CEDH · PRESS;GENERAL;ENG — 24 avril 2003

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s6B505E72 { margin:0pt; padding-left:0pt } .sA3022B31 { margin-left:10.52pt; padding-left:17.83pt; font-family:serif } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s76CF415B { page-break-before:always; clear:both } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; 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 }   EUROPEAN COURT OF HUMAN RIGHTS     218   24.4.2003   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF AKTAŞ v. TURKEY   The European Court of Human Rights has today notified in writing a judgment in the case of Aktaş v. Turkey (application no. 24351/94). The judgment is final. The Court held unanimously that there had been   a failure on Turkey’s part to fulfil its obligation under Article 38 of the Convention to furnish all necessary facilities to the former European Commission of Human Rights (“the Commission”) and the Court in their task of establishing the facts;   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 and the deficiencies of the investigation into his death;   a violation of Article   3 (prohibition of torture) on account of the treatment inflicted on the applicant’s brother and the inadequacy of the ensuing investigation;   no violation of Article   14 (prohibition of discrimination) of the Convention taken together with Articles 2 and 3;   no need to determine whether there had been a violation of Article   6 (access to a court) or Article   34 (right of individual application);   and, by six votes to one, that:   there had been a violation of Article   13 (right to an effective remedy).   Under Article 41 (just satisfaction) of the Convention, the Court awarded, by six votes to one, 226,065 euros (EUR) for pecuniary damage and, unanimously, EUR 58,000 for non-pecuniary damage to be held by the applicant for his brother’s widow and daughter. It further awarded, unanimously, EUR 4,000 for non-pecuniary damage to the applicant himself and EUR 29,275 for costs and expenses.   (The judgment is available only in English.)   1.     Principal facts   The applicant, Eshat Aktaş, is a Turkish national, born in 1973 and living in Derik, Turkey.   The applicant’s brother, Yakup Aktaş, a shopkeeper born in 1964, died on 25 November 1990, one week after being taken into custody apparently on suspicion of channelling funds and weapons to the PKK (Workers’ Party of Kurdistan). He left a widow and a baby daughter. Two police officers were charged with causing his death by beating him during interrogation in the Mardin interrogation centre. They were acquitted on 11 May 1994. The applicant unsuccessfully appealed against their acquittal.   The applicant alleged, in particular, that his brother had died as a result of torture by Government agents and that the investigation into his death had not met the applicable standards. He claimed that his brother had been in good health prior to his arrest, as certified by a doctor, and that although neither the post-mortem nor the autopsy had established the exact cause of death, the injuries observed had been consistent with death by asphyxiation caused by external physical forces (“mechanical asphyxiation”).   The Government denied this, maintaining that Yakup Aktaş had not been questioned further after 23   November 1990 (two days before his death); that he had suddenly fallen ill on 25   November 1990 and had been taken to hospital without delay; that an investigation had been begun immediately; and that the applicant had been able to intervene in the criminal proceedings against the police officers, who were acquitted for lack of sufficient evidence.   2.     Procedure and composition of the Court   The application was lodged with the Commission on 8 June 1994. The Commission declared it admissible on 4 September 1995 and took evidence in Ankara on 19 and 20 November 1997. It requested information from the Government and asked to hear evidence from witnesses. It adopted a report on 25 October 1999 expressing the unanimous opinion that there had been violations of Articles 2, 3 and 13 of the Convention, but not of Article 14. The case was transferred to the Court on 30 October 1999.   Judgment was given by a Chamber of seven judges, composed as follows:   Ireneu Cabral Barreto (Portuguese), President , Lucius Caflisch (Swiss), Pranas Kūris (Lithuanian), Boštjan Zupančič (Slovenian), Margarita Tsatsa-Nikolovska (Macedonian), Kristaq Traja (Albanian), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge , and also Vincent Berger , Section Registrar .   3.     Summary of the judgment [1]   Complaints   The applicant complained of a violation of Articles 2 and 3; of Article 13, taken together with Articles 2 and 3, as there had been no thorough and effective investigation capable of leading to the identification and punishment of the persons responsible for his brother’s death and the victim’s relatives had been denied effective access to the investigative process; of Article 14, taken together with Articles 2 and 3, in that his brother had been fatally maltreated because of his Kurdish origins; of Article 34 in that the failure properly to investigate his brother’s death had hindered his application to the Commission and the Court; and of Article 38 in that there had been a lack of proper co-operation with the Commission and the Court.   