regardless of whether or not there had been an official request by a relative of the deceased person. During his time in Bismil there had been a significant number of killings in the area and each of these killings had been investigated by the authorities.
8. Sami Güngör
112. The witness is a Public
Prosecutor and was appointed to the
113. In a document which he
signed on
9. Ramazan Sürücü
114. The witness was the
chief of the anti-terrorist branch of the Diyarbakır Police Headquarters
where the applicant, Necati Aydın, Mehmet Ay, Ramazan Keskin and the
others had been detained at the time of the events (see paragraph 48 above).
115. When a person was
detained, his or her personal belongings would be taken away from that person
and he or she would be asked to sign a document to that effect. When the
detainee is about to be brought before a judge, the belongings would be
returned and the person would be asked to sign the same document. This was what
had happened in the case of Necati Aydın (see paragraph 47 above).
116. Two or three police
officers would have accompanied Necati Aydın and Mehmet Ay to the
117. The witness had never
been questioned by the authorities investigating the disappearance and the
subsequent killing of Necati Aydın.
10. Yusuf Ercan
118. The witness is a police
officer and was responsible for the detainees at the Diyarbakır Police
Headquarters at the time of the events. He signed the document showing that
personal belongings of Necati Aydın were taken away and had then been
returned to him (see paragraph 47 above).
119. He did not remember who
had accompanied Necati Aydın and Mehmet Ay to the
11. Ali Uslu
120. The witness is a gendarme officer and was the deputy commander of the Kağıtlı Gendarmerie Station at the time of the events.
121. On the day in question a
villager came to the station and explained that he had found three bodies in
the fields. He and his superior, together with a number of soldiers under their
command, went to the scene, which was situated approximately five kilometres
away from the station and 100 metres from the main road. They checked the
pulses of the three men and established that they were dead.
122. When the witness reached
the area where the bodies were found, he formed the opinion that it was the PKK
who had killed the three men, possibly because the PKK members had suspected
that the three men were working for the State authorities.
123. It would not have been possible
to reach the spot where the bodies were buried by car; only a tractor could
have reached it. However, there were no tyre marks or foot prints near the
scene. Similarly, there were no blood stains in the vicinity. The witness did
not have any idea whether the three men had been killed on the spot where their
bodies were found. If the men had been shot there, the shooting would not have
been heard from the station because it was too far away.
124. The only road to reach
the site was the one that ran between the town of
125. His superior searched
the bodies for any identification documents but, other than two wedding rings,
he did not find anything to identify the deceased men. They also asked for support
teams, approximately 40‑50 soldiers, to search the area for any
evidence. None was found. They then informed the local prosecutor and handed
the investigation over to him. His station continued to inform the
investigating prosecutor every three months about any developments. He could
not remember whether any inhabitants of villages in the vicinity had been
questioned to establish whether they had seen or heard anything. If there had
been any valuable information, it would have been mentioned.
12. Cemil Çelik
126. The witness is a
gendarme officer and was commander of the Kağıtlı Gendarmerie
Station at the time of the events. The witness confirmed the sequence of events
as described by his deputy Ali Uslu above.
127. The witness was asked by
the Bismil Public Prosecutor to establish whether the killings had political connotations
(see paragraph 58 above). He was not informed that the deceased men had
disappeared after a judge had ordered their release. In the course of his
investigation in the weeks and months after the discovery of the bodies, the
witness visited the scene where the bodies had been found and also spoke to the
local people who might have been able to provide crucial information. The names
of those he questioned were recorded in his three-monthly reports. He continued
this investigation until he left his post later in 1994, but the investigation
was continued by his successor.
128. The ropes used to tie
the hands of the deceased men were cut from the bodies by the witness and the
soldiers under his command and left at the scene. As, in the opinion of the
witness, the ropes had no evidential value, he did not deem it crucial to take
them and examine them. Similarly, there was no need to record in his report
that he had asked for an additional 40‑50 soldiers to help search
the site.
129. A car leaving
Diyarbakır and going in the direction of the place where the bodies were
found would have gone through at least two check points; one was the check
point just outside Diyarbakır and manned by police officers from the Diyarbakır
Police and the second was outside the Kağıtlı gendarme station,
manned by the soldiers under his command. As there were not very many cars
passing along the road outside the station, each car and its passengers were
searched thoroughly. Even police cars or ambulances were checked.
II. RELEVANT DOMESTIC LAW AND
PRACTICE
130. A description of the
relevant domestic law may be found in Akkoç
v. Turkey
(nos. 22947/93 and 22948/93, §§ 42-58, ECHR 2000‑X).
