SECOND
SECTION
CASE OF TOĞCU v.
(Application no. 27601/95)
JUDGMENT
31 May 2005
FINAL
This judgment
will become final in the circumstances set out in Article 44 § 2 of
the Convention. It may be subject to editorial revision.
In the case of Toğcu v.
The European Court of Human Rights (Second
Section), sitting as a Chamber composed of:
Mr J.-P. Costa,
President,
Mr A.B. Baka,
Mr K. Jungwiert,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
judges,
Mr F. Gölcüklü,
ad hoc judge,
and Mrs S. Dollé,
Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in an
application (no. 27601/95) against the
2. The applicant, who had
been granted legal aid, was represented by Dr Anke Stock, a lawyer
practising in
3. The applicant alleged, in
particular, that his son Ender Toğcu had been taken into the custody of
the security forces in the city of Diyarbakır on 29 November 1994 and that
nothing had been heard from him since that date. The applicant invoked Articles
2, 3, 5, 13, 14 and 18 of the Convention.
4. The application was
transmitted to the Court on
5. The application was
allocated to the Second Section of the Court (Rule 52 § 1 of the
Rules of Court). Within that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr
Rıza Türmen, the judge elected in respect of
6. By a decision of
7. The applicant and the
Government each filed observations on the merits (Rule 59 § 1). The Chamber
having decided, after consulting the parties, that no hearing on the merits was
required (Rule 59 § 3 in fine), the
parties were invited to submit final written observations, of which possibility
the applicant availed himself. The parties further considered the possibility
of a friendly settlement, but no settlement was reached.
8. By letter of
9. On
10. On 9 April 2002 the
Court, in the light of the declaration submitted by the Government, considered
that it was no longer justified to continue the examination of the application
and decided to strike the application out of the list in accordance with
Article 37 § 1 (c) of the Convention (see Toğcu v. Turkey (striking out),
no. 27601/95, 9 April 2002).
11. On
12. On 21 May 2003 the Panel
of the Grand Chamber (“the Panel”) decided to send the present application back
to the Second Section for it to take a decision, under Article 37 § 2 of the
Convention and in the light of the Grand Chamber’s judgment in the case of Tahsin Acar v. Turkey ((preliminary objection) [GC], no. 26307/95, ECHR 2003‑VI), as to whether to restore the application to the Court’s list of
cases.
13. On
14. On
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
15. The applicant, a Turkish
citizen of Kurdish origin, was born in 1944 and lives in the town of
A. Introduction
16. The facts of the case,
particularly concerning events which took place on or about
17. The facts as presented by
the applicant are set out in Section B below (paragraphs 18-32). The Government’s
submissions concerning the facts are summarised in Section C below (paragraphs 33-36).
Documentary evidence submitted by the Government and by the applicant are
summarised in Sections D (paragraphs 37-61) and E (62-67) respectively.
B. The applicant’s submissions on the
facts
18. The applicant’s son Ender
Toğcu[1]
was the manager of the Sento hotel and the Arzu club in
19. On an unspecified date,
Ender’s maternal cousin Mehmet Kartal was taken into custody in relation to a
criminal case and when Ender’s photograph was found on him, he apparently made
a statement to the effect that he and Ender were partners in the alleged crime.
The cousin was subsequently released without charge.
20. The applicant stated in
the application form submitted to the Commission that, on 29 November 1994,
Ender Toğcu’s wife Güler was in Diyarbakır Hospital, giving birth.
The applicant’s wife was with her. At about
21. In reply to a query from
the Court into details of the hospital records showing the date of birth, the
applicant replied on 31 January 2000 with the correction that the woman who had
been in hospital giving birth on the day of Ender’s disappearance was not Ender’s
wife but the wife of his brother Ali. On the day in question Ender and Ali had had
a meal together at a restaurant near their house before Ender had left for the
hospital to visit Ali’s wife. Although the applicant submitted that he would
obtain hospital records and send them to the Court, he failed to do so.
22. In his memorial of
23. At about
24. The police officers moved
on to the house of Ali Toğcu, where they arrived at about
25. On
26. After his release, Ali
Toğcu made inquiries about Ender at the Çarşı Police Station,
where he was told that his brother was being held by the police and that he
would be released after interrogation.
27. On an unspecified date,
Ali Toğcu made further inquiries about Ender with the Chief Commissioner
at the Homicide Department, taking with him a photograph of his brother, a
photocopy of his brother’s identity card and the applicant’s home telephone
number. These inquiries had not yielded any results.
28. On an unspecified date, the applicant and Ali Toğcu were apprehended and detained for six days. The police accused them of helping and meeting with Ender, whom they alleged was in the mountains. They were both released after six days without having been brought before a court.
29. On another occasion, Ali
Toğcu was approached by police officers who asked him for money in
exchange for which Ender would not be killed. One police officer asked Ali for one
billion Turkish Lira to be given to a third person. In return, Ender would be
released.
30. The applicant and his
family filed many petitions with the State of Emergency Governor, the City
Governor and other authorities. None of these petitions were accepted. On
31. The applicant was heard by
the Prosecutor for the first time on
32. The investigation was
apparently reopened in October 1999. The applicant gave a second statement to
the Diyarbakır Prosecutor and, for the first time, statements were taken
from the spouses of the applicant and Ender. As the applicant and his wife did
not speak any Turkish, their grandson Mehmet was present when their statements
were taken. According to Mehmet, the official court interpreter distorted the
statements given by the applicant and his wife. For example, although the
applicant stated that he would recognise the police officers who came to the
house, the interpreter translated this as “I don’t know the people who took my
son away”. After he objected to this, Mehmet was removed from the Prosecutor’s
office and he was not allowed to read the recorded statements.
