Information Note on the Court’s case-law 63
April 2004
Tahsin Acar v. Turkey [GC] - 26307/95
Judgment 8.4.2004 [GC]
Article 2
Article 2-1
Life
Effective investigation
Alleged abduction and killing by State agents, and lack of effective investigation into the disappearance: violation
Facts: The applicant claims that his brother, a farmer living in a village in south-east Turkey, was abducted in August 1994 by two gendarme officers. He maintains that his brother was subsequently detained incommunicado at a gendarmerie command and was now to be presumed dead. Two of the eyewitnesses to the abduction alleged the applicant’s brother had been tied and blindfolded. Following several petitions by the victim’s relatives to the authorities, investigations into his disappearance were initiated. However, the Provincial Administrative Council decided not to take any proceedings against the two accused gendarme officers on grounds of insufficient evidence. The victim’s relatives subsequently claimed to have seen him in a news broadcast of suspected terrorists apprehended in Diyarbakir. They attempted to obtain a video recording of these broadcasts but without success. In a judgment of 9 April 2002 a Chamber of the Court decided, by six votes to one, to strike out the case on the basis of a unilateral declaration by the Turkish Government. The applicant requested that the case be referred to the Grand Chamber, which considered that the in the particular circumstances the application should not be struck out and that it should pursue its examination.
Law: Article 2 (disappearance) – The applicant did not offer any elements in support of his allegation that the gendarme officers had been involved in the abduction of his brother. The only eyewitnesses to the abduction had initially declared they did not know those responsible for the abduction, whereas one of them later stated he explicitly knew the accused gendarme officers. The applicant’s claim is therefore based on hypothesis and speculation rather than on reliable evidence. In the circumstances, it has not been established beyond reasonable doubt that the responsibility of the State was engaged in the disappearance of the applicant’s brother.
Conclusion: no violation (unanimously)
Article 2 (effective investigation) – The initial investigation, which had been conducted under the authority of one of the accused gendarme officers, could be regarded as being prima facie in accordance with the authorities’ procedural obligations under Article 2. However, once the applicant had informed the authorities of his suspicions against the gendarme officers, the public prosecutor had not verified the manner in which that initial investigation had been carried out. Similarly, no steps had been taken to verify certain statements by the victim’s wife or to obtain a video recording of the television broadcast where the family members had allegedly seen the victim. In these circumstances, the authorities had not conducted an adequate and effective investigation into the disappearance, and there had thus been a breach of the State’s procedural obligations under Article 2.
Conclusion: violation (unanimously)
Article 38 – The failure of the authorities to comply diligently with requests by the Court to make available evidence, such as the case-file at the Provincial Administrative Council and the video recording of the news broadcast, was not compatible with the Government’s obligations under this Article. No separate issue arose under Article 34.
Article 41 – The Government awarded the applicant 10,000 euros in respect of non-pecuniary damage. It also made an award for costs and expenses.
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This summary by the Registry does not bind the Court.
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