Information Note on the Court’s case-law 62
March 2004
Nuray Şen v. Turkey - 25354/94
Judgment 30.3.2004 [Section IV]
Article 2
Article 2-1
Life
Abduction and killing, allegedly by State agents, and effectiveness of the investigation: violation
Facts: The applicant, relying on statements from eye-witnesses, claimed that on 26 March 1994 her husband had been abducted from the café which he owned and subsequently murdered by State agents. Upon receiving the news of his abduction, she had called the Police and Anti-Terrorism Department. Four days later she was informed that her husband’s body was in the morgue at the State hospital. She had insisted with the authorities that a murder investigation be conducted, claiming that her husband had been tortured. The Public Prosecutor had only taken a statement from her a month later. She maintained that given her husband’s political activities, he had previously been threatened by plain-clothed policemen. The Government disputed this version of the facts and claimed that the applicant’s husband had been abducted from the café by three persons whom he had not resisted, as if he had known them. With a view to establishing the facts, Commission delegates took evidence in Ankara. The main eye-witnesses to the abduction failed to appear to give evidence.
Law: On the basis of the evidence collected, the Court was unable to shed light on the true identity of the kidnappers, concluding that the applicant’s husband had been abducted and murdered by unknown persons. The Court nevertheless considered that the applicants’ husband had not been tortured, finding the evidence presented by the forensic specialist convincing.
Article 2 (disappearance) – The only evidence which pointed to the implication of State agents in the abduction and killing of the applicant’s husband were the hearsay statements of the applicant herself. As it had not been established beyond reasonable doubt that State agents were involved in the incidents, there had been no violation of Article 2 on that account.
Conclusion: no violation (unanimously).
Article 2 (effective investigation) – There had been striking omissions in the investigation which had been carried out into the abduction and death of the applicant’s husband, as well as a lack of co-ordination between the different gendarme authorities that had been involved. One of the prosecutors had not taken statements from the eye-witnesses to the abduction, and ballistic enquiries had been ordered with delay and were incomplete. It was moreover significant that both prosecutors involved had failed to appear before the Commission delegates. The lack of an adequate and effective investigation meant that there had been a violation of Article 2 under its procedural limb.
Conclusion: violation (unanimously).
Article 13 – As an effective criminal investigation cannot be considered to have been conducted, there had also been a breach of this provision.
Conclusion: violation (unanimously).
Article 41 – The Court awarded the applicant 14,500 euros in respect of non-pecuniary damage. It also made an award in respect of costs and expenses.
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This summary by the Registry does not bind the Court.
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