Decision of the Court   Article 38 § 1(a)   As the Court had held in previous cases, it was of the utmost importance for the effective operation of the system of individual petition that States provide all necessary facilities to allow a proper and effective examination of applications. The Court noted three factors with concern: the Government’s apparent inability to trace the doctor who had pronounced Yakup Aktaş dead; their insistence – allegedly for security reasons – on hearing evidence from 11 witnesses (some of whom were the last people to have seen Yakup Aktaş alive) without the applicant being present; and their inability to produce the negatives of photographs of a body said to be that of Yakup Aktaş. In those circumstances the Court found that it was entitled to draw inferences from the Government’s conduct.   The Court noted that two doctors’ reports showed that the injuries described had been consistent with mechanical asphyxiation. It was not known exactly when Yakup Aktaş had died, but given the lack of any hospital record of his death, the Court inferred that he had died while in the hands of police officers. The Court found it proven beyond reasonable doubt that he had been subjected while in police custody to external violence which had directly caused his death.   Given the importance of Governments co-operating in Convention proceedings, and mindful of the difficulties involved in an evidence-taking exercise of this nature, the Court found that the Government had not complied with their obligation to furnish all necessary facilities to the Commission and the Court in their task of establishing the facts.   Article 2   The Court reiterated that the obligation on the authorities to account for the treatment of a detainee was particularly stringent where the detainee had died or disappeared. It found that Yakup Aktaş had been deprived of his life in circumstances engaging the responsibility of the State. There was nothing to suggest that this had been necessary for any of the reasons set out in the second paragraph of Article 2 of the Convention. There had therefore been a violation of Article 2 in respect of Yakup Aktaş’s death.   The Court reiterated that the obligation to protect the right to life required that there should be some form of effective official investigation when individuals had been killed as a result of force. There were five factors indicating that the investigation into Yakup Aktaş’s death had not been effective: firstly, the inspection almost immediately after his death of the premises used to interrogate him had been done by members of the gendarmerie itself; secondly, no officer appeared to have immediately alerted any competent authority to his death; thirdly, the provincial administrative council – to which the case had been referred – did not satisfy the requirement of independence; fourthly, the police officers’ actions had been investigated by a member of the same chain of command; and fifthly, no statements had been taken from any members of the gendarmerie until four months after Yakup Aktaş’s death. The Court therefore found that there had also been a violation of Article 2 in respect of the deficiencies in the investigation into Yakup Aktaş’s death. Article 3   It was not apparent that the ill-treatment had been caused by Yakup Aktaş’s own conduct. The Court was left with no alternative but to find that Yakup Aktaş had been the victim of inhuman and degrading treatment. There was no doubt that the ill-treatment had been particularly serious since it had resulted in his death. The marks on the victim’s body were consistent with mechanical asphyxiation such as would result from binding the victim’s arms to his chest so as to prevent breathing; crucifixion; or Palestinian hanging (where the hands were tied behind the back and the body suspended from the tied arms causing respiratory failure if the position was held for sufficiently long).   The Court had no difficulty inferring that the suffering inflicted on him had been particularly serious and cruel. It was also reasonable to infer that the purpose had been to obtain information or a confession of guilt and therefore appropriate to find that Yakup Aktaş had been tortured.   There had also been a violation of Article 3 on account of the inadequacy of the investigation into the ill-treatment inflicted on Yakup Aktaş.   Article 13 taken together with Articles 2 and 3   Where there was an arguable claim that an individual had been tortured by agents of the State, Article 13 required, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access for the complainant to the investigation procedure. As the applicant’s complaint of lack of access to a court was bound up with his more general complaint about the manner in which the investigating authorities had dealt with Yakup Aktaş’s death, the Court found it appropriate to examine this complaint in relation to the more general obligation on States under Article 13 to provide an effective remedy for alleged violations of the Convention. The national authorities could not be considered to have complied with their duty to carry out an effective investigation into the circumstances of the ill-treatment in custody and the death of Yakup Aktaş. Accordingly, the Court found that the applicant had been denied an effective remedy in respect of his brother’s death and, consequently, access to other remedies, including a claim for compensation.   Article 14 taken together with Articles 2 and 3   The evidence available suggested that Yakup Aktaş had been arrested and questioned on suspicion of channelling funds and weapons to the PKK. The ill-treatment inflicted on him could not be deemed to have been linked to his ethnic origins as such.   Judge 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: +00 33 (0)3 88 41 24 92)   Joanna Reynell (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (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.