CEDH · PRESS;GENERAL;ENG — 27 juillet 2004

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS   381 27.7.2004   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF İKİNCİSOY v. TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of İkincisoy v. Turkey (application no. 26144/95).   The Court held unanimously that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights on account of the death of Mehmet Şah İkincisoy; a violation of Article 2 (right to life) on account of the lack of an effective investigation into the circumstances of Mehmet Şah İkincisoy’s death; no violation of Article 3 (prohibition of inhuman or degrading treatment); no need to determine whether there had been a violation of Article 6 (right to a fair trial); no violation of Article 5 §§ 1, 3, 4 and 5 (right to liberty and security) in respect of Abdülrezzak İkincisoy; no violation of Article 5 § 1 in respect of Halil İkincisoy; a violation of Article 5 §   § 3, 4 and 5 in respect of Halil İkincisoy; no violation of Article 8 (right to respect for private and family life), Article 9 (right to freedom of thought, conscience and religion) and Article 14 (prohibition of discrimination); a violation of Article 13 (right to an effective remedy); a violation of former Article 25 (individual petition), now Article 34 of the Convention.   Under Article 41 (just satisfaction) of the Convention, the Court awarded Mehmet Şah İkincisoy’s heirs 25,000 euros (EUR) for the non-pecuniary damage incurred as a result of his death. The Court also awarded each applicant EUR 3,500 for non-pecuniary damage and Halil İkincisoy EUR   4,000 for the non-pecuniary damage sustained as a result of being held in police custody. It also awarded the applicants EUR   15,000 for costs and expenses.   (The judgment is available only in English.)   1.     Principal facts   The applicants, Abdülrezzak İkincisoy and his son Halil, are Turkish nationals who were born in 1933 and 1974 respectively and live in Diyarbakır (Turkey). Their application concerned the circumstances surrounding the death of Mehmet Şah İkincisoy, who was the son of the first applicant and the brother of the second applicant. The facts were in dispute between the parties.   The applicants claim that at about 1 a.m. on the night of 22 November 1993 plain-clothes police officers arrived at Abdülrezzak İkincisoy’s apartment and asked him where his son was. They then went to his uncle’s apartment where they found him. While the police officers had started questioning the people present in the apartment gun shots were fired killing one police officer and another person present on the premises.   The applicants, Mehmet Şah İkincisoy and other members of their family were arrested and taken to Çarşı Police Station before being transferred to the Rapid Intervention Headquarters. Some of them claim to have seen Mehmet Şah İkincisoy at the police station and to have heard his cries at the Rapid Intervention Headquarters.   After spending several days in police custody, the applicants were released. On 6 December 1993 Abdulrezzak İkincisoy asked Diyarbakır State Security Court Public Prosecutor for news of his son. He was informed that his son had died in a clash with the police on 25 November 1993 and that his body had been buried. Despite his requests, he was not allowed to have his son’s grave opened or an autopsy conducted. After applying to the European Commission of Human Rights Abdulrezzak İkincisoy was summoned to the Diyarbakır public prosecutor’s office, questioned about his application to the Commission and, he alleged, forced to sign a statement expressing his wish to withdraw his application.   The Turkish Government submitted that they had been informed by a suspect that Mehmet Şah İkincisoy was aiding and abetting the PKK ( Workers’ Party of Kurdistan – proscribed as a terrorist organisation under Turkish law). The security forces went to his father’s apartment and then to his uncle’s. While searching the apartment they found four men sleeping in one of the rooms. As they questioned them, one of the men opened fire killing one of the police officers and injuring another. Mehmet Şah İkincisoy allegedly then escaped.   According to the Turkish authorities, on 23 November 1993 the police received an anonymous telephone call informing them that two armed men had been seen hiding in a hut near the Ongözlü Bridge. When the officers arrived, an armed clash broke out which lasted approximately 20 minutes following which two people were killed. It could subsequently be seen from photographs of the bodies that one of them was Mehmet Şah İkincisoy. Furthermore, according to the ballistic examination reports, the guns that were found in the hut matched those used during the shoot-out in Abdulkadir İkincisoy’s apartment the previous day.