THE LAW
I. THE GOVERNMENT’S PRELIMINARY
OBJECTION
131. In their post-admissibility
observations the Government insisted that domestic remedies had not been
exhausted. They submitted that the Commission had only addressed this issue in
relation to the applicant’s Article 2 complaint, and had omitted to
examine whether she had availed herself of available domestic remedies in
respect of her other complaints. In addition, the Government rejected the
argument that the applicant would have been fearful of pursuing her complaints
more vigorously at the domestic level, bearing in mind that she had not been
afraid to contact the press or the Diyarbakır branch of the Human Rights
Association.
132. The Court, considering
that this matter has been adequately dealt with by the Commission in its
decision on admissibility, does not deem it necessary to re-examine it. It
therefore rejects the Government’s preliminary objection.
II. THE COURT’S ASSESSMENT OF
THE EVIDENCE AND ESTABLISHMENT OF THE FACTS
A. Arguments of the parties
1. The applicant
133. The applicant submitted
that her husband Necati had last been seen alive when he was accompanied by
police officers in the Diyarbakır Court building. She pointed out that
there was no record of his actual release after the judge had ordered it. At
this point, her husband was still in the hands of the police officers. Had her
husband been released, he would have been escorted to the exit of the building.
As pointed out by the Chief Public Prosecutor of the Diyarbakır Court, for
security reasons, detainees would not be allowed simply to move around the
court building unescorted (see paragraph 102 above). In any event, if her
husband had been released, the family members waiting outside the court
building would have seen him. In the opinion of the applicant, her husband had
been taken away from the court building by police officers through the back
door of the building reserved for police officers. She submitted that the
respondent Government had provided no evidence to refute the conclusions to which
all the facts pointed. In particular, they had failed to identify the police
officers who had accompanied her husband to the court building on 4 April 1994.
These police officers would have been the only persons in a position to provide
further testimony on the matter.
134. The applicant further
submitted that it would have been impossible for anyone other than agents of
the State to kill her husband. It was difficult to see how the three men –
still alive or already dead – could have been transported to the spot where
their bodies were found, unless they had been taken there by persons who were
acting with the permission of the authorities and who were allowed to pass
through the checkpoints. The applicant also drew attention to the fact that,
according to the autopsy report of 9 April 1994, rigor mortis had not yet
set in. This indicated that the three men had been killed less than 24 hours
before; the men had thus been in the hands of their captors for four days
before they had been killed. The authorities had taken no action during those
days to trace the men’s whereabouts. According to the applicant, this inaction
reflected the fact that the authorities had known at that time that her husband
had been taken somewhere with the acquiescence of the State.
135. As regards the context
of the killing of her husband, the applicant submitted that he fell into a
category of persons who were targeted by the State. Necati, like Vedat
Aydın – a relative who was the president of the People’s Labour Party and
who had also been killed in similar circumstances – was a high profile
political activist in so far as he was president of the health workers’ union.
Finally, the applicant referred to the Susurluk report (see Ülkü Ekinci, cited above, §§ 92-110) in
which a reference was made to an incident in which bodies, which had been
handed over from one State official to another, had been found under a bridge.
This was widely understood to have been a reference to the killing of Necati
Aydın and the other two men.
2. The Government
136. In their
post-admissibility observations submitted on
B. Article 38 § 1 (a) and consequent
inferences drawn by the Court
137. Before proceeding to
assess the evidence, the Court would stress, as it has done previously, 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). The same applies to
delays by the State in submitting information which prejudices the
establishment of the facts in a case.
138. In this context, the
Court has noted with concern a number of matters regarding the Government’s
response to the Commission’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 to the Commission all the documents
pertaining to the investigation into the killing of the applicant’s husband.