C. The Government’s submissions on
the facts
33. On
34. Neither Ali nor Ender
Toğcu was taken into detention on 29 or
35. The applicant’s wife
submitted a petition to the Prosecutor’s office at the
36. The Diyarbakır
Prosecutor instigated a second investigation at a later stage. In the course of
this investigation, statements were taken from the applicant and his wife and
also from Ender’s wife. The Prosecutor further made attempts to take statements
from the police officers who had searched the applicant’s house on
D. Documentary evidence submitted by
the Government
37. The following information
appears from documents submitted by the Government.
38. On 29 November the deputy
commander of the Diyarbakır Provincial Gendarmerie Headquarters
(hereinafter “the Gendarmerie Headquarters”) requested the Diyarbakır
Police Headquarters to assist the personnel from the Gendarmerie Headquarters
to apprehend “the persons who had been aiding and abetting the PKK in
39. According to a report of
“house search and confiscation”, a number of police and gendarme officers,
acting on the above mentioned request, went to the applicant’s house in
40. It appears from another
report, drawn up and signed by the same officers, that after having searched
the applicant’s house they had gone to Mrs Sabahat Toğcu’s house and
unsuccessfully looked for Ender there.
41. Custody records which,
according to the Government, were from Diyarbakır’s Çarşı Police
Station and the Anti-Terror Branch of the Diyarbakır Police Headquarters, showed
that neither Ender nor his brother Ali or their father Hüseyin – that is the
applicant – were detained by the police on 28, 29 or 30 November 1994.
42. According to copies of
the custody records of a number of police and gendarmerie stations in and
around
43. It appears from the
custody records of the Silvan Central Gendarmerie Station that the applicant’s
nephew Mehmet Kartal was arrested on
44. On
45. On
46. On 8 February 1996 the
Diyarbakır Prosecutor replied to a letter sent to him by the Ministry of
Justice’s International Law and Foreign Relations Directorate (hereinafter “the
Directorate”) on 22 January 1996, informing that Directorate that Hüseyin and
Ali Toğcu had been detained on 4 July 1995 and released on 8 July 1995.
47. On
48. On
49. On
50. The applicant further
stated that he had been kept in detention for a week before being released. Ali
had been detained twice; on the first occasion he had been detained for a week
and on the second he had been detained for three days. The firearm had been
handed over to the police officers who had come to his house to search for it.
Nothing had been heard from Ender since he had been detained on
51. On
52. On
53. Ali Toğcu was once
more arrested at his house on
54. On
55. On
56. On
57. The applicant further
submitted that his son Ender had not had any involvement with the PKK. The
applicant had never been told by anyone to go and find the body of his son in
Fiskaya (see paragraph 49 above). Finally, the applicant had asked the
Prosecutor to find his son.
58. Also on
59. Finally, on
60. On
61. Also on
E. Documentary
evidence submitted by the applicant
62. On
63. On
64. In a letter forwarded to
the Court on 31 January 2000, the applicant’s son Ali Toğcu submitted that
on 30 November 1994 he had been arrested by police officers and been taken to
the Security Directorate, from where he had been taken to the Rapid Reaction
Force. While at the Rapid Reaction Force, Ali had been questioned about his brother
Ender and been told by police officers that Ender had gone to the mountains to
join the PKK. While in custody, Ali had heard the screams of his brother Ender.
Ali had been severely tortured and, believing that he was dead, the police
officers had left him at a dump near Ergani. Following that incident, he had
been detained a total of five times and on each of these occasions he had been
accused of meeting with his brother Ender, whom, the police officers insisted,
had joined the PKK.
65. The applicant forwarded
to the Court a letter which he had dictated on
66. In a letter, drawn up by
Ali Toğcu’s son Mehmet Toğcu on 18 September 2001, Mehmet
Toğcu submitted that he had accompanied his grandparents – that is the
applicant and his wife – and the wife of his uncle Ender (see paragraph 32
above) to the Prosecutor’s office and had acted as the interpreter for his
grandparents who did not speak any Turkish. His aunt Güler – Ender’s wife – could
speak Turkish. When he had begun translating word by word what his grandfather was
saying, the Prosecutor had interrupted him and had asked another person working
at the courthouse to take over the interpretation. However, this person had
distorted his grandfather’s words and, when Mehmet had objected, he had been
removed from the office. He had later wanted to see the statements taken from
his grandparents but his request had been refused by the Prosecutor.
67. In a letter dated
II. RELEVANT DOMESTIC LAW AND
PRACTICE
68. The relevant domestic law
and practice are set out in the judgment in the case of Tahsin Acar v. Turkey ([GC], no. 26307/95, §§ 186-197, ECHR 2004).
THE LAW
I. THE GOVERNMENT’S PRELIMINARY
OBJECTION
69. In their
post-admissibility observations, the Government submitted that the
investigation concerning the disappearance of Ender Toğcu was still
continuing and they asked the Court to dismiss the application under Article 35
§§ 1, 3 and 4 of the Convention.
70. The Court notes that,
prior to the Court’s decision on the admissibility of the present case, the
Government had not argued that domestic remedies had not been exhausted (see
the admissibility decision of
71. It therefore dismisses
the Government’s preliminary objection.