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 19 May 1994 and declared partly admissible on 26 February 1996. A delegation from the Commission conducted an on-the-spot investigation in Ankara from 28 June to 2 July 1999. The application was transmitted to the Court on 1 November 1999.   Judgment was given by a Chamber of 7 judges, composed as follows:   Josep Casadevall (Andorran), President , Rait Maruste (Estonian), Stanislav Pavlovschi (Moldovan), Lech Garlicki (Polish), Elisabet Fura-Sandström (Swedish), Ljiljana Mijović (citizen of Bosnia and Herzegovina), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge , and also Michael O’Boyle , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants claimed that Mehmet Şah İkincisoy had died as a result of torture at the hands of police officers at the Rapid Intervention Force Headquarters. They argued that this treatment and the suffering which his family had had to endure as a result of his death and their inability to learn the true circumstances of his death had resulted in a violation of Articles 2 and 3. The applicants also claimed that their detention in police custody had been contrary to Article 5 of the Convention. They complained further of the police custody of four of Abdulrezzak İkincisoy’s children, namely Hüseyin, Makbule, Nefise and Garipşah İkincisoy. Relying on Article 6, they complained of the lack of an effective investigation into their relative’s death and alleged that they had been deprived of access to a tribunal. They submitted that the searches at their homes had been contrary to Article 8, that their inability to have their relative’s grave opened had violated Article 9 and alleged that they had been discriminated against on account of their Kurdish origins in breach of Article 14. The applicants submitted, lastly, that there had been an infringement of their right of individual petition contrary to Article 25 of the Convention.   Decision of the Court   In the light of the evidence submitted to it, the Court found it established that on 22   November 1993 a team of police officers from the Anti-Terrorism Branch of the Diyarbakır Security Directorate had undertaken searches in order to find Mehmet Şah İkincisoy. They had gone to his father’s and then to his uncle’s apartment, where a shoot-out had occurred. Mehmet Şah İkincisoy had been arrested the same day and shot dead the following day while under the control of the authorities.   Article 2 of the Convention   Regarding Mehmet Şah İkincisoy’s death The Court drew very strong inferences from total lack of any evidence indicating that Mehmet Şah İkincisoy had been taken into custody. It reiterated that, having regard to the general context of the situation in south-east Turkey at the time, an unacknowledged detention could be life-threatening. Furthermore, the autopsy examination, which had critical importance in determining the causes of the death, had been defective in fundamental aspects. In that connection the Court was struck by the authorities’ refusal to deliver Mehmet Şah İkincisoy’s body to his family, who had intended to request a detailed autopsy.   Consequently, it could not be established beyond reasonable doubt that Mehmet Şah İkincisoy had died during a clash with police officers. The authorities had, moreover, failed to establish the real circumstances surrounding his death.   Accordingly, the Court concluded that Mehmet Şah İkincisoy had died in circumstances engaging Turkey’s responsibility without there being anything to suggest that this had been made necessary. There had therefore been a violation of Article 2.   As regards the investigations carried out following Mehmet Şah İkincisoy’s death The investigations conducted by the public prosecutor had been defective in a number of fundamental aspects. The Court was struck by the heavy reliance placed by the public prosecutor on the conclusion of the incident report dated 23   November 1993. He did not appear to have compared the facts as stated in the incident report with the photographs taken on the premises and appeared to have excluded the possibility that the circumstances surrounding the death of Mehmet Şah İkincisoy could have been different from those stated in the incident report despite the fact that the applicants had brought to his attention the possibility that their relative could have been killed under torture.   Without taking statements from the family members of the deceased who had also been arrested that day or the police officers who had been involved in the clash, the public prosecutor had concluded that Mehmet Şah had died during the clash.   The autopsy report had further shown that Mehmet Şah İkincisoy had been shot from behind by a bullet. It was striking that the public prosecutor had not sought any further explanation as to how a person involved in an intense clash could be shot from behind and probably by a person who was standing above him. The Court reiterated in that connection that there had been major flaws in the autopsy report.   