CEDH · PRESS;GCJUDGMENTS;ENG — 8 juillet 1999

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TURKEY       In a judgment delivered at Strasbourg on 8 July 1999 in the case of Çakıcı v. Turkey (application no.   23657/94), 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 in respect of the death of the applicant’s brother, who had disappeared after being detained by the security forces, and in respect of the inadequate investigation carried out by the authorities.     The Court also held unanimously that there had been a violation of Article 3 (prohibition of torture, inhuman or degrading treatment or punishment) in that Ahmet Çakıcı had been tortured during his detention; by fourteen votes to three that the disappearance in custody of Ahmet Çakıcı did not disclose a breach of Article 3 in respect of the applicant himself; unanimously that there had been a violation of Article 5 (right to liberty) in respect of the unacknowledged detention of Ahmet Çakıcı in the complete absence of the safeguards required by that provision; and by sixteen votes to one that there had been a violation of Article 13 (right to an effective remedy) in that the applicant had not been provided with an effective remedy in respect of these complaints. The Court further found, unanimously, no violation of Articles 14 (prohibition of discrimination) and 18 (prohibition of restrictions on Convention rights for ulterior purposes).     Under Article 41 (just satisfaction), the Court awarded the applicant 11,534.29 pounds sterling (GBP) for pecuniary damage to be held for his brother’s surviving spouse and heirs (unanimously), GBP 25, 000 for non-pecuniary damage to be held for the his brother’s heirs (unanimously), GBP 2,500 for non-pecuniary damage for the applicant himself (unanimously) and GBP 20,000 for legal costs and expenses (by twelve votes to five).   1.   Principal facts     The applicant, Izzet Çakıcı, a Turkish national, was born in 1953 and lives in Diyarbakır, Turkey. The application was lodged on his behalf and on behalf of his brother Ahmet Çakıcı.     On 8 November 1993, an operation was carried out by gendarmes from Hazro at the village of Çitlibahçe where Ahmet Çakıcı lived. The gendarmes were looking for, among other things, evidence concerning the kidnapping and murder of teachers and an imam by the PKK and for anyone who might have been involved. In a co-ordinated operation, gendarmes from Lice apprehended three persons at the neighbouring village of Bağlan, who were transferred the next day to the Diyarbakır provincial gendarme headquarters.     The applicant and the Government have put forward different versions of the events in question.     According to the applicant, the Hazro gendarmes apprehended Ahmet Çakıcı when they came to Çitlibahçe. They took him to Hazro from where he was transferred to Diyarbakır provincial gendarme headquarters. He was detained there for sixteen to seventeen days in the same room as the three people who had been apprehended at Bağlan. One of these three, Mustafa Engin, reported when he was released that Ahmet Çakıcı had been beaten, a rib being broken and his head split open. According to him, Ahmet Çakıcı had also been taken out for interrogation and received electric shock treatment. The applicant later learned from Hikmet Aksoy, who had been detained by gendarmes at Kavaklıboğaz station, that his brother had been taken from Diyarbakır provincial gendarme headquarters to Hazro gendarme station and from there to Kavaklıboğaz, where he had talked to Hikmet Aksoy. The applicant and his family had received no further news about Ahmet Çakıcı, until the Government provided information during the proceedings before the European Commission of Human Rights.     According to the Government, Ahmet Çakıcı was not taken into custody by the gendarmes during the operation on 8 November 1993. They rely on the custody records of Hazro gendarme station and Diyarbakır provincial gendarme headquarters, where there are no entries concerning Ahmet Çakıcı. During the Commission proceedings, they provided information that it had been reported that Ahmet Çakıcı’s identity card had been found on one of the bodies of terrorists killed during a clash with security forces from 17 to 19 February 1995 on Kıllıboğan hill, Hani district.     On 13 June 1996, the Hazro public prosecutor issued a decision of lack of jurisdiction concerning the allegations about Ahmet Çakıcı’s disappearance, finding, among other things, that Ahmet Çakıcı’s identity card had been found on the body of a dead terrorist and that this confirmed the terrorist’s identity as Ahmet Çakıcı.   