139. As regards these
documents, the Court observes that the existence of a number of them only came
to light during the examination of witnesses by the Commission’s delegates in
(a) a document of 4 April
1994, ordering the transfer of Necati Aydın, Mehmet Ay and Ramazan Keskin
to the Diyarbakır Court (see
paragraph 48 above);
(b) a statement taken from
Mehmet Naili Aydın on
(c) a statement taken from Mehmet Nuri Ay on
(d) a letter of
(e) the decision of
non-jurisdiction taken on
(f) a letter of
(g) a letter of
(h) a letter of 15 April 1998
from the
(i) a statement taken from
Hüseyin Karaca on
(j) the decision of non-jurisdiction taken on
140. Had these important
documents been made available prior to the taking of evidence from witnesses in
141. Furthermore, the Court
notes with concern that neither Prosecutor Osman Yetkin, who had contacted
Yasemin Aydın on two occasions (see
paragraphs 85-86 above), nor Judge Raif Kalkıcı, who had
ordered the release of Necati Aydın (see paragraph 50 above), appeared before the Commission’s
delegates to give evidence. As regards the failure of Osman Yetkin to appear,
the Government explained that they had been unable to contact him as he had
resigned his post and had left for an unknown destination. No explanation has
been given by the Government as to what actual steps were taken by them to
locate Mr Yetkin. As regards the failure of Raif Kalkıcı to appear
before the Commission delegates, the Court observes that the lawyer who
represented the Government during the hearings in
142. Finally, and more
importantly, the Court observes the Government’s failure to identify and summon
the police officers who accompanied Necati Aydın to the
143. The Court concludes that
the Government have not advanced any, or any convincing, explanation for their
delays and omissions in response to the Commission’s requests for relevant
documents, information and witnesses. Accordingly, it finds that it can draw
inferences from the Government’s conduct in this respect. Furthermore, the
Court, referring to the importance of a respondent Government’s co-operation in
Convention proceedings (see paragraph 137 above) and mindful of the
difficulties inevitably arising from an evidence-taking exercise of this nature
(see Timurtaş, cited above, § 70), finds that the Government fell
short of their obligations under Article 38 § 1 (a) of the Convention to
furnish all necessary facilities to the Commission and the Court in their task
of establishing the facts.
C. The Court’s evaluation of the
facts
144. According to the
applicant, her husband Necati Aydın was never physically released after the
judge’s order on
145. The Court reiterates at
the outset that persons in custody are in a vulnerable position and the
authorities are under a duty to protect them. It has previously held that,
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, among other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V).
The obligation on the authorities to account for the treatment of an individual
in custody is particularly stringent where that individual dies (see Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000‑VII).
It follows from this that the authorities are responsible for the well-being of
detainees until their release and it is for the respondent State to prove that
a detainee has been released.
146. The Court notes that it
is not in dispute between the parties that the applicant’s husband was detained
by the police on
147. 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, the burden of proof may be regarded as resting on the
authorities to provide a satisfactory and convincing explanation (see Salman, cited above, § 100).
148. 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 until the advanced
stages of the examination of the application, coupled with their failure to
identify the two police officers (see
paragraph 13 above), as well as their failure to summon other
crucial witnesses (see paragraph 12
above), which is putting
obstacles in the way of the Court’s establishment of the facts –, it is for the
Government to argue conclusively why the documents and the witnesses 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).
149. The Government have
failed to adduce any argument from which it could be deduced that the witnesses
whom they failed to identify and to summon had no relevant testimonies to offer
which might have had a bearing on the applicant’s claims.
150. More crucially, the
Court observes that at the time of the events giving rise to the present
application it was not the practice, at least not at the
151. The Court further
observes that, at the time of the events, a suspect who was detained in police
custody on suspicion of having committed an offence falling within the
jurisdiction of the State Security Courts, was prevented from benefiting from a
number of essential safeguards. In particular, such detainees did not have
access to their lawyers until they were charged. Moreover, they could be
detained up to a period of 30 days before they had to be brought before a
judge. Family members or legal representatives would not be informed of the
date and time when suspects were brought before a judge.
152. The importance of
effective safeguards which should be afforded to detainees cannot be
overemphasised. When examining complaints under Article 5 of the
Convention, the Court has stressed in a number of cases the fundamental
importance of the guarantees contained in that provision for securing the
rights of individuals in a democracy to be free from arbitrary detention at the
hands of the authorities (see, amongst others, Timurtaş, cited above, § 103, and the cases cited there). It
held that what was at stake was both the protection of the physical liberty of
individuals as well as their personal security in a context which, in the
absence of safeguards, could result in a subversion of the rule of law and
place detainees beyond the reach of the most rudimentary forms of legal
protection (see Kurt v. Turkey, judgment of 25 May 1998, Reports of Judgments and Decisions 1998‑III,
§ 123).
153. Regard
may also be had to Article 11 of the Declaration on the Protection of all
Persons from Enforced Disappearance (United Nations General Assembly resolution
47/133 of 18 December 1992). This Article provides that “[a]ll persons deprived of liberty must be released in a manner
permitting reliable verification that they have actually been released and,
further, have been released in conditions in which their physical integrity and
ability fully to exercise their rights are assured”.
154. In the light of the
above mentioned failure of the Government to identify and summon the police
officers who accompanied Necati Aydın to the Diyarbakır Court on 4
April 1994, coupled with the absence of a release document, the Court concludes
that the Government have failed to discharge their burden of proving that
Necati Aydın was indeed released from the Diyarbakır Court building
on 4 April 1994. The Court finds it established that Necati Aydın remained
in the custody of the State. It follows that the Government’s obligation is
engaged to explain how Necati Aydın 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 Necati Aydın.
