FOURTH
SECTION
CASE OF
(Application no. 65899/01)
JUDGMENT
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
The European Court of Human Rights (Fourth
Section), sitting as a Chamber composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr R. Türmen,
Mr M. Pellonpää,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
judges,
and Mr M. O'Boyle,
Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was
adopted on the last‑mentioned date:
PROCEDURE
1. The case originated in an
application (no. 65899/01) against the
2. The applicants, who had
been granted legal aid, were represented by Mr T. Elçi, Mr İ.
3. The application concerns
the disappearance of two leaders of the People's Democracy Party (Halkın
Demokrasi Partisi –- HADEP) in Silopi. The applicants alleged that the two
men had been victims of an extrajudicial killing in custody, despite the
authorities' assertion that they had not been detained. The applicants relied
on Articles 2, 3, 5 and 13 of the Convention
4. 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.
5. By a decision of
6. On
7. A delegation from the
Court, composed of Judges Bratza, Pellonpää and Maruste, heard evidence from
witnesses between 28 and
8. On
9. In a letter of
10. On 3 and
11. On
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
12. The applicants were born
in 1978, 1969 and 1955 respectively and live in Şırnak. They are
close relatives of Serdar Tanış and Ebubekir Deniz, respectively the
president and secretary of the Silopi branch of the People's Democracy Party (Halkın
Demokrasi Partisi –- HADEP).
A. The applicants' version of the events
13. The applicants alleged
that Serdar Tanış and Ebubekir Deniz had received death threats from
the Silopi gendarmerie command and the Şırnak regimental headquarters
on account of their political activities.
14. At about
15. An hour later, unable to
reach the men on their mobile phones, their families and lawyers had asked the Silopi
Public Prosecutor and the commanding officer of the Silopi gendarmerie for
information. The commanding officer had told them on the telephone that neither
man had attended the station or been taken into custody.
16. On
17. The applicants said that
they had received no news of Serdar Tanış or Ebubekir Deniz since
B. The Government's observations on
the facts
18. The Government said that
on 17 and
19. At
20. After criminal complaints
were lodged by the two men's families, the Silopi Public Prosecutor launched an
investigation and took statements from the applicants. The relevant authorities
were notified that they were missing and their photographs and descriptions
were circulated to the public prosecutor's offices and police headquarters in
the province.
21. On
22. On
C. Oral evidence
23. Three delegates from the
Court took the following depositions in
1. Şuayip
24. Şuayip
25. Before commencing his
military service, that is to say prior to November 2000, his son had worked as
a driver transporting fuel from
26. In October 2000 the
witness and his brother had been arrested by gendarmes while on their way to
work. His brother had been released, but the witness had been taken to Cizre
district gendarmerie station. On the same day the gendarmes had searched his
home in his presence and made him sign a record. He had then been taken to Şırnak
gendarmerie headquarters, where he was held for seven days. He had been made to
wear a blindfold during questioning, and so could not identify his interrogator.
His interrogator had told him: “Give up HADEP. If you don't give up those
activities, it will cost you your life”. The witness had been tried with four
co-defendants and had spent approximately 57 days in prison. The person who had
made the accusations against them had subsequently sent a letter to the
authorities informing them that he had been acting under duress and did not
even know the defendants.
27. The witness then gave
details of a meeting he had had with the commanding officer, Levent Ersöz, at
the Şırnak regimental headquarters. The commanding officer had threatened
him, saying: “Give up the idea of opening a local HADEP branch in Silopi. I don't
want to hear what you have to say, this is my area. If you don't give up the
idea, I will not let you live.”
28. The witness said that he
had also been summoned by Süleyman Can[1]
in January 2001, approximately two weeks before his son went missing. Süleyman Can
had told him to “tell Serdar to give up to this activity” and had telephoned Levent
Ersöz[2],
who had asked to speak to the witness and told him: “Why didn't Serdar come to
see me? You tell Serdar that if he doesn't come today, I'll kill him if he ever
puts a foot in the Şırnak area again. Tell him that. He knows my position
and rank”.
29. The witness and his son
Müdür went back to see Süleyman Can, who had had repeated his earlier warning: “Tell
him to give up that activity. All of his colleagues have resigned. He's the
only one who's stayed on. If he doesn't resign, he'll come to grief”. Before
leaving the premises, they had asked Süleyman Can to convince Serdar himself or
to put pressure on him.
30. On being asked by the witness
why he had not gone to see the Şırnak commanding officer, Serdar had
replied that he had spoken to him on the telephone and added that after the party's
inauguration he had received a call from Süleyman Can and had told him: “Commanding
officer, if I give it up, someone will replace me. I was born in the area and
know the situation better and am not carrying out any illegal activity; I will
not leave the party”.
31. The witness's nephew Eyüp
Tanış had told him that on
32. The witness said that his
son and Ebubekir Deniz went to the gendarmerie station after receiving a
telephone call from that source. The two men got on well and worked together
for HADEP. Ebubekir Deniz had also received threats because of his political
activities and, like Serdar, had had been forced into hiding before the branch
opened. Owing to the intimidation, he had been unable to continue working. The
witness added that the entire family had suffered as a result of Serdar's
political activities.
33. He said that on the night
of 25 January he was informed by his nephew İdris
34. The witness affirmed that
he had been held in custody at the Şırnak Security Directorate
because of a letter addressed to him that had allegedly been seized in a
vehicle that had entered
2. Eyüp Tanış
35. Eyüp Tanış said
that he was born in 1976 and was living in Silopi at the material time. He was
a cousin of Serdar Tanış and a former administrator of the HADEP local
branch.
36. He too stated that
threats had been made against Serdar Tanış by the regimental commanding
officer of the gendarmerie because of his attempts to open a local HADEP branch
office in Silopi. Serdar had been subjected to intimidation and followed by
plainclothes police officers. He been forced to leave Silopi and had spent
approximately a month in
37. On the morning of
38. The witness said that he
had made a statement before the Silopi Public Prosecutor. He had also answered
questions by an investigating officer and had provided a description enabling
an identikit picture to be prepared of the two people who had forced them into
the car. He had subsequently attended the public prosecutor's office three times
to examine photographs. At one of the sessions he had indicated that he
recognised the driver of the car on one of the photographs and had found a
strong likeness on another. In that connection, the witness confirmed the
content of the identification record that had been drawn up on
39. The threats prompted by
their political activities within HADEP had continued after January 2001 and on
one occasion the police had searched the party's offices.
40. The witness added that
before starting his military service, Serdar Tanış had been in the
business of transporting fuel from
41. The witness said that
following Serdar's disappearance he became the acting president pending the
next HADEP congress. In 2002 he was taken into custody at Silopi gendarmerie station.
Towards
3. Yakup Tanış
42. Yakup Tanış said
he was an applicant and one of Serdar Tanış's brothers. He was born
in 1978 and was studying in Isparta at the material time. He had returned to Silopi
on
43. He had seen his brother
when their father was taken into custody by the gendarmerie. His father had
telephoned him to say that he was with an officer and had asked him to contact Serdar
to persuade him to resign from HADEP.
44. Yakup Tanış
also confirmed that the family had been subjected to intimidation by the
authorities on account of Serdar's political activities. Serdar could not
remain in Silopi. He feared that he would be arrested and had been threatened
by the commanding officers of the gendarmerie, Levent Ersöz and Süleyman Can.
Ebubekir Deniz was in the same position. Serdar had sent a complaint to the
authorities about the threats that had been made against him and had asked for protection.
The witness said that he had seen the complaint in question.
45. The witness said that despite
various attempts he had been unable to gain any information from the
authorities about his brother. He had even been taken to the police station
twice, where he had been instructed not to write any further letters to the
authorities. A person called Mahmut had threatened to kill him like his brother.
4. Mehmet Ata Deniz
46. Mehmet Ata Deniz said
that he was an applicant and Ebubekir Deniz's brother. He was assisted by an
interpreter when giving evidence. He was born in 1963 and lived in Silopi.
47. He confirmed that before
they had gone missing, his brother and Serdar Tanış had been forced
to go to
48. The witness said that
approximately 20 days before his disappearance his brother had been arrested at
the Habur checkpoint at the border with northern
49. The witness described a
meeting he had had with Captain Süleyman
50. The witness said that he
had made two statements to the Silopi Public Prosecutor without the assistance of
an interpreter. His statements had been recorded by the Public Prosecutor, who had
noted that he was illiterate and did not understand Turkish.
5. Zehra
Deniz
6. Divan Arsu
7. Selma Güngen
51. These
three witnesses were born in 1981, 1978 and 1975. Zehra Deniz is the wife and
Divan Arsu the partner of Ebubekir Deniz. Selma Güngen is Serdar
Tanış's wife.
52. They confirmed that the
authorities had threatened and intimidated both men on account of their
activities as members of HADEP. They said that they had been afraid to remain
in Silopi and had been forced to leave their home for a time.
8. Ömer Sansur
53. Ömer Sansur was born in
1981 and was living in Silopi at the material time.
54. He said that he was
present at HADEP's officers when Serdar Tanış received a telephone
call from the gendarmerie station. Although it was Serdar who had received the
summons to go to the station, Ebubekir Deniz had insisted on accompanying him.
55. The witness said that he
had driven the two men to the station and dropped them off approximately 20
metres from the main entrance.
