CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 10 avril 2001

.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 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .sEDF00F56 { margin-left:18pt; text-indent:-18pt; text-align:justify; font-family:serif; list-style-position:inside } .s90404E59 { width:6.48pt; font:7pt 'Times New Roman'; display:inline-block } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s17581604 { margin-top:0pt; margin-left:35.3pt; margin-bottom:0pt; text-indent:-35.3pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s76CF415B { page-break-before:always; clear:both } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .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 } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   264   10.4.2001   Press release issued by the Registrar   JUDGMENT IN THE CASE OF TANLI v. TURKEY     The European Court of Human Rights has today notified in writing judgment [1] in the case of Tanli v. Turkey (no. 26129/95) [2] . The Court held:       by six votes to one, that the Turkish Government was liable for the death of Mahmut Tanlı in violation of Article 2 (right to life) of the European Convention on Human Rights;     unanimously, that there had been a violation of Article 2 of the Convention on account of the failure of the Turkish authorities to conduct an effective investigation into the circumstances of Mahmut Tanlı’s death;     unanimously, that there had been no violation of Article 3 (prohibition of torture);     unanimously, that there had been no violation of Article 5 (right to liberty and security);     by six votes to one, that there had been a violation of Article 13 (right to an effective remedy);     unanimously, that there had been no violation of Articles 14 (prohibition of discrimination) or 18 (limitation on use of restrictions on rights).   Under Article 41 (just satisfaction) of the Convention, the Court awarded (six votes to one) the applicant 10,000 pounds sterling (GBP) for non-pecuniary damage and (unanimously) GBP 9,760 for legal fees and expenses. The Court also awarded (six votes to one) GBP 38,754.77 for pecuniary damage and   GBP 20,000 for non-pecuniary damage, to be held by the applicant for his son’s widow and child.   1.     Principal facts   The applicant, Mustafa Tanlı, a Turkish national born in 1933, is a Kurdish farmer who lived in the village of Örtülü in the Doğubeyazit region in south-east Turkey.   His son, Mahmut Tanlı, aged 22, was taken into custody by gendarmes in Örtülü on 27 June 1994. On 28 June 1994, the family was informed by police officers that Mahmut had died of a heart attack while being detained at Dogubeyazit security directorate. The family claimed that there were marks and bruises on the body. The autopsy carried out stated that there were no traces of force or bruising and that the cause of death was a heart attack. The public prosecutor conducted an investigation into the death. He questioned the three police officers involved in the interrogation, who stated that Mahmut Tanlı had gone pale and collapsed after being told they had evidence that he was involved with the Kurdistan Workers’ Party (PKK). The public prosecutor also took witness statements from other police officers near the scene and the doctor who was called to treat Mahmut Tanlı and asked for Mahmut Tanlı’s military health records. In August 1994, the public prosecutor issued an indictment against the three police officers. The court decided to seek further forensic evidence and sent the file to the İstanbul Forensic Medicine Institute. At the request of the Institute, it decided on 5 May 1995 to have the body exhumed for examination.   The autopsy report dated 1995 stated that the body had deteriorated and no findings were possible as to the cause of death. In its report of 13 March 1996, the İstanbul Forensic Institute heavily criticised the initial autopsy report as being of little scientific value, pointing out the lack of proper examination of the skin and other areas of the body. It could not however reach any findings as to whether there had been torture, due to the deterioration of the body.   On 14 May 1996, the court acquitted the three officers for lack of evidence that Mahmut Tanlı had died as a result of torture.     2.     Composition of the Court   Judgment [3] was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , Willi Fuhrmann (Austrian), Françoise Tulkens (Belgian), Karel Jungwiert (Czech), Nicolas Bratza (British), Kristaq Traja (Albanian), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge ,   and also Sally Dollé , Section Registrar .     3.     Summary of the judgment [4]   Complaints   The applicant alleged that his son Mahmut Tanlı had been tortured and killed in police custody. He relied on Articles 2, 3, 5, 13, 14 and 18 of the Convention.           Decision of the Court   Article 2   The Court noted that, where an individual was taken into police custody in good health and died, it was incumbent on the State to provide a plausible explanation.   The Court recalled that Mahmut Tanlı, a 22-year-old, was in good health when taken into custody, with no medical history of illness. He had completed his military service one year before without any medical problems. However, some twenty four to thirty six hours after being taken into custody, he died during interrogation at the Uluyol police station.   