CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 21 novembre 2000

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s6B505E72 { margin:0pt; padding-left:0pt } .s4060989B { margin-left:10.52pt; text-align:justify; padding-left:7.48pt; font-family:serif } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s76CF415B { page-break-before:always; clear:both } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   832   21.11.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF DEMIRAY v. TURKEY   The European Court of Human Rights has today notified in writing judgment [1] in the case of Demiray v. Turkey. The Court dismissed the Government’s preliminary objection (unanimously) and held that: there had been violations of Article 2 (right to life) of the European Convention on Human Rights both on account of the death of Ahmet Demiray (by four votes to three) and owing to the failure of the authorities of the respondent State to carry out an effective investigation into the death (unanimously), it was unnecessary to examine whether there had been a violation of Article 5 (right to liberty and security), (unanimously), there had been no violation of former Article 25 of the Convention (unanimously).   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 40,000 US dollars (USD) for pecuniary and non-pecuniary damage and USD 2,000, less 3,700 French francs (FRF), for costs and expenses.   1.     Principal facts   The applicant, Asiye Demiray, a Turkish national, was born in 1969 and lives in Diyarbakır (Turkey). She lodged the application on behalf of herself and of her deceased husband,   Ahmet Demiray, whom she alleged had been killed by State security forces while in custody. She said that her husband had been arrested in Diyarbakır on 21 July 1994. Her father-in-law had lodged a complaint with the public prosecutor at the National Security Court alleging that his son had been abducted by three village guards, H.E., T.E., and Ö.E; and other unidentified individuals and was in danger. Ahmet Demiray’s father was informed the same day by the public prosecutor that his son had been taken into custody at Diyarbakır Central Gendarmerie. On 15 August 1994 the Lice public prosecutor informed the Mayor of Lice that Ahmet Demiray’s body had been found the previous day near the village of Dibek, and that an autopsy had been performed and the body buried in his relatives’ absence.   The Government alleged that Ahmet Demiray had been arrested because of suspicious behaviour. He had stated that he was a member of the PKK and could show the security forces a munitions dump belonging to that organisation. He had been killed when a booby-trap device planted by the PKK had exploded.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 18 April 1995. It was transmitted to the Court on 1 November 1998 and assigned to the Third Section. The application was declared admissible on 21 September 1999.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , Willi Fuhrmann (Austrian), Loukis Loucaides (Cypriot), Pranas Kūris (Lithuanian), Nicolas Bratza (British), Hanne Sophie Greve (Norwegian), judges , Feyyaz Gölcüklü , ad hoc judge ,   and also Sally Dollé , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicant complained that, contrary to Article 2 of the Convention, her husband had been killed by the security forces while in custody and the judicial authorities had failed to carry out any effective investigation. She also complained that, in breach of Article 5, her husband’s detention had been unlawful and unreasonably lengthy, and that she had been hindered in the exercise of her right to an individual petition, in breach of former Article 25 § 1 of the Convention.   Decision of the Court   Government’s preliminary objection   The Government had maintained that as proceedings brought by Ahmet Demiray’s father were pending and an investigation to identify the members of the PKK allegedly responsible for Ahmet Demiray’s murder was under way, domestic remedies had not been exhausted. In the light of the circumstances of the case, the Court held that the Government’s preliminary objection raised issues that were closely linked to the applicant’s complaint under Article 2 of the Convention and should therefore be joined to the merits.   Article 2 of the Convention   The Court noted that the wording of Article 2, taken as a whole, showed that it did not cover only intentional takings of life, but also situations in which the lawful use of force could result in unintentional death. Thus, Article 2 could imply in certain well-defined circumstances a positive obligation on the part of the authorities to take preventive operational measures to protect individuals for whom they had responsibility. With that in mind, the Court noted that, owing to a lack of evidence in the case file, it was impossible to establish with any certainty the exact circumstances of Ahmet Demiray’s death. The Court nonetheless had to determine whether the relevant authorities had done everything that could reasonably be expected of them to protect Ahmet Demiray from a real and immediate risk to life of which they were or should have been aware.   The Court noted on that subject that the authorities had without doubt been in a position to assess the risks that visiting the alleged munitions dump would entail, in view, notably of the sensitive situation in south east Turkey. According to the sketch map furnished by the Government, Ahmet Demiray was a metre away from the munitions dump at the time of the explosion, whereas the three gendarmes accompanying him had taken up position at three points respectively thirty, thirty and fifty metres away thus forming an isosceles triangle with the dump at the centre. In the absence of any explanation from the Government regarding the reasons for so proceeding, which raised serious issues of concern, or of any indication that other measures were taken to protect Ahmet Demiray, the Court had no alternative but to conclude that the authorities had failed to take reasonable measures to reduce the risk run by the applicant’s husband.   As regards the adequacy of the investigation, the Court noted firstly that it did not appear that Lice Public Prosecutor’s Office had visited the site of the explosion or that any of the gendarmes present at the scene had been questioned about the events. In addition, the authorities’ conclusion that an ordinary autopsy was unnecessary was, in the Court’s opinion, unreasonable in view of the circumstances of the death. The Court considered that the authorities had failed to carry out a genuine investigation into the circumstances of Ahmet Demiray’s death and consequently, had not complied with their obligation under Article 2 to carry out an effective investigation. The Court therefore considered that the applicant had satisfied her obligation to exhaust relevant domestic remedies afforded by the criminal law and dismissed the Government’s preliminary objection.   Article 5 of the Convention   As to the complaints concerning the lawfulness and duration of the applicant’s husband’s detention, the Court found that they did not raise any separate issue from those that had been examined under Article 2 and that it was therefore unnecessary to consider them separately.   Former Article 25 § 1 of the Convention   As there was no evidence to support the applicant’s submission that her husband’s family had been subjected to pressure by the Turkish authorities, the Court held that there had been no violation of former Article 25 of the Convention.   Article 41 of the Convention   Having regard to the pecuniary and non-pecuniary damage which the applicant and her four minor children had undoubtedly sustained, the Court awarded the applicant compensation of USD 40,000.   The applicant had been legally aided and had not submitted any fee notes. However, as she had necessarily incurred legal costs, the Court awarded her USD 2,000 on that account less FRF 3,700 which had been paid by the Council of Europe in legal aid for the proceedings before the Court.   Judges Costa, Kūris and Gölcüklü 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 Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [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.