Osmanoğlu v. Turkey

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 104

January 2008

Osmanoğlu v. Turkey - 48804/99

Judgment 24.1.2008 [Section I]

Article 2

Positive obligations

Failure by authorities to take proper steps to trace applicant’s son following his reported abduction in south-east Turkey: violation

Facts: The facts of the case were disputed. According to the applicant, he and his family had moved to Diyarbakır in 1992 after his son was threatened by a police officer. In 1994 the applicant himself was held in police custody for 28 days and subjected to ill-treatment before being acquitted of all charges against him. In 1996 the applicant’s son disappeared. The applicant said that on the morning of his disappearance he arrived at his grocery shop to see his son being escorted to a car by two armed men carrying walkie-talkies who said that they were police officers and were taking his son to police headquarters. The following day and on a number of subsequent occasions the applicant made enquiries about his son’s whereabouts at the governor’s office and at the chief prosecutor’s office at the state security court. The prosecutor informed him that his son was not mentioned in any of the custody records. In May 1996 the applicant was interviewed by the police. He gave a description of the two men who had taken his son away and said that he and a neighbouring shop owner would be able to identify them if required. In July 2006 the newspaper Özgür Gündem published an alleged confession in which a former agent of the JİTEM (the anti-terror intelligence branch of the gendarmerie) described the abduction and killing of the applicant’s son at the hands of the JİTEM and identified the killer and the place where the body had been buried. The Government denied any involvement of Turkish security forces in the abduction or killing. They submitted that the reason no investigation had been carried out was that there were no custody records to prove that the applicant’s son had been detained or evidence to indicate that he had been kidnapped. The newspaper allegations had not been investigated either as they were considered vague and based on hearsay. The applicant was shown pictures of the body buried at the place referred to in the newspaper report but was unable to make a positive identification.

Law: Article 2 – The Court had concluded in a number of previous cases that disappearances in south-east Turkey at the relevant time could be regarded per se as life-threatening. The lack of any suggestion that the applicant’s son was involved in PKK-related activities did not alter the position and the manner of his abduction bore many similarities to the disappearances in south-east Turkey at about that time of people who were later found dead. Accordingly, in the absence of any information about his whereabouts for more than 11 years, the applicant’s son had to be presumed dead.

(a) Responsibility forthealleged abduction and killing: The Court was unable to decide from the evidence whether the two men who had taken away the applicant’s son were in fact police officers and so was unable to establish who might have been responsible for his disappearance.

Conclusion: no violation (unanimously).

(b) Positive obligation to protect the right to life: The applicant’s son had disappeared in south-east Turkey in life-threatening circumstances after receiving threats. The authorities had been informed the following day. From that point on, they were under an obligation to take immediate steps to protect his right to life, which was at real and immediate risk. Nevertheless, they had failed to launch an investigation. Merely checking custody records was not sufficient. A number of basic steps could have been taken, such as taking statements from eyewitnesses, verifying whether the two men were indeed police officers, inspecting premises to which the applicant’s son might have been taken and interviewing the duty officers and detainees. Police and gendarmerie checkpoints in the area could also have been alerted to the disappearance. However, the prosecutor had remained completely and incomprehensibly inactive. The authorities had thus failed to take reasonable measures available under Turkish criminal law to prevent a real and immediate risk to the life of the applicant’s son.

Conclusion: violation (four votes to three).

(c) Effectiveness of the investigation: No investigation had been carried out into the disappearance of the applicant’s son. It was also regrettable that the allegations of the former JİTEM agent had not spurred the Government into action, as they were not abstract or unsubstantiated and merited consideration by the authorities. It was illogical for the authorities to assert that the allegations were unsubstantiated without first investigating them.

Conclusion: violation (unanimously).

Article 3 – The applicant had suffered, and continued to suffer, distress and anguish as a result of the disappearance of his son and his inability to find out what had happened. This went beyond the level of emotional distress that was inevitably caused to relatives of victims of serious human-rights violations. He had witnessed his son being taken away by two men claiming to be police officers more than 11 years previously and had not heard from him since. Despite his attempts to report the abduction and share the information he had, the authorities had taken no action other than to tell him that his son’s name was not mentioned in the custody records. The manner in which his complaints had been dealt with had to be considered inhuman treatment.

Conclusion: violation in respect of the applicant (unanimously).

Article 41 – EUR 60,000 in respect of pecuniary damage; EUR 30,000 in respect of non-pecuniary damage, of which two-thirds was to be held for the partner and heirs of the applicant’s son and the remaining third for the applicant.

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