2.   Procedure and composition of the Court     The application was lodged with the European Commission of Human Rights on 24 May 1994. Having declared the application   admissible, the Commission adopted a report on 12 March 1998 which expressed the opinion that there had been a violation of Article 2 of the Convention in respect of the disappearance of the applicant’s brother (unanimously); that there had been a violation of Article 3 in respect of the applicant’s brother (unanimously); that there had been a violation of Article 5 in respect of the disappearance of the applicant’s brother (unanimously); that there had been a violation of Article 3 in respect of the applicant (by 27 votes to 3); that there had been a violation of Article 13 (unanimously); and that there had been no violation of Articles 14 and 18 (unanimously). It referred the case to the Court on 14 September 1998.     Under the transitional provisions of Protocol No. 11 to the Convention, the case was transmitted to the Grand Chamber of the European Court of Human Rights on 1 November 1998, the date the Protocol entered into force. A hearing was held on 24 March 1999. Judgment was given by a Grand Chamber of seventeen judges, composed as follows:   Luzius Wildhaber (Swiss), President Elisabeth Palm (Swedish), Luigi Ferrari Bravo [1] (Italian), Lucius Caflisch [2] (Swiss), Jean-Paul Costa (French), Willi Fuhrmann (Austrian), Karel Jungwiert (Czech), Marc Fischbach (Luxemburger), Boštjan Zupančič (Slovenian), Nina Vajić (Croatian), John Hedigan (Irish), Wilhelmina Thomassen (Dutch), Margarita Tsatsa-Nikolovska (FYROMacedonia), Tudor Pantiru (Moldovan), Egils Levits (Latvian), Kristaq Traja (Albanian), Judges , Feyyaz Gölcüklü (Turkish), ad hoc judge ,   and also Paul Mahoney and Maud de Boer-Buquicchio , Deputy Registrars .     3.   Summary of the judgment [3]     Complaints     The applicant complained of violations of Articles 2, 3, 5, 13, 14 and 18 of the European Convention on Human Rights.     Decision of the Court     The Court’s assessment of the facts     The Court accepted the facts found by the Commission which had carried out fact-finding missions in this case. It was accordingly established that the applicant’s brother had been taken into custody by the security forces on 8 November 1993, that he had been taken to Hazro gendarme station that night and that he had been detained at Diyarbakır provincial gendarme command from 9 November until at least 2 December 1993 when he was last seen by Mustafa Engin.     It was established that during his detention Ahmet Çakıcı was beaten, one of his ribs broken, his head split open and that he had been given electric shock treatment twice. Though report was made by Hazro district gendarmerie that his identity card had been found on the body of a dead member of the PKK in February 1995, there was no evidence as to the identification of the body or the release of the body for burial and it could not be regarded as established that Ahmet akıcı’s body had been found as alleged.     The Court noted that the Commission’s task of establishing the facts had been made more difficult since the Government had failed to provide the Commission’s delegates with the opportunity to inspect original custody records, to facilitate the attendance of the witness Hikmet Aksoy and to secure the attendance before the delegates of two state officials. The Court, considering that it was of the utmost importance for the effective operation of the system of individual petition instituted under former Article 25 of the Convention (now replaced by Article 34) that States provide all necessary facilities to make possible a proper and effective examination of applications (former Article 28 § 1 (a), now replaced by Article 38), found that the Government had fallen short of this duty.     Government’s preliminary objection     The Court rejected the Government’s preliminary objection that the applicant had failed to exhaust domestic remedies. The Court found that the applicant and his father had made petitions and enquiries to the State Security Court prosecutor in relation to the disappearance of Ahmet Çakıcı and that though the authorities had been made aware of their concerns no effective response was made. It observed that, although statements were taken from the applicant and Ahmet Çakıcı’s wife which confirmed their allegations, no measures were taken by the various public prosecutors beyond enquiring about possible entries in custody records and taking   two brief statements from the witness Mustafa Engin. No steps at all were taken by the public prosecutor to verify the report that Ahmet Çakıcı’s body had been found. In these circumstances, the applicant had done all that could reasonably be expected of him to exhaust domestic remedies.     