CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 31 mai 2005

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display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }     FOURTH SECTION     CASE OF AKDENİZ v. TURKEY     (Application no. 25165/94)     JUDGMENT     STRASBOURG     31 May 2005       FINAL     31/08/2005       This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Akdeniz v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Sir   Nicolas Bratza , President ,   Mr   J. Casadevall ,   Mr   M. Pellonpää ,   Mr   R. Maruste ,   Mr   K. Traja ,   Mrs   L. Mijović, judges ,   Mr   F. Gölcüklü, ad hoc judge, and Mr M. O’Boyle , Section Registrar , Having deliberated in private on 10 May 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 25165/94) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mrs Mevlüde Akdeniz (“the applicant”), on 18 August 1994. 2.     The applicant was represented by Mr Mark Muller, a lawyer practising in London. The Turkish Government (“the Government”) did not designate an agent for the purposes of the proceedings before the Court. 3.     The applicant alleged, in particular, that her son Mehdi Akdeniz had been taken into the custody of the soldiers who had come to her village on 20 February 1994 and that nothing has been heard from him since that date. She invoked Articles 3, 5, 6, 13 and 14 of the Convention. 4.     The application was declared admissible by the Commission on 1   December 1997 and transmitted to the Court on 1 November 1999 in accordance with Article 5 § 3, second sentence, of Protocol No. 11 to the Convention, the Commission not having completed its examination of the case by that date. 5.     The application was allocated to the First Section of the Court (Rule   52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr Rıza Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Professor Feyyaz Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 6.     The applicant, but not the Government, filed observations on the merits (Rule 59 § 1). 7.     On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). 8.     On 10 May 2005 the Chamber decided, in the light of the principles laid down in Grand Chamber’s judgment in the case of Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, ECHR 2003 ‑ VI, to reject the Government’s request to strike the case out of its list of cases on the basis of the unilateral declaration submitted by them on 9 January 2002. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The applicant, a Turkish citizen of Kurdish origin, was born in 1955 and lives in Diyarbakır. A.     Introduction 10.     The facts of the case, particularly concerning events which took place on 20 February 1994, are disputed by the parties. 11.   The facts as presented by the applicant are set out in Section B below (paragraphs 12-18). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 19-21). Documentary evidence submitted by the parties is summarised in Section D (paragraphs 22-67). B.     The applicant’s submissions on the facts 12.     At the time of the events giving rise to the present application the applicant and her family were living in the Sesveren hamlet of Karaorman village, located within the administrative jurisdiction of the town of Kulp, near Diyarbakır, south-east Turkey. 13.     On 20 February 1994 approximately 200 soldiers from the Kulp District Gendarme Headquarters came to the applicant’s hamlet and forced the villagers out of their houses. The villagers were herded together into the village square and the soldiers began to burn the villagers’ houses. 14.     One of the soldiers then read out a list of names of six male villagers: Halit Akdeniz (35 years old), İrfan Akdeniz (18 years old), Mehmet Şirin Allahverdi (35 years old), Ziya Çiçek (22 years old), Faik   Akdeniz (35 years old), and finally the applicant’s son Mehdi Akdeniz (22 years old) (hereinafter “the six persons”). The six persons seemed to have been identified by a masked man who was with the gendarme officers. The soldiers then beat up the six persons; the applicant’s son was the subject of the worst treatment. The six persons were then taken away, out of sight of the villagers. 15.     The soldiers stayed in the village for approximately two hours and then walked with the group of six persons to another hamlet, approximately 1.5 kilometres away, where they got into waiting vehicles and drove away. 16.     Eye-witnesses, who were held in detention together with the applicant’s son, subsequently informed the applicant that Mehdi Akdeniz had been held at Kulp District Gendarme Headquarters for five days. He had been tortured whilst being detained and according to the eye-witnesses, he had received the worst treatment of the six persons. 