II. THE COURT’S ASSESSMENT OF
THE EVIDENCE AND ESTABLISHMENT OF THE FACTS
A. Arguments of the parties
1. The applicant
72. The applicant submitted
that the totality of the following evidence was sufficient for the Court to
establish beyond reasonable doubt that his son Ender had been abducted by
agents of the State or by persons acting with the acquiescence of the State:
(a) the authorities were
determined to detain Ender on
(b) the police officers told Ender’s
mother that he had informed them about his firearm;
(c) Ender’s brother Ali heard his
screams while detained the following day; and, finally,
(d) the authorities failed to
carry out an adequate investigation into the abduction and disappearance of
Ender; they failed to act in response to specific information provided to them
by the applicant and his family.
73. The applicant emphasised
that, in order for him to obtain the requisite evidence to establish that his
son had been abducted by police officers as he alleged, and that his son had
been killed in custody as he feared, he and his family were entirely reliant
upon the authorities to carry out an investigation into his son’s
disappearance.
74. The applicant finally
submitted that, in the light of the evidence he had provided, the burden was
now on the respondent Government to prove that their agents had not been
involved in the alleged enforced disappearance given that the events in issue lay
wholly, or in large part, within the exclusive knowledge of the authorities, as
in the case of persons within their control in custody.
2. The Government
75. The Government contended
that the applicant’s allegations were baseless; neither Ender Toğcu nor
his brother Ali had been arrested on 29 or
76. According to the
Government, in most cases involving people who were alleged to have disappeared
in the south-east, it had later turned out that these persons had joined the
PKK terrorist organisation.
B. Article 38 § 1 (a) and consequent
inferences drawn by the Court
77. Before proceeding to
assess the evidence, the Court would stress, as it has done previously, that it
is of the utmost importance for the effective operation of the system of
individual petition, instituted under Article 34 of the Convention, that States
should furnish all necessary facilities to make possible a proper and effective
examination of applications (see Tanrıkulu v. Turkey [GC],
no. 23763/94, § 70, ECHR 1999-IV). It is inherent in proceedings relating
to cases of this nature, where an individual applicant accuses State agents of
violating his rights under the Convention, that in certain instances solely the
respondent Government have access to information capable of corroborating or
refuting these allegations. A failure on a Government’s part to submit such
information which is in their hands without a satisfactory explanation may not
only give rise to the drawing of inferences as to the well-foundedness of the
applicant’s allegations, but may also reflect negatively on the level of
compliance by a respondent State with its obligations under Article 38 § 1 (a)
of the Convention (see Timurtaş v. Turkey, no. 23531/94, §§ 66
and 70, ECHR 2000-VI).
78. The applicant alleged
that the Government had failed to provide the Court with copies of the
detention records in respect of the Rapid Response Force where his son Ali had
been detained and had heard the screams of his brother Ender.
79. The Court notes that on
25 June 1999 it invited the Government to submit to it copies of the custody
ledgers of the detention centre at the Diyarbakır Security Directorate. In
their reply of 12 July 1999, the Government sent to the Court – what they
claimed to be – copies of the custody ledgers of the Çarşı Police
Station and also of the Anti-Terror Branch of the Diyarbakır Security
Directorate (see paragraph 41 above).
80. Furthermore, on 21
September 1999 the Court asked the Government to inform it about the number of
detention facilities in Diyarbakır and immediate surroundings. The
Government were further requested to confirm whether the custody records of all
these detention facilities had been checked in order to ascertain whether Ender
Toğcu or Ali Toğcu had been detained there between 29 November
1994 and 3 December 1994, and, if so, by whom and on what dates. The Government
were finally requested to submit to the Court copies of the custody records of
all the detention facilities in
81. On
82. The Court observes at the
outset that the custody records submitted by the Government on 12 July 1999 do
not offer any information as to the detention facility where they were drawn
up. Neither have the names nor ranks of the officers who effected the arrests
of the persons featuring in those records been noted. Indeed, it is not even
clear whether these records relate to detention facilities of the Gendarmerie
or the Police.
83. Furthermore, the letter
sent by the Diyarbakır Prosecutor to the Diyarbakır Police
Headquarters on 14 October 1999 (see paragraph 54 above), in which he
asked for copies of the custody records showing the names of those detained on
29 November 1994 and the subsequent reminder sent by him on 30 November
1999 (see paragraph 60 above), suggests that the records submitted by the
Government did not cover all of the detention facilities of the Diyarbakır
Police Headquarters. Although the applicant specifically claimed that his son
Ali had been detained at the Rapid Reaction Force (see paragraph 25 above)
where he had heard the screams of his brother Ender, and not at the Anti-Terror
Branch whose custody records were submitted, the Government did not indicate
which of the custody records related to the Rapid Reaction Force.
84. As regards the copies of
the custody records submitted by the Government on 12 January 2000 (see
paragraph 81 above), the Court notes that while it appears from some of these custody
records that they were drawn up at the detention facilities of a number of
Gendarmerie Headquarters in and around Diyarbakır (such as Lice, Kulp,
Hazro and Silvan), a number of others do not indicate their provenance. The
applicant claimed that he, with the assistance of his legal representatives in
Turkey, had established that the custody records submitted by the Government
pertained to 18 different detention facilities. However, custody records in
respect of the Rapid Reaction Force were not among them. The Government have
not disputed this (see paragraph 7 above).