III. ALLEGED VIOLATIONS OF
ARTICLE 2 OF THE CONVENTION
155. 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 Necati Aydın
1. Submissions of the parties
156. The applicant submitted
that her husband had been killed by agents of the State, in violation of
Article 2 of the Convention.
157. The Government denied
that the applicant’s husband was so killed. They contended that the applicant’s
husband had left the court building immediately after the judge had ordered his
release and his personal belongings had been returned to him. The lapse of time
of four to five days between Necati Aydın’s release and his killing was
too long to be capable of implicating the authorities in his death. The
Government contended that no evidence was submitted by the applicant in support
of her allegations.
2. The Court’s assessment
158. 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 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, §§ 146-47).
159. The text of Article 2,
read as a whole, demonstrates that it covers not only intentional killing but
also 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 paragraph 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, §§ 148‑49).
160. 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. Use of force by State agents in pursuit of one of the aims specified
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).
161. The Court has already
established that the Government have failed to account for the death of Necati
Aydın (see paragraph 154 above)
who was last seen alive in the hands of State agents and
subsequently met with a violent death. It follows that there has been a
violation of Article 2 of the Convention in respect of the killing of Necati
Aydın.
B. Alleged inadequacy of the
investigation
1. Submissions of the parties
(a) The applicant
162. The applicant asked the
Court to find a violation of Article 2 of the Convention on the ground that the
investigation into the disappearance and the subsequent killing of her husband
had been so fundamentally flawed as to amount to a failure to comply with the
procedural requirements of that provision. The applicant identified, in particular,
the following shortcomings in the investigation into the killing of her
husband:
(a) during the five crucial
days of his unacknowledged detention, i.e. between
(b) no forensic examinations
whatsoever were carried out at the place where the bodies were found;
(c) no full autopsy was carried out on the body of Necati Aydın;
(d) no attempts were made to
establish the type of weapon that had been used, or to find out whether the
deceased had been killed on the spot;
(e) the rope used to tie her husband’s hands behind his back was simply left at the site and not taken for any forensic testing.
(f) no photographs were
taken for forensic purposes;
(g) the authorities failed to
take statements about the killing of Necati Aydın from any of his
relatives who might have been able to provide some information;
(h) each of the prosecutors
and investigating officers involved in the investigation made the assumption
that the men had been killed by terrorists;
(i) the investigation file
consisted mainly of three-monthly replies from the gendarmes to the effect that
there was no information on the perpetrators. However, there was no evidence
whatsoever of any pro-active steps having been taken in order to find the
perpetrators.
(b) The Government
163. The Government submitted
that, despite the fact that the conditions of the fight against terrorism made
it difficult to identify the perpetrators, the investigation into the killing
of the applicant’s husband had not suffered any interruptions and was still
continuing. They emphasised that the present case did not concern deliberate
action undertaken by State agents against a person, but a criminal
investigation into events that had occurred between individuals. The Convention
contained no specific rights as to the duration and modalities of such an inquiry.
2. The Court’s assessment
164. 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,
p. 49, § 161, Kaya v. Turkey, judgment of 19 February 1998, Reports 1998‑I, p. 329, § 105). In that connection, the Court points out that, contrary
to what was suggested by the Government, 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).
165. As to the question
whether the investigating authorities were informed of the disappearance of
Necati Aydın, the Court observes in the first place that the lawyers
Sezgin Tanrıkulu and Arif Altınkalem went to the
166. Furthermore, after the
disappearance of Necati Aydın but prior to his body having been found,
Yasemin Aydın met with Prosecutor Osman Yetkin at the latter’s request.
Yasemin told the delegates that Mr Selçuk and a number of other judges and prosecutors
were also present in the room. According to Mr Selçuk, this meeting did not
take place. The Government, however, have not explicitly denied that the
meeting was held, and, by failing to summon Mr Yetkin and the two judges (see paragraph 12 above), not only
frustrated the possibility of the Convention bodies to establish the facts, but
also forfeited the opportunity to refute Yasemin Aydın’s statement.
167. The Court finds it
established, therefore, that the competent judicial authorities had been
promptly and adequately informed of the disappearance of Necati Aydın. It
follows that, from that moment onwards, these authorities had a duty to carry
out an effective investigation into the disappearance of Necati Aydın.
168. No documents have been
submitted by the Government indicating that any steps were taken by these
authorities in the crucial days following the disappearance. In particular, and
as the applicant pointed out, there are no documents indicating that the police
officers who accompanied Necati Aydın to the court building were identified
and questioned. It is possible that the reason for this failure was, as Mr
Selçuk put it, that questioning them was not regarded as important by the
authorities (see paragraph 103
above). In any event, even if these police officers had been identified
and questioned by the Mr Selçuk, their testimonies would not have been
recorded, as Mr Selçuk made it clear that he would not keep records of the
names or statements of such officers (see
paragraph 103 above).