17.     Eye-witnesses confirmed that in Silvan, where he was held for one week before being taken to Diyarbakır, he was also in a very poor condition. 18.     The applicant has heard nothing further about the whereabouts or fate of her son since that time. She has brought several applications, both orally and in writing, to the Chief Public Prosecutor at the Diyarbakır State Security Court (hereinafter “the Diyarbakır Court”) and tried, unsuccessfully, to obtain information about her son. C.     The Government’s submissions on the facts 19.     No operation was carried out in the Kulp-Sesveren area on 20   February 1994 and, according to the custody records, neither the applicant’s son nor any of the other five persons mentioned were taken into custody or detained. 20.     Between 1992 and 1993 the Sesveren hamlet was attacked by members of the PKK and the inhabitants of the hamlet fled from their homes because of intimidation by the PKK. 21.     On 11 May 1994 the applicant was informed by the Diyarbakır Court that, according to the custody records, Mehmet Şen ( sic. ) had not been taken into custody. D.     Documentary evidence submitted by the parties 22.     The following information appears from the documents submitted by the parties. 23.     According to a record of arrest, drawn up on 28 February 1994 and signed by three gendarme officers and four gendarme soldiers from the Kulp gendarmerie, five of the six persons, namely, Halit Akdeniz, M. Şirin Allahverdi, Ziya Çiçek, Faik Akdeniz and İrfan Akdeniz were arrested in an operation carried out by the gendarmerie. The reason for the operation was the fact that the gendarmerie had been informed, by reliable sources, that these persons had been aiding and abetting the PKK. The report further states that the five men had various injuries on their bodies obtained as a result of their attempts at escape and also of the use of force. 24.     On unspecified dates these five persons were questioned by a gendarme commander. All but Faik Akdeniz denied ever having been members of the PKK. Faik Akdeniz stated that he had been a member briefly. All five men stated that Karaorman village had often been visited by PKK members who forced the villagers to give them food. 25.     On 8 March 1994 the five men were questioned by a judge at the Diyarbakır Court. The judge then ordered the release of four of them. Faik Akdeniz’s detention on remand was ordered by the judge. 26.     The applicant, in a petition she submitted to the Chief Public Prosecutor at the Diyarbakır Court on 11 May 1994, informed the Prosecutor that her son had been detained by members of the security forces on 20   February 1994 in her hamlet of Sesveren. She further stated that she had not heard from him since that date and that she was concerned for his life. She asked to be informed about her son’s fate. 27.     According to a handwritten note, written by the Chief Public Prosecutor at the Diyarbakır Court on the applicant’s above mentioned petition of 11 May 1994, the applicant’s son was not recorded in custody records. 28.     On 29 December 1994 the Ministry of Justice’s International Law and Foreign Relations Directorate (hereinafter “the Directorate”) sent a letter to the Chief Public Prosecutor at the Diyarbakır Court and informed him about the application introduced with the Commission by the applicant. The Prosecutor was requested to question the applicant in relation to her complaints and to open an investigation into her allegations. 29.     In his letter of 30 December 1994 the Chief Public Prosecutor at the Diyarbakır Court requested the Prosecutor in the town of Kulp to take the steps requested in the letter of the Directorate. 30.     The commander of the Kulp District Gendarme Headquarters was requested on 6 January 1995 by the Kulp Prosecutor to summon the applicant, as well as the five persons who had allegedly been detained together with the applicant’s son (see paragraph 14 above), to the prosecutor’s office. The Prosecutor also asked for a certain Cevdet Yılmaz and one Reşat Pamuk, both of whom were apparently living in the applicant’s village, to be summoned. 31.     According to a report, which was drawn up on 17 March 1995 by three gendarme soldiers from the Sivrice gendarme station – located near the applicant’s village of Karaorman – and which was submitted to the Kulp Prosecutor, the persons referred to in the Kulp Prosecutor’s letter of 6   January 1995 had left the village for an unknown destination because of terrorist incidents. This report was subsequently sent to the Prosecutor’s office at the Diyarbakır Court. 