SECOND
SECTION
CASE OF YASİN ATEŞ v.
(Application no. 30949/96)
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 Yasin Ateş v.
The European Court of Human Rights (Second
Section), sitting as a Chamber composed of:
Mr J.-P. Costa,
President,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
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. 30949/96) against the
2. On
3. The applicant, who had
been granted legal aid, was represented by Dr Anke Stock, a lawyer
practising in
4. The applicant alleged, in
particular, that his son had been tortured and killed in police custody in
5. The application was
transmitted to the Court on
6. The application was
allocated to the First Section of the Court (Rule 52 § 1 of the Rules
of Court). Within that Section, the Chamber that would consider the case
(Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
Mr Rıza Türmen, the judge elected in respect of
7. By a decision of
8. The applicant, but not the
Government, filed observations on the merits (Rule 59 § 1).
9. On
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant, a Turkish
citizen of Kurdish origin, was born in 1931. At the time of the events giving
rise to the present application, he lived in the town of
A. Introduction
11. The facts of the case,
particularly concerning events which took place on
12. The facts as presented by
the applicant are set out in Section B below (see paragraphs 13-33). The
Government’s submissions concerning the events are summarised in Section C
below (see paragraphs 34-41). The documentary evidence submitted by the parties
is summarised in Section D below (see paragraphs 42-74).
B. The applicant’s submissions on the
facts
13. In 1995 the applicant’s
son, Kadri Ateş, lived in
14. At about
15. The lorry came off the
Diyarbakır-Bingöl highway at the Lice turn-off and headed towards the town
of
16. The four men were told to
wait at the police checkpoint at Lice without receiving an explanation for
their detention. Kemal Ateş, who had by then arrived at the police point
in the other vehicle, sought an explanation but was stopped by the police.
After about 10-15 minutes a grey-coloured Renault saloon car, with the registration
number 06 MEH, arrived. Four plain-clothed police officers with pistols got
out. One of the police officers was a 29-30 year old, of medium height, wearing
a grey jumper and holding a walkie-talkie. This police officer proceeded to ask
who owned the lorry and what names each of the men were known by in the village
from where they came. Kadri Ateş replied “Gebooğulları” and
Vehbi Demir replied “Galevan”.
17. Thereafter the
plain-clothes police officers informed the men that they were to be taken back
to
18. The vehicles stopped
outside the Regional Traffic Directorate, located at the entrance to
19. At this point Kadri Ateş, who was still in the Renault, indicated to Vehbi Demir and Memduh Çetin that they were in danger by biting his lip. As a result, Memduh became distressed and panicked, saying “They are going to kill me”. He was given permission to go to the toilet, which led to all four men being placed in the hallway of the Directorate.
20. After 10-15 minutes two
plain-clothes police officers from the two cars that had arrived later entered
the hall, carrying firearms. They asked “Which of you are Kadri Ateş and
Vehbi Demir?” Both men identified themselves and were ordered to go with
the officers to one of the cars which had arrived later. A tall man next to the
officer with the walkie-talkie ordered them to turn to face the car whereupon
they were blindfolded by a heavily-built officer who then pushed them into the
back of the car and proceeded to sit next to them.
21. The officer with the
walkie-talkie sat in the front of the vehicle, and enquired as to whether they
knew what offences they had committed to which Vehbi replied, “No”. Kadri said,
“It was the Mekap[1]
shoes.” The police officer then enquired where they were taking the shoes.
Kadri replied, “There were fifty pairs. I was taking them to the mountains”.
The officer then proceeded to punch Kadri, stating, “Son of a whore, are there
still such macho men left in the south-east?”
22. The car then set off. The
officer informed them that they were being taken to the military and added “Do
you know what the military do ... you’ll find out when you get there.” He then
instructed the driver to turn onto the Ergani road. The car eventually stopped
outside the Riot Police Directorate where they were taken to a cell in which
Vehbi, still blindfolded, was handcuffed to the door. He heard the officer order
Kadri to strip.
23. Thereafter, Vehbi heard
Kadri’s screams and cries which continued for two to four hours. Vehbi was then
ordered to strip, after which he was tortured for about an hour: he had his
testicles squeezed, was hosed down with cold water and electric shocks were
applied to him. He was then interrogated by a “Commander” in front of
approximately 15 people.
24. Gürgün Can, Ateş’s
cousin and business partner, was also placed in custody. On the second day,
Vehbi was placed in another cell next to an inmate whom he correctly suspected
was
25. On the 15th day of
custody Vehbi was taken for interrogation and again subjected to beatings,
during which he continued to deny all accusations. His interrogators then
stated, “You’re very lucky. Haven’t you heard? We have killed Kadri. He kicked
the bucket. If they hadn’t killed him, we’d have murdered you”. Thereafter they
informed him, “Your time is up... You have two choices. Either you will go to
join Kadri, or we’ll send you to prison and you’ll kill ten people with the
poison we will give you”. They further added, “Look, there are teams here. If we
surrender you to them, they will kill you like Kadri”.
26. Vehbi was taken to an
unknown place. At the entrance his interrogators told him, “Don’t you know
where this is? Look, there are teams here. If we surrender you to them, they
will kill you like Kadri”. Vehbi continued to assert his innocence, whereupon
his interrogator said, “I’m telling you, you only have two choices. Either I
will surrender you to the teams, or you’ll agree to go to the prison.” At that
point Vehbi was taken inside and placed in a cell where he was told, “If your
friend had not died, we’d have killed you now. It appears you are lucky.”