169. Furthermore, the Court
observes that Ramazan Sürücü, as the Chief of Police responsible for the
anti-terrorist branch who detained Necati Aydın, and also as the officer
who ordered Necati Aydın’s transfer to the Diyarbakır Court (see paragraph 48 above), was never
questioned by the authorities despite the fact that obtaining information from
him would have been an obvious step to take at that time. Similarly, no
information or documents have been submitted by the respondent Government to
indicate that Ertan Uzundağ, the police commissioner who oversaw Necati
Aydın’s transfer to the
170. The Court concludes that
the prosecutors have remained inactive during these crucial days at a time when
many people were being killed in the south-east region.
171. As regards the
investigation into the killing of the applicant’s husband, the Court finds that
the discovery of Necati Aydın’s body gave rise ipso facto to an
obligation under Article 2 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, p. 1778, § 82, and Yaşa v. Turkey, judgment of 2 September 1998, Reports
1998‑VI, p. 2438, § 100). Furthermore,
pursuant to Article 153 of the Turkish Code of Criminal Procedure, a public prosecutor,
who has been informed of a crime that has been committed within his or her
jurisdiction, is under an obligation to carry out the necessary investigations
into the incident.
172. The obligation to carry
out effective investigations involves, where appropriate, an autopsy which
provides a complete and accurate record of possible signs of ill-treatment and
injury and an objective analysis of clinical findings, including the cause of
death (see Salman, cited
above, § 105).
173. It appears from the
report drawn up by the gendarmes on 9 April 1994 (see paragraph 52 above) and also from the evidence given by these
gendarme officers to the Commission’s delegates (see paragraphs 120-25 and 126-29 above), that there was
no meaningful examination of the scene where the body was found. In this
regard, the Court would refer to the defects set out by the applicant (see paragraph 162 above) and it would
further highlight the importance of a full autopsy.
174. The Court notes that the
report drawn up on
175. Finally, although a
number of ecchymoses were observed on the body of Necati Aydın, no details
were given and no attempts were made to establish how they had been caused.
This report, therefore, was not capable of disclosing any leads that could have
assisted in the establishment of the author(s) of the killing or indeed the
cause of death.
176. The Court cannot but remark
critically on the investigation carried out by the Bismil Public Prosecutor,
Rıdvan Yıldırım. For example,
Mr Yıldırım concluded at the very beginning of his
investigation that Necati Aydın and the two other deceased men had been
killed by terrorists and that he therefore lacked jurisdiction to investigate
the killing and sent the file to the Prosecutor at the
177. No documents have been submitted by the Government indicating that any serious steps were taken by Mr Yıldırım prior to his conclusion that the deceased men were indeed killed by members of the PKK.
178. Although Mr
Yıldırım must have been informed as early as 10 April 1994
of the identity of Necati Aydın and the fact that he had been missing
since his release was ordered by the Diyarbakır Court on 4 April
1994, he took no steps to ascertain the identities of the police officers who
had escorted Necati Aydın to the Diyarbakır Court on 4 April 1994. Nor
did he question personnel at the court building who might have heard or seen
Necati Aydın. In addition, the fact that every vehicle travelling from
Diyarbakır in the direction of the place where the bodies were found would
have been searched at least twice (see
paragraphs 124 and 129 above) ought to have made Mr Yıldırım
realise that the three men could not have been taken to the place of their
burial unnoticed by one or both of the two check points. Nevertheless, no
documents were submitted to either the Commission or the Court to suggest that
Mr Yıldırım questioned the personnel at these checkpoints.
179. It
appears, therefore, that no meaningful preliminary investigation was undertaken
by Mr Yıldırım, notwithstanding his obligation to that effect
under Turkish criminal law, before he concluded on
180. The Court observes that
the attribution of responsibility for incidents to the PKK had particular
significance as regards the investigation and judicial procedures which ensued,
since jurisdiction for terrorist crimes has been given to the State Security
Courts (see Akkoç, cited above, § 90).
181. The
Court agrees with the conclusion reached by the Prosecutor at the
Diyarbakır Court on 22 May 1998, namely that the
decision of non-jurisdiction of 30 May 1994 taken by Mr Yıldırım
(see paragraph 66 above) was based on presumptions. However, it regrets
the fact that it took the prosecutors four years to come to this obvious
conclusion.
182. The Court observes that
no meaningful steps were taken during these four years (see paragraphs 59 to 66 above), and that any steps that were
taken followed the receipt by the investigating authorities of the letters sent
to them by the Directorate, in which they were informed of the progress of the
Convention institutions’ examination of the application.