32.     On 26 July 1995 the Kulp Prosecutor sent a letter, this time to the commander of the Kulp Gendarme Brigade, and asked for the applicant and the other seven persons mentioned above to be summoned to his office. 33. According to a report, drawn up on 27 August 1995 by two gendarme soldiers and sent to the Kulp Prosecutor, the persons referred to in the Kulp Prosecutor’s letter of 26 July 1995 had left the village for an unknown destination three years previously because of terrorist incidents. 34.     Similar correspondence between the Prosecutors and the gendarmerie setting out the former’s unsuccessful attempts to find the applicant and the other seven persons continued until June 1996, when Halit Akdeniz, one of the six persons who was allegedly detained at the same time as the applicant’s son, was located. 35.     In a statement taken by the Kulp Prosecutor on 13 June 1996, Halit Akdeniz stated that a large number of soldiers had come to the village in February 1994 and gathered the villagers outside the village. They then set fire to the houses in the village. He, his son İrfan, the applicant’s son Mehdi, and the other three persons had been singled out by the soldiers and ill-treated in the village. They had then been taken to the Sivrice gendarme station where they had stayed that evening. The following morning they had been taken to the Kulp Commando Brigade where they had been detained for four days during which they were blindfolded, beaten up and questioned. At the end of the four days they had been brought to the Kulp Central gendarme Station where the applicant’s son Mehdi had been separated from the rest of them and he had not been seen again. They had continued to be detained for another 15 days and at the end of their detention all but Faik Akdeniz had been released. 36.     Also on 13 June 1996 the Kulp Prosecutor questioned İrfan Akdeniz who confirmed the version of events as set out by his father above. He also added that Mehdi Akdeniz had been beaten up more severely than the rest of them. 37.     On 20 June 1996 the Kulp Prosecutor took a statement from Mehmet Şirin Allahverdi, another one of the six persons allegedly detained together with the applicant’s son. Mr Allahverdi, who gave a remarkably similar statement to that of Halit and İrfan Akdeniz, added that the applicant’s son Mehdi Akdeniz had been identified by the itirafçı [1] who had came to the village with the soldiers in February 1994. 38.     On 2 August 1996 Cevdet Yılmaz (see paragraph 30 above) was found in a prison in Elazığ. He refused to go to the Prosecutor’s office to make a statement on the ground that he was protesting against the Turkish courts. 39.     The Kulp Prosecutor took a statement from the applicant on 15   August 1996. In her statement the applicant confirmed her account of events as set out above (see paragraphs 13 to 18 above). She finally asked the Prosecutor for information about her son’s fate. 40.     On 19 August 1996 the statements taken by the Kulp Prosecutor from Halit Akdeniz, İrfan Akdeniz and Mehmet Şirin Allahverdi were forwarded to the Prosecutor’s office at the Diyarbakır Court. The Kulp Prosecutor further stated that his efforts to find Faik Akdeniz and Ziya   Çiçek would continue. 41.     Faik Akdeniz was questioned on 16 September 1996 by the Kulp Prosecutor. Mr Akdeniz also gave a remarkably similar statement to those made by Halit Akdeniz, İrfan Akdeniz , Mehmet Şirin Allahverdi and the applicant. 42.     On 5 December 1996 the Kulp Prosecutor sent a letter to the Kulp District Gendarme Headquarters and asked whether an operation had been conducted in Karaorman village in February 1994. 43.     On 27 December 1996 the deputy commander of the Kulp District Gendarme Headquarters replied to the Kulp Prosecutor in writing, stating that according to the records at the Headquarters, no operation had been conducted in Karaorman village or in Sesveren hamlet in February 1994. 44.     Another statement was taken from the applicant on 12 May 1997 by the Kulp Prosecutor. The applicant confirmed, once more, her allegations and added that she had made an application to the Commission. 45.     On 26 May 1997 the Kulp Prosecutor informed the Prosecutor at the Diyarbakır Court that he had taken another statement from the applicant and that she still had not heard from her son. He further informed him that his efforts to find Cevdet Yılmaz, Ziya Çiçek and Reşat Pamuk, who had allegedly seen Mehdi Akdeniz in the custody of gendarmes, would continue. 46.     The applicant was questioned on 21 July 1997, this time by the Prosecutor in the town of Silvan. She confirmed her allegations. 