27. On the 16th
day of custody Vehbi was given a typed statement to sign. The next evening he
was taken to the Dağkapı health clinic where he was threatened and
told not to make any allegations, but the doctor, in any event, did not examine
him.
28. On
29. On
30. The applicant was
subsequently informed by the Prosecutor in the town of
31. An official Incident and
Apprehension Report stated that the four men had been observed at around 7.45
p.m. in an Isuzu lorry, with the registration number 34 ERS 82, travelling along
the Bingöl road. They had subsequently been detained for suspected
participation in terrorist activities, namely the dropping off of supplies to
PKK members at the Aksu petrol station between the Lice turn-off and Duru
Gendarmerie Station, at about
32. The report stated that
Vehbi Demir, Memduh Çetin and Burhan Afşin were taken to
33. The applicant is
convinced that Kadri Ateş did not die in a clash but was killed in custody
under torture. Vehbi Demir witnessed Kadri being taken into custody by the
police and heard him being tortured.
C. The Government’s submissions on
the facts
34. On 13 June 1995 the
Diyarbakır Security Directorate received information to the effect that a
small lorry with the registration number 34 ERS 82 would be carrying logistical
equipment to PKK terrorists and that the terrorists would meet with Kadri
Ateş, Memduh Çetin, Vehbi Demir and Burhan Afşin, who would be
travelling in the lorry.
35. Necessary security
measures were taken and at about
36. Upon reaching the meeting
point, the necessary security measures were taken and at approximately
37. A search was carried out
at the scene by soldiers from the Lice District Gendarmerie Headquarters.
During the search, two Kalashnikov rifles with serial numbers 1971 PO4 and 1977
SS 239119, 81 cartridges and eight chargers were found. Various logistical
supplies were also found in the lorry which belonged to Kadri Ateş and
these supplies were handed over to the competent judicial authorities.
38. On
39. On
40. On
41. On
D. Documentary evidence submitted by
the parties
42. The following information
appears from the documents submitted by the parties.
43. According to the custody
ledgers, Vehbi Demir was arrested at
44. A handwritten incident
report was drawn up and signed by six special police team members and two
gendarmes at
45. Five PKK members arrived
at the petrol station at
46. On the same day Mr Özcan
Küçüköz, the Prosecutor of the Lice district, in whose jurisdiction the
killings had taken place, visited the Gendarme Commando Division in Lice where
the three bodies had been taken. He was accompanied by Dr Ömer Varol. The
Prosecutor and the doctor examined the bodies and drew up a report in which
they recorded their findings. Each of the three bodies was given a number
because their identities were not known. (The body of Kadri Ateş was
number three.) The bodies were also photographed.
47. Rigor mortis had set in in
bodies number one and two but post mortem hypostasis was not observed. As
regards body number three, neither rigor mortis nor post mortem hypostasis was
observed.
48. Examination of body
number one revealed that the right frontal region and the parietal region of
the brain were completely destroyed, whereas the occipital region was partly
destroyed. There was also an injury below the right knee, caused by a rocket
missile. The body bore no marks of blows.
49. In the course of the
examination of body number two, two bullet entry wounds on the chest, a number
of bullet entry wounds in the throat and one bullet entry wound on the left
foot, as well as the corresponding exit wounds were observed. The body bore no
marks of blows. The report further states that this person was wearing
“terrorist clothing”.
50. Finally, the examination
of body number three revealed a bullet entry wound in the occipital region of
the brain and a corresponding exit wound on the chin; a bullet entry wound four
millimetres below the left collar bone and a corresponding exit wound below the
collar bone; an injury on the right shoulder, measuring 10 x 10 centimetres,
caused by a firearm, and finally two shrapnel injuries below the right collar
bone.
51. The doctor concluded that the cause of death for bodies number one and three was the destruction of vital organs, and for body number two acute blood loss caused by the firearm injuries. He added that the cause of the deaths was so obvious as to leave no doubt in his mind and therefore there was no reason to carry out classical autopsies.
52. The Prosecutor, after
having examined the bodies, issued burial licenses and instructed a municipal
worker to arrange for the burial of the bodies of the “three terrorists who had
no relatives”.
53. Also on
54. On
55. On the same day the Lice
Prosecutor had the Lice municipality exhume the body of Kadri Ateş. It was
handed over to the applicant.
56. On 23 June 1995 Captain
Şahap Yaralı, the commander of the Lice Gendarme Headquarters, sent a
letter to the Lice Prosecutor, in reply to the latter’s letter of
57. Captain Yaralı annexed
to his letter, inter alia, an on-site
incident report and a number of
documents which had apparently been found in the lorry. The Government did not make these documents available
to either the Commission or the Court. Captain Yaralı further forwarded to
the Prosecutor the Kalashnikov rifles and the ammunition retrieved at the site
of the armed clash.
58. On
59. On
60. On
61. On
62. On
63. On
64. On
65. On
66. On
67. On
68. On the same day he also
sent a letter to the Lice Prosecutor saying that neither the ownership of the
Isuzu lorry nor the manner in which the terrorists had acquired and used it had
yet been established. He further asked the Lice Prosecutor to carry out a
ballistics examination of the rifles and the bullets, numbered as item no. 1995/7
(see paragraph 58 above).