9. Hamit Belge
10. İsa Kanat
56. These two witnesses were
born in 1963 and 1951 respectively and lived in Silopi at the material time.
57. They said that they had
seen Serdar Tanış and Ebubekir Deniz as they were about to enter the
gendarmerie headquarters by the main entrance. The two men had waved to them.
11. Ebcet Sunmez
58. Ebcet Sunmez was born in 1978
and was living in Cizre at the material time. He was a lorry driver and had
travelled from time to time to
59. He said that Serdar had
told him in a telephone conversations that he had been subjected to
intimidation and threats because of his political activities. Serdar had had to
leave Silopi for approximately a month and had attended to the administrative
formalities required to open the HADEP branch in Silopi in
60. Mr Sunmez gave this
account of a visit he and Şuayip
61. The witness said that Şuayip
12. Sezgin Tanrıkulu
62. Sezgin Tanrıkulu said
that he was born in 1963 and was living in
63. He did not know Serdar Tanış
or Ebubekir Deniz personally. However, he had been informed of the threats that
had been made against them on account of their activities as members of HADEP. He
had learnt of their disappearance on
64. The witness said that on
65. The witness said that he failed
to get an audience with either the commanding officer of the Silopi gendarmerie
or the district governor. The delegation went the same day to see the
Şırnak Public Prosecutor. He had been informed of the incident and
was waiting for written information from the Silopi Public Prosecutor's Office.
He said that he would then enquire of the Şırnak gendarmerie regiment
whether the two men had been taken into custody. He told the delegation that he
had no power to take any other action.
66. On
67. The witness said that on
13. Osman Baydemir
68. The witness Osman Baydemir
was born in 1971. He lived in
69. On
70. The witness said that he
went to Silopi on 29 January with Sezgin Tanrıkulu and two other people.
He described the meetings with the public prosecutors and confirmed what Sezgin
Tanrıkulu had said in his statement. He said that he had formed the view
that the Silopi Public Prosecutor appeared to be bound by the gendarmerie's
denials and had told them that he had not questioned any of the gendarmes
concerned or gone to the scene to make inquiries.
14. Resul Sadak
71. Resul Sadak was born in
1959 and was living in Şırnak at the material time. In January 2001
he was the president of the local branch of HADEP in Şırnak. He knew
Serdar Tanış and Ebubekir Deniz from their activities in the party.
72. He confirmed that members
and leaders of HADEP were subjected to threats and intimidation. He had been
taken into custody after the application was made to open a party office in Silopi.
73. In 1999, when he and
others were in the process of trying to open a local HADEP branch in Şırnak,
they too had been subjected to intimidation and threats by the authorities. Three
members of the party in Silopi had been forced to resign as a result of the intimidation.
The party had only been able to assemble five members instead of seven. Serdar Tanış
had informed him of the pressure being exerted on him and in January 2001 had
handed over a letter in his presence to the President of the Diyarbakır
office of HADEP giving details of the threats and intimidation to which he and
members of the party in Silopi had been subjected by the commanding officer of
the Şırnak regiment.
74. The witness asserted that
at the beginning of January 2001 he had been arrested by gendarmes on the road
from Şırnak to
75. The witness said that Serdar
had received a number of telephone calls in his presence from the commanding
officers of the Silopi and Şırnak gendarmerie, and had informed him
of the threats and pressure to which he had been subjected in an effort to
persuade him to resign.
76. He said that he had
informed the Şırnak Public Prosecutor of the threats and intimidation
to which they had been subjected as a result of their political activities within
HADEP and had lodged a complaint.
15. Ali Ürküt
77. Ali Ürküt was born in 1959
and was the President of the
78. He said that he had known
Serdar Tanış and Ebubekir Deniz since the end of 2000 and that they
often came to
79. Serdar Tanış
had informed him of all the threats and intimidation to which he and his entourage
had been subjected. The witness had overheard a telephone conversation in which
Serdar's father Şuayip, who was in custody at the time, had called Serdar
to ask him to see the commanding officer of the Şırnak gendarmerie
regiment immediately.
80. The witness said that
Serdar had been anxious and concerned about the threats and had arranged for
his lawyer to draft a petition to the public prosecutor and other authorities,
in 56 copies, informing them of the intimidation and pressure to which he and
his entourage were being subjected by the commanding officer of the Şırnak
gendarmerie regiment. On
16. Mahmut
Damar
81. Mahmut Damar was born in 1971.
He was a sergeant at Silopi gendarmerie district
command and a traffic team commander at the material time.
82. He said that
approximately 80 people worked at the station. He described the premises and
said that in addition to the main entrance there was a separate entrance for
officers on the left side of the building.
83. From 25 January until
84. Mr Damar said that
visitors were required to leave identity and to sign the register. They were
given a badge to enter the building.
85. He said that no incidents
had been recorded on
17. Cemal Güldüler
86. Cemal Güldüler was born
in 1968 and was a non-commissioned officer at Silopi district gendarmerie
command at the material time. He had administrative duties relating to
personnel.
87. He said that he did not
know Serdar Tanış or Ebubekir Deniz. He had heard of them and been
informed of the incident after receiving a summons from the Silopi Public
Prosecutor.
88. The witness said that in
January they had carried out a tour of inspection. He could not remember
whether the commanding officer of the Şırnak regiment had taken part.
He confirmed that people entering or leaving the station were required to sign
a register.
18. Arif Aydoğan
89. Arif Aydoğan was
born in 1979. He was performing his military service at Silopi district
gendarmerie command at the material time. He was on guard duty inside the
building.
90. He did not know Serdar
Tanış or Ebubekir Deniz. He had heard of them through the public
prosecutor.
91. The witness said that he
could not recall the following statement he had made on
“The witness was shown photographs of Serdar
Tanış and Ebubekir Deniz. He said, 'The persons you have shown me did
not enter the station while I was on duty between
19. Mehmet Taşdan
92. Mehmet Taşdan was
born in 1979. He was performing his military service at Silopi district
gendarmerie command at the material time. He was on guard duty at the main
entrance to the station.
93. He said that the visitors'
register was kept by Veysel Ateş.
94. He did not know Serdar
Tanış or Ebubekir Deniz. He had made a statement to the public
prosecutor, who had shown him photographs of the men and asked him if he knew
them and whether he had seen them previously at the station. That is how he had
learnt that they were missing.
20. Selim Gül
95. Selim Gül was born in 1968.
He was a non-commissioned officer engaged in operations intelligence at Silopi
district gendarmerie command at the material time.
96. He said that his job was
to gather intelligence for use in maintaining public order and preventing
crime. He was the leader of a two-man team. He and his colleague reported to
the commanding officer, Süleyman Can. The usual source of their information was
individuals.
97. The witness knew Serdar Tanış
and Ebubekir Deniz. Serdar Tanış had contacted him by telephone at
the end of 2000 to ask him for help as his father Şuayip had been taken
into custody for providing assistance and support to a terrorist organisation. Serdar
Tanış had offered to provide information in exchange. The witness
first met Serdar Tanış in January 2001 in the commanding officer's
office. Their discussion had lasted several minutes, but the witness could not
remember what it was about. They had not spoken about Serdar Tanış's HADEP
activities and he had not been subjected to pressure or intimidation .
98. The witness said that
Serdar Tanış had provided him with information. He got in touch when
he had information to pass on and in some ways acted as an agent for the
witness and Captain Suleyman
99. On that date he had seen
both Serdar Tanış and Ebubekir Deniz in the waiting room on the
second floor of the gendarmerie station. They had come to see Süleyman Can after
Ebubekir Deniz was disqualified from driving. The witness had not summoned them
to the building. As the commanding officer was absent, they had come out of the
waiting room, Ebubekir first, followed by Serdar. The witness had spoken with
Serdar for approximately 30 seconds and Serdar had handed him documents wrapped
in a newspaper which he had taken out of the inside pocket of his jacket. One
of the documents concerned HADEP, the other, contraband. The witness parted company
with the two men in the building and saw them leave by the main entrance.
However, he lost sight of them once they were in the street.
100. The witness did not
recall when or how he was informed of their disappearance. He had been
questioned by the public prosecutor about it. He could not really remember
whether he had handed the documents over to the public prosecutor.
101. He said that he gathered
information about HADEP and other political parties as part of his job and that
gendarmerie officers working in intelligence used unmarked vehicles when
necessary. Taşkın Akgün worked for the intelligence service at the regimental
headquarters of the gendarmerie. The witness did not know whether Taşkın
Akgün and other gendarmes had come to Silopi in civilian dress on
21. Veysel Ateş
102. Veysel Ateş was
born in 1975. He was performing his military service and had the rank of
sergeant at Silopi district gendarmerie command at the material time. He was
responsible for keeping the visitors' registers and carrying out the checks
necessary for that purpose.
103. He said that once the checks
had been carried out visitors were allowed to go to the relevant office
unaccompanied.
104. He knew Serdar
Tanış, who had already come to the gendarmerie station in the past. The
witness was on duty on
105. As regards the visitors'
register, the witness explained that when his turn of duty came to an end he
would show the register to the officer relieving him, who would check it and
sign at the foot of the last page. The witness was unable to explain why there
was no signature in the register for
The visitors' register showed that Serdar
Tanış had been to the station on
106. The witness said that he
clearly recalled that he had not seen any vehicle pass through the entrance to
the building on that date, other than military vehicles.