47.     On 15 December 1997 the applicant was questioned once more by the Kulp Prosecutor. She repeated her allegations and added that she had nothing to add to her previous statements. 48.     On that same day the Kulp Prosecutor also took a statement from Ziya Çiçek, the fifth person who had allegedly been detained together with the applicant’s son. Mr Çiçek confirmed the version of events given by the other four persons who claimed to have been detained with the applicant’s son. 49.     The Kulp Prosecutor informed the Prosecutor at the Diyarbakır Court on 16 December 1997 that he had taken yet another statement from the applicant and that he had found out from her that her son was still missing. 50.     On 14 January 1998 the Kulp Prosecutor asked the Kulp and Silvan District Gendarme Headquarters, the Diyarbakır Provincial Gendarme Headquarters and also the Diyarbakır Police Headquarters to send to his office copies of custody records showing the names of persons who had been taken into custody between 20 February 1994 and 10 January 1995 at their respective Headquarters. 51.     On 24 January 1998 the commander of the Kulp District Gendarme Headquarters forwarded to the Kulp Prosecutor’s office the names of those persons detained between 20 February 1994 and 10 January 1995. According to this letter, Halit Akdeniz, Ziya Çiçek, Mehmet Allahverdi, İrfan Akdeniz and Faik Akdeniz had been taken into custody on 28   February 1994 on suspicion of collaborating with the PKK. No information was provided in the column showing dates of release. 52.     On 27 January 1998 the Directorate asked the Prosecutor at the Diyarbakır Court for information about the investigation into the disappearance of the applicant’s son. 53.     The Prosecutor at the Diyarbakır Court was informed on 2 February 1998 by the Kulp Prosecutor that the statements taken from Halit Akdeniz, İrfan Akdeniz, Mehmet Şirin Allahverdi, Faik Akdeniz and Ziya Çiçek corroborated the allegations of the applicant. His efforts to obtain information from the gendarme as to whether the applicant’s son had indeed been detained by them were still continuing. The applicant’s son was still missing. 54.     On 16 February 1998 the Kulp Prosecutor took a statement from Reşat Pamuk. Mr Pamuk stated that he used to live in the village of Yayık, near the town of Kulp. He and a number of his friends had been taken into detention by soldiers in the town of Silvan during the month of Ramadan in 1994. During his time in detention he had not seen Mehdi Akdeniz, the applicant’s son; in any event, he did not know who Mehdi Akdeniz was. 55.     In a reply of 24 February 1998 to the Kulp Prosecutor’s letter of 14   January 1998, the chief of the Diyarbakır Police Headquarters stated that Mehdi Akdeniz had not been detained by the police. 56.     Also on 24 February 1998 the Directorate asked the Prosecutor’s office at the Diyarbakır Court to verify the accuracy of the contents of the statements given by the persons who claimed to have been detained together with the applicant’s son. This letter was forwarded to the Kulp Prosecutor the same day. 57.     On 25 February 1998 the Kulp Prosecutor drew the attention of the commander of the Kulp District Gendarme Headquarters to the fact that the release dates of the five persons detained on 28 February 1998 did not appear in the form he had received (see paragraph 51 above). The Prosecutor asked the commander to inform his office as to what action had been taken in relation to these persons. It appears that the gendarme commander subsequently complied with this request. According to the custody records of the Kulp Central Gendarme Station, Halit Akdeniz, Ziya Çiçek, Mehmet Allahverdi, İrfan Akdeniz and Faik Akdeniz had been detained there from 8 p.m. on 28 February 1994 until 9 a.m. on 5 March 1994 when they had been transferred to the Diyarbakır Court. 58.     According to a set of custody records, showing the names of those detained at the Diyarbakır Provincial Gendarme Headquarters between 24   February 1994 and 21 March 1994, the five men had been detained there on 5 March 1994 until their release was ordered by the Diyarbakır Court on 8   March 1994. 59.     On 16 March 1998 the Prosecutor at the Diyarbakır Court forwarded to the Directorate a number of documents concerning the criminal proceedings which had been brought against İrfan Akdeniz, Mehmet Allahverdi and Faik Akdeniz following their detention in February 1994 (see paragraph 23 above). According to these documents, the three persons had been tried and acquitted of the offence of aiding and abetting a terrorist organisation. 