CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 9 mai 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 } .s21B97EC1 { width:25.99pt; display:inline-block } .sCBC20640 { margin-top:0pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .s595305E7 { font-family:Arial; font-weight:normal; text-decoration:underline } .s98A7B623 { margin-top:0pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s76CF415B { page-break-before:always; clear:both } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .s4841299A { margin-top:0pt; margin-left:34.6pt; margin-bottom:0pt; text-align:justify } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; 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     322   9.5.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF ERTAK v. TURKEY     In a judgment delivered at Strasbourg on 9 May 2000 in the case of Ertak v. Turkey, the European Court of Human Rights held unanimously that there had been a violation of Article   2 (right to life) of the European Convention on Human Rights. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants GBP 49,500 for pecuniary and non-pecuniary damage and for legal costs and expenses.   1.   Principal facts   The applicant, Ismail Ertak, a Turkish national, was born in 1930 and lives in Şirnak (Turkey).   The facts as submitted by the applicant   Following incidents in Şırnak (a town in south-east Turkey) from 18 to 20 August 1992, a number of people were taken into police custody on 21 August 1992 at the gendarmerie and security police headquarters. At the time, the applicant’s son, Mehmet Ertak, was working at a coal mine. At a checkpoint police officers stopped the taxi Mehmet three other people had taken to return home from work and led him away. Other people being held at the security police headquarters at that time said that they had seen Mehmet Ertak while he was in police custody.   The applicant applied to the Prefect of Şırnak province for news of his son’s whereabouts. On 2 October 1992 the applicant lodged a complaint with the Şırnak Public Prosecutor’s Office. On 8 April 1993 the investigating officer responsible for conducting an inquiry into the applicant’s allegations submitted a report to the Şırnak Administrative Council in which he recommended that the case should not be referred to the courts. On 11 November 1993 the Administrative Council ruled that the security police officers had no case to answer. That decision was upheld by the Supreme Administrative Court.   The facts as submitted by the Government   The Government contested the facts and submitted that Mehmet Ertak had never been taken into police custody.   2.   Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 1 October 1992. Having declared the application admissible, the Commission adopted a report on 4   December 1998 in which it expressed the unanimous opinion that there had been a violation of Article 2 of the Convention. It referred the case to the Court on 6 March 1999. Judgment was given by a chamber of 7 judges, composed as follows:   Elisabeth Palm (Swedish), President , Josep Casadevall (Andorran), Luigi Ferrari Bravo [1] (Italian), Boštjan Zupančič (Slovenian), Wilhelmina Thomassen (Dutch), Tudor Panţîru (Moldovan), judges , Feyyaz Gölcüklü , ad hoc judge ,   and also Michael O’Boyle , Section Registrar .   3.   Summary of the judgment [2]   Complaint   The applicant complained that his son, Mehmet Ertak, had disappeared after being detained by security forces and had been killed while in police custody. He relied on Article 2 of the European Convention on Human Rights.   Decision of the Court   The Court’s assessment of the evidence   The Court observed that the Commission had reached its conclusions after a delegation had heard oral testimony by witnesses in Ankara. It noted that the Commission had exercised due care in the performance of its task of assessing the weight to be given to the witness statements: it had conducted a thorough review of the evidence both in support of the applicant’s case and that cast doubt on his credibility. Thus, as no fresh evidence had been produced before it by the parties, the Court would rely on the evidence gathered by the Commission, but would make its own assessment of the weight to be attached to it. As regards the allegations that documents relating to the application to the Commission had been confiscated and not returned by the Government, the Court upheld the Commission’s finding that, in the case before it, there was no reason to conclude that the Government had failed to comply with their obligations under former Article 28 § 1(a) of the Convention.   The Government’s preliminary objection   The Court noted that the applicant had done all that could be expected of him to obtain a remedy for his complaint. He had approached the Şırnak Prefect and lodged a complaint with the Şırnak Public Prosecutor’s Office. However, as the authorities had not carried out any effective inquiry into the alleged disappearance and had constantly denied that the applicant’s son had been arrested, the Court found that the applicant had no basis on which to use the civil and administrative remedies referred to by the Government effectively. It considered, consequently, that he had done all that could reasonably be expected of him to exhaust the available domestic remedies. Article 2 of the Convention   Fate of the applicant’s son : the Court agreed with the Commission’s findings of fact. On that basis, it noted that there was sufficient evidence for it to conclude beyond all reasonable doubt that the applicant’s son, after being arrested and detained, had been the victim of serious ill-treatment that had not been acknowledged and had died in the custody of the security forces. The Court reiterated that authorities are under a duty to account for persons under their control and observed that no explanation had been offered as to what had become of the applicant’s son after his arrest. In conclusion, the Court considered that under the circumstances of the case, the Government were responsible for his death, and that it had been caused by State agents after his arrest. There had therefore been a violation of Article 2 on that account.   Investigation by the national authorities : in the light of the fact that the Court agreed with the Commission’s findings regarding the unacknowledged detention of the applicant’s son, the ill-treatment inflicted on him and his disappearance in circumstances that raised a presumption that he was now dead, it followed that the authorities were under an obligation to conduct an effective and thorough enquiry into his disappearance. The Commission expressed the view that the investigation at the national level into the applicant’s allegations had not been conducted by independent bodies, was not thorough and had been carried out without the applicant being given an opportunity to take part. In that connection, the Court noted one particular omission in that the investigating officer responsible for the preliminary investigation did not have in his possession the case file in which was to be found, among other documents, a deposition referring to other people who had been in custody, and had not in the course of his investigations taken a statement from the applicant or other persons named by the applicant in his complaint. Thus, the Court concluded that the respondent State had failed in its obligation to conduct a sufficient and effective investigation into the circumstances of the disappearance of the applicant’s son. Consequently, there had been a violation of Article 2 on that account also.   Conclusion : violation (unanimously).   Former Article 25 § 1 of the Convention   The applicant had said that he did not wish to pursue that complaint before the Court. That being so, the Court held that it was not required to examine the question of its own motion.   Alleged practice of Article 2 violations   The Court held that the available evidence and the documents produced on the case file in the case before it did not suffice to enable it to decide whether the Turkish authorities had a practice of violating Article 2 of the Convention.   Article 41 of the Convention   The Court held that the respondent State had to pay to the applicant: (i)     GBP 15,000 for pecuniary damage to be held by the applicant on behalf of the widow and four children of his son; (ii)     GBP 20,000 for non pecuniary damage (to be held by the applicant on behalf of the widow and four children of his son) and GBP 2,500 (for the damage sustained by the applicant); (iii)     GBP 12,000 for costs and expenses less 14,660.35 French francs which the applicant had received in legal aid.     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] Judge elected in respect of San Marino. [2] This summary by the Registry does not bind the Court.