The Court considered that the post mortem procedure was defective in fundamental aspects. The Istanbul Forensic Medicine Institute, which carried out a second examination of the body on 12 June 1995, found there had been no dissection of the heart. It concluded that in these circumstances the findings in the first report were without scientific value. The expert report provided by the applicant also considered that the alleged basis for the cause of death was insufficiently recorded or detailed to be relied on. Nor did the examination of the body rebut the allegations made by the applicant that his son was tortured to death. No tests apt to establish the presence of subtle signs of torture were carried out. The domestic post mortem procedures accordingly failed to provide an explanation for Mahmut Tanlı’s death. It certainly could not be considered as established, as submitted by the Government, that he died from natural causes. The Court therefore found that the Government had not accounted for the death of Mahmut Tanlı during his detention at the Uluyol police station and that their responsibility for his death was engaged.   The Court also observed that the autopsy investigation was of critical importance in determining the facts surrounding Mahmut Tanlı’s death. This investigation, while launched promptly by the public prosecutor, had been shown to be defective in a number of fundamental respects. In particular, the organs were not removed or weighed; the heart was not dissected; the neck area had not been dissected; no histopathological samples were taken or analyses conducted which might discover signs of electrical or other forms of torture and ill-treatment; no toxicological analyses were undertaken; no photographs were taken and the finding of the emboli was not adequately described or analysed. It also appeared that the doctors who signed the post mortem report were not qualified forensic pathologists, notwithstanding the provision in the Code of Criminal Procedure which required the presence of a forensic doctor.   In the light of the defective forensic investigation, it was not surprising that the court proceedings resulted in the acquittal for lack of evidence of the three police officers who had been interrogating Mahmut Tanlı before he died.     The Court concluded that the authorities failed to carry out an effective investigation into the circumstances surrounding Mahmut Tanlı’s death.   Article 3   The Court observed that there were no records of marks or injuries on Mahmut Tanlı’s body consistent with the application of torture techniques. While the applicant and other witnesses referred to seeing bruising on the body, there was no medical substantiation that this was attributable to traumatic injury rather than post mortem changes in the body. The forensic expert instructed by the applicant stated himself that he could draw no conclusions from the photographs of the body taken prior to the burial. There was therefore no evidence, apart from the unexplained cause of death, to support a finding that acts of torture were carried out.   In relation to the applicant himself, although the Court had no doubt of the profound suffering caused to him by the death of his son, it found no basis for finding a violation of Article 3.   Article 5   The Court was not satisfied that the security officers acted without a reasonable suspicion that Mahmut Tanlı had committed a criminal offence. Similarly, it was not persuaded that “unlawfulness”, within the meaning of Article 5, had been made out on the grounds of a lack of proper documentation recording the detention. No request was made by the applicant for the custody records to be provided and no factual issue arose regarding when or where Mahmut Tanlı was detained.   Neither was it possible to establish what information may have been given to Mahmut Tanlı or when, prior to his death. It could not be inferred, from the absence of written proof, that reasons were given, that none were, or that he was not able, from the context, to deduce with sufficient certainty the grounds for his detention.   The Court further noted that Mahmut Tanlı was held in detention for between 24 and 36 hours without being brought before a judge or other properly empowered officer. It was true that there was no indication that he would have been brought before a judge if he had not died, it being possible under Turkish law at that time for a detainee to be held for up to 30 days. However, no request for an extension in custody had been made and it was speculation to assume that a violation of Article 5 would inevitably have occurred in that respect. On the same basis, the Court was not prepared to draw the conclusion that Mahmut Tanlı was denied the opportunity to challenge the lawfulness of his detention.   Article 13   As the Court found the Government responsible under Article 2 of the Convention for the death in custody of the applicant’s son, the applicant’s complaints were “arguable” for the purposes of Article   13, placing the authorities under an obligation to carry out an effective investigation into the circumstances of his son’s death.   Given the inadequacy of the post mortem examinations, the Court found that the applicant had been denied an effective remedy in respect of the death of his son and thereby access to any other available remedies at his disposal, including a claim for compensation.   Articles 14 and 18   The Court did not find that the applicant had substantiated his allegations that his son was the deliberate target of a discriminatory policy on account of his ethnic origin or that he was the victim of restrictions contrary to the purpose 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 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] The judgment is only available in English. [2] 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. [3] Judge Gölcüklü expressed a partly dissenting opinion, which is annexed to the judgment. [4]     This summary by the Registry does not bind the Court.