69. On 3 September 1998 the
Prosecutor at the
70. On
71. On
72. On
73. Also on
74. The applicant submitted
to the Court copies of statements taken from the applicant and also from Vehbi
Demir by the applicant’s Turkish lawyer. The statement taken from Vehbi Demir
formed the basis of the applicant’s submissions summarised in Section B above
(see paragraphs 13-33).
II. RELEVANT DOMESTIC LAW AND PRACTICE
75. A full description of the relevant domestic
law and practice, as well as relevant international reports, may be found in Salman v. Turkey ([GC],
no. 21986/93, §§ 59-74, ECHR 2000-VII).
THE LAW
I. THE COURT’S ASSESSMENT OF THE
EVIDENCE AND ESTABLISHMENT OF THE FACTS
A. Arguments of the parties
1. The applicant
76. The applicant alleged
that his son had been arrested in the morning of
77. The applicant submitted
that his son had been arrested at
78. The applicant argued that
the fact that the detention of the other two passengers of the lorry, namely
Memduh Çetin and Burhan Afşin, did not appear from the custody ledgers,
further proved Vehbi Demir’s version of events, namely that he and Kadri
Ateş had been separated from Çetin and Afşin at the Traffic
Directorate during the morning of 13 June 1995 (see paragraph 22 above).
79. In the alternative, the
applicant submitted that, on the Government’s own contention, Kadri Ateş had
been used as a decoy in circumstances which clearly endangered his life. There was
no evidence to show that the security forces had taken preventative measures to
reduce the risk to his life.
80. The applicant finally complained
that the authorities, despite their knowledge of the identity of his son, had referred
to him as “an unknown terrorist” and had buried his body without first
informing his relatives.
2. The Government
81. The Court notes that the
Government did not submit to the Court any observations on the merits of the
case (see paragraph 8 above).
The following submissions are therefore taken from their observations submitted
to the Commission on
82. The Government submitted
that the applicant had identified the body of his son from the photographs of the
three persons killed during the armed clash at the petrol station. The
applicant knew, therefore, that his son had been killed in the armed clash
between the terrorists and security forces rather than as a result of torture.
In the opinion of the Government, the applicant’s allegation to that effect
demonstrated bad faith.
83. Kadri Ateş had had connections
with the PKK and been detained by members of the security forces in order to lead
those forces to the meeting point with the PKK terrorists. He had not been taken
into custody. The fact that there were no marks of ill-treatment on the body of
Kadri proved that he had not been tortured.
B. Article 38 § 1 (a) and the consequent
inferences drawn by the Court
84. Before proceeding to
assess the evidence, the Court would stress, as it has done previously, that it
is of the utmost importance for the effective operation of the system of
individual petition instituted under Article 34 of the Convention that States
should furnish all necessary facilities to make possible a proper and effective
examination of applications (see Tanrıkulu v. Turkey [GC],
no. 23763/94, § 70, ECHR 1999-IV). It is inherent in proceedings relating
to cases of this nature, where an individual applicant accuses State agents of
violating his rights under the Convention, that in certain instances solely the
respondent Government have access to information capable of corroborating or
refuting these allegations. A failure on a Government’s part to submit such
information which is in their hands without a satisfactory explanation may not
only give rise to the drawing of inferences as to the well-foundedness of the
applicant’s allegations, but may also reflect negatively on the level of
compliance by a respondent State with its obligations under Article 38 § 1 (a)
of the Convention (see Timurtaş v. Turkey, no. 23531/94, §§ 66
and 70, ECHR 2000-VI). The same applies to delays by the State in submitting
information which prejudices the establishment of the facts in a case.
85. In this context, the
Court notes that on
86. However, the Court
observes that the documents submitted by the Government do not constitute the
entire investigation file, as 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, inter alia,
the following:
(a) the on-site incident report
and the documents found in the lorry, which were sent to the office of the Lice
Prosecutor by Captain Şahap Yaralı on 23 June 1995 (see
paragraph 57 above);
(b) the statements taken from
Gürgün Can and Burhan Afşin on
(c) the statements taken from
Vehbi Demir, Gürgün Can and Burhan Afşin during the criminal proceedings
before the Diyarbakır Court (see paragraph 64 above);
(d) documents pertaining to the
proceedings before the Nizip Criminal Court of First Instance (see paragraph 65
above); and, finally,
(e) the letter sent by the Prosecutor
at the
87. The Court, observing that
the Government have not advanced any explanation for their failure to submit these
documents – the relevance of which will be examined below –, 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 84
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
Court in its task of establishing the facts.
C. The Court’s evaluation of the
facts
88. The applicant alleged
that his son was deliberately killed by members of the security forces whilst
in police custody. In the alternative, the applicant submitted that the
security forces, while using his son as a decoy, failed to take the necessary
preventative measures to reduce the risks to his life.
89. The Government denied
that the applicant’s son had been killed in police custody and maintained that
he was shot and killed in crossfire between PKK members and security forces.