60.     On 25 March 1998 the Kulp Prosecutor once again asked the Kulp District Gendarme Headquarters for the names of those detained in Karaorman village since 20 February 1994. 61.     On 11 April 1998 the commander of the Sivrice Gendarme Station stated in a report that no operation had been conducted in Karaorman village on 20 February 1994 by soldiers from his station. 62.     Mehmet Nuri Sansar, the headman ( muhtar ) of the Karaorman village at the time of the alleged events, was questioned by the Kulp Prosecutor on 15 April 1998. Mr   Sansar stated that on 20 February 1994 he had been in the Karaorman village mosque praying, when two soldiers had come in and asked those present to leave the mosque. Mr Sansar and the villagers in the mosque had complied with this order and left the mosque. Mr Sansar had then seen that the village had been surrounded by soldiers and that the villagers had been gathered outside the village. The commander of the soldiers had called Mr Sansar over and told him that food supplies had been brought to the Karaorman village by vehicles and that, from the village, they had been taken by mules to the PKK in the mountains. The commander asked Mr Sansar for the identity of the villagers who had carried the foodstuff to the PKK. When Mr Sansar replied that he did not know, the soldiers had taken him away and beaten him. Among the soldiers there had also been an itirafçı, whose face was covered. The itirafçı had not spoken a word but pointed to the six persons. All six persons had been taken away and all but Mehdi Akdeniz had been released some time later. 63.     Cevdet Yılmaz (see paragraphs 30 and 38 above) was questioned by a Prosecutor on 29 April 1998. Mr Yılmaz stated that he used to live in Yayık village, near Sesveren hamlet where Mehdi Akdeniz used to live. He further stated that in February 1994 he had been arrested and taken to a detention centre in Silvan where he had seen Mehdi Akdeniz. However, unlike all other detainees, Mehdi had not subsequently been brought before the judge at the Diyarbakır Court. 64.     On 22 May 1998 the Kulp Prosecutor asked his opposite number in the town of Silvan to enquire with the Gendarme Headquarters in the latter’s town to verify whether, as alleged by a number of eye-witnesses, Mehdi Akdeniz had ever been detained there. 65.     On 22 May 1998 the Kulp Prosecutor also asked the Diyarbakır Provincial Gendarme Headquarters whether an operation had been carried out in Karaorman village where, according to the allegations, Mehdi Akdeniz was arrested by soldiers. 66.     On 13 June 1998 the commander of the Silvan District Gendarme Headquarters informed the Silvan Prosecutor that, according to the custody records, Mehdi Akdeniz had not been detained at the Headquarters in February 1994. 67.     On 29 June 1998 the deputy commander of the Diyarbakır Provincial Gendarme Headquarters replied to the Kulp Prosecutor’s letter of 22 May 1998 and stated that no operation had been carried out in the region of Karaorman village in February 1994. II.     RELEVANT DOMESTIC LAW 68.   A description of the relevant law may be found in İpek v. Turkey, no.   25760/94, §§ 92-106, ECHR 2004-... (extracts). THE LAW I.     THE COURT’S ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS A.     Arguments of the parties 1.     The applicant 69.     In her observations submitted to the Commission prior to the decision on admissibility, the applicant submitted that her son had been beaten up and then taken away by a number of soldiers who had come to their village on 20 February 1994, and that nothing had been heard from him since that date. She invoked Articles 3, 5, 6, 13 and 14 of the Convention. 2.     The Government 70.     In their observations submitted to the Commission on 17 March 1995 and in their supplementary observations submitted on 29 November 1995, the Government contended that no operation had been carried out in the applicant’s village in February 1994. They further submitted that according to the custody reports enclosed with their observations, neither the applicant’s son nor any of the other men referred to by the applicant had been taken into custody. B.     The Court’s evaluation of the facts 71.     The Court observes that the Government, in their two sets of observations submitted in 1995, i.e. prior to the admissibility of the application, submitted that neither the applicant’s son nor any of the five men whom the applicant alleged had been detained together with her son, had ever been detained. In support of their submission, the Government appended to their observations copies of two pages of the custody ledger of the Diyarbakır Provincial Gendarme Headquarters. In these pages the names of those detained there between 24 January 1994 and 24 February 1994 are listed. Neither the name of the applicant’s son, nor those of the other five persons feature in these two pages. 