Information Note on the Court’s case-law No. 154
July 2012
Er and Others v. Turkey - 23016/04
Judgment 31.7.2012 [Section II]
Article 35
Article 35-1
Six month period
Application lodged nine years after disappearance of applicants’ relative while domestic investigation was still under way: preliminary objection dismissed
Facts – In 1995, following an armed clash, a close relative of the nine applicants was allegedly taken from his village by soldiers and was never heard from again. On the day of his disappearance the applicants informed the prosecutor, who initiated investigations that were subsequently continued by the military prosecutor. The fate of the applicants’ missing relative was never elucidated and in May 2004 the applicants lodged an application with the European Court. The Government objected, inter alia, that the applicants had failed to comply with the six-month time-limit laid down by Article 35 § 1 of the Convention.
Law – Article 35 § 1: Reaffirming its approach in the case of Varnava and Others,* the Court noted that, in disappearance cases more than in cases concerning killings, it was difficult for the relatives of the missing to assess what was happening or what could be expected to happen. Allowances had to be made for the uncertainty and confusion which frequently marked the aftermath of a disappearance. Moreover, the serious nature of disappearances was such that the standard of expedition expected of the relatives could not be rendered too rigorous. Lastly, it was best for the facts of cases to be investigated and issues to be resolved in so far as possible at the domestic level. All these reasons justified a less rigid approach when examining the issue of compliance with the six-month time-limit in disappearance cases. However, in the instant case, which unlike Varnava and Others did not concern a situation of international conflict, it had to be determined whether the applicants had met the stricter expectations on account of their direct access to the investigative authorities. They had informed the prosecutor immediately of their relative’s detention by the military. They had cooperated with him and the military prosecutor and had provided them with eyewitness evidence. A lawyer appointed by them had also contacted the military prosecutors and had asked for information about the investigation. An investigation, albeit a sporadic one, had been conducted during the period in question and the applicants had been doing all that could have been expected of them to assist the authorities. Moreover, a decision by the civilian prosecutor in 2003 that the evidence concerning military involvement in the disappearance was credible, and the subsequent investigation started by the military prosecutor must have been regarded as promising new developments by the applicants. In these circumstances, the applicants had not failed to show the requisite diligence by waiting for the investigations to yield results.
Conclusion: preliminary objection dismissed (unanimously).
The Court found a violation of Articles 2 (substantive and procedural aspects), 3 (substantive aspect), 5 and 13 of the Convention.
Article 41: Awards totalling EUR 65,000 in respect of non-pecuniary damage and EUR 60,000 in respect of pecuniary damage.
* Varnava and Others v. Turkey [GC], nos. 16064/90 et al., 18 September 2009, Information Note no. 122.
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This summary by the Registry does not bind the Court.
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