22. Yücel Erteki
107. Yücel Erteki was born on
1979. He was a non-commissioned officer serving in the operations unit at
Silopi district gendarmerie command.
108. He said that he had not
been informed of the disappearance of Serdar Tanış and Ebubekir
Deniz. From his post, he could not see people entering or leaving the building.
He could not recall being summoned by the public prosecutor. However, he
acknowledged that the signature on a statement that had been taken by the
public prosecutor was his.
23. Mehmet Bozca
109. Mehmet Bozca was born in
1966. He was a non-commissioned officer serving in the operations unit of the
Şırnak gendarmerie at the material time.
110. He said that he had
heard of Serdar Tanış and Ebubekir Deniz following anonymous
information that had been received at the gendarmerie station in March. While
he could not remember the precise content of the information, the gist had been
that two people, who may have been Serdar Tanış and Ebubekir Deniz,
had been taken by lorry to the PKK camps in northern
24. Adnan Yenici
25. Murat Özbaş
26. Hüseyin Vedat Yılmaz
27. Ramazan Arlıcı
28. Ramazan Gürlek
111. The witnesses were born
in 1972, 1970, 1949, 1970 and 1972 respectively. They were police officers at
the Habur security directorate and responsible for immigration control at the
border with northern
112. They had been informed that
Serdar Tanış and Ebubekir Deniz were missing and had been asked
whether the two men had left or entered
113. Acting on information
from an anonymous informant, the witnesses had stopped a lorry that had entered
29. Süleyman Can
114. The witness Süleyman Can
was born in 1968 and was the commanding officer of the Silopi district gendarmerie
at the material time.
115. He said that his
superior was Colonel Levent Ersöz, the commanding officer of the
Şırnak gendarmerie regiment. He would converse with him several times
a day.
116. He described the
location of his office. Visitors waited in the waiting room opposite his office
and he saw them when he had time.
117. He did not know Serdar
Tanış and Ebubekir Deniz before November 2000. He knew the former through
his political activities as a member of HADEP. Serdar Tanış was in
contact with non-commissioned officer Selim Gül and provided important
information on the trafficking of arms, fuel, drugs and illegal products.
The
witness had met Şuayip
118. The witness said that in
principle the establishment of a local party office or a change in its
membership would be of no interest to him. However, certain information and
material in his possession had raised concerns about possible links between HADEP
and the terrorist organisation KADEK (Congress for liberty and democracy in
119. He met Şuayip
120. On the morning of
121. The witness said that on
his return to the station in Silopi he had received a telephone call from the Silopi
Public Prosecutor, Kubilay Taştan, enquiring whether two people, who were
members of HADEP, had been taken into custody at Silopi district gendarmerie
command. He said that they had not, but that he would make enquiries at other gendarmerie
posts. The public prosecutor had rung back at about
It was not until the following day that the
witness had learnt that Serdar Tanış and Ebubekir Deniz had come to
see him. Selim Gül told him that he had spoken with the two men, who had said
that Ebubekir Deniz was having problems with his fuel transport business and needed
his help. Before leaving the building Serdar had handed some documents on HADEP
to Selim Gül. The witness refused to divulge the content of those documents.
122. It was the witness's
understanding that the public prosecutor was fully empowered to inspect the gendarmerie
station (or to carry out an investigation). When visiting the station, the
public prosecutor would inspect the registers and cells and thus perform
routine checks.
123. With regard to HADEP's
activities, the witness said that they were relatively concerned about the party's
links with KADEK. He added: “KADEK is a terrorist organisation and had a great
deal of influence over HADEP. I had informed Serdar about this and had asked
him to keep me informed of any developments. He had ensured me that I and Selim
Gül would be informed without delay and that he would not be doing anything
illegal. Prior to
I repeat that no pressure was exerted by
command as a result of HADEP's activities. The resignations of some of HADEP's members
was an internal party affair. The allegations of threats and intimidation made
by Şuayip
124. The witness said that after
returning from his tour of inspection at about
125. As to the allegation
that the visitors' register was not signed by the duty officer on 25 January
2001, the witness explained that there was no rule on the subject and that it
was left to the duty officer's discretion. The important point was to note comings
and goings.
126. The witness did not know
the officers on the interrogation and intelligence team at the Şırnak
regimental headquarters. He was unable to comment on the document the Silopi
Public Prosecutor had sent to the Şırnak Public Prosecutor asking to
be allowed to interview the officer who had telephoned Serdar (on his mobile
phone) at 1.44 p.m. on 25 January 2001 and indicating that the persons who
had tried to force Serdar into their car at around about 1.30 p.m. had been
identified.
127. The witness said that he
had been questioned by the public prosecutor in February 2002, by which time he
had been transferred to the Baykan district. The public prosecutor had not
summoned him earlier. He said that certain teams from the Şırnak regimental
headquarters (dealing with intelligence) wore plain clothes and used unmarked
cars.
128. The witness denied
telling Mehmet Ata Deniz that the JITEM
was not under his orders or the orders of the commanding officer of the
Şırnak gendarmerie regiment. He said that he knew nothing about the JITEM and had never heard of the
existence of such a unit within the gendarmerie.
30. Kubilay Taştan
129. Kubilay Taştan was
born in 1969 and was one of the Silopi Public Prosecutors at the material time.
There were three public prosecutors in Silopi at the time, Hakan Başverdi,
Gündoğan Öztürk and the witness.
130. He did not know Serdar
Tanış and Ebubekir Deniz and had never met them. He was informed of
the incident at about
After receiving that information he had not
considered an on-site inspection necessary. The procedure was that the
commanding officer of the gendarmerie had a duty to inform him whenever anyone
was taken into custody and of the reasons for the arrest. He regarded
everything he had been told by the gendarmes as true. He gave the following
account of events: “We considered that Serdar Tanış and Ebubekir
Deniz had not been taken into custody. The investigation proceeded orally. I
found the information that had been provided by the commanding officer to be
satisfactory. On
131. With regard to the
investigation procedure, the witness said that, when investigating a case, the
public prosecutor was in all cases entitled to enter the gendarmerie station,
make inquiries on the premises and carry out judicial checks, such as
inspecting the cells or checking the lawfulness and conditions of detention.
132. He expressed no view on the
allegation that a gendarme had called Serdar Tanış to ask him to come
the station. He said that he could not divulge the name of that person as the
investigation was confidential.
31. Gündoğan Öztürk
133. Gündoğan Öztürk was
born in 1971 and was a public prosecutor in Silopi at the material time.
134. He did not know Serdar
Tanış or Ebubekir Deniz. He was in charge of the investigation into
the disappearance of the two men for a period of five months before being
transferred on
He gave the following account: “There were
three public prosecutors in Silopi. One of us was on duty each week. I was
given the file on the case by Kubilay Taştan. He had taken some statements
and requested the registers from the station. I questioned the gendarmes who
were present at Silopi district gendarmerie command on
Until
135. In response to a
question regarding the identity of the person who had telephoned Serdar Tanış
on
32. Hakan Başverdi
136. Hakan Başverdi was
born in 1968 and was a public prosecutor in Silopi at the material time.
137. He did not know Serdar
Tanış or Ebubekir Deniz and was not personally responsible for the
investigation. However, the other two public prosecutors worked with him.
D. The documentary evidence
1. The petitions lodged with the Silopi
Public Prosecutor's Office by İdris
138. The applicants alleged
that Serdar Tanış and Ebubekir Deniz had been threatened and
intimidated by the commanding officer of the Şırnak gendarmerie
regiment on account of their activities as members of HADEP. They stated that
after being summoned by the commanding officer of the Silopi gendarmerie, the
missing men had gone to the station on
2. The documents relating to the
investigation carried out by the Silopi Public Prosecutor's Office
139. On
The telephone records showed that Serdar
Tanış had received a call on his mobile phone at
140. On
141. On
(i) Serdar
Tanış had gone to the Silopi district gendarmerie command of his own accord
on
(ii) On
(iii) During the visit,
the commanding officer was out inspecting the Ortaköy gendarmerie post.
(iv) Serdar Tanış
was a gendarmerie informant.
(v) On
(vi) The purpose of all
the allegations that had been made was to tarnish the image of the security
forces, to misinform the public and to put pressure on the courts following the
arrest of HADEP's leaders in Şırnak on account of their links with
the PKK. The persons concerned had issued official statements indicating that
they had received death threats and those allegations had appeared in the 5
January 2001 edition of the Yeni Gündem newspaper.