72.     However, the Court observes that according to the next four pages of the same custody ledger, the five persons whose detentions was denied by the Government, were in fact detained there between 5 March 1994 and 8   March 1994. These four pages were submitted to the Commission by the Government on 22 April 1999. 73.     Furthermore, according to the copies of the custody ledger of the Kulp Central Gendarmerie Station (see paragraphs 51 and 57 above), the five persons were detained there between 28 February 1994 and 5 March 1994. 74.     Similarly, the Government’s submission that no operation had been carried out in Karaorman village in February 1994 appears to be refuted by the record of arrest drawn up on 28 February 1994 by officers from the Kulp gendarmerie, according to which Halit Akdeniz, M. Şirin Allahverdi, Ziya   Çiçek, Faik Akdeniz and İrfan Akdeniz were arrested in an operation carried out by the gendarmerie (see paragraph 23 above). A number of them were subsequently tried and acquitted (see paragraph 59 above). 75.     Finally, the Court cannot but note that notwithstanding the existence of an arrest report which clearly states that there had been an operation on 28 February 1994 (see paragraph 23 above), both the commander of the Kulp District Gendarme Headquarters and the deputy commander of the Diyarbakır Provincial Gendarme Headquarters denied that such an operation had been carried out (see, respectively, paragraphs 43 and 67 above). 76.     The Court is thus confronted with a situation where State agents, as well as the respondent Government in their observations, have provided conflicting information and documents relating to the facts of the case. No explanation, let alone a satisfactory one, has been given for this. The Court considers that such a serious contradiction directly affects the credibility of the version of the facts as presented by the Government and, moreover, justifies the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Timurtaş v. Turkey , no. 23531/94, § 66, ECHR 2000-VI). 77.     As regards the allegations made by the applicant in her application form, the Court observes that they are consistent with the petition she had already submitted to the Prosecutor at the Diyarbakır Court (see paragraph 26 above) and also with the four statements she subsequently made on various dates before a number of prosecutors (see paragraphs 39, 44, 46 and finally 47 above). 78.     Furthermore, the accuracy of her allegations is corroborated by the statements given by the five men before the Kulp Prosecutor on various dates (see paragraphs 35, 36, 37, 41 and 48 above). 79.     The applicant’s allegations were also confirmed by Cevdet Yılmaz, who was detained in February 1994 in his own village located near to the applicant’s hamlet. He confirmed in his statement to a Prosecutor that he had seen the applicant’s son Mehdi Akdeniz in the custody of soldiers (see paragraph 63 above). 80.     Finally, the applicant’s allegations found confirmation in the statement of the muhtar of her village, Mr Mehmet Nuri Sansar. Mr Sansar, like the applicant, submitted that the soldiers had come to the village during prayer time (see paragraph 62 above). He confirmed that the applicant’s son had been taken away by the soldiers. 81.     The Court observes that all these statements, made by different persons on various dates, were made before public prosecutors. They are consistent with the applicant’s allegations and consistent with each other. The Court finds them convincing. Indeed, on the basis of these statements, the Kulp Prosecutor himself reached the conclusion that they corroborated the applicant’s allegation that her son had been taken into detention by the gendarmerie (see paragraph 53 above). 82.     The Court, in the light of the above-mentioned statements, the authenticity and the accuracy of which have not been challenged by the Government, finds it established that the applicant’s son was detained by the gendarme soldiers together with the five villagers. 83.     On the basis of this finding, the Court will proceed to examine the applicant’s complaints under the various Articles of the Convention. II.     ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION 84.     