90. The Court observes at the
outset that it is not in dispute between the parties that the applicant’s son
Kadri Ateş was arrested on
91. As regards the applicant’s
allegation that his son was arrested at 6 a.m. on 13 June 1995 and taken
into police custody where he was tortured and killed, the Court observes that,
according to copies of the custody ledgers submitted by the Government (see paragraph 43 above), Vehbi Demir
was arrested at midday. These ledgers, made available by the Government, thus
contradict their submission that the lorry in which the applicant’s son,
together with Memduh Çetin, Vehbi Demir and Burhan Afşin was
travelling, was stopped at
92. The Court further observes
that, other than the statement taken from Vehbi Demir by the applicant’s
Turkish lawyer (see paragraph 74 above),
there is no evidence on the basis of which it may be concluded that the
applicant’s son was tortured and killed in police custody. As regards the
evidential value of the statement taken from Vehbi Demir, the Court finds that
it is insufficient to prove this particular allegation.
93. This does not, however,
mean that the respondent Government are absolved from their responsibility to
account for Kadri Ateş’ death, which occurred while he was under arrest.
In this connection the Court reiterates that persons in custody are in a
vulnerable position and that the authorities are under a duty to protect them. The
Court has previously held that, where an individual is taken into police
custody in good health and is found to be injured on release, it is incumbent
on the State to provide a plausible explanation of how those injuries were
caused (see, among other authorities, Selmouni v. France [GC], no.
25803/94, § 87, ECHR 1999-V). The obligation on the authorities to account for
the treatment of an individual in custody is particularly stringent where that
individual dies (see Salman, cited above, § 99).
94. The Court reiterates that
States are under an obligation to account for the injuries or deaths which occurred,
not only in custody, but also in areas within the exclusive control of the
authorities of the State because, in both situations, the events in issue lie
wholly, or in large part, within the exclusive knowledge of the authorities (see
Akkum and Others v. Turkey, no.
21894/93, § 211, 24 March 2005).
95. In the present case the
applicant’s son was under arrest and, according to the Government, he was killed
in an area where a planned operation had taken place (see paragraph 36 above). Therefore, the Court will examine
whether the Government have discharged their burden of explaining the killing
of the applicant’s son. In doing so, the Court will have particular regard to
the investigation carried out at the domestic level in order to establish
whether that investigation was effective, in the sense that it was capable of
leading to the establishment of the cause of death and a determination of
whether the force used was or was not justified in the circumstances, as well
as to the identification and finally punishment of those responsible.
96. 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, forensic evidence and, where appropriate, an
autopsy which provides a complete and accurate record of injury and an
objective analysis of clinical findings, including the cause of death. 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 (see Hugh Jordan v. the United Kingdom, no. 24746/94,
§ 107, ECHR 2001-III (extracts), and the authorities cited therein).
97. The Court observes at the
outset that the Government, beyond submitting that Kadri Ateş was killed
in crossfire between security forces and terrorists, have not argued that the
authorities carried out an investigation to establish the identity of the
perpetrator(s). Nor have they addressed the question whether the use of force
employed by the security forces was not more than absolutely necessary for one
or more of the legitimate purposes set out in paragraph 2 of Article 2 of the
Convention. Furthermore, it does not appear from the documents submitted that
attempts were made by the authorities to establish the circumstances of the
killing.
98. As regards the events
leading to the killing, the Court observes the Government’s failure to submit
to the Court a copy of the on-site incident report which was forwarded to the
Lice Prosecutor on
99. According to the police
teams’ version of events – which is in line with the submissions of the
Government –, Kadri Ateş was arrested first and then taken to the petrol
station – together with the lorry – where the arrival of members of the PKK was
awaited (see paragraph 44 above).
Captain Yaralı, however, makes no mention of any arrest of Kadri Ates
or of Kadri guiding the special teams to the Aksu petrol station. According to
him, the PKK arrived at the Aksu petrol station in the lorry at
100. The special police teams’
version of events finds support in the indictment filed by the Prosecutor at
the
101. Vehbi Demir’s statement
of
102. While the report drawn
up by gendarmes from the Duru gendarme station on 20 September 1995 –
describing how a group of terrorists had approached the lorry to take delivery
of logistical supplies (see paragraph 63
above) – supports the version recorded in the incident report of the
special police teams, it contradicts the version offered by the commander of
those same gendarmes (see paragraph 56
above).
103. However, the Court
observes that the judgment handed down by the
104. The acquittal decision,
for its part, is contradicted by the letter sent by the Prosecutor at the
105. The acquittal decision
is further contradicted by the Prosecutor’s letter of
106. The Court is thus
confronted with a situation where State agents have provided conflicting
information relating to the facts of the case. No explanation, let alone a
satisfactory one, has been given for this. It considers that such serious
contradictions directly affects the credibility of the version of the facts as
presented by the Government, as well as their explanation of the circumstances
in which the applicant’s son was killed.
107. The Court further finds
it incomprehensible that, although the name of Kadri Ateş was clearly
recorded in the incident report of the special police teams (see paragraphs 44-45 above),
investigating authorities continued to refer to him as the “unknown terrorist”.