85. The Court further notes
with concern that the Government have failed to submit to it a number of
documents pertaining to the investigation into Ender Toğcu’s
disappearance. It is true that, in a letter to the Commission of
86. However, the Court
observes that the documents submitted by the Government do not constitute the
complete investigation files, the submission of which had been requested. In
this connection, the Court notes that the documents submitted make references
to a number of other, potentially important, documents which were not made
available to the Court. These documents included the following:
(a) a letter sent by the
Diyarbakır Police Headquarters to the Anti‑Terror Branch on
(b) a letter sent by the
Anti-Terror Branch on
(c) the Directorate’s letter of
(d) a letter of 26 August 1996
from the Diyarbakır Prosecutor, and the documents referred to in that
letter (see paragraph 51 above); and, finally,
(e) the Anti-Terror Branch’s letter
of 16 October 1996 referred to in the decision not to prosecute (see paragraph 52
above).
87. The Court, observing that
the Government have not advanced any explanation for their failure to submit
these documents, finds that it can draw inferences from the Government’s
conduct in this respect. Furthermore, the Court, referring to the importance of
a respondent Government’s co-operation in Convention proceedings (see paragraph 77 above), finds that
the Government fell short of their obligations under Article 38 § 1 (a) of the
Convention to furnish all necessary facilities to the Commission and to the
Court in its task of establishing the facts.
C. The Court’s evaluation of the facts
88. The applicant submitted
that his son had been taken into custody by security forces on 29 November
1994. The Government denied any involvement of State agents in the
disappearance of Ender Toğcu and submitted that most cases of alleged
disappearance in the south-east actually concerned persons who had joined the
PKK terrorist organisation.
89. The Court would stress at
the outset that the Government have not submitted to the Court any examples of
persons initially believed to have disappeared who had later been found to have
joined the PKK. It therefore disregards the Government’s submissions in this
respect and, in the absence of any information to the contrary, finds it
established that the applicant’s son Ender Toğcu did indeed disappear.
90. In support of his
allegation that his son had been taken by the security forces, the applicant
submitted, in particular, that his son Ali had heard the screams of his brother
while in the custody of the Rapid Reaction Force (see paragraph 25 above). He
also submitted that the police officers who came to his house on the evening of
91. As regards the applicant’s
latter submission, the Court notes that it has not been disputed by the
applicant that he had told the police officers that the firearm was owned by
his nephew Mehmet Kartal (see paragraph 39 above). It also notes that Mehmet
Kartal had been detained earlier by the Silvan Gendarmerie on
92. As regards the applicant’s
submissions concerning the detention of Ender, the Court observes that the
applicant and his family have provided the Commission and the Court with
conflicting versions of the circumstances leading up to the disappearance of
Ender Toğcu. In this connection the Court would particularly highlight
the following:
(a) In his statement of
(b) In his application form, the
applicant submitted that on
(c) In his letter to the Court of
(d) In his statement of
(e) In his letter of
(f) In his memorial submitted to
the Court on
(g) According to the statement
made by Güler Tuncel, her husband Ender had taken her to the hospital and she
had returned together with Ender before he left to go to his café (see
paragraph 58 above).
(h) The applicant’s wife, however,
submitted in her statement of
(i) Finally, in his memorial
submitted to the Court on
93. The Court notes that the
applicant – who was legally represented in the present proceedings – has not
provided any explanation for these serious discrepancies. It finds that they
detract from the credibility of his account to the extent that, on the basis of
his submissions, the Court is unable to draw a clear picture of the events of
94. The Court is thus faced
with a situation where it is unable to establish what took place on 29 and 30
November 1994 and this inability emanates from, on the one hand, the
contradictory information submitted by the applicant, and on the other hand, the
incomplete investigation file submitted by the Government.
95. The Court has already
noted the difficulties for an applicant to obtain the necessary evidence in
support of his or her allegations which is in the hands of the respondent
Government in cases where that Government fail to submit relevant documentation.
It has previously held that, where it is the Government’s non-disclosure of
crucial documents in their exclusive possession which is preventing the Court
from establishing the facts, it is for the Government either to argue
conclusively why the documents in question cannot serve to corroborate the
allegations made by the applicants, or to provide a satisfactory and convincing
explanation of how the events in question occurred. Failing this, an issue
under Article 2 and/or Article 3 of the Convention will arise (see Akkum and Others v. Turkey, no.
21894/93, § 211,
96. In the light of the
contradictory versions of events put forward by the applicant in the present
case, the Court cannot but conclude that he has failed to make out his case to
the extent necessary for the burden to shift onto the Government to explain
that the custody records withheld by them contained no relevant information
concerning Ender.
97. In these circumstances,
the Court is unable to make a finding as to who might have been responsible for
the disappearance of Ender Toğcu.
98. The Court will now
proceed to examine the applicant’s complaints under the various Articles of the
Convention.
III. ALLEGED VIOLATIONS OF
ARTICLE 2 OF THE CONVENTION
99. Article 2 of the
Convention provides as follows:
“1. Everyone’s right to life shall be
protected by law. No one shall be deprived of his life intentionally save in
the execution of a sentence of a court following his conviction of a crime for
which this penalty is provided by law.
2. Deprivation of life shall not be
regarded as inflicted in contravention of this article when it results from the
use of force which is no more than absolutely necessary:
(a) in defence of any person from
unlawful violence;
(b) in order to effect a lawful
arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for
the purpose of quelling a riot or insurrection.”
A. Alleged disappearance of Ender
Toğcu while in the custody of State agents
100. The applicant alleged
that his son had been abducted and detained by security forces and is now to be
presumed dead, in violation of Article 2 of the Convention.
101. According to the
Government, State agents were not involved in the disappearance of the
applicant’s son.