The applicant argued in her observations submitted to the Court on 10 April 2002 that her son was arrested and detained by members of the Turkish security forces and that he is to be presumed dead, in violation of Article 2 of the Convention. She also submitted that the authorities had failed to carry out an effective investigation into the disappearance of her son. 85.     The Government denied that the applicant’s son had been detained by soldiers. 86.     The Court observes at the outset that the applicant did not invoke Article 2 of the Convention in her application form; this Article was invoked for the first time in the applicant’s above mentioned observations of 10 April 2002. 87.     In this context, Article 32 of the Convention provides as follows: “1.     The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34 and 47. 2.     In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.” 88.     The Court reiterates that since it is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant, a government or the Commission. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by those appearing before it and even under a provision in respect of which the Commission had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Guerra and Others v. Italy , judgment of 19   February 1998, Reports 1998-I, § 44; Powell and Rayner v. the United Kingdom, judgment of 21   February 1990, Series A no. 172, p. 13, §   29; see also, Assenov and others v. Bulgaria , judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, § 132). 89.     The Court has full jurisdiction only within the scope of the “case”, which is determined by the decision on the admissibility of the application. Within the compass thus delimited, the Court may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, Philis v. Greece (no. 1) , judgment of 27 August 1991, Series A no. 209, p. 19, § 56). 90.     In the instant case, while the applicant in her application to the Commission may not expressly have invoked Article 2 of the Convention, she has raised in substance – both before the national authorities and also in her observations submitted to the Commission – the basis of her complaint in relation to this Article. 91.     In this regard the Court observes that in her petition submitted to the Chief Public Prosecutor at the Diyarbakır Court on 11 May 1994, the applicant submitted that she was concerned for her son’s life (see paragraph 26 above). Furthermore, in her application form, the applicant alleged that her son had disappeared in circumstances in which there was every reason to fear for his life. Finally, in her observations submitted to the Commission, the applicant submitted that her serious complaint concerning the life of her son had not been properly investigated. 92.     The Court would further emphasise that it has, since the adoption of its judgment in the above mentioned case of Timurtaş , taken into account the effective protection of the right to life as afforded by Article 2 of the Convention by holding that lengthy periods of unacknowledged detentions go beyond a mere irregular detention in violation of Article 5 of the Convention (see, Timurtaş , cited above, § 83). It has examined such allegations from the standpoint of Article 2 as well as Article 5 of the Convention (see, inter alia, Orhan v. Turkey , no. 25656/94, §§ 328-332, 18   June 2002, and İpek , cited above, §§ 166-168). 93.     It follows that it is open to the Court to consider the applicant’s allegations concerning her son’s detention in the light of the protection of the right to life within the meaning of Article 2 of the Convention which provides as follows: “1.     Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.     Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a)     in defence of any person from unlawful violence; (b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c)     in action lawfully taken for the purpose of quelling a riot or insurrection.” A.     General considerations 94.     Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective ( McCann and Others v. the United Kingdom, judgment of 27   September 1995, Series A no. 324, §§ 146-147). 95.     In the light of the importance of the protection afforded by Article   2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, amongst other authorities, Orhan, cited above, § 326 and the authorities cited therein). The obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter. 96.     Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation ( Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999 ‑ IV, and Timurtaş , cited above, § 82). B.     Whether Mehdi Akdeniz can be presumed dead 97.     