183. One of the steps taken
during this four-year period was the letter sent to the Directorate on 5 May
1995 by Mr Selçuk (see paragraph 60
above), who was of the opinion that the killings had been perpetrated by
the PKK in order to be able to lodge an application with the Convention organs.
In the view of the Court, Mr Selçuk’s opinion sums up the approach taken by prosecutors
in their investigations of similar killings in the area at the time. As was
explicitly said by Prosecutor Güngör,
“In an investigation into a killing incident which had taken place in that area
at that time, the starting point would be that the perpetrators were members of
the PKK. Other possibilities would also be investigated if any evidence came to
light which suggested that the perpetrators were not PKK members” (see paragraph 113 above).
However, although no such evidence – so far as the Court is aware – has come to
light in the present case, the Prosecutor at the Diyarbakır Court decided
at the end of the four years that there was no evidence of any PKK involvement
in the killing (see paragraph 66 above)
and sent the file back to the Bismil Prosecutor’s Office in 1998.
184. As regards the
investigation carried out by the Bismil Prosecutor after he re-acquired the
investigation file in 1998, the Court observes once more that no meaningful
steps were taken in so far as can be ascertained from the documents submitted.
The only action taken by the Bismil Prosecutor was the sending of the letters
of 7 May 1999 and 23 June 1999 (see paragraphs 71 and 73 above) to the
Directorate, in which he stated that there were no bullets in the area where
the bodies had been found, that the investigation was continuing and that his
office was being kept informed about the progress of the investigation every
three months. As regards these three-monthly, pro-forma reports drawn up by the
gendarmes, the Court finds that they cannot be taken as proof of any
investigation. The Court cannot see how, after many years have passed, repeated
visits to the site where the bodies were found are capable of revealing any
clues as to the identity of the perpetrators (see paragraph 72 above).
185. In the light of the very
serious shortcomings identified in its above-mentioned examination, the Court
concludes that the domestic authorities failed to carry out any meaningful
investigation, let alone an adequate and effective one, into the killing of the
applicant’s husband as required by Article 2 of the Convention.
186. The Court finds,
therefore, that there has been a violation of Article 2 of the Convention
under its procedural limb.
IV. ALLEGED VIOLATIONS OF ARTICLE
3 OF THE CONVENTION
187. The applicant submitted
that she was blindfolded whilst in detention. She argued that the use of
blindfolds deliberately disorientates the detainee and places the detainee in a
vulnerable position vis à vis those
detaining and questioning her. The applicant also submitted that she was made
to listen to the screams of her husband as he was being tortured. She was
slapped; police officers threatened to strip her naked in order to put pressure
on her husband, and told her that her husband could end up being killed like
Yusuf Ekinci (see paragraph 78 above). Furthermore, while all that was being
done to her, she was six months pregnant.
188. As regards the treatment
to which her husband was subjected whilst in the custody of police officers,
the applicant submitted that she witnessed him being interrogated naked and wet,
and that she heard his screams while he was being tortured. She also drew the
Court’s attention to the autopsy report of
189. The applicant argued
that the medical reports drawn up on her release, as well as that of her
husband’s, according to which neither of their bodies bore any bruises, were of
little value since those reports had not been drawn up pursuant to a proper
medical examination; the doctor had merely asked her, in the presence of police
officers, whether she had any complaints.
190. Article 3 of the
Convention provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
191. The
Government denied that either the applicant or her
husband had been subjected to ill-treatment or torture during their detention.
They argued that these allegations had no basis in fact.
192. The Court reiterates
that 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, among other authorities, Selmouni, cited above, § 87).
193. The Court has already
found that the applicant’s husband was in the hands of State agents until his
death (see paragraph 154 above). It observes that the respondent Government
have not argued that the marks on the body of the applicant’s husband predated
his detention. In any event, according to the medical report of
194. As regards the nature of
these injuries, the Court observes that they were extensive and, according to
the medical report of
195. In determining whether a
particular form of ill-treatment should be qualified as torture, consideration
must be given to the distinction, embodied in Article 3, between this notion
and that of inhuman or degrading treatment. As noted in previous cases, it was
the intention that the Convention should, by means of this distinction, attach
a special stigma to deliberate inhuman treatment causing very serious and cruel
suffering (see Ireland v. the United Kingdom, cited above, pp. 66-67, § 167). In addition to the severity of
the treatment, there is a purposive element, as recognised in the United
Nations Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, which came into force on 26 June 1987, which
defines torture in terms of the intentional infliction of severe pain or
suffering with the aim, inter alia, of obtaining information, inflicting
punishment or intimidating (Article 1 of the United Nations Convention; see Salman, cited above, § 114).