102. The Court has already
found that it was unable to reach a conclusion as to who might have been
responsible for the disappearance of Ender Toğcu (see paragraph 97 above).
It follows, therefore, that there has been no violation of Article 2 of the
Convention on that account.
B. Alleged failure to safeguard the
right to life of Ender Toğcu
103. The applicant submitted
that the failure of the authorities to take reasonable steps to investigate or
to protect his son whose forced disappearance had been reported to them,
disclosed a failure on the part of the Government to comply with their positive
obligation under Article 2 of the Convention to take positive steps to protect
the right to life.
104. The Government, beyond
denying the factual basis of the applicant’s allegations, did not specifically
deal with this complaint.
105. The Court concludes, on
the basis of its examination of the parties’ submissions and of the evidence
(see paragraphs 88-97 above), that it is unable to reach the conclusion
proposed by the applicant. It finds it more appropriate, in the circumstances
of this case, to examine the Government’s alleged failure to investigate Ender
Toğcu’s disappearance in the context of their obligation to carry out
effective investigations (see paragraphs 106-122 below).
C. Alleged inadequacy of the
investigation
106. The applicant alleged
that there had been a violation of Article 2 of the Convention on account of
the State’s failure to carry out an adequate and effective investigation into
the disappearance of his son.
107. In support of his
allegation the applicant highlighted the following shortcomings in the
investigation:
(a) the authorities’ failure to
react diligently and/or expeditiously to the various petitions made orally and
in writing by him and members of his family;
(b) the authorities’ failure to
reply substantively, or at all, to the various petitions made by him and his
family;
(c) the authorities’ failure to
take statements from all potential eye‑witnesses, including neighbours
and other villagers;
(d) the failure to take statements
from all police officers concerned in the search for Ender and the search of
his and his son Ali’s homes;
(e) the failure of the prosecutors
to inspect personally the detention facilities in all gendarmerie and police
establishments where his son might have been detained from November 1994 to
date; and, finally,
(f) the failure of the prosecutors
to interview senior and/or custody officers, or to check the relevant custody
records of all detention facilities.
108. In their observations of
109. The Court reiterates
that the obligation to protect the right to life under Article 2 of the
Convention, read in conjunction with the State’s general duty under Article 1
of the Convention to “secure to everyone within [its] jurisdiction the rights
and freedoms defined in [the] Convention”, requires by implication that there
should be some form of effective official investigation when individuals have
been killed as a result of the use of force (see, McCann and Others v. the United Kingdom, judgment of 27 September
1995, Series A no. 324, p. 49, § 161, and Kaya
v. Turkey, judgment of 19 February 1998, Reports of Judgments and Decisions, 1998-I, p. 329,
§ 105). In that connection, the Court points out that this obligation is
not confined to cases where it is apparent that the killing was caused by an
agent of the State (see Salman v. Turkey [GC], no. 21986/93, § 105, ECHR 2000-VII).
110. The investigation must
also be effective in the sense that it is capable of leading to the
identification and punishment of those responsible (see Oğur v. Turkey
[GC], no. 21954/93, § 88, ECHR 1999-III). This is not an obligation
of result, but of means. The authorities must have taken the reasonable steps
available to them to secure the evidence concerning the incident, including, inter
alia, eye-witness testimony (Tanrıkulu, cited above, § 109). Any deficiency in the investigation which
undermines its ability to establish the cause of death or the person
responsible will risk falling foul of this standard.
111. There is also a
requirement of promptness and reasonable expedition implicit in this context
(see Yaşa v. Turkey, judgment of
112. The Court notes that
there is no proof that Ender Toğcu has been killed. However, the Court
considers that the above mentioned obligations also apply to cases where a
person has disappeared in circumstances which may be regarded as
life-threatening. In this respect, it has previously held that the
disappearance and unacknowledged detention of a person suspected by the
authorities of PKK involvement could be considered as life‑threatening in
the general context of the situation in south-east Turkey in 1993 (see Timurtaş, cited above, § 85).
Having regard to the cases involving disappearances which it has been called
upon to examine and which occurred in 1994, the Court concludes that that
general context still pertained in that year (see, for instance, Çiçek v. Turkey, no. 25704/94,
27 February 2001; İrfan Bilgin
v. Turkey, no. 25659/94, ECHR 2001-VIII; Orhan v. Turkey, no. 25656/94, 18 June 2002; İpek v. Turkey, no. 25760/94, ECHR 2004 (extracts)). It
further appears that the authorities indeed suspected Ender Toğcu of PKK involvement
(see paragraphs 38-39 above). In these circumstances, the Court considers that
the disappearance of Ender Toğcu could be regarded as
life-threatening.
113. The Court observes at
the outset that despite the fact – acknowledged by the Government – that the
authorities were informed of the disappearance of Ender on 6 April 1995 when
the applicant’s wife submitted a petition to the Prosecutor at the
Diyarbakır Court, no action seems to have been taken for several months
until Ramazan Sürücü, the chief of the Anti-Terror Branch, stated in a letter
of 1 February 1996 that Ender Toğcu had not been detained at the
Anti-Terror Branch on 29 October 1994 (see paragraph 45 above).
114. Notwithstanding the fact
that the date of Ender’s disappearance was clearly stated in the petition as
having occurred a month later, on
115. The Court finds that the
only meaningful action that was taken between 1 February 1996 and 6 November 1996
– the date on which the Prosecutor took a decision not to prosecute (see
paragraph 52 above) –, was the questioning of the applicant on 19 July 1996 by
the Diyarbakır Prosecutor, well over a year after being informed of the
disappearance (see paragraph 49 above).