142. On
143. On
144. As to the other
statements taken by the Silopi Public Prosecutor's Office, the Court notes that
certain names and information have been deleted from the documents which the
Government produced on
145. On
146. On
3. The other evidence before the
Court
147. On
148. In a letter of
149. In a letter to the Court
dated 1 December 2003, the applicants' representative said that the maker of the
telephone call to Serdar Tanış had been identified by the Silopi
Public Prosecutor as the head of the intelligence and interrogation unit of the
Şırnak gendarmerie regiment, Taşkın Akyün. He said that the
file showed that Mr Akyün and two gendarmes from the same unit had forced Serdar
to get into the car on
150. On
151. On
4. The Public Prosecutor at the Diyarbakır State Security Court's decision that the defendants had no case to answer
152. On
“The document ... dated
Although when it
decided on
1. As regards defendants nos. 1 to
47 and defendant no. 71 – at approximately
Approximately 25 days before the incident, the
commanding officer of the Şırnak gendarmerie regiment had summoned
Serdar Tanış's father, Şuayip Tanış, and threatened
him telling him that his son should resign from his position as president of
the HADEP local branch as otherwise neither he nor his family would be allowed
to live. The men who went missing were abducted by the security forces. Thus, acts
of serving security forces in the region contravened Article 174 § 2 of the
Turkish Criminal Code and fell within the jurisdiction of the
2. As regards defendant no. 70 – according
to information received on police telephone numbers 155 and 156 approximately a
month previously, the President of the HADEP provincial office in
Şırnak, Resul Sadak, had sent Serdar Tanış and Ebubekir
Deniz in a state of unconsciousness from Silopi to northern Iraq where they
were to be handed over to the PKK in exchange for 5,000 dollars. Such conduct
contravened Article 168 § 1 of the Turkish Criminal Code and fell within the
jurisdiction of the State Security court.
3. As regards defendants nos. 48 to
60, 62 to 69 and 72 – calls were made from their telephone after 25 January
2001 to number 0542 8078821, which is Ebubekir Deniz's telephone number. Such
conduct contravened Article 169 of the Turkish Criminal Code and fell
within the jurisdiction of the State Security court.
4. As regards defendant no. 61,
Zeki Genç – the defendant has made a statement to the press saying that he
killed the two missing men.
Having regard to the material in the
investigation file and information obtained from the additional investigation
by this office:
1. As regards defendants nos. 1 to
47 and defendant no. 71, who are serving members of the security forces in the
region and local informants.
Firstly, an order was made to sever this
investigation file concerning the allegations of death threats made by the
commanding officer of the Şırnak gendarmerie regiment, the head of
the security forces in the region, against Şuayip
Since that decision is final, the allegation
that 'he [Serdar] was threatened with death 25 days before the incident', which
constitutes the basis for the allegations that the said persons were kidnapped
and executed by the security forces, is still pending and has not been made
out.
Further, as regards the allegation that Serdar
Tanış and Ebubekir Deniz were summoned by the commanding officer of
the Silopi district gendarmerie shortly before they went missing, that it has
been impossible to obtain any news about them since and that they were kidnapped
by the security forces,
Having regard to the information provided to
the investigators by the commanding officer of the Silopi gendarmerie and the
examination by the local public prosecutor's office of the registers kept by
the Silopi district gendarmerie command,
It has been established from the signatures in
the visitors' register at the district gendarmerie command that the missing
persons arrived at the Silopi district gendarmerie command at 2 p.m. on the day
they disappeared; that the records state that they left at 2.30 p.m.; that
their signatures on their arrival and departure appear opposite their names;
that these signatures were sent to the Institute of Forensic Medicine for
comparison with samples of their signatures obtained by the local public
prosecutor's office from various public records; and that the department of the
Istanbul Forensic Medical Institute specialising in handwriting analysis ...
concluded in its report of 29 June 2001 ... that the signatures in the register
opposite the names of the missing men ... were those of Serdar Tanış and
Ebubekir Deniz;
Further, according to the Silopi gendarmerie,
Serdar Tanış was a local informant. He had provided information on
documents about past or future incidents in the region. On the day of his
disappearance he attended the gendarmerie headquarters for that reason. ... the
visitors register shows that on 5 and 17 January 2001 his father,
Şuayip Tanış, and on 18 January 2001 the missing Serdar
Tanış himself, went to the gendarmerie headquarters; it was also
noted that there was a fact sheet in the name of Serdar Tanış among
the fact sheets giving details of the sources of and means of obtaining
information held by the central gendarmerie command at the Ministry of the
Interior where the names of the local informants were listed.
In the light of these explanations, the
investigation file does not contain sufficient information and evidence to
establish that the missing persons have been kidnapped by the security forces.
2. As regards defendant no. 70,
Resul Sadak – in view of the information received by the security forces at
3.15 p.m. on 4 March 2001 from a person who did not disclose his or her
identity and has not been identified ('I do not recall the date exactly, I
negotiated with Resul Sadak, a member of HADEP, to take two people to the
north of Iraq in exchange for 5,000 United States dollars. I smuggled them to
the north of
In view of:
(a) the denial of these
accusations by the defendant;
(b) the failure to identify the
informant;
(c) the informant's failure to ask
the authorities to take action;
(d) the lack of concrete evidence
to support the allegation,
the investigation file does not contain
sufficient information and evidence to establish the truth of that allegation.
3. As regards defendants nos. 48 to
60, 62 to 69 and 72 – although the telecommunications records established that
calls were made after the disappearance of the two men to telephone number 0542
8078821, which is registered in the name of Ebubekir Deniz, that telephone is
not used by Ebubekir Deniz, but by his uncle Mehmet Reşat Tanış,
who has used it since 2000 and who received the calls that were made to it. In
view of that fact, the investigation file does not contain sufficient
information or evidence to establish that the defendants established contact
with the missing person after the date of his disappearance.
4. As regards defendant no. 61,
Zeki Genç – it has been claimed that the defendant had stated in the press that
he killed the missing men.
However, in view of:
(a) the statements made by the
defendant on 10 May 2002 to the public prosecutor, in which he said that after
seeing a group of HADEP party members set the Turkish flag on fire and insult
martyrs [people who had been killed by PKK militants] he had snatched back the
flag and injured a person in the leg for insulting his brother, a martyr, that he
had no connection with the missing persons and the article in the 15 November
2001 edition of the Star newspaper
was exaggerated, that he rejected the accusation and did not know the missing
persons;
(b) the fact that it is impossible
to find concrete evidence to support the newspaper article;
In the light of the above findings,
The defendant's implication ... in the
disappearance of the two men has not been sufficiently established to enable
criminal proceedings to be instituted under Article 163 of the Code of
Criminal procedure,
Decides, pursuant to Articles 164 and 165 after
Code of Criminal Procedure,
That, in the light of the lack of evidence, no
criminal proceedings should be brought against the defendants.
In view of the confidentiality order issued by
the Silopi District Court on 11 December 2001 under the provisions of the
Code of Criminal Procedure and the restriction imposed on the rights of the
parties or their representatives to examine the case file to take copies of
documents owing to the fact that when the investigation was carried out by the
local public prosecutor's office statements were obtained from local informants
in which their names and addresses were given, it is necessary to remove from
the file and hold at the public prosecutor's office at the State Security Court
pursuant to section 6 of the Prevention of Terrorism Act the statements of the
local informants, the information relating to their identity and a copy of the
documents, without prejudice to the merits;
to return the case file to the Silopi Public
Prosecutor's Office, which has jurisdiction in the area in which the incident
took place, in order to discover the real culprits;
to serve a copy of the decision on the
complainants, their representatives and the defendants;
to serve a copy on the Department of Criminal
Affairs, on the Department of International Law and External Relations at the
Ministry of Justice, as the case is the subject of an application to the
European Court of Human Rights; and
to serve a copy of the decision on the
commanding officer of the Şırnak provincial gendarmerie, as the
accused include gendarmerie officers.”
153. The applicants appealed
against that decision that there was no case to answer. Their appeal was
dismissed by the
“Having considered the grounds of appeal and
the investigation file,
1. The decision that the
defendants, who are public servants, have no case to answer concerns Article 174
§ 2 of the Criminal Code [which governs offences against political freedom]. No
such order has been made in the case concerning the disappearance. The decision
contains an order to pursue the investigation into that incident.
2. A decision that there is no case
to answer is not a final decision. The proceedings will resume if new evidence
comes to light before the end of the limitation period. Proceedings may be
brought de novo against an accused
who has been found to have no case to answer or against other suspects (Article
167 § 2 of the Code of Criminal Procedure).
In the present case, the offence in respect of
which the appeal that has been made is within the jurisdiction of the
A – To obtain a new statement from Taşkın
Akyün regarding the point referred to in the document issued on 11 June 2001 by
the Silopi Public Prosecutor's Office; to organise a confrontation between the
witness Eyüp Tanış and Taşkın Akyün, in accordance with the
procedure in order to clear up the uncertainty over identification; to
establish why Taşkın Akyün called Serdar Tanış at 1.44 p.m.
on 25 January 2001.
B – To trace the record drawn up on
C – In order to determine whether Eyüp
Tanış and Serdar Tanış were threatened on the day of the
incident [forced to get into the vehicle], to identify the registration number
of the vehicle concerned, establish why the eyewitness Eyüp Tanış
failed in broad daylight to note a single letter from the number plate which
was very close to him when he had had given a detailed description of the
people who had tried to force them to get into the vehicle;
D – To send the photograph of Serdar
Tanış in the case file and the photograph allegedly portraying Serdar
Tanış with a militant from the organisation to the relevant
department at the Istanbul Institute of Forensic Medicine to see whether the
two photographs are of the same person.
