Information Note on the Court’s case-law No.
May 1998
Kurt v. Turkey - 24276/94
Judgment 25.5.1998
Article 5
Article 5-1
Deprivation of liberty
Liberty of person
Security of person
Failure of authorities to account for whereabouts or fate of applicant’s son last seen surrounded by members of security forces: violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.GOVERNMENT’S PRELIMINARY OBJECTIONS
A.Non-validity of application
Applicant testified before delegates – confirmed her wish to take part in proceedings before Court and was present at hearing in her case – cannot be maintained in circumstances that applicant was not seeking redress in respect of complaint against authorities.
Conclusion: objection dismissed (unanimously).
B.Non-exhaustion of domestic remedies
Government barred on procedural grounds from raising objection – in any event, objection would have been dismissed on merits given that applicant did everything that could be expected of her to exhaust domestic remedies.
Conclusion: objection dismissed (unanimously).
II.ARTICLES 2, 3 AND 5 OF THE CONVENTION IN RESPECT OF THE DISAPPEARANCE OF THE APPLICANT’S SON
A.Establishment of the facts
Commission meticulously examined inconsistencies in applicant’s evidence as well as Government’s alternative explanations for disappearance of her son – applicant questioned extensively by delegates of the Commission and Government lawyers at hearing – applicant found credible and consistent on central issue, namely she had seen her son surrounded by soldiers and village guards in village – no exceptional circumstances which would lead Court to depart from Commission’s finding that applicant’s son detained in village in circumstances alleged and has not been seen since.
B.Article 2
No concrete evidence adduced proving, beyond reasonable doubt, that applicant’s son was killed by authorities – neither circumstances in which son detained nor materials relied on by applicant in support of allegation of practice of, inter alia, disappearances and extra‑judicial killing of detainees corroborate allegation of unlawful killing – in view of Court, applicant’s assertion that authorities failed to protect son’s life falls to be assessed under Article 5.
Conclusion: not necessary to decide on complaint (unanimously).
C.Article 3 in respect of the applicant’s son
As with Article 2 complaint, no evidence adduced to substantiate allegation of ill-treatment of applicant’s son in custody – complaint falls to be considered from angle of Article 5.
Conclusion: not necessary to decide on complaint (unanimously).
D.Article 5
Reiteration of Court’s case-law on fundamental importance of Article 5 guarantees for protection of physical liberty and personal security of individuals.
Unacknowledged detention of an individual must be considered a negation of these guarantees – assumption by authorities of control over individual requires them to account for individual’s whereabouts – Article 5 requires that authorities take effective measures to safeguard against risk of disappearance and to conduct prompt effective investigation into arguable claim that an individual has not been seen since being taken into custody.
In instant case, no record kept of son’s detention in village – moreover, authorities failed to carry out any meaningful investigation into applicant’s allegation – applicant never interviewed – authorities must be considered in circumstances to have failed to discharge their responsibility to account for whereabouts of applicant’s son – can be concluded that son held in unacknowledged detention without protection of safeguards guaranteed by Article 5 – in view of Court, this gives rise to particularly grave violation of that Article.
Conclusion: violation (six votes to three).
III.ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE APPLICANT HERSELF
No serious consideration given by authorities to applicant’s complaint – applicant a victim of authorities’ complacency in face of her anguish and distress – suffering endured over prolonged period of time and must in circumstances be considered ill-treatment within scope of Article 3.
Conclusion: violation (six votes to three).
IV.ARTICLE 13 OF THE CONVENTION
Reiteration of Court’s case-law on nature of an effective remedy in cases of alleged serious violations of Convention rights.
In instant case, authorities confronted with an arguable claim that applicant’s son detained by security forces in village – authorities obliged in circumstances to conduct, for benefit of relatives, thorough and effective investigation into disappearance – no such investigation conducted for reasons given for finding of violation of Article 5.
Conclusion: violation (seven votes to two).
V.ARTICLES 2, 3 AND 5 IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
Complaints not substantiated.
Conclusion: no violation (unanimously).
VI.ARTICLE 18 OF THE CONVENTION
Complaint not substantiated.
Conclusion: no violation (unanimously).
VII.ARTICLE 25 § 1 OF THE CONVENTION
Reaffirmation of Court’s case-law on obligation of Contracting State to ensure that applicants are able to communicate freely with Commission without being subjected to any form of pressure to withdraw or modify their complaints – expression “any form of pressure” covers not only direct coercion and intimidation but also improper indirect acts intended to dissuade or discourage applicants or potential applicants, their families or legal representatives from pursuing a Convention remedy – in instant case, Court satisfied on facts that applicant subjected to indirect and improper pressure to make statements in respect of her application to Commission – furthermore, threat of criminal proceedings against applicant’s lawyer, even if not followed up, to be considered an interference with exercise of right of individual petition – allegations against a respondent State, even if proved false, must be tested in accordance with Convention procedures and not by threat of criminal measures against applicant’s lawyer.
Conclusion: violation (six votes to three).
VIII.ARTICLE 50 OF THE CONVENTION
A.Non-pecuniary damage
Separate sums awarded to applicant’s son and to applicant herself – first sum to be held by applicant for her son and his heirs.
Conclusion: respondent State ordered to pay specified sums (eight votes to one).
B.Costs and expenses
Applicant’s claim allowed in part.
Conclusion: respondent State ordered to pay specified sum (eight votes to one).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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