116. It further appears from
the text of the decision not to prosecute, that a letter, purportedly sent to
the Diyarbakır Prosecutor on
117. As the applicant pointed
out, the Court has not been provided with any information to show that the
Diyarbakır Prosecutor checked the custody records or that he questioned
any members of the security forces before reaching that decision.
118. The Court further notes
that no action was taken at the domestic level between
119. On account of the
Government’s failure to submit any documents which were drawn up after 30
November 1999 – in particular any statements which the Diyarbakır
Prosecutor was to take from the police officers who had searched the applicant’s
house on 30 November 1994 (see paragraph 61 above) – the Court is unable to
assess the efficiency of the subsequent steps that might have been taken in the
investigation.
120. In the light of the
above, the Court concludes that the authorities have failed to carry out an
effective investigation as required by Article 2 of the Convention into
the disappearance of the applicant’s son.
121. The Court finds,
therefore, that there has been a violation of Article 2 of the Convention
under its procedural limb.
IV. ALLEGED VIOLATIONS OF
ARTICLE 3 OF THE CONVENTION
122. The applicant submitted
that there had been a separate violation of Article 3 of the Convention for the
following reasons:
(a) The abduction and
disappearance of his son, coupled with the State’s failure to carry out any
form of adequate and effective investigation into the disappearance,
undermined, and were inconsistent with, the protection against torture and
inhuman or degrading treatment under Article 3 of the Convention.
(b) The applicant himself had
suffered anguish and distress in the face of the authorities’ complacency in
relation to his son’s disappearance.
123. Article 3 of the
Convention provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
124. The Government did not
specifically deal with this complaint.
125. The Court reiterates
that it has been unable to make a finding as to who might have been responsible
for the disappearance of Ender Toğcu (see paragraph 97 above).
126. It considers that the
question whether the authorities’ failure to conduct an effective investigation
into the disappearance of the applicant’s son amounted to treatment contrary to
Article 3 of the Convention in respect of the applicant himself, is a separate
complaint from the one brought under Article 2 of the Convention which relates
to procedural requirements and not to ill-treatment in the sense of Article 3
(see Tahsin Acar, cited above, § 237).
127. The Court points out
that whether a family member is a victim will depend on the existence of
special factors giving his or her suffering a dimension and character distinct
from the emotional distress which may be regarded as inevitably caused to
relatives of a victim of a serious human rights violation. Relevant elements
will include the proximity of the family tie, 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 concerns
the authorities’ reactions and attitudes to the situation when it is brought to
their attention. It is especially in respect of the latter that a relative
may claim directly to be a victim of the authorities’ conduct (ibid, § 238).
128. Although the inadequacy
of the investigation into the disappearance of his son may have caused the
applicant feelings of anguish and mental suffering, the Court considers that,
in so far as the applicant has substantiated this claim, it has not been
established that there were special factors which would justify finding a
violation of Article 3 of the Convention in relation to the applicant himself (ibid, § 239, and the cases cited
therein).
129. It therefore finds no
breach of Article 3 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE
5 OF THE CONVENTION
130. Invoking Article 5 of the Convention, the applicant alleged that his son had been detained in complete disregard of the safeguards contained in paragraphs one to five of this provision, which guarantees the right to liberty and security.
131. Beyond denying that the
applicant’s son had been detained by the police, the Government did not
specifically address this complaint.
132. The Court reiterates
that it has been unable to make a finding as to who might have been responsible
for the disappearance of the applicant’s son (see paragraph 97 above). There is thus no factual basis to
substantiate the applicant’s allegation.
133. Consequently, the Court
finds no violation of Article 5 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE
13 OF THE CONVENTION
134. The applicant submitted
that he and his family had taken every reasonable step possible in order to
ensure that the detention of his son was properly and thoroughly investigated
by the national authorities. However, the response of the various authorities
to their complaints and petitions had been utterly inadequate. The necessary
remedies either did not exist or they were, in practice, useless.
Article 13 of the Convention provides as
follows:
“Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been committed by
persons acting in an official capacity.”
135. The Government contended
that the disappearance of the applicant’s son had been adequately investigated.
136. The Court reiterates
that Article 13 of the Convention guarantees the availability at the national
level of a remedy to enforce the substance of the Convention rights and
freedoms in whatever form they might happen to be secured in the domestic legal
order. The effect of Article 13 is thus to require the provision of a domestic
remedy to deal with the substance of an “arguable complaint” under the
Convention and to grant appropriate relief, although Contracting States are
afforded some discretion as to the manner in which they conform to their
Convention obligations under this provision. The scope of the obligation under
Article 13 varies depending on the nature of the applicant’s complaint under
the Convention. Nevertheless, the remedy required by Article 13 must be
“effective” in practice as well as in law. Thus, its exercise must not be unjustifiably
hindered by the acts or omissions of the authorities of the respondent State
(see Aksoy v. Turkey, judgment of
137. Given the fundamental
importance of the right to the protection of life, Article 13 requires, in
addition to the payment of compensation where appropriate, a thorough and
effective investigation capable of leading to the identification and punishment
of those responsible for the death, including effective access for the
complainant to the investigation procedure (see Kaya, cited above, § 107). The Court considers that this also
applies in the case of a disappearance in life-threatening circumstances (see
paragraph 112 above).