Having regard to the aforementioned
considerations;
Decides, following its examination of the case file, dismissing the appeal and sitting as a court of last instance:
1 – To dismiss the complainants' objections to
the public prosecutor at the State Security Court's decision of 9 February
2004 that there was no case to answer concerning the offence under Article 174
of the Criminal Code of using threats or violence to prevent the exercise of
political rights, as the decision complied with the rules of procedure and the
law;
2 – To pursue the investigation, to send the
case file to the Silopi Public Prosecutor's office to remedy the defects noted
in the investigation and listed above, ...
To remit the case file to the Public
Prosecutor's office at the
II. RELEVANT DOMESTIC LAW AND
PRACTICE
154. The Criminal Code makes
it an offence to:
(i) arbitrarily deprive a person of
his or her liberty (Article 179 lays down the general rule, Article 181 the
rule applicable to public servants);
(ii) make threats (Article 191);
(iii) subject a person to torture
or ill-treatment (Articles 243 and 245);
(iv) commit involuntary homicide
(Articles 452 and 459), voluntary homicide (Article 448) or premeditated murder
(Article 450).
155. For all these offences,
complaints may be lodged, pursuant to Articles 151 and 153 of the Code of
Criminal Procedure, with the public prosecutor or the local administrative
authorities. The public prosecutor and the police have a duty to investigate
crimes reported to them, with the former deciding whether a prosecution should
be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A
complainant may appeal against a decision by the public prosecutor not to
institute criminal proceedings.
The public prosecutor had no jurisdiction to
investigate alleged acts of terrorism, for which a separate system of State
security prosecutors and courts operated throughout
156. Article 143 of the Code
of Criminal Procedure provides:
“Counsel for the defence may examine all the
material in the investigation file and the procedural file and take copies of
any documents free of charge.
If it would be prejudicial to the preliminary
investigation for this right to be exercised, a district court judge may, on an
application by the public prosecutor, make an order restricting its exercise...”
157. Article
174 of the Criminal Code provides:
“Anyone who by threats or violence ... totally
or partly prevents another from exercising his or her political rights shall be
guilty of an offence...
If the offender is a public servant who has abused
his or her authority to commit the offence, the prison sentence shall be... and
the offender shall be disqualified from public service for between one and
three years.”
THE LAW
I. THE COURT'S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE
FACTS
158. The Court is called upon
to decide whether on the facts the authorities of the respondent State failed
to comply with their duty to protect the applicants' relatives' right to life
and with their procedural duty, which likewise arises under Article 2 of the
Convention, to carry out an adequate and effective investigation into the
incident. The applicants also relied on Articles 3, 5 and 13 of the Convention.
159. In order to establish
the facts, the Court has referred to the parties' observations, the documentary
evidence and the depositions taken from the witnesses in
160. The Court considers the following
principles to be relevant when assessing the evidence for the purposes of establishing
the facts:
(a) In assessing the written and
oral evidence, the Court has generally adopted up to now the standard of proof
“beyond reasonable doubt”. Such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar unrebutted
presumptions of fact; in addition, the conduct of the parties when evidence is
being obtained may be taken into account (see, mutatis mutandis, Ireland
v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 64,
§ 161; and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII).
(b) As regards the depositions taken
by the delegates, the Court has paid particular attention to the issue of the
meaning and weight to be attached to the witnesses' testimony.
(c) In cases in which there are conflicting
accounts, the Court is inevitably confronted when establishing the facts with
the same difficulties as those faced by any first-instance court. The Court has
no power to compel the attendance of witnesses. In the present case, two
witnesses failed to attend the hearing before the delegates: Levent Ersöz, the
commanding officer of the Şırnak gendarmerie regiment at the material
time, and the person who telephoned Serdar Tanış on
When, as in the instant case, the respondent
Government have exclusive access to information and the power to secure the
attendance of witnesses able to corroborate or refute the applicants'
allegations, any lack of co-operation by the Government without a satisfactory
explanation may give rise to the drawing of inferences as to the
well-foundedness of the applicants' allegations (see, mutatis mutandis, Akkum
and Others v. Turkey, no. 21894/93, § 209, ECHH 2005‑... (extracts)).
(d) The Court has previously held
that where the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, as where persons are under their
control in custody, strong presumptions of fact will arise in respect of
injuries and death occurring during that detention. Indeed, the burden of proof
may be regarded as resting on the authorities to provide a satisfactory and
convincing explanation (see Tomasi v. France, judgment of 27 August
1992, Series A no. 241‑A, pp. 40-41, §§ 108-111; Ribitsch v.
Further, since the authorities are accountable
for persons in their custody, Article 5 requires them to take effective
measures to safeguard against the risk of disappearance and to conduct a prompt
and effective investigation into an arguable claim that a person has been taken
into custody and has not been seen since (see Kurt v. Turkey, judgment
of 25 May 1998, Reports of Judgments and Decisions 1998-III, p. 1185, §
124; and Çakıcı v. Turkey [GC], no. 23657/94, § 104, ECHR
1999‑IV).
These principles apply also to cases in which,
although it has not been proved that a person has been taken into custody by
the authorities, it is possible to establish that he or she was officially
summoned by the military or the police, entered a place under their control and
has not been seen since. In such circumstances, the onus is on the Government
to provide a plausible explanation as to what happened on the premises and to
show that the person concerned was not detained by the authorities, but left
the premises without subsequently being deprived of his or her liberty. In the
absence of such an explanation, the Court's examination of the case may extend
beyond Article 5 to encompass, in certain circumstances, Article 2 of the
Convention.
161. In a case such as the
present one in which there are contradictory and conflicting factual accounts
of the events, the Court finds it particularly regrettable that there should
have been no thorough judicial examination or other independent investigation
into the relevant facts by the domestic courts. In that connection, it
reiterates the importance of the first undertaking given by the Contracting
States, in accordance with Article 1, which is to secure the rights guaranteed
by the Convention, and in particular the right to an effective remedy laid down
by Article 13 of the Convention.
A. Article 38 § 1 (a) of the
Convention
162. The relevant part of
Article 38 of the Convention provides:
“1. If the Court declares the
application admissible, it shall
(a) pursue the examination of the
case, together with the representatives of the parties, and if need be,
undertake an investigation, for the effective conduct of which the States
concerned shall furnish all necessary facilities; ...”
163. The Court notes that
Convention proceedings do not in all cases lend themselves to a rigorous
application of the principle affirmanti incumbit probatio (he who alleges
something must prove that allegation). It has previously held that it is of the
utmost importance for the effective operation of the system of individual
petition instituted under Article 34 that States should furnish all necessary
facilities to make possible a proper and effective examination of applications
(see, for example, 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 or her 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 reflect negatively on the level of compliance by a respondent State with
its obligations under Article 38 § 1 (a) of the Convention, but may also
give rise to the drawing of inferences as to the well-foundedness of the
applicant's allegations (see Timurtaş v. Turkey, no. 23531/94,
§§ 66 and 70, ECHR 2000-VI; and Tepe v. Turkey, no. 27244/95, §
128, 9 May 2003). The same principle will apply where the State fails to secure
the attendance of witnesses at a hearing, thereby making it far more difficult
to establish the facts.
164. In the light of the foregoing principles, the Court considers that the Government's failure to respond diligently to the Court's requests for the evidence it considered necessary for the examination of the application, such as an unexpurgated copy of the investigation file, and the fact that it was unable to take evidence from Levent Ersöz, the commanding officer of the Şırnak gendarmerie regiment at the material time, or from the person, whose name has been withheld, who telephoned Serdar Tanış on 25 January 2001, (see paragraphs 8-9 and 160 above), cannot be reconciled with the Government's obligations under Article 38 § 1 (a) of the Convention.
1. The Court's assessment of the
facts
165. In their application
form and in their oral testimony before the delegates, the applicants said that
Serdar Tanış and Ebubekir Deniz had received death threats from the
commanding officers of the Silopi and Şırnak gendarmerie and had to
be presumed dead following their unacknowledged detention by the security
forces.
(a) Events prior to the
disappearance of Serdar Tanış and Ebubekir Deniz
166. According to the
evidence of Ali Ürküt, the president of HADEP in
167. Ali Ürküt's evidence was
corroborated by Resul Sadak, the president of HADEP in Şırnak, who
stated that the party leaders, including Serdar Tanış, had been
threatened by members of the security forces in an attempt to dissuade them from
opening a branch in Silopi.
168. In his evidence, Serdar's
father, Şuayip
169. Şuayip
Tanış's account was confirmed by other witnesses. Eyüp
Tanış said that before the party branch was opened, Serdar
Tanış and Ebubekir Deniz were harassed and followed by plainclothes
police officers in Silopi and forced to leave the town; he added that three
members of HADEP had left the party after receiving threats from the
authorities. Selma Güngen, Serdar Tanış's wife, said that her husband
had received a number of threats from the authorities on account of his
political activities and had been forced to leave Silopi. Divan Arsu and Zehra
Deniz, Ebubekir Deniz's partner and wife, said that Ebubekir had received
countless visits from the authorities when he first became involved with HADEP and
he too had been obliged to leave Silopi. Ebcet Sünmez described the
circumstances in which Şuayip
170. The statements of these
witnesses were disputed by the members of the security forces who testified
before the delegates of the Court. Selim Gül, who at the material time was a
non-commissioned officer in the intelligence unit at Silopi district gendarmerie
command, denied that the authorities had put any pressure on HADEP members and
said that since the end of 2000, Serdar Tanış had in fact been
providing him with information on the illegal activities in which the party was
engaged. He had initially made contact with Serdar on the telephone and had met
him for the first time on
Süleyman Can in person denied that any
pressure had been brought to bear on the HADEP leadership, although he did
acknowledge that the authorities had concerns about HADEP after receiving information
suggesting that it had established contact with an anti-terrorist organisation
KADEK. He confirmed that Serdar Tanış had supplied information about
certain offences that had been committed in the province.
171. As to his two meetings
with Şuayip
172. Levent Ersöz's refusal
to testify before the delegates of the Court has made the Court's task of
assessing the witnesses' conflicting accounts of the relationship between the
authorities and the leaders of HADEP, in particular Serdar Tanış and
Ebubekir Deniz, more difficult. His evidence on the general stance taken by the
authorities on the HADEP question, on the efforts he was alleged to have made
to dissuade Serdar from continuing with his activities within the party and on
the direct threats he was alleged to have made on the telephone were quite
clearly of central relevance to the examination of the case by the Court.
173. On the basis of their testimony
before the delegates, the Court finds the evidence of a number of witnesses
that HADEP's leaders were subjected to harassment by the authorities consistent,
credible and convincing. It also finds convincing the evidence of the two
missing men's relatives and the party presidents that Serdar Tanış
and Ebubekir Deniz became specific targets for harassment once it became known
that they intended to set up a local branch. Şuayip Tanış's
account of the circumstances in which he met Levent Ersöz (which, in the
absence of any testimony from the latter, has not been contradicted) is
consistent not only with the statements taken by the Human-Rights Association,
but also with the petition which Serdar himself drafted on
(b) Events of
174. Eyüp Tanış
said in evidence that when he and Serdar Tanış left the Silopi
gendarmerie station at about
175. Eyüp Tanış stated
in his testimony that shortly after returning to the party offices Serdar received
a call on his mobile phone from someone claiming to be from the Silopi gendarmerie
who asked him to go to the station. His evidence was corroborated by Ömer
Sansur, who said that Serdar had been about to set off for the station on his
own when Ebubekir Deniz had insisted on accompanying him. The witness had
agreed to drive them there and had done so, dropping them off at the entrance.
The two men were in fact seen entering the station by two acquaintances, Hamit
Belge and İsa Kanat.
176. The only evidence on
what happened after the two men entered the district gendarmerie station is the
testimony of the members of the security forces. According to Veysel Ateş,
the sergeant on duty at the main entrance that day, Serdar Tanış and Ebubekir
Deniz informed him that they wished to see Süleyman Can to speak to him about
something. When he told them that he was not at the station and that he did not
know when he would be back, they had said that they would wait for a while and,
after signing the visitors' register, they had been directed to the waiting
room on the second floor next to the commanding officer's office. Selim Gül
said that he had spotted Serdar Tanış and Ebubekir Deniz by chance as
he went past the room where they were waiting. They had told him that they were
waiting for Süleyman Can as they wished to speak to him about Ebubekir's lorry,
which had been seized as Ebubekir was suspected of involvement in the illegal
importation of fuel. After a brief discussion the two men had got up to leave. Ebubekir
had left the room shortly before Serdar Tanış, who had taken a HADEP
document and a piece of paper with information about the contraband out of the
inside pocket of his jacket. Selim Gül said that he had seen the two men go
downstairs and leave the station by the main entrance. Veysel Ateş said
that when the two men returned to the main entrance, Serdar Tanış said
that they had decided to leave as Süleyman Can had not arrived, but that they would
come back later. Veysel Ateş had handed back Serdar's mobile phone, the
two men had signed the register and gone out into the street.
177. According to the
evidence of Süleyman Can, which was corroborated by other members of the
security forces, a tour of inspection of the gendarmerie had taken place in the
morning of 25 January 2001; after taking lunch at about 12 noon, he and the
inspection team had left the gendarmerie station (between 1 p.m. and 1.30 p.m.)
to inspect the Ortaköy and Botaş posts. He had not returned to the
station until about 5.30 or
178. The Court accepts
Süleyman Can's evidence that he left the gendarmerie station at about
179. Despite the lack of
information on the identity of the caller, the Court is satisfied on the basis
of the material before it that Serdar Tanış was summoned to the
district gendarmerie station by a person in authority and that that person told
Serdar that he must go to see Süleyman Can. The suggestion put forward by the
members of the security forces in their evidence that Serdar Tanış
and Ebubekir Deniz had gone to the station of their own accord with the
specific aim of speaking to Süleyman Can to see whether it was possible to
recover Ebubekir's vehicle does not tally with Ömer Sansur's evidence, which
the Court accepts, that after receiving the call summoning him to the
gendarmerie station, Serdar had been about to set out alone when Ebubekir had
insisted on accompanying him.
180. The Court further finds
that the account given by the members of the security forces of the reasons for
the missing men's visit to the district gendarmerie station and of the events
at the station are inherently improbable. It finds it hard to accept that if
the two men had decided of their own volition to see Süleyman Can in an attempt
to recover the confiscated vehicle they would have gone to be station without first
making an appointment or that, on being told that Süleyman Can would be out for
an indefinite period, they would have said that they intended to stay and await
his return. Nor does the Court find it likely that the two men would have been
allowed to go to the waiting room inside a military building without escort and
to remain there on their own until, by chance, Selim Gül should happen upon
them. Selim Gül's statement that he came across the two men by accident also
poses a problem. He had acknowledged in his deposition that he had never met Ebubekir
Deniz, that neither man had been to the station to meet him and that their
visit was unexpected, as its sole acknowledged purpose visit was to discuss the
issue of Ebubekir Deniz's vehicle with Süleyman
181. As regards Veysel
Ateş's evidence that that he saw Serdar Tanış and Ebubekir Deniz
sign the visitors' register and leave the building and the fact that the
register contains what appears to be the two men's signatures both on entering
and leaving the building, the Court notes that Veysel Ateş himself said in
his testimony before the delegates that it was his practice to show the
register to the duty officer every day for checking and signing. However, the witness
was unable to explain why the page containing the six entries for
182. Conversely, it is clear
from the material before the Court that, after being summoned to the district gendarmerie
station and being seen entering the building, neither man was seen or heard of
again, whether by their families, friends or colleagues from the HADEP party.
(c) Events after the disappearance
of Serdar Tanış and Ebubekir Deniz
183. The delegates of the
Court heard detailed testimony from police officers who, acting on an anonymous
tip off, had stopped and searched a vehicle at the Habur border checkpoint on
(d) Official investigation into the
disappearance
184. With regard to the
investigation carried out by the domestic authorities, the Court observes that
it has not received the full investigation file, as a large amount of
information has been deleted from some of the documents, and that two witnesses
whose testimony would have played an important role in establishing the facts
failed to appear before its delegates.
185. The evidence in the case
file and the oral testimony shows that at about
186. Mr Taştan contacted
the gendarmerie command by telephone. He did not go to the station and decided that
everything the gendarmes had told him could be accepted at its face value. The
Court is struck by the following comment he made: “We considered that Serdar
Tanış and Ebubekir Deniz had not been taken into custody. The
investigation proceeded orally. I found the information that had been provided
by the commanding officer to be satisfactory”. It is therefore apparent that he
focused the investigation essentially on the theory that the men had been taken
into custody. He did not check the gendarmerie registers until
187. As regards the
investigation conducted by public prosecutor Gündoğan Öztürk, his
testimony and the material in the case file show that he endeavoured to conduct
a proper investigation. He identified the person who had telephoned Serdar Tanış
and one of the persons who had attempted to abduct him. However, he was unable,
in his capacity as the independent official in charge of the investigation, to
take a statement from that person or from Süleyman Can, or to organise a
confrontation with the alleged witnesses (see paragraphs 133-134 above). The
Şırnak regimental gendarmerie command's denials of the charges and
its firmly anchored view that the applicants' allegations were solely intended
to mislead public opinion, to tarnish the image of the security forces and to
put pressure on the judiciary following the arrest of HADEP's leaders in
Şırnak, hampered the public prosecutor's investigations. On
It is also apparent from the material in the
case file and the testimony of Süleyman Can that part of the initial
investigation was conducted by the Silopi gendarmerie, under Süleyman Can's
command. The Court is struck by the fact that the public prosecutors did not check
how the investigation was being conducted. They accepted, without reservation,
the reports submitted by the Silopi and Şırnak gendarmerie commands
and ruled that there was no case to answer as the investigation file contained insufficient
information and evidence about the applicants' allegations.
188. Furthermore, it is
surprising that, on the applicants' application for a review of the decision
that there was no case to answer, the
189. The Court therefore
finds that the authorities have failed to furnish any plausible and
substantiated explanation concerning the fate of Serdar Tanış and Ebubekir
Deniz after they entered Silopi district gendarmerie command following a
telephone call from a gendarme. Further, it is apparent from the case file that
the investigation was not conducted with anywhere near the degree of reliability,
thoroughness and independence required, even though the applicants had repeatedly
explained that the missing men had been subjected to intimidation and threats
by the commanding officers of the gendarmerie in the past and feared for their
lives.
II. THE GOVERNMENT'S PRELIMINARY
OBJECTION
190. The Government submitted
that the domestic proceedings had not yet ended and that the application was
premature.