In the Timurtaş judgment (cited above, §§ 82-83) the Court stated the following: (...) where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which an issue arises under Article 3 of the Convention (...). In the same vein, Article 5 imposes an obligation on the State to account for the whereabouts of any person taken into detention and who has thus been placed under the control of the authorities (...). Whether the failure on the part of the authorities to provide a plausible explanation as to a detainee’s fate, in the absence of a body, might also raise issues under Article 2 of the Convention will depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on concrete elements, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody (...).   In this respect the period of time which has elapsed since the person was placed in detention, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time goes by without any news of the detained person, the greater the likelihood that he or she has died. The passage of time may therefore to some extent affect the weight to be attached to other elements of circumstantial evidence before it can be concluded that the person concerned is to be presumed dead. In this respect the Court considers that this situation gives rise to issues which go beyond a mere irregular detention in violation of Article 5. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2, which ranks as one of the most fundamental provisions in the Convention (...).” 98.     The Court considers that there are a number of elements distinguishing the present case from cases such as Kurt v. Turkey (judgment of 25 May 1998, Reports 1998-III, § 108) in which the Court held that there were insufficient persuasive indications that the applicant’s son had met his death in detention. Üzeyir Kurt had last been seen surrounded by soldiers in his own village, whereas Mehdi Akdeniz and five other villagers were seen being taken away by soldiers. Furthermore, it has also been established that Mehdi Akdeniz was last seen in the hands of the security forces in various detention facilities . 99.     The Court also notes that the Akdeniz family was suspected by the authorities of aiding and abetting the PKK, and a number of them were arrested at the same time as Mehdi Akdeniz and have subsequently been charged with and tried for that offence (see paragraph 59 above). Indeed, as established by the Court, the applicant’s son was detained together with five others who were suspected of having aided and abetted the PKK. In the general context of the situation in south-east Turkey in 1994, it can by no means be excluded that an unacknowledged detention of such persons would be life-threatening ( Timurtaş, cited above, § 85; Orhan, cited above, § 330; and finally Çiçek v. Turkey, no. 25704/94, § 146, 27 February 2001. 100.     It is further to be recalled that the Court has held in previous judgments that defects undermining the effectiveness of criminal-law protection in the south-east during the period relevant also to this case, permitted or fostered a lack of accountability of members of the security forces for their actions ( Kılıç v. Turkey , no.   22492/93, § 75, ECHR 2000-III, and Mahmut Kaya v. Turkey , no.   22535/93, § 98, ECHR 2000-III). This lack of accountability is evidenced in the present case by the fact that none of the gendarmes working in Kulp where the applicant’s son was detained has been questioned by the Kulp Prosecutor despite the latter’s conclusion that the applicant’s allegation of her son having been detained by gendarmes was corroborated by the statements of a number of other detainees (see paragraph 53 above). 101.     For the reasons above, and taking into account the fact that no information has come to light concerning the whereabouts of Mahdi Akdeniz for more than 11 years, the Court is satisfied that he must be presumed dead following an unacknowledged detention by the security forces. Consequently, the responsibility of the respondent State for his death is engaged. Noting that the authorities have not provided any explanation as to what occurred following Mehdi Akdeniz’s detention, and that they do not rely on any ground of justification in respect of any use of lethal force by their agents, it follows that liability for his death is attributable to the respondent Government ( Timurtas , § 86, Orhan, § 331, and Çiçek , § 147, all cited above). 102.     Accordingly, there has been a violation of Article 2 on that account in respect of Mehdi Akdeniz. C.     The alleged inadequacy of the investigation 103.     The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis , McCann and Others , cited above, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, § 105). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibi