CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 31 mai 2001

.s800EAC49 { font-size:12pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .s94935B0F { width:389.85pt; display:inline-block } .sB15BD35E { color:#b5082e } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s2A13E303 { color:#2e97d3 } .s6B505E72 { margin:0pt; padding-left:0pt } .s104C6712 { margin-left:10.06pt; text-align:justify; padding-left:7.94pt; font-family:serif; font-size:11pt } .sDBD222E3 { margin-left:18pt; text-indent:-18pt; text-align:justify; font-family:serif; font-size:11pt; list-style-position:inside } .s714E8F27 { width:6.94pt; font:7pt 'Times New Roman'; display:inline-block } .sB6C6CCE9 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify; font-size:11pt } .s7ED160F0 { text-decoration:none } .sB944F743 { display:none } .sB12174C2 { color:#633277 } .s76CF415B { page-break-before:always; clear:both } .s25D4CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:11pt } .s394C7864 { font-family:Arial; background-color:#ffff00 } .sC6B98441 { background-color:#ffff00; display:none } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s5E15F1C8 { width:0.33pt; 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 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s4364E35A { font-size:11pt; display:none } .s23A41E03 { width:36pt; display:inline-block } .s7F288AFF { font-size:11pt; background-color:#ffff00; display:none } EUROPEAN COURT OF HUMAN RIGHTS   390   31.5.2001     Press release issued by the Registrar   JUDGMENT IN THE CASE OF AKDENIZ AND OTHERS v. TURKEY     In a judgment today notified in writing in the case Akdeniz and Others v. Turkey (application number 23954/94), the European Court of Human Rights held, by six votes to one, that there had been:   a violation of Article 2 (right to life) of the European Convention on Human Rights, in that the Turkish Government was liable for the death of the applicants’ 11 missing relatives;      a violation of Article 2 on account of the failure of the Turkish authorities to conduct an effective investigation into the circumstances of the deaths of the missing relatives;      a violation of Article 3 (prohibition of inhuman and degrading treatment) in respect of the missing relatives, but no violation of Article 3 in respect of the applicants;      a violation of Article 13 (right to an effective remedy).   The Court also held:        unanimously, that there had been a violation of Article 5 § 1   (right to liberty and security);      by six votes to one, that Turkey had failed to comply with its obligations under Article 34, former Article 25 (individual applications) of the Convention.   Under Article 41 (just satisfaction) of the Convention, for pecuniary damage, the Court awarded a total of 382,340 pounds sterling (GBP). For non-pecuniary damage, the Court awarded GBP 2,500 to each applicant, plus GBP 20,000 to be held for the heirs of each missing relative. A total of GBP 26,600 was awarded for costs and expenses, less 17,500 French francs received in legal aid from the Council of Europe. (The judgment is only available in English)   [Note1] 1.     Principal facts   The nine eight applicants, all Turkish nationals are: Mehmet Emin Akdeniz, Sabri Tutuş, Sabri Avar, Keleş   Şimşek , Seyithan Atala, Aydın Demir, Süleyman Yamuk, Ramazan Yerlikaya and Kemal Taş. They are all close relatives of 11 men who went missing in October 1993 when security forces were carrying out a massive operation around the village of Alaca, in the region between Kulp, Muş and Lice, in south-east Turkey.   From around 9 to 12 October, the 11 men were detained outside under guard at Kepir by the security forces, where all but one were tied up. They were held until about 17 to 19 October, when at least some of them were seen being loaded onto a helicopter. They have since disappeared.   From October 1993 onwards, the applicants approached numerous authorities in the region, to find out what had happened to the missing men.   The Kulp public prosecutor started an investigation in December 1993. However, within less than two months, he ceded jurisdiction to the Diyarbakır State Security public prosecutor on the apparent basis that it was a PKK-linked terrorist crime.      On 29 April 1997, the Diyarbakır prosecutor declined jurisdiction, sending the file back to the Kulp public prosecutor, noting the absence of evidence of PKK involvement. No substantive progress in the investigation since that date has been brought to the attention of the European Commission of Human Rights or the Court.     2.     Procedure and composition of the Court   The application was declared admissible by the Commission on 3   April 1995. In its report of 10 September 1999 (former Article 31 of the Convention), the Commission expressed the opinion, by 26 votes to 2, that there had been a violation of Article 2 of the Convention and unanimously that there had been a violation of Article 3 in respect of the missing relatives and the applicants themselves, a violation of Articles 5 and 13, no violation of Article 14 (prohibition of discrimination) and that Turkey had failed to comply with its obligations under former Article 25 of the Convention. The Commission referred the case to the Court on 30 October 1999.   Judgment was given by a Chamber of [Note2]   s of s even judges, composed as follows:   András Baka (Hungarian), President , Viera Strážnická (Slovakian), Marc Fischbach (Luxemburger), Margarita Tsatsa-Nikolovska (FYROMacedonia), Egils Levits (Latvian), Anatoly Kovler (Russian), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge ,   and also Erik Fribergh , Section Registrar .     3.     Summary of the judgment [1]   Complaints   Before the Court, the applicants alleged, under Article 2, that their relatives had disappeared after being detained by the security forces and that it could be presumed that they were dead in circumstances for which the authorities were liable. They also complained, under Article 2, that no effective investigation had been conducted into the circumstances of those deaths and, under Article 3, that the conditions of their relatives’ detention constituted inhuman and degrading treatment.   The disappearance had also caused them inhuman and degrading treatment contrary to Article 3.   They further complained, under Article 5, about the Turkish authorities’ refusal to acknowledge their relatives’ detention and that there was no evidence that their relatives had been informed of the reasons for their arrest or that they had ever been brought before a judge or other appropriate judicial officer.   In addition, under Article 13, they complained that they and their relatives were denied an effective remedy and that they had been subject to serious interference with the exercise of their right of individual petition, in breach of former Article 25 § 1 of the Convention.             Decision of the Court   Article 2   Concerning Turkey’s responsibility for the missing men’s deaths, the Court observed that although the applicants’ relatives were detained for at least a week, no entries were subsequently made in any custody records. The Court drew very strong inferences from the length of time which had elapsed (over seven years) since then, the lack of any documentary evidence relating to the men’s detention and from the inability of the Government to provide a satisfactory and plausible explanation as to what had happened to them. It also observed that, in the general context of the situation in south-east Turkey in 1993, it could by no means be excluded that an unacknowledged detention of such persons would be life-threatening.   The Court therefore found that the eleven men must be presumed dead following their detention by the security forces. Noting that the authorities had not accounted for what happened during their detention and that they did not rely on any ground of justification in respect of any use of lethal force by their agents, it followed that liability for their deaths was attributable to Turkey and that there had been a violation of Article 2 on that account.   Concerning the investigation into the deaths, the Court was struck by the lack of any meaningful effort by the public prosecutors to investigate the serious allegations that were being made. Despite the weight of the evidence from the applicants, the denials of gendarmes and security force sources of any knowledge about events or the whereabouts of the missing men were accepted without further action. No steps were taken to discover the extent or nature of the operation which occurred at the relevant time while the few steps taken to find eye-witnesses who could assist in uncovering the facts were taken years after the events. The effectiveness of the procedures was not facilitated by the way in which the investigation was transferred between Kulp to Diyarbakır, jurisdiction depending on who – the PKK or the security forces – were currently perceived as the perpetrators of the incident.   The Court found that having regard to the inactivity of the public prosecutors and their reluctance in face of accumulating evidence to pursue any lines of enquiry concerning security force involvement, the investigation did not provide any safeguard in respect of the right to life. There had therefore been no effective investigation into the disappearance of the applicants’ relatives and, accordingly, a violation of Article 2.   Article 3   Concerning the applicants’ 11 relatives, the Court recalled that they were detained in the open at Kepir for a period of at least a week and that during that time they suffered significant privation, including (except in one case) being bound. Some beatings occurred and one of the men suffered an   injury to his leg. The evidence showed that they suffered, not only from cold, but from fear and anguish as to what might happen to them, treatment which reached the threshold of inhuman and degrading treatment set out in Article 3.   Concerning the applicants, however, while it was not disputed that they had suffered, and continue to suffer, distress as a result of the disappearance of their relatives, the Court was not satisfied that they could claim to be a victim of the authorities’ conduct to an extent which disclosed a breach of   Article 3.   Article 5   The Court noted that its reasoning and findings in relation to Article   2 left no doubt that detention of the applicants’ relatives was in breach of Article 5. They were held at Kepir by security forces for a period of at least a week, following which they had disappeared. The authorities had failed to provide a plausible explanation for their whereabouts and fate after that date. The investigation carried out by the domestic authorities into the applicants’ allegations was neither prompt nor effective. The Court regarded with particular seriousness the lack of any entries in official custody records concerning the men’s detention.   The Court concluded that the eleven missing men were held in detention in the complete absence of the safeguards contained in Article 5 and that there had been a particularly grave violation of their right to liberty and security.   Article 13   The Court considered that, as no effective criminal investigation could be considered to have been conducted, the applicants had been denied an effective remedy in respect of the disappearance and death of their relatives and thereby access to any other available remedies at their disposal, including a claim for compensation. Consequently, there had been a violation of Article 13.   Article 34 (former Article 25)   The Court observed that it had been found that the applicants were questioned by police and public prosecutors about their applications to the Commission. Though Seyithan Atala was not questioned, as he was absent on military service; his brother was summoned in his place. Two of the applicants (Mehmet Emin Akdeniz and Aydın Demir) were held in detention. The applicants were asked why they had introduced their applications and, in at least five cases, shown documents submitted on their behalf to the Convention organs as part of a procedure undertaken to verify the authenticity of their applications.   The Court found that the applicants must have felt intimidated by these contacts with the authorities, which went beyond an investigation of the facts underlying their complaints and constituted undue interference with their application in breach of former Article 25 § 1 of the Convention.   Other complaints   The applicants maintained that there existed an officially-tolerated practice of disappearances in south-east Turkey in 1993-1994 contrary to Article 5, a practice of inadequate investigations into disappearances and presumed deaths violating Article 2, and a practice of failing to provide an     effective remedy in aggravated breach of Article 13. They referred to other cases concerning events in south-east Turkey in which the Commission and the Court had also found breaches of these provisions.   However, having regard to its findings under Articles 2, 5 and 13 above, the Court did not find it necessary to determine whether the failings identified in this case were part of a practice adopted by the authorities.     Judges Fischbach and Gölcüklü expressed partly-dissenting opinions, which are 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] .     This summary by the Registry does not bind the Court. [Note1]   Add the Article heading (e.g. Article 6 (right to a fair trial)). [Note2]   Seventeen judges for the Grand Chamber, seven for a Chamber; substitute judges are not included.