196. Although it cannot be
excluded that Necati Aydın was subjected to such treatment in order to
extract information from him or to punish him for his trade union activities,
the Court considers that there is insufficient evidence to reach that
conclusion.
197. However, having regard
to the nature and degree of the ill-treatment, the Court finds that it amounted
to at least inhuman treatment within the meaning of Article 3 of the
Convention.
198. The Court concludes,
therefore, that there has been a breach of Article 3 of the Convention on
account of the treatment to which the applicant’s husband was subjected prior
to his death.
199. As regards the treatment
to which the applicant alleged she was subjected during her detention, the
Court observes that, other than her own allegations, there is no evidence to
support her complaint. The Court is unable, therefore, to reach to a conclusion
in this respect.
V. ALLEGED VIOLATION OF ARTICLE
11 OF THE CONVENTION
200. The applicant submitted
that her husband was killed on account of his trade union activities. Both she
and her husband had been tried and acquitted for offences relating to
membership of the PKK. Following their acquittal the authorities had then tried
to have the two of them transferred out of the region. These transfers
disrupted the work of Necati as leader of the Health Trade Union.
201. The applicant argued
that, where a person falls into a category of people who are at risk from
unlawful violence from State officials on account of trade union activities,
the issues under Article 2 and Article 11 need to be considered
separately. She asked the Court to find a violation of Article 11 of the
Convention which provides as follows:
“1. Everyone has the right to
freedom of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the protection of his
interests.
2. No restrictions shall be placed
on the exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national security or
public safety, for the prevention of disorder or crime, for the protection of
health or morals or for the protection of the rights and freedoms of others.
This Article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, of the police or of
the administration of the State.”
202. The Government submitted
that the trade union activities in which the applicant and her husband were
involved were of no interest to the authorities and that they were only
investigated in relation to their alleged links with the PKK.
203. The Court notes that
these complaints arise out of the same facts as those considered under Article
2. In the light of its conclusions with respect to Article 2 (see paragraphs 161 and 186 above),
the Court does not consider it necessary to examine these complaints
separately.
VI. ALLEGED VIOLATION OF ARTICLE
13 OF THE CONVENTION
204. The applicant submitted
that the fundamental flaws in the investigation into the murder of her husband
also gave rise to a violation of Article 13 of the Convention which
provides:
“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.”
205. The Government
reaffirmed that effective domestic remedies were available to the applicant but
that she had chosen not to avail herself of them. Moreover, the investigation
into the abduction and killing of her husband was still continuing.
206. 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, and Kaya,
cited above, pp. 329-30, § 106).
207. Given the fundamental
importance of the right to protection of 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, and effective access for the
complainant to the investigation procedure (see Kaya, cited above, pp. 330-31, § 107).
208. On the basis of the
evidence adduced in the present case, the Court has found that the respondent
State is responsible under Articles 2 and 3 of the Convention for the death of
the applicant’s husband and also for the inhuman treatment suffered by him
prior to his death. The applicant’s complaint in this regard is therefore
“arguable” for the purposes of Article 13 (see Salman, cited above, § 122, and the authorities cited therein).
209. The authorities thus had
an obligation to carry out an effective investigation into the circumstances of
the death of the applicant’s husband and the inhuman treatment inflicted on
him. For the reasons set out above (see paragraphs 164 to 186 above), 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, pp. 330-31, § 107). The Court finds, therefore,
that the applicant has been denied an effective remedy in respect of the
inhuman treatment and death of her husband, and has thereby been denied access
to any other available remedies at her disposal, including a claim for
compensation.
210. Consequently, there has
been a violation of Article 13 of the Convention.
VII. ALLEGED PRACTICE BY THE
AUTHORITIES OF INFRINGING ARTICLES 2, 3 AND 13 OF THE CONVENTION
211. Relying on Article 2 of
the Convention, the applicant maintained that there existed substantial,
cumulative evidence to establish that the failure to investigate violations of
the right to life, in particular where suspicion fell upon the security forces
and law enforcement officers, was both systemic and systematic in
212. Invoking Article 3 of
the Convention, the applicant further argued that torture existed as a matter
of practice in
213. Finally, invoking
Article 13 of the Convention, the applicant complained that there existed a
practice of ineffective remedies, in her case in particular, relating to the
killings by security forces.
214. Having regard to its
findings under Articles 2, 3 and 13 above, the Court does not find it necessary
to determine whether the failings identified in this case were part of a
practice adopted by the authorities.
VIII. ALLEGED VIOLATION OF
ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLES 2 AND 13
215. The applicant claimed
that the rights of her husband under Articles 2 and 13 of the Convention were
violated in conjunction with Article 14 on the grounds of ethnic origin.
