Ertak v. Turkey

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 18

May 2000

Ertak v. Turkey - 20764/92

Judgment 9.5.2000 [Section I]

Article 2

Article 2-1

Life

Disappearance of the applicant’s son after his alleged arrest by the police and lack of investigation into the disappearance: violation

Facts: The facts surrounding the death of the applicant’s son are disputed. The applicant submitted that at the time of certain incidents which had occurred in August 1992 and which had led to a number of persons being taken into police custody his son had been stopped by the police while coming home from work in the company of three other persons and taken away. The applicant took witness statements from six persons who had been held in police custody and who declared that they had seen the applicant’s son during their detention, or had even shared a cell with him. One A.D., in particular, a lawyer who had been in police custody, stated that he had spent five days in the same cell as the applicant’s son, that the latter had been tortured and that the last time he, A.D., had seen him the applicant’s son had been brought back to the cell unconscious after undergoing torture for fifteen hours and had then been taken away when it was seen that he no longer showed any signs of life. The applicant applied to the provincial governor to find out why his son had not been released and to discover where he was. The governor asked the armed forces and the police for information and was told by them that the applicant’s son had never been taken into police custody. The governor then asked the security police to appoint an investigating officer to carry out an inquiry into the applicant’s allegations. The applicant lodged a complaint with the public prosecutor’s office, asking to be informed what had happened to his son. In April 1993 the investigating officer submitted his report to the administrative council, concluding that there was no case to answer. In June 1993 the public prosecutor ruled that the case was out of his jurisdiction and sent the file to the provincial administrative council so that it could conduct the investigation. In November 1993 the administrative council decided that the members of the security police had no case to answer in the criminal courts, as it had not been established that the alleged offences had been committed. The file was sent to the Supreme Administrative Court, which upheld the administrative council’s finding that there was no case to answer. The applicant also asserted that the authorities had brought criminal proceedings against a Mr T.E., on account of the role the latter had played as the applicant’s lawyer when he lodged his application with the European Commission of Human Rights, and in particular that all the documents relating to his application had been seized by the security forces. The Government submitted a totally different account of the facts. While they admitted that following clashes in August 1992 nearly a hundred people had been placed in police custody, as the custody registers showed, the applicant’s son had been neither arrested nor taken into custody. With regard to the allegations of hindering exercise of the right of individual petition, the Government supplied the Commission with a list of the documents seized from the applicant’s lawyer. The Commission conducted its own investigation and a delegation took oral evidence from witnesses.

Law: 1. The Court’s assessment of the facts – The Commission had shown the necessary prudence in carrying out its task of assessing the witness evidence, by focusing narrowly on those facts which backed up the applicant’s version of events and those which cast doubt on his credibility. The Court therefore intended, in the absence of any new evidence supplied by the parties, to base its findings on the evidence gathered by the Commission, but would assess the value of that evidence. Moreover, with regard to the allegations about the confiscation of documents relating to the application to the Commission and the Government’s failure to return them, the Court upheld the Commission’s finding that in the present case there was no reason to conclude that the Government had not fulfilled their obligations under former Article 28 § 1 (a) of the Convention.

2. Preliminary objection (non-exhaustion): The applicant had done everything he could have been expected to do to obtain redress for his grievance. He had applied to the provincial governor and then lodged a complaint with the public prosecutor’s office. But as the authorities had not conducted an effective inquiry into the alleged death and had constantly denied that the applicant’s son had been arrested, the applicant had not had any basis on which he could have used to good effect the civil and administrative remedies mentioned by the Government. He had accordingly done everything that could reasonably have been expected of him to exhaust the domestic remedies available to him.

3. Article 2: (a) With regard to the applicant’s son’s fate: The Court endorsed the Commission’s findings of fact. It noted on that basis that there was sufficient evidence for it to conclude beyond all reasonable doubt that the applicant’s son, after being arrested and detained, had been the victim of serious ill-treatment that had not been acknowledged and had died in the custody of the security forces. The Court reiterated that authorities are under a duty to account for persons in their charge and observed that no explanation had been offered as to what had happened after the applicant’s son’s arrest. In conclusion, the Court considered that in the circumstances of the case, the Government bore responsibility for the death of the applicant’s son, and that it had been caused by State agents after his arrest. There had therefore been a violation of Article 2 on that account.

(b) With regard to the investigation conducted by the national authorities: In the light of the fact that the Court endorsed the Commission’s findings regarding the unacknowledged detention of the applicant’s son, the ill-treatment inflicted on him and his disappearance in circumstances that raised a presumption that he was now dead, it followed that the authorities were under an obligation to conduct an effective and thorough inquiry into his disappearance. The Commission expressed the view that the investigation at the national level into the applicant’s allegations had not been conducted by independent bodies, had not been thorough and had been carried out without the applicant being given an opportunity to take part. In that connection, the Court noted one particular omission in that the investigating officer responsible for the preliminary investigation had not had in his possession the case file in which was to be found, among other documents, a deposition mentioning the names of other people who had been in police custody, and had not in the course of his investigations taken a statement from the applicant or the persons named by the applicant in his complaint. The Court therefore concluded that the respondent State had failed in its obligation to conduct a sufficient and effective investigation into the circumstances of the disappearance of the applicant’s son. Consequently, there had been a violation of Article 2 on that account also.

Conclusion: violation (unanimously).

4. Former Article 25 § 1: Before the Court the applicant had not sought to pursue this complaint and the Court was not required to examine the question of its own motion.

5. Alleged practice of Article 2 violations: The Court held that the available evidence and the documents in the case file did not suffice to enable it to decide whether the Turkish authorities had adopted a practice of violating Article 2 of the Convention.

6. Article 41: With regard to pecuniary damage, the Court considered that there was a direct causal connection between the violation of Article 2 and the loss by the widow and orphans of the applicant’s son of the financial support he had given them. The Court therefore awarded the applicant, to be held by him on behalf of the widow and orphan children of his son, the sum of 15,000 pounds sterling (GBP). In compensation for the non-pecuniary damage sustained on account of the substantive and procedural violation of Article 2, the Court awarded GBP 20,000 to be held by the applicant on behalf of the widow and orphan children of his son and GBP 2,500 to the applicant himself. Lastly, it awarded the applicant GBP 12,000 for costs and expenses, less 14,660.35 French francs which the applicant had received in legal aid from the Council of Europe.

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