138. On the basis of the
evidence adduced in the present case, the Court has not found it proved that
agents of the State were involved in the disappearance of the applicant’s son.
As it has held in previous cases, however, that does not preclude the complaint
in relation to Article 2 of the Convention from being an “arguable” one for the
purposes of Article 13 (see Akkoç v. Turkey, nos. 22947/93 and 22948/93,
ECHR 2000‑X and the cases cited therein). In this
connection, the Court observes that it has already found that the applicant’s
son was the victim of a disappearance (see paragraph 89 above), and the
applicant may therefore be considered to have an “arguable claim”.
139. The authorities thus had
an obligation to carry out an effective investigation into the circumstances of
his disappearance. For the reasons set out above (see paragraphs 106-121), no
effective criminal investigation can be considered to have been conducted in
accordance with Article 13, the requirements of which may be broader than the
obligation to investigate imposed by Article 2 (see Kaya, cited above, § 107). The Court finds, therefore, that the
applicant was denied an effective remedy in respect of the disappearance of his
son, and was thereby denied access to any other available remedies at his
disposal, including a claim for compensation.
140. Consequently, there has
been a violation of Article 13 of the Convention.
VII. ALLEGED VIOLATION OF
ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLES 2, 3, 5, 13 and 18
141. The applicant argued
that the circumstances of this case disclosed a violation of Article 14 of the
Convention in conjunction with Articles 2, 3, 5, 13 and 18. He submitted that
there was sufficient evidence to establish that the Kurds in south-east
Article 14 of the Convention provides as
follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property,
birth or other status.”
142. The Government did not
specifically deal with this complaint.
143. The Court observes its
findings of violations of Articles 2 and 13 of the Convention, and does not
consider that it is necessary to examine separately the applicant’s complaints
under Article 14 of the Convention.
VIII. ALLEGED VIOLATION OF
ARTICLE 18 OF THE CONVENTION
144. The applicant alleged
that the restrictions on the rights and freedoms afforded under the Convention
imposed and/or practised by Turkey, in particular in relation to Article 5,
were applied for purposes not permitted under the Convention. He invoked
Article 18 of the Convention, which reads:
“The restrictions permitted under [the]
Convention to the said rights and freedoms shall not be applied for any purpose
other than those for which they have been prescribed.”
145. Having regard to its
above findings, the Court does not consider it necessary to examine this
complaint separately.
IX. ALLEGED VIOLATION OF ARTICLE
34 OF THE CONVENTION
146. The applicant submitted that on several occasions he had been questioned by the national authorities about his application to the Court. This had happened most recently in July or August 2001, when he was asked, inter alia, “You have brought proceedings against Turkey. Why did you do that?”. According to the applicant, such questioning amounted to a hindrance which rendered the application process more difficult.
Article 34 of the Convention provides as
follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals claiming to be
the victim of a violation by one of the High Contracting Parties of the rights
set forth in the Convention or the Protocols thereto. The High Contracting
Parties undertake not to hinder in any way the effective exercise of this
right.”
147. The Government did not
comment on this complaint.
148. The Court does not agree
that the question allegedly put to the applicant can be construed as a
hindrance within the meaning of Article 34 of the Convention. In this context,
the Court observes that the applicant was able to lodge his application to the
Commission and submit to the Commission and subsequently to the Court a number
of observations. He has also continued to correspond with the Convention
institutions without any obstacles.
149. In the light of the
foregoing, the Court does not find it established that the applicant has been
hindered in the exercise of his right of individual petition. It follows that
there has been no violation of Article 34.
X. APPLICATION OF ARTICLE 41 OF
THE CONVENTION
150. 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
151. The applicant submitted
that his son had been born in 1968 and was 26 years old at the time of his
disappearance. He was married and had – contrary to what the applicant claimed
in his memorial of 16 October 2001 (see paragraph 22 above) – two children.
152. Before he died (sic.), he earned his livelihood from
running the Sento Hotel and the Arzu Club in
153. The Government have not
commented on the applicant’s claim.
154. The Court’s case-law has
established that there must be a clear causal connection between the damage
claimed by the applicant and the violation of the Convention and that this may,
in appropriate cases, include compensation in respect of loss of earnings (see,
among other authorities, Barberà,
Messegué and Jabardo v. Spain (Article
50), judgment of 13 June 1994, Series A no. 285‑C, pp.
57-58, §§ 16-20, and Çakıcı, cited above, § 127).
155. However, the Court finds
no causal link between the matters held to constitute violations of the
Convention – the absence of an effective investigation and an effective remedy
– and the pecuniary damage alleged by the applicant. Consequently, it dismisses
the applicant’s claim under this head.
B. Non-pecuniary damage
156. The applicant claimed
the sum of GBP 50,000, to be held for the benefit of Ender Toğcu’s widow,
mother, two children, three sisters and two brothers, as well as himself and
his wife. He also claimed the sum of GBP 15,000 for himself. He requested
the Court to specify its awards in pounds sterling.
157. The Government have not made
any comments on the applicant’s claims.
158. The Court reiterates
that that the authorities failed to carry out an effective investigation into
the circumstances surrounding the disappearance of the applicant’s son,
contrary to the procedural obligation under Article 2 of the Convention.
It also found that the applicant did not have an affective remedy, in violation
of Article 13 of the Convention. Consequently, and having regard to the awards
made in comparable cases, the Court, on an equitable basis, awards the
applicant the sum of 10,000 euros (EUR) for non‑pecuniary damage, to be
held by him for the widow and children of Ender Toğcu. It also awards the
applicant the sum of EUR 3,500 for non‑pecuniary damage sustained by him
in his personal capacity.