Thus, for example, its identity being unknown during the autopsy, the body of Kadri
Ateş was given a number (see
paragraph 46 above). Furthermore, his family was not informed about the
death and his body was buried by the authorities (see paragraph 52 above). Finally, despite the formal identification
of the body by the applicant on
108. As regards the
investigating authorities’ obligation to take reasonable steps to secure the
evidence concerning the incident (see
paragraph 96 above), the Court observes that the Government have not
submitted any information to suggest that the scene of the shooting was
forensically searched for any evidence which might have assisted in the
establishment of the identity of the killer(s). In this connection the Court notes
that, in spite of the instructions issued by the Prosecutor at the
109. The Court further observes
that the autopsy report merely recorded the number of bullet entry and exit wounds;
no thought was apparently given to the possibility that traces of bullets,
shrapnel or other evidence might be lodged in the bodies, (and this despite Dr
Varol’s own conclusion that some of the injuries had been caused by shrapnel (see paragraph 50 above). Moreover, no
attempts were made to establish the distance from which the bullets had been
fired or the type of firearm used. Dr Varol and the Prosecutor, Mr Küçüköz, were
content to conclude that they had been caused by gunshot wounds and that, for
this reason, it was not necessary to conduct a full autopsy (see paragraph 51).
110. The Court cannot but
remark critically on the investigation into the killing carried out by the Prosecutors.
In this respect, the Court observes that none of the members of the security
forces who arrested Kadri Ateş were questioned by the investigating
authorities and neither were those who took part in the armed clash.
111. As regards the report
prepared by the gendarmes from the Duru gendarme station, in which it was
stated that it had not yet been possible to establish the identities of the
perpetrators of the incident, the Court observes that the report makes no
reference to the actual steps taken to establish those identities.
112. The Court is, moreover,
unclear about the meaning of the phrase “the search for the perpetrators of the
incident” (see paragraphs 62 and 63
above), as used by the investigating authorities without those
authorities providing any clarification of the nature of the “incident”. It is
not clear, therefore, whether the “perpetrators of the incident” is a reference
to the killers of Kadri Ateş and the other two men. However, having regard
to the Prosecutor’s puzzling instructions in 1999, for the authorities to
establish the identities of “the three dead terrorists and to apprehend them”
(see paragraph 73 above), the Court doubts whether by “perpetrators” the
authorities meant the killers of the applicant’s son.
113. It follows, therefore,
that the only step taken by the domestic authorities to investigate the killing
of the applicant’s son was the autopsy which, as performed, was incapable of
identifying the perpetrators (see paragraphs 109 above).
114. On the basis of the
foregoing, the Court concludes that no meaningful investigation was conducted
at the domestic level, capable, first, of establishing the true facts
surrounding the killing of Kadri Ateş, and, secondly, of leading to the
identification and punishment of those responsible. This conclusion makes it
unnecessary to examine the applicant’s alternative submission that the
authorities used his son as a decoy in circumstances which endangered his life.
115. In the light of the
above, it follows that the Government have failed to account for the killing of
Kadri Ateş.
II. ALLEGED VIOLATIONS OF
ARTICLE 2 OF THE CONVENTION
116. 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 killing of Kadri Ateş
1. Submissions of the parties
117. The applicant submitted
that his son had been unlawfully killed while in detention by agents of the
State, either intentionally or by recklessly endangering his life. The
Government, beyond denying the factual basis of the applicant’s allegations,
did not specifically deal with the complaint under Article 2 of the Convention.
2. The Court’s assessment
118. Article 2, which
safeguards the right to life and sets out the circumstances when deprivation of
life may be justified, ranks as one of the most fundamental provisions in the
Convention, of which no derogation is permitted. Together with Article 3, it
also enshrines one of the basic values of the democratic societies making up
the Council of Europe. The circumstances in which deprivation of life may be
justified must therefore be strictly construed. The object and purpose of the
Convention as an instrument for the protection of individual human beings also
requires that Article 2 be interpreted and applied so as to make its safeguards
practical and effective (see McCann and
Others v. the United Kingdom, judgment of 27 September 1995, Series A no.
324, pp. 45-46, §§ 146-147).
119. The text of Article 2,
read as a whole, demonstrates that it covers not only intentional killing but
also situations where it is permitted to “use force” which may result, as an
unintended outcome, in the deprivation of life. The deliberate or intended use
of lethal force is only one factor, however, to be taken into account in
assessing its necessity. Any use of force must be no more than “absolutely
necessary” for the achievement of one or more of the purposes set out in
sub-paragraphs (a) to (c). This term indicates that a stricter and more
compelling test of necessity must be employed from that normally applicable
when determining whether State action is “necessary in a democratic society”
under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the
force used must be strictly proportionate to the achievement of the permitted
aims (ibid., p. 46, §§ 148‑149).
120. In the light of the
importance of the protection afforded by Article 2, the Court must subject
deprivations of life to the most careful scrutiny, taking into consideration
not only the actions of State agents but also all the surrounding
circumstances. The use of force by State agents in pursuit of one of the aims
delineated in paragraph 2 of Article 2 may be justified where it is based on an
honest belief which is perceived, for good reasons, to be valid at the time but
which subsequently turns out to be mistaken (ibid., pp.58-59, § 200).
121. In the present case, the
Court has already established that the Government have failed to account for
the killing of Kadri Ateş (see
paragraph 115 above). It follows that there has been a violation of
Article 2 of the Convention in respect of his death.
B. Alleged inadequacy of the
investigation
122. The applicant also submitted
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
his son’s death. In support of his allegation the applicant contended, in
particular, that the autopsy carried out on the body of his son was wholly
inadequate, that there had been a failure to properly inspect the crime scene
at the petrol station as well as a failure to keep custody records in relation
to Kadri Ateş, and, finally, that the Prosecutor had failed to take
statements from a number of potentially important witnesses.