Article 2 of the Convention     The Court found that the disappearance of Ahmet Çakıcı after he had been taken into custody led, in the circumstances of this case, to a presumption that he had died. No explanation having been provided by the Government as to what happened to him during his detention, the Government were liable for his death and there was a violation of Article 2 of the Convention. There was additionally a violation of Article 2 in that the inadequate investigation into the disappearance and alleged finding of Ahmet Çakıcı’s body referred to above disclosed a failure to protect his right to life.     Article 3 of the Convention     The Court found that the ill-treatment which Ahmet Çakıcı suffered during his detention (see above) constituted torture contrary to this provision. It did not find however that the disappearance of Ahmet Çakıcı disclosed a basis for finding that the applicant had himself suffered inhuman and degrading treatment at the hands of the authorities. It emphasised that there was no general principle that a relative of the victim of a disappearance was also a victim of treatment contrary to Article 3. That would depend on the existence of special factors giving the suffering of the relative a dimension and character distinct from the distress inevitably caused in the circumstances. Of particular relevance were the authorities’ reactions and attitudes to the situation when it was brought to their attention by the family. No special features existed in this case which justified a finding of a violation of Article 3 in respect of the applicant.     Article 5 of the Convention     The Court held that the disappearance of Ahmet Çakıcı during an unacknowledged detention disclosed a particularly grave violation of the right to liberty and security of person guaranteed by this provision. It referred in particular to the lack of accurate and reliable records of the detention of persons taken into custody by gendarmes and the lack of any prompt or meaningful enquiry into the circumstances of Ahmet Çakıcı’s disappearance.     Article 13 of the Convention     Referring to its reasoning in, among other things, its judgment of 19 February 1998 in the case of Kaya v. Turkey, the Court considered that the national authorities had been under an obligation to carry out an effective investigation into the circumstances of the disappearance of Ahmet Çakıcı. Reiterating its findings under Articles 2 and 5 of the Convention that no such effective investigation had been conducted, the Court concluded that there had been a violation of Article 13.     Articles 14 and 18 of the Convention     The Court found that it did not have any evidence before it substantiating the alleged breaches of Articles 14 and 18. Accordingly, there had been no violation of these provisions.     Article 41 of the Convention     In respect of pecuniary damage, the applicant had claimed 4,7000,000 Turkish liras for a sum allegedly taken from Ahmet Çakıcı on his apprehension and GBP 11,534.29 for his surviving spouse and children in respect of the loss of his earnings. The applicant also claimed GBP 40,000 for non-pecuniary damage and GPB 32,205.17 by way of reimbursement of his costs and expenses.     The Court, ruling on an equitable basis, awarded GBP 11,534.29 for pecuniary damage for the applicant’s brother’s spouse and children, GBP 25,000 for non-pecuniary damage for his brother’s heirs, GBP 2,500 for non-pecuniary damage for the applicant himself and GBP 20,000 for costs and expenses.     Judges Jungwiert, Thomassen, Fischbach and Gölcüklü expressed partly dissenting opinions and these are annexed to the judgment.   The Court’s judgments are accessible on its Internet site ( http://www.dhcour.coe.fr ) on the day of their delivery.   ***   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92) or   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 1959 in Strasbourg to deal with alleged violations of the 1950 European Convention on Human Rights.   On November 1 1998 a full-time Court was established, replacing the original two-tier system of a part-time Court and Commission. [1] Elected as the judge in respect of San Marino. [2] Elected as the judge in respect of Liechtenstein. [3] This summary by the registry does not bind the Court.