CEDH · PRESS;GENERAL;ENG — 17 mars 2005

.s800EAC49 { font-size:12pt } .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 } .sBB9EE52A { font-family:Arial } .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 } .s8ED60C92 { margin-left:30.6pt; padding-left:8.4pt; font-family:serif; font-size:10pt } .s4B4B41EE { font-family:Arial; font-size:12pt } .s8408AAD1 { font-family:Arial; font-size:12pt; font-weight:bold } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .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   135 17.3.2005   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF GEZİCİ v. TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Gezici v. Turkey (application no. 34594/97).   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 the applicant’s brother; that there had been a violation of Article 2 of the Convention in that the Turkish authorities had not carried out an effective investigation; that there had been a violation of Article 13 (right to an effective remedy) of the Convention;   that it was unnecessary to examine separately whether there had been a violation of Article 5 (right to liberty and security) of the Convention;   and by six votes to one that there had been no violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 15,000 euros (EUR) for non-pecuniary damage and EUR 3,000 for costs and expenses, less EUR 625.04 already paid by the Council of Europe in legal aid.   (The judgment is available only in French.)   1.     Principal facts   The applicant, Besir Gezici, is a Turkish national who was born in 1965 and lives in Istanbul.   The parties disagree as to the facts. The applicant maintains that his brother was the victim of an extrajudicial killing after being tortured by the security forces while in police custody. According to the Turkish Government, the applicant’s brother was killed in the course of a police operation against a suspected member of the PKK.   On 12 August 1996 the applicant’s brother, Şemsettin Gezici, was arrested by the security forces and taken into police custody. Later that day he was examined by a doctor, who drew up a medical report stating that there were no signs of injuries or blows to his body.   In the light of statements by Şemsettin Gezici, a police operation was conducted in his presence on 19 August at 3 a.m. at the home of a suspected member of the PKK   Shooting broke out, in the course of which the applicant’s brother and the suspect were killed.   Following those events, two reports were drawn up and the public prosecutor visited the scene. An external examination of the applicant’s brother’s body revealed six bullet wounds; the forensic medical examiner concluded that the cause of death was respiratory and circulatory failure resulting from the destruction of the brain and considered that it was unnecessary to carry out a full autopsy.   In November 1996 the applicant lodged a criminal complaint against the officers who had taken part in the police operation and the Dargeçit gendarmerie commander. In January 1998 the public prosecutor ordered ballistic examinations and, over a period lasting until September 2000, took evidence from the police officers involved in the operation and from relatives of the deceased.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 20 November 1996 and transmitted to the Court on 1 November 1998. It was declared admissible on 23 January 2001.   Judgment was given by a Chamber of 7 judges, composed as follows:   Christos Rozakis (Greek), President , Loukis Loucaides (Cypriot), Riza Türmen (Turkish), Françoise Tulkens (Belgian), Nina Vajić (Croatian), Snejana Botoucharova (Bulgarian), Dean Spielmann (Luxemburger), judges , and also Søren Nielsen , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicant complained that his brother had been the victim of an extrajudicial killing by the security forces, in breach of Article 2 of the Convention. He further alleged that his brother had been tortured while in police custody and complained of the suffering which the death had caused for himself and his family, amounting in his submission to a violation of Article 3 of the Convention.   In addition, relying on Article 5 of the Convention, the applicant alleged that his brother’s detention had been unlawful. Lastly, he maintained that the inadequacy of the investigation into the circumstances of his brother’s death had deprived him of access to a court and that he had not had an effective remedy, in breach of Articles 6 and 13 of the Convention.   Decision of the Court   Article 2 of the Convention   As regards the death of Şemsettin Gezici Since the applicant’s allegations that his brother had been the victim of an extrajudicial killing had not been corroborated to a decisive extent by any witness statements or other evidence, the Court considered that such a conclusion was based more on speculation and assumption than on reliable inference.   The Court reiterated that the authorities were under a duty to protect persons in custody, who were necessarily in a vulnerable position. By bringing the applicant’s brother face to face with the person whom he had denounced and whom they knew to be in possession of a combat weapon, the authorities had created a potentially dangerous situation and had subjected him to an extreme and unjustified risk. The Government had not provided any explanations as to why the applicant’s brother had been present during the visit to the suspect’s home, or any indication as to whether practical steps had been taken to protect him in a way that might reasonably have been expected to alleviate the potential risks he faced.   The Court therefore held that there had been a violation of Article 2 on that account.   As regards the nature of the investigations into the circumstances surrounding the death The Turkish authorities had conducted an investigation after the applicant had lodged his complaint. However, the Court observed that the public prosecutor had not considered it necessary to carry out a full autopsy and had given permission to proceed with the burial. The investigation had then remained at a standstill for nearly two years, with the result that no investigative measures had been taken until January 1998. Furthermore, the findings of the ballistic examination had not been communicated and no evidence appeared to have been taken from the applicant or from an eyewitness during the investigation.   Having regard to these shortcomings, the Court considered that Turkey had failed to fulfil its obligation to conduct an adequate and effective investigation into the circumstances of the applicant’s brother’s death. It accordingly held that there had been a violation of Article 2 on that account also.   Article 3 of the Convention   As regards the treatment to which Şemsettin Gezici was subjected The medical report drawn up when the applicant’s brother was first taken into police custody did not indicate any signs of injuries or blows to his body, and the report on the external examination of the corpse did not mention any marks other than bullet wounds. Moreover, the applicant had not produced any evidence to substantiate his allegations of torture. In those circumstances, the Court considered that it had not been established that ill-treatment had occurred and held that there had been no violation of Article 3 on that account.   As regards the suffering endured by the applicant The Court had no doubt that the applicant had suffered greatly as a result of his brother’s death. However, there was no evidence to support a finding that the minimum level of severity required by Article 3 in this particular type of case had been attained. The Court accordingly held that there had been no violation of Article 3 on that account either.   Article 5 of the Convention   As this complaint did not give rise to any separate issue from those already examined under Article 2, the Court considered that no separate examination was necessary.   Articles 6 and 13 of the Convention   The Court decided to examine these complaints under Article 13 alone. It pointed out that the Turkish authorities had been under an obligation to carry out an investigation into the circumstances of Şemsettin Gezici’s death. However, as it had already found, the judicial investigation conducted in the present case had not provided an adequate framework.   That being so, it could not be said that an effective criminal investigation had been conducted in accordance with Article 13. The Court therefore held that there had been a violation of that provision.     Judge Spielmann expressed a partly dissenting opinion, which is annexed to the judgment.   ***   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.