123. The Government, beyond
submitting that an investigation into the incident had been initiated by the Lice
District Gendarme Command into the incident, did not specifically deal with
this complaint. No documents were submitted by the Government, however, to indicate
the steps taken by the Lice Gendarme Command.
124. The Court reiterates
that the obligation to protect the right to life under Article 2 of the
Convention, read in conjunction with the State’s general duty under Article 1
of the Convention to “secure to everyone within [its] jurisdiction the rights
and freedoms defined in [the] Convention”, requires by implication that there
should be some form of effective official investigation when individuals have
been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, p. 49,
§ 161; Kaya v. Turkey, judgment
of 19 February 1998, Reports of Judgments and Decisions 1998-I, p.
329, § 105).
125. The Court has already
examined the investigation in the context of the question whether the
respondent Government have accounted for the death of the applicant’s son. It
concluded that the authorities failed to conduct a meaningful investigation capable
of establishing the true facts surrounding the killing. In the light of the
shortcomings identified in its above-mentioned examination, the Court also concludes
that the domestic authorities failed to carry out an adequate and effective
investigation into the killing of the applicant’s son, as required by Article 2
of the Convention.
126. The Court finds,
therefore, that there has been a violation of Article 2 of the Convention
under its procedural limb.
C. Alleged lack of an effective
system for ensuring the protection of the right to life in domestic law
127. The applicant complained
that, in view of the incidence of torture and of deaths in custody at the time
of the detention of his son, improper detention by
128. The Government did not
specifically deal with this complaint.
129. The Court, having regard
to its above findings of violations of Article 2 of the Convention, does not
find it necessary in the circumstances of this case to reach any separate
finding on this issue.
III. ALLEGED VIOLATION OF
ARTICLE 3 OF THE CONVENTION
130. The applicant complained
that there had been separate violations of Article 3 of the Convention for each
of the following reasons:
(a) on account of the torture of
his son whilst in custody;
(b) arising from the State’s
failure to carry out any form of adequate and effective investigation into the
allegations of torture; the failure to conduct a proper autopsy in particular meant
that the authorities could not have properly established that he died in
crossfire as alleged by the Government; and, finally,
(c) arising from the anguish and
distress suffered by the applicant in the face of the authorities’ complacency
in relation to his son’s death (with reference to the cases of Kurt
v. Turkey, judgment of 25 May 1998, Reports 1998-III,
§§ 130-134, and Çakıcı v. Turkey [GC], no. 23657/94, §§ 98-99,
ECHR 1999-IV).
131. Article 3 of the Convention
provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
132. The Government, beyond
denying the applicant’s allegations, did not specifically address this
complaint.
133. The Court observes that
the Government have not provided a plausible explanation for the death of Kadri
Ateş (see paragraph 115 above).
However, the Court notes that there are no records of marks or injuries on the
body consistent with the application of torture techniques (see paragraph 50 above). There
is therefore no evidence to support a finding that acts of torture were carried
out.
134. To the extent that it is alleged that the failings in the post mortem examination prevented any concrete evidence of ill-treatment coming to light, and thereby the identification and punishment of those responsible, the Court considers that this complaint falls to be considered under Article 13 of the Convention (see İlhan v. Turkey, [GC], no. 22277/93, ECHR 2000-VII, §§ 89-93).
135. Regarding
the applicant’s submissions concerning the effect which the events had on
himself, the Court does not doubt the profound suffering that was caused to him
by the death of his son. It finds no basis, however, for finding a violation of
Article 3 in this context, the Court’s case-law relied on by the applicant
referring to the specific phenomenon of disappearances (see Tanlı v. Turkey, no. 26129/95,
§ 159, ECHR 2001-III (extracts)).
136. The Court concludes that it has not been established that there has been a violation of Article 3 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE
5 OF THE CONVENTION
137. The applicant submitted
that the detention of his son gave rise to multiple violations of Article 5 of
the Convention, the relevant parts of which provide as follows:
“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:
...
(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; ...”.
138. The applicant submitted,
in particular, that the authorities who arrested his son had not acted in
accordance with a procedure prescribed by law. He further argued that the
authorities’ failure to create, maintain and produce adequate documentation in
relation to his son’s arrest amounted to a violation of the lawfulness
requirement inherent in Article 5 § 1 of the Convention.
139. The Government
maintained that the applicant’s son had not been taken into custody.
140. The
Court observes that it is not in dispute between the parties that the applicant’s
son was arrested on
141. The Court’s case-law
stresses the fundamental importance of the guarantees contained in Article 5
for securing the rights of individuals in a democracy to be free from arbitrary
detention by the authorities. It has reiterated in that connection that any
deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law, but must equally be in
keeping with the very purpose of Article 5, namely, to protect the
individual from arbitrary detention. In order to minimise the risks of
arbitrary detention, Article 5 provides a corpus of substantive rights intended
to ensure that the act of deprivation of liberty be amenable to independent
judicial scrutiny and to secure the accountability of the authorities for that
measure (see Tanlı, cited above,
§164).
142. In this connection, the
recording of accurate holding data concerning the date, time and location of
detainees, as well as the grounds for the detention and the name of the persons
effecting it, is necessary for the detention of an individual to be compatible
with the requirements of lawfulness for the purposes of Article 5 § 1 (see Çakıcı, cited above, § 105).
143. Turning to the facts of
the present case, the Court notes at the outset that, according to the incident
report, the reason for the arrest of the applicant’s son was that he was taking
supplies to the PKK in his lorry (see paragraph 44 above). This, if true, would
have constituted one of the permissible grounds set out in Article 5 § 1
(c) of the Convention to deprive the applicant’s son of his liberty, because such
a measure would arguably have been “necessary to prevent his committing an
offence”. According to the judgment of the
144. Furthermore, as regards the
question whether the arrest itself complied with the safeguards referred to
above (see paragraph 142), the Court notes that the incident report of 14 June
1995 (see paragraphs 44-45 above) – the only document concerning the arrest of
the applicant’s son in so far as the Court is aware – makes no reference to the
time of day at which the arrest was effected. However, the Court has already
noted that, according to the custody records in which the name of Vehbi Demir –
who, according to the incident report, was arrested together with the applicant’s
son – was recorded (see paragraphs 43-44 above), the applicant’s son was
arrested some time before midday on 13 June 1995 (see paragraph 91 above). It
appears, therefore, that the applicant’s son was in the hands of the police
officers for a period of at least 11 hours and 45 minutes, bearing in mind that
the clash started at
145. Furthermore, other than
references to the arresting officers as the police and gendarme (see paragraph 44
above), the incident report contains no information about the identities of the
arresting officials. This failure would have hampered any attempt by the
authorities to establish the circumstances of the killing of the applicant’s
son.
146. The fact that the body
of the applicant’s son was referred to as the “body of an unknown terrorist”
during the autopsy, and also in the initial stages of the investigation, is a
further indication of the failure of the arresting officers to follow the correct
procedure by informing the relevant authorities of the arrest of Kadri
Ateş and by registering his name in the relevant records.
147. Accordingly, none of the
necessary safeguards were observed during and after the arrest of the applicant’s
son. This failure meant that the act of deprivation of liberty was not amenable
to independent judicial scrutiny to secure the accountability of the
authorities.
148. In the light of the
above mentioned failures and contradictions concerning the arrest of the
applicant’s son – which have already contributed to discrediting the Government’s
attempt to account for the death of the applicant’s son –, the Court concludes
that the applicant’s son was deprived of his liberty in an arbitrary manner
contrary to the aim and purpose of Article 5 of the Convention. It follows
that there has been a violation of Article 5 § 1 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE
13 OF THE CONVENTION
149. The applicant complained
that the response of the authorities to the complaints and petitions about the
detention, torture and killing of Kadri Ateş was utterly inadequate.
According to the applicant, the necessary remedies either did not exist or they
were, in practice, useless. The applicant submitted that there had been a very
clear violation of Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been committed by
persons acting in an official capacity.”
150. The Government submitted
that effective domestic remedies were available to the applicant but that he chose
not to avail himself of them.
151. 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
152. 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).
153. On the basis of the
evidence adduced in the present case, the Court has found that the respondent
State is responsible under Article 2 of the Convention for the death of the
applicant’s son. The applicant’s complaint in this regard is therefore
“arguable” for the purposes of Article 13 (see Salman, cited above, § 122, and the authorities cited therein).
154. The authorities thus had
an obligation to carry out an effective investigation into the circumstances of
the death of the applicant’s son. For the reasons set out above (see paragraphs 97 to 114), 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 death of his son,
and was thereby denied access to any other available remedies at his disposal,
including a claim for compensation.
155. Consequently, there has
been a violation of Article 13 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE
14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLES 2 AND 13 OF THE CONVENTION
156. The applicant claimed
that the rights of his son under Article 2 and 13 were violated, in conjunction
with Article 14, on grounds of ethnic origin. Article 14 provides as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property,
birth or other status.”
157. The Government did not
specifically deal with this complaint.
158. The Court recalls its
findings of a violation of Articles 2 and 13 of the Convention and does not
consider that it is necessary also to consider these complaints in conjunction
with Article 14 of the Convention.
VII. APPLICATION OF ARTICLE 41
OF THE CONVENTION
159. 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
160. The applicant submitted
that Kadri Ateş, who was 29 years old at the time of his death, was
earning the equivalent of 8,672.22 pounds sterling (GBP) per year. He was
married but had no children. The income from his business used to provide his
family with a living. Taking into account the average life expectancy in
161. The applicant also
claimed that, after Kadri’s death, there was no one else to run the business
and, as a result, it was put into liquidation and the stock and other office
materials had to be sold below their actual value. Also, the truck had been
full of foodstuffs when it was confiscated, but it was not returned for six
months. As a result, the truck deteriorated in value and the foodstuffs became
unfit for sale. In respect of these claims, the applicant submitted to the
Court in 2000 a schedule of the additional heads of pecuniary damage without the
figures which were not yet available. No figures were submitted.
162. The Government disputed
the applicability of the actuarial tables used by
the applicant which were designed for use in the
163. As regards the applicant’s
claim for loss of earnings, the Court’s case-law has established that there
must be a clear causal connection between the damage claimed by the applicant
and the violation of the Convention and that this may, in appropriate cases,
include compensation in respect of loss of earnings (see, among other
authorities, Barberà, Messegué and
Jabardo v. Spain (Article 50),
judgment of 13 June 1994, Series A no. 285‑C, pp. 57-58, §§ 16-20,
and Çakıcı, cited
above, § 127).