In those circumstances the Court concluded that the investigation could not be considered to have been effective as required by Article   2 and accordingly held that there had been a violation of the Convention in that respect as well.   Article 3 of the Convention   The Court observed from the photographs of Mehmet Şah İkincisoy’s body and from the autopsy report that there had been no marks or injuries on the body consistent with the applicants’ allegations of torture. In those circumstances, and having regard to its conclusions under Article 2, the Court could not conclude that Mehmet Şah İkincisoy had been subjected to torture or inhuman or degrading treatment.   The suffering endured by the applicants following the events was not a basis for a finding of a violation of Article 3. Consequently the Court held that there had not been a violation of that provision.   Article 5 of the Convention   As regards the police custody of Hüseyin, Makbule, Nefise and Garipşah İkincisoy As the applicants were not victims within the meaning of Article 34 of the Convention, they could not raise this complaint.   Article 5 § 1 (c): allegation of arbitrary and unlawful arrest The applicants had been arrested on suspicion of having aided and abetted the PKK and having been involved in the events which had resulted in the killing of a police officer and the wounding of another. The Court was satisfied that there had been reasonable and sufficient grounds to believe that the applicants had been involved in an offence justifying their arrest. Accordingly, it held that there had been no violation of Article 5 § 1 (c).   Article 5 § 3: allegation that the applicants had not been brought promptly before a judge Abdulrezzak İkincisoy had been kept in police custody for less than three days. Noting the speed with which he had been released, the Court held that there had not been a breach of Article 5 § 3 as far as he was concerned. Halil İkincisoy had been held in police custody for 11 days. Even supposing that there had been a link between his activities and a terrorist threat, the Court could not accept that it had been necessary to detain him for 11 days without judicial intervention. Accordingly, it held that there had been a breach of Article 5 § 3 as far as he was concerned.   Article 5 § 4: inability to have the lawfulness of the detention decided speedily by a court Having regard to the conclusion it had reached with regard to Article   5 § 3 concerning Abdulrezzak İkincisoy, the Court concluded that there had not been a breach of Article 5 § 4. With regard to Halil İkincisoy, the judge did not intervene until 11 days after his arrest. Finding that such a lengthy period did not comply with the notion of “speedily”, the Court concluded that there had been a breach of Article 5 § 4 in this regard.   Article 5 § 5: inability to obtain compensation for a breach of Article 5 In the absence of a finding of a breach of Article 5 regarding Abdulrezzak İkincisoy, the Court concluded that there had been no violation of Article   5 § 5. At the material time the Turkish legislation permitted police custody for up to a maximum of 15 days. Accordingly, a compensation request for police custody which lasted for 11 days would not succeed before the domestic courts. The Court therefore concluded that there had also been a violation of Article   5 § 5 of the Convention in respect of Halil İkincisoy.   Article 6 of the Convention   In the Court’s view, it was more appropriate to examine the Article 6 complaints in relation to the more general obligation under Article 13. It accordingly did not find it necessary to determine whether there had been a violation of Article 6.   Articles 8, 9 and 14 of the Convention   Having regard to the evidence submitted to it, the Court concluded that there had been no violation of these provisions of the Convention.   Article 13 of the Convention   The Turkish authorities had had an obligation to carry out an effective investigation into the circumstances of Mehmet Şah İkincisoy’s death. However, no effective criminal investigation could be considered to have been conducted in accordance with Article   13 in the present case. There had therefore been a violation of Article 13 of the Convention.   Former Article 25 of the Convention   The parties did not dispute the fact that on 6 June 1995 Abdulrezzak İkincisoy had been interviewed by the public prosecutor concerning his application to the Commission, upon the instructions of the Ministry of Justice International Law and Foreign Relations Directorate. Accordingly, the Court found that the applicant had been subjected to indirect and improper pressure to make statements in respect of his application which had interfered with the free exercise of his right of individual petition. The Court accordingly held that Turkey had failed to comply with its obligations under former Article 25 of the Convention.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.