C. Costs and expenses
159. The applicant claimed a
total of GBP 21,192.34 for the fees and costs incurred in bringing the
application. His claim comprised:
(a) GBP 11,729.99 for the fees of
his lawyers working for the Kurdish Human Rights Project (KHRP) in the United
Kingdom;
(b) GBP 4,903.40 for the fees of
his lawyers based in
(c) GBP 2,268 for administrative costs, such as telephone, postage, photocopying and stationary, incurred by the United Kingdom-based lawyers; and, finally,
(d) GBP 2,290,95 for
administrative costs, such as telephone, postage, photocopying and stationary,
incurred by his lawyers based in
160. In support of his claims
for the fees of his lawyers, the applicant submitted a detailed schedule of
costs.
161. The Government have not
commented on these claims.
162. The Court notes that the
applicant has only partly succeeded in making out his complaints under the
Convention and reiterates that only legal costs and expenses necessarily and
actually incurred can be reimbursed under Article 41 of the Convention. Making
its own assessment based on the information available, the Court awards the
applicant EUR 10,000 in respect of costs and expenses – exclusive of any
value‑added tax that may be chargeable –, less EUR 758 received by way of
legal aid from the Council of Europe, the net award to be paid in pounds
sterling into his representatives’ bank account in the United Kingdom, to be
identified by the applicant.
D. Default interest
163. The Court considers it
appropriate that the default interest should be based on the marginal lending
rate of the European Central Bank, to which should be added three percentage
points.
FOR THESE REASONS, THE COURT
1. Dismisses unanimously the Government’s preliminary objection;
2. Holds unanimously that the respondent State has failed to fulfil
its obligation under Article 38 of the Convention to furnish all necessary
facilities to the Court in its task of establishing the facts;
3. Holds unanimously that there has been no violation of Article 2 of
the Convention in respect of the disappearance of the applicant’s son;
4. Holds unanimously that there has been no violation of Article 2 of
the Convention in respect of the Government’s alleged failure to protect the
right to life of the applicant’s son;
5. Holds unanimously that there has been a violation of Article 2 of
the Convention on account of the failure of the authorities of the respondent
State to conduct an effective investigation into the circumstances of the disappearance
of the applicant’s son;
6. Holds unanimously that there has been no violation of Article 3 of
the Convention;
7. Holds unanimously that there has been no violation of Article 5 of
the Convention;
8. Holds unanimously that there has been a violation of Article 13 of
the Convention;
9. Holds by six votes to one that it is unnecessary to examine
separately the applicant’s complaint under Article 14 of the Convention;
10. Holds unanimously that it is unnecessary to examine separately the
applicant’s complaint under Article 18 of the Convention;
11. Holds unanimously that there has been no violation of Article 34 of
the Convention;
12. Holds unanimously
(a) that the respondent State is
to pay to the applicant, to be held by him for the widow and children of his
son Ender Toğcu, within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the Convention, EUR
10,000 (ten thousand euros) and any tax that may be chargeable on this amount,
in respect of non-pecuniary damage; this sum is to be converted into new
Turkish liras at the rate applicable at the date of settlement and be paid into
the bank account of the applicant;
(b) that the respondent State is
to pay to the applicant, within the same three month period, EUR 3,500 (three
thousand five hundred euros) and any tax that may be chargeable on this amount,
in respect of non-pecuniary damage; this sum is to be converted into new
Turkish liras at the rate applicable at the date of settlement and be paid into
the bank account of the applicant;
(c) that the respondent State is
to pay the applicant, within the same three month period, into the bank
account, to be identified by him, of his representatives in the United Kingdom,
EUR 10,000 (ten thousand euros) in respect of costs and expenses, together with
any value-added tax that may be chargeable, less EUR 758 (seven hundred and
fifty-eight euros) received by way of legal aid from the Council of Europe, to
be converted into pounds sterling at the rate applicable at the date of settlement;
(d) that from the expiry of the
above-mentioned three months until settlement simple interest shall be payable
on the above amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points;
13. Dismisses unanimously the
remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing
on 31 May 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P.
Costa
Registrar President
In accordance with Article 45 § 2 of the
Convention and Rule 74 § 2 of the Rules of Court, the following partly dissenting
opinion of Mrs Mularoni is annexed to this judgment.
PARTLY
DISSENTING OPINION OF JUDGE MULARONI
Unlike the majority, I believe that it is
necessary for the Court to examine separately the applicant’s complaint under
Article 14 of the Convention.
After examining tens and tens of similar
applications, all lodged, without exception, by Turkish citizens of Kurdish
origin, and very often concluding that there was a violation of Articles 2 and
3 of the Convention, the Court should, to my mind, at least consider that there
could be a serious problem under Article 14 of the Convention as well.
This does not mean, of course, that in the
end the Court will invariably find that there has been a violation of Article
14. However, I cannot agree with the majority approach, which to me is
tantamount to considering that the prohibition on discrimination in this type
of case is not an important issue.
1. In a number of documents drawn up by domestic authorities, as well as in the parties’ observations, “Ender Toğcu” was sometimes referred to as “Önder Toğcu”. For consistency, he will be referred to as “Ender Toğcu” throughout this judgment.
[2]
This particular detention facility was also referred
to by the applicant in his observations as “Jail Forces”, which, in fact, are
the detention facilities of the Rapid Reaction Force (Çevik Kuvvet - literal translation: Agile Forces).