164. The Court notes the family
situation of the deceased, Kadri Ateş, his age and his professional
activities which provided the whole family with a living. The Court also
recalls its finding that the authorities were liable under Article 2 of the
Convention for his death (see paragraph 121 above). In these circumstances,
there was a direct causal link between the violation of Article 2 and the loss
suffered by Kadri Ateş’s family of the financial support provided by him.
165. In the light of the foregoing the Court, deciding on an equitable basis, awards the applicant the sum of 60,000 euros (EUR), to paid to his successor in this application, Bidayet Ateş, and held by him for the widow of Kadri Ateş.
B. Non-pecuniary damage
166. The applicant claimed
the sum of GBP 35,000, to be held for the benefit of Kadri Ateş’ widow,
and the sum of GBP 15,000 for himself.
167. The Government submitted that the sums claimed by the applicant were excessive. In the opinion of the Government, only symbolic amounts would be equitable with respect to non-pecuniary damages.
168. The Court recalls the
violations of Articles 2, 5 and 13 of the Convention which it has found. Consequently,
and having regard to the awards made in comparable cases, the Court, on an
equitable basis, awards the applicant the sum of EUR 20,000 for non-pecuniary
damage, to be paid to Bidayet Ateş and held by him for the widow of Kadri
Ateş. It also awards the applicant the sum of EUR 3,500 for non-pecuniary
damage sustained by him in his personal capacity, to be paid to Bidayet
Ateş and held by him for the heirs of Yasin Ateş.
C. Costs and expenses
169. The applicant,
submitting a schedule of costs and expenses, claimed the sum of GBP 7,120.14
for the fees and costs incurred in bringing the application. The claim comprised:
(a) GBP 6,144 for the fees of his
United Kingdom based lawyers employed by the Kurdish Human Rights Project (“the
KHRP”), and
(b) GBP 976 for administrative
costs and translation expenses incurred by the
170. On
171. The Government submitted
that only actually incurred expenses were eligible for reimbursement. In this
connection, the Government maintained that all costs and expenses must be
documented. However, the applicant produced no receipts, documents or invoices
for the costs and expenses, such as telephone calls, postal and stationary
expenses. Finally, the Government objected to any reimbursement of costs and
expenses claimed in respect of the KHRP and invited the Court to decide that
the amount of just satisfaction, including costs and expenses, should be paid
to the applicant in
172. The Court, considering
the sums claimed by the applicant in respect of the fees of his lawyers, as
well as the costs incurred by those lawyers, to be reasonable, awards the
applicant the sum of EUR 12,500 in respect of costs and expenses – exclusive of
any value-added tax that may be chargeable – less EUR 777.49 already
received in legal aid from the Council of Europe, the net award to be paid in
pounds sterling into the bank account of the applicant’s representatives in the
United Kingdom, as was requested and identified by the applicant.
D. Default interest
173. The Court considers it
appropriate that the default interest should be based on the marginal lending
rate of the European Central Bank, to which should be added three percentage
points.
FOR THESE REASONS, THE COURT
1. Holds unanimously that 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;
2. Holds unanimously that the Government are liable for the death of
the applicant’s son in violation of Article 2 of the Convention;
3 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
killing of the applicant’s son;
4. Holds unanimously that it is unnecessary to determine whether there
has been a violation of Article 2 of the Convention on account of the alleged
lack of an effective system for ensuring the protection of the right to life in
domestic law;
5. Holds unanimously that there has been no violation of
Article 3 of the Convention;
6. Holds unanimously that there has been a violation of Article 5
§ 1 of the Convention;
7. Holds unanimously that there has been a violation of
Article 13 of the Convention;
8. Holds by six votes to one that it is unnecessary to determine
whether there has been a violation of Article 14 of the Convention in
conjunction with Articles 2 and 13 of the Convention;
9. Holds unanimously
(a) that the respondent State is
to pay the applicant’s successor in this application, Bidayet Ateş, within
three months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, EUR 60,000 (sixty thousand
euros) and any tax that may be chargeable on this amount, in respect of
pecuniary damage; this sum is to be converted into new Turkish liras at the
rate applicable at the date of settlement and held by Bidayet Ateş for the
widow of Kadri Ateş;
(b) that the respondent State is to pay the
applicant’s successor, Bidayet Ateş, in respect of non-pecuniary
damage, within three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention, the following sums, to be
converted into new Turkish liras at the rate applicable at the date of
settlement:
(i) EUR 20,000 (twenty thousand euros) to be held for the widow of Kadri Ateş;
(ii) EUR 3,500 (three thousand five hundred euros) to be held for the beneficiaries of the estate of Yasin Ateş;
(iii) any tax that may be
chargeable on the above amounts;
(c) that
the respondent State is to pay the applicant, within the same three month
period, into the bank account identified by him in the United Kingdom, EUR
12,500 (twelve thousand five hundred euros) in respect of costs and expenses,
together with any value-added tax that may be chargeable, less EUR 777.49
(seven hundred and seventy seven euros and forty nine cents) granted as legal
aid, to be converted into pounds sterling at the rate applicable at the date of
settlement;
(d) that from the expiry of the
above-mentioned three months until settlement simple interest shall be payable
on the above amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points;
10. Dismisses unanimously the remainder of the applicant’s claim for
just satisfaction.
Done in English, and notified in
writing on
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] According to the applicant, Mekap is a brand of shoes used by the guerrillas of the PKK (the Kurdistan Workers’ Party).