191. The applicants contended
that there was no court or tribunal before which their complaints about Serdar
Tanış's and Ebubekir Deniz's unacknowledged detention by the
authorities and subsequent disappearance could have been examined properly. Referring
to the judge's order restricting access to the investigation file, they said that
they had not been informed of progress in the investigation and that the
authorities had failed to launch an immediate, impartial and thorough
investigation with a view to identifying the culprits.
192. The Court notes that in its
admissibility decision of 11 September 2001 it decided to join the objection to
the merits, as it considered that the Government had failed to produce a copy
of the documents pertaining to the investigation that had been in started in
the instant case by the Silopi Public Prosecutor.
193. A large amount of
relevant information was deleted from the investigation file furnished by the
Government.
194. Since the Government's
preliminary objection raises issues that are closely linked to those raised by
the applicant's complaints under Articles 2 and 13 of the Convention, the Court
joins it to the merits (see paragraph 211 below).
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
195. Article 2 of the
Convention provides:
“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 parties' submissions
1. The applicants
196. The applicants stressed
that their relatives, Serdar Tanış and Ebubekir Deniz, had
disappeared in circumstances in which their lives were in danger. They
submitted that account should be taken not only of the specific context in
which the men had disappeared, but also of the broader context of a large
number of such disappearances in the province of Şırnak. In their
submission, there had been a grave violation of Article 2 of the Convention, as
the Government had been unable to furnish a plausible explanation for the
disappearance .
197. Further, referring to
the order made by the judge restricting access to the investigation file, the
applicants said that they had not been informed of progress in the
investigation into the complaint they had lodged on
2. The Government
198. The Government contested
the applicants' version of events and maintained that Serdar Tanış and
Ebubekir Deniz had at no stage been taken into custody at the Silopi district
gendarmerie command. They pointed out that the investigation by the public
prosecutor was still pending. They asserted that the State authorities had done
everything in their power to find the two men.
B. The Court's assessment
1. General considerations
199. Article 2 of the
Convention ranks as one of the most fundamental provisions in the Convention,
and one from which no derogation is permitted. Together with Article 3, it also
enshrines one of the basic values of the democratic societies making up the
Council of Europe. The 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 Makaratzis v. Greece [GC], no. 50385/99, § 56, ECHR 2004‑...).
200. In addition, 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, failing which Article 3 will be
applicable (see paragraph 160 (d) above). In the same vein, Article 5 imposes
an obligation on the State to account for the whereabouts of any person taken
into detention (see Kurt v. Turkey
cited above, § 124). Whether the failure on the part of the authorities to
provide a plausible explanation as to a detainee's fate, in the absence of a
body, might also raise issues under Article 2 of the Convention will depend on
all the circumstances of the case, and in particular on the existence of
sufficient circumstantial evidence, based on concrete elements, from which it
may be concluded to the requisite standard of proof that the detainee must be
presumed to have died in custody (see Çakıcı cited above, § 85;
and Ertak v. Turkey, no. 20764/92, § 131, ECHR 2000-V).
201. In this respect the
period of time which has elapsed since the person was placed in detention,
although not decisive in itself, is a relevant factor to be taken into account.
It must be accepted that the more time goes by without any news of the detained
person, the greater the likelihood that he or she has died. The passage of time
may therefore to some extent affect the weight to be attached to other elements
of circumstantial evidence before it can be concluded that the person concerned
is to be presumed dead. In this respect the Court considers that this situation
gives rise to issues which go beyond a mere irregular detention in violation of
Article 5. Such an interpretation is in keeping with the effective protection
of the right to life as afforded by Article 2, which ranks as one of the most
fundamental provisions in the Convention (see, among other authorities, Timurtaş
v. Turkey cited above, § 83).
202. The State's obligation
under Article 2 of the Convention to protect the right to life, read in
conjunction with its general duty under Article 1 to “secure to everyone within
their jurisdiction the rights and freedoms defined [therein]”, 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 Çakıcı
cited above, § 86).
203. The investigation must
also be effective in the sense that it is capable of leading to the
identification and punishment of those responsible. This is a relative, not an absolute,
obligation. The authorities must have taken the reasonable steps available to
them to secure the evidence concerning the incident (Tanrıkulu, cited
above, § 109; and Salman cited above, § 106). Any deficiency in the
investigation which undermines its ability to establish the cause of death or
the person or persons responsible will risk falling foul of this standard (Aktaş
v. Turkey, no. 24351/94, § 300, ECHR 2003-V).
204. There must be a
sufficient element of public scrutiny of the investigation or its results to
secure accountability in practice as well as in theory. The degree of public
scrutiny required may well vary from case to case. In all cases, however, the victim's
next-of-kin must be involved in the procedure to the extent necessary to
safeguard his or her legitimate interests (Güleç v. Turkey,
judgment of 27 July 1998, Reports 1998‑IV, p. 1733, § 82;
Oğur v. Turkey [GC], no. 21594/93, § 92, ECHR 1999‑III;
and McKerr v. the United Kingdom, no. 28883/95, § 148, ECHR 2001‑III).
205. The above-mentioned
procedural obligations extend, but are not confined, to cases that concern
intentional killings resulting from the use of force by agents of the State.
The Court considers that these obligations also apply to cases where a person
has disappeared in circumstances which may be regarded as life-threatening (Tahsin
Acar v.
2. The disappearance of Serdar
Tanış and Ebubekir Deniz
206. The decisive factor for
the Court in the present case is that Serdar Tanış and Ebubekir Deniz
attended Silopi district gendarmerie command after receiving a call from a
gendarme (whose name was identified by the public prosecutor) at about 2 p.m.
on 25 January 2001 and have not been seen since. The Court has found that there
is sufficient evidence to show that the two men had received threats by the
commanding officers of the Silopi and Şırnak gendarmerie on account
of their political activities as members of HADEP. It also found credible Eyüp
Tanış's evidence that he had witnessed the attempted abduction of
Serdar on the day he disappeared (see paragraphs 165-183 above).
207. In the circumstances of
the present case and having regard to the limited scope of the proceedings in
the domestic courts, the authorities' reluctance to investigate allegations of
misconduct on the part of the security forces and their acceptance of the
security forces' denials without verification, the Court is not satisfied that
the explanations furnished by the Government, which merely refer to the outcome
of the domestic proceedings, suffice to cast reasonable doubt on the applicants'
allegations (see paragraphs 184-189 above).
208. The apathy displayed by the investigating authorities poignantly bears out the importance attached to the prompt judicial intervention required by Article 5 §§ 3 and 4 of the Convention which may lead to the detection and prevention of life-threatening measures in violation of the fundamental guarantees contained in Article 2 (see, among other authorities, Timurtaş cited above, § 123). No criminal proceedings were instituted to determine those responsible for the disappearance of the missing men. The investigations into the conduct of the commanding officer of the Şırnak gendarmerie and of the gendarmes ended with a decision that there was no case to answer (see paragraphs 150-153 above). Although the investigation has not yet been officially completed, there is nothing to indicate that effective additional measures have yet been taken to redress the position.
209. It follows that the
authorities have failed to set in motion the machinery which in theory would be
adequate to investigate the disappearance of Serdar Tanış and
Ebubekir Deniz.
210. The circumstances in
which Serdar Tanış and Ebubekir Deniz went missing (see the Court's assessment
of the facts), the fact that four years later their fate is still unknown and
the lack of a proper investigation and plausible explanation from the
authorities about what happened lead the Court to conclude that the
responsibility of the respondent State is engaged in the disappearance of the
two men.
There has therefore been a violation of
Article 2 on that account.
B. The alleged inadequacy of the
investigation
211. In the light of the
foregoing (see paragraphs 206-209 above) the Court finds that the investigation
carried out into the disappearance of the applicants' next-of-kin was
inadequate and, therefore, in breach of the State's procedural obligations to
protect the right to life.
The Court accordingly dismisses the Government's
preliminary objection (see paragraphs 190 and 191 above) and holds that there
has also been a breach of Article 2.
IV. ALLEGED VIOLATION OF ARTICLE
5 OF THE CONVENTION
212. The applicants submitted
that the disappearance of their relatives gave rise to multiple violations of
Article 5, which, in so far as relevant, provides:
“1. Everyone has the right to
liberty and security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a
person after conviction by a competent court;
(b) the lawful arrest or detention of a person
for non‑compliance with the lawful order of a court or in order to secure
the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention
of a person effected for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence or fleeing
after having done so;
...
2. Everyone who is arrested shall
be informed promptly, in a language which he understands, of the reasons for
his arrest and of any charge against him.
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this article
shall be brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a reasonable time
or to release pending trial. Release may be conditioned by guarantees to appear
for trial.”
4. Everyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful.
5. Everyone who has been the victim
of arrest or detention in contravention of the provisions of this article shall
have an enforceable right to compensation.”
213. The applicants alleged
that since the authorities had concealed information regarding their relatives'
fate, their relatives were beyond the reach of the law and had therefore been
deprived of the protection afforded by the guarantees set out in Article 5.