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.”
216. The applicant argued, in
particular, that as a person of Kurdish origin, her husband enjoyed the
guarantee to the right to life to a lesser extent than a person of non-Kurdish
origin.
217. The Government
categorically rejected any suggestion that Turkish citizens of Kurdish origin
were treated differently. The equality of all citizens applied irrespective of
origin, race, religion or conviction, both in legislation and in practice.
218. 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.
IX. APPLICATION OF ARTICLE 41 OF
THE CONVENTION
219. 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
220. The applicant claimed
the sum of 65,408.80 pounds sterling (GBP) in respect of the estimated loss of
earnings of her husband. Taking into account the average life expectancy in
221. The Government did not make any comment on the sum claimed by the applicant.
222. 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, and Çakıcı v. Turkey [GC], no. 23657/94,
§ 127, ECHR 1999‑IV). The Court has found (see paragraph 161 above) that the
authorities were liable under Article 2 of the Convention for the death of the
applicant’s husband. In these circumstances, there was a direct causal link
between the violation of Article 2 and the applicant’s loss of the financial
support provided by her husband.
223. In the light of the foregoing the Court, deciding on an equitable basis, awards the applicant the sum of EUR 30,000.
B. Non-pecuniary damage
224. The applicant claimed
the sum of GBP 80,000, in relation to all the violations suffered by her
deceased husband, to be held for the benefit of herself, as his widow, as well
as their child. The applicant also claimed the sum of GBP 25,000 in relation to
the alleged ill-treatment to which she was subjected while in custody and the
inadequate investigation and lack of domestic remedies.
225. The Government did not
make any comment on these claims.
226. The Court observes that
it has found that the authorities were accountable for the death of the
applicant’s husband and also for the inhuman treatment to which he was
subjected prior to his death. In addition to the violation of Articles 2 and 3
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 21,000 for
non-pecuniary damage, to be held by her for the heirs of her deceased husband.
227. It also awards the
applicant the sum of EUR 3,500 for non-pecuniary damage sustained by her in her
personal capacity in relation to the violation of Article 13 of the Convention.
As regards the
applicant’s allegation that she was ill-treated while
in custody, the Court
notes that no violation of Article 3 of the Convention was found in this
respect (see paragraph 199 above).
No award can therefore be made under this head.
228. Finally the Court determines
that the above sums are to be converted into Swiss francs at the rate
applicable at the date of payment.
C. Costs and expenses
229. The applicant claimed a
total of GBP 17,926.25 for the fees and costs incurred in bringing the
application. This included fees and costs incurred in attending the hearings in
(a) GBP 4,830 for the fees of
her United Kingdom-based lawyers;
(b) GBP 7,380 for the fees of
her lawyers based in
(c) GBP 940.50 for
administrative costs incurred by the United Kingdom-based lawyers;
(d) GBP 704 for
administrative costs incurred by the lawyers based in
(e) GBP 4,071.75 for
administrative and translation costs incurred by the Kurdish Human Rights
Project (KHRP).
230. The Government did not
make any comment on these claims.
231. Making its own estimate
based on the information available, the Court awards the applicant EUR 20,000
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
232. 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
Commission and Court in their task of establishing the facts;
3. Holds that the Government are liable for the death of the applicant’s
husband 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 killing of
the applicant’s husband;
5. Holds that there has been a violation of Article 3 of the Convention in respect of the treatment to which the applicant’s husband was subjected prior to his death;
6. Holds that there has been no violation of Article 3 of the Convention in
respect of the treatment to which the applicant was allegedly subjected while
in detention;
7. Holds that it is unnecessary to determine whether there has been a
violation of Article 11 of the Convention;
8. Holds that there has been a violation of Article 13 of the Convention;
9. Holds that it is unnecessary to determine whether there has been a
practice by the authorities of infringing Articles 2, 3 and 13 of the
Convention;
10. Holds that it is unnecessary to determine whether there has been a
violation of Article 14 of the Convention in conjunction with Articles 2
and 13 of the Convention;
11. Holds
(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 30,000 (thirty thousand euros) and any tax that may be
chargeable on this amount, to be converted into Swiss francs 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 Swiss francs at the rate
applicable at the date of settlement:
(i) EUR 21,000 (twenty one thousand euros) to be held for the heirs of her deceased husband;
(ii) EUR 3,500 (three 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, into the bank account
identified by her in the United Kingdom, EUR 20,000 (twenty 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;
12. Dismisses the remainder of the applicant’s claim for just
satisfaction.
Done in
English, and notified in writing on
S. Dollé J.-P.
Costa
Registrar President