214. The Court has previously
noted the fundamental importance of the guarantees contained in Article 5
for securing the right of individuals in a democracy to be free from arbitrary
detention at the hands of the authorities. In order to minimise the risks of
arbitrary detention, Article 5 provides a corpus of substantive rights intended
to ensure that the act of deprivation of liberty is amenable to independent
judicial scrutiny and secures the accountability of the authorities for that
measure. The unacknowledged detention of an individual is a complete negation
of these guarantees and discloses a very grave violation of Article 5. In that
connection, the Court refers to its case-law cited in 160 (d) above.
215. The Court notes that the
Government have failed to furnish a credible or substantiated explanation of
what became of Serdar Tanış and Ebubekir Deniz after they were seen
for the last time entering Silopi district gendarmerie command. It has found
that the investigation by the public prosecutors was negligent and based on
preconceived ideas and concluded that the State's responsibility was engaged in
the disappearance of the two men (see paragraphs 209-210 above).
216. Consequently, the Court
finds that an unexplained disappearance in such circumstances constitutes a
particularly grave violation of the right to liberty and security enshrined in
Article 5 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
217. The applicants
complained that they too had suffered inhuman and degrading treatment in
violation of Article 3 of the Convention as a result of their relatives' disappearance.
Article 3 provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
218. The applicants submitted
that, as the father, brother and wives of the disappeared, they had suffered
severe mental distress and anguish as a result of the manner in which the
authorities had responded to their enquiries and treated them.
219. The Court notes that whether
a family member is also a victim will depend on the existence of special
factors which gives the suffering of the family member a dimension and
character distinct from the emotional distress which may be regarded as
inevitably caused to relatives of a victim of a serious human rights violation.
Relevant factors will include the proximity of the family tie, the particular
circumstances of the relationship, the extent to which the family member
witnessed the events in question, the involvement of the family member in the
attempts to obtain information about the disappeared person and the way in
which the authorities responded to those enquiries. The essence of such a
violation does not so much lie in the fact of the “disappearance” of the family
member but rather in the authorities' reactions and attitudes to the situation
when it is brought to their attention. It is especially in respect of the
latter that a relative may claim directly to be a victim of the authorities'
conduct (Çakıcı cited above, § 98).
220. In the instant case, the
applicants' concern is attested by the numerous efforts they made in an attempt
to find out what had happened to the missing men. They made various requests
for information from the authorities. However, the investigation into their
complaint was slow and inefficient. As a result of the ruling by the domestic
court that certain information was confidential, they were unable to gain
access to the documents in the investigation file or to play an active part in
the domestic proceedings.
221. Lastly, the Court notes that
the applicants' anguish concerning their relatives' fate continues to the
present day and finds that they have personally suffered inhuman and degrading
treatment contrary to Article 3 of the Convention as a result of their disappearance.
VI. ALLEGED
VIOLATION OF ARTICLE 13
222. The applicants asserted
that they had been denied access to an effective domestic remedy and alleged a
breach 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 ...”
223. Referring to the
restriction on access to the investigation file imposed by the judge, the
applicants maintained that they had not been informed of progress in the
investigation. They argued that, as the official investigation into their
complaint was insufficient, they had been deprived of access to an effective
remedy to deal with the disappearance of the members of their families and that
that failure on the part of the authorities attested to the lack of an
effective system of remedies in the respondent State enabling complaints to be
made of grave violations of the rights protected by the Convention.
224. The Government pointed
out that the investigation into the disappearance of Serdar Tanış and
Ebubekir Deniz was still pending.
225. Article 13 of the
Convention guarantees the availability at 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. Article 13 thus requires the
provision of a domestic remedy to deal with the substance of an “arguable
complaint” under the Convention and to grant appropriate relief, although the
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 also 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 İrfan
Bilgin v. Turkey, no. 25659/94, § 156, ECHR 2001-VIII, and the other
authorities cited there).
Further, where relatives have an arguable
claim that a member of their family has disappeared at the hands of the
authorities, or where a right with as fundamental an importance as the right to
life is at stake, 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 and
including effective access for the relatives to the investigatory procedure
(see Timurtaş, cited above, § 111, and the other authorities cited
there).
226. In view of the fact that
the Court has found that the domestic authorities failed in their obligation to
protect the lives of the applicants' relatives, the applicants were entitled to
an effective remedy within the meaning as outlined in the preceding paragraph.
227. Accordingly, the
authorities were under an obligation to conduct an effective investigation into
the disappearance of the applicants' relatives. Having regard to paragraphs
208-211 above, the Court finds that the respondent State has failed to comply
with this obligation.
Consequently, there has been a violation of
Article 13 of the Convention.
VII. APPLICATION OF ARTICLE 41
OF THE CONVENTION
228. 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
229. The applicants claimed
the following amounts for pecuniary damage:
(i) Selma Güngen, Serdar
Tanış's wife, claimed for herself and her two children, 150,000 euros
(EUR) for the loss of financial support following her husband's disappearance;
(ii) Divan Arsu, Ebubekir
Deniz's partner and the mother of four children, and Zehra Deniz, Ebubekir
Deniz's wife, claimed for themselves and the four children, EUR 100,000 each
for loss of financial support.
230. The Government contested
those claims. They submitted that they were without foundation and exaggerated.
231. It is established under the
Court's case-law that there must be a clear causal connection between the
damage claimed by the applicant and the violation of the Convention and that the
award may, in an appropriate case, include compensation for loss of earnings (see,
among other authorities, Abdurrahman Orak v. Turkey, no. 31889/96,
§ 105, 14 February 2002).
The applicants did indeed suffer losses as a
result of the violations in this case and a clear causal link exists between
the violations and the alleged pecuniary damage, which may include compensation
for loss of a source of earnings (Salman
cited above, § 137).
232. Ruling on an equitable
basis, the Court awards Selma Güngen EUR 40,000 and Divan Arsu and Zehra
Deniz EUR 50,000 jointly.
B. Non-pecuniary damage
233. The applicants claimed
the following amounts for non-pecuniary damage, arguing that they had suffered
acute anxiety and deep distress as a result of the disappearance of their next-of-kin:
(i)
(ii) Yakup
Tanış EUR 50,000;
(iii) Şuayip
Tanış EUR 75,000;
(iv) Divan Arsu and Zehra
Deniz jointly EUR 250,000;
(v) Mehmet Ata Deniz EUR 50,000.
234. The Government submitted
that the claim was excessive and liable to lead to unjust enrichment, contrary
to the spirit of Article 41 of the Convention.
235. The Court has found that
the authorities failed to carry out an effective investigation into the
circumstances surrounding the disappearance of the missing men, in breach of
their procedural obligation under Article 2 of the Convention. It has also
found a breach of the applicants' own rights under Article 3.
The Court accepts that the applicants have
suffered non-pecuniary damage which cannot be compensated for solely by the
findings of violations. Ruling on an equitable basis, it awards each applicant
EUR 20,000.
B. Costs and expenses
236. The
applicants sought EUR 29,600 for costs and expenses and submitted an hourly
breakdown of the work performed by their representatives. That amount included
costs incurred in attending the hearing in
237. The
Government argued that in the absence of vouchers, the claim should be
dismissed as being unfounded and that in any event the expenses were excessive
and unnecessary.
238. The Court reiterates
that in order for costs to be included in an award under Article 41 of the
Convention, it must be established that they were actually and necessarily
incurred and reasonable as to quantum (see, among other authorities, Nikolova
v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). By Rule 60 § 2 of
the Rules of Court, itemised particulars of any claim made under Article 41 of
the Convention must be submitted, together with the relevant supporting
documents or vouchers, “failing which the Chamber may reject the claim in whole
or in part”.
In the light of these principles and having
regard to the material before it, the Court considers it reasonable to award
the applicants jointly the sum of EUR 20,000, less EUR 2,004.71 received
in legal aid.
C. Default interest
239. The
Court considers it appropriate that the default interest should be based on an
annual rate equal to the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins to the merits
the Government's preliminary objection and dismisses it;
2. Holds that there has been
a failure to comply with Article 38 of the Convention;
3. Holds that the respondent
State's responsibility is engaged for the disappearance of Serdar
Tanış and Ebubekir Deniz, 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 in which Serdar Tanış and Ebubekir Deniz went
missing;
5. Holds that there has been
a violation of Article 3 of the Convention with respect to the applicants
personally;
6. Holds that there has been
a breach of Article 5 of the Convention;
7. Holds that there has been
a breach of Article 13 of the Convention;
8. Holds
(a) that the respondent State is
to pay the applicants, within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the Convention, the following
amounts, to be converted into Turkish liras at the rate applicable on the date
of payment:
(i) EUR 40,000 (forty thousand
euros) to Selma Güngen and EUR 50,000 (fifty thousand euros) jointly to
Divan Arsu (Ebubekir Deniz's partner and the mother of four children) and Zehra
Deniz (Ebubekir Deniz's wife) for pecuniary damage;
(ii) to each of the applicants EUR
20,000 (twenty thousand euros) in respect of non-pecuniary damage;
(iii) EUR 20,000 (twenty thousand euros)
to the applicants jointly for costs and expenses, less EUR 2,004.71 already
received from the Council of Europe in legal aid;
(iv) any tax that may be
chargeable on the above amounts;
(b) that from the expiry of the
above-mentioned three months until settlement simple interest shall be payable
on the above amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
9. Dismisses the remainder
of the applicants' claims for just satisfaction.
Done in
French, and notified in writing on
Michael
O'Boyle Nicolas
Bratza
Registrar President