CEDH · PRESS;GCJUDGMENTS;ENG — 6 mai 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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .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     240   6.5.2003   Press release issued by the Registrar   GRAND CHAMBER JUDGMENT IN THE CASE OF TAHSIN ACAR v. TURKEY   The European Court of Human Rights has delivered at a public hearing today a judgment in the case of Tahsin Acar v. Turkey (application no. 26307/95). The Court decided by sixteen votes to one   ● to reject the Government’s request to strike the application out of the list in accordance with Article 37 § 1 (c) of the European Convention on Human Rights; and ● to pursue the examination of the merits of the case.     1.     Principal facts   The applicant, Tahsin Acar, is a Turkish national who was born in 1970 and lives in Sollentuna (Sweden).   The case concerns the disappearance of the applicant’s brother, Mehmet Salim Acar, who was a farmer in Ambar, a village in the Bismil district in south-east Turkey.   According to the applicant, his brother was abducted on 20 August 1994 by two unidentified persons, allegedly plain-clothes police officers. Mehmet Salim Acar’s family lodged a series of petitions and complaints about his disappearance with the authorities in order to find out where and why he was being detained. According to the Government, effective investigations were carried out by the relevant authorities following the abduction and disappearance of the applicant’s brother. His name is still on the list of persons being searched for by the gendarme forces in Turkey.   The application was lodged with the European Commission of Human Rights on 29 October 1994 and was declared admissible on 30 June 1997. It was transmitted to the Court on 1   November 1998.   On 27 August 2001 the Turkish Government sent the Court the text of a unilateral declaration expressing regret for the actions that had led to the application and offering to make an ex gratia payment of 70,000 pounds sterling to the applicant for any pecuniary and non-pecuniary damage and for costs. The Government requested the Court to strike the case out of the list under Article 37 of the Convention.   The applicant asked the Court to reject the Government’s initiative, arguing that the terms of the declaration were unsatisfactory. In particular, he submitted that the declaration made no admission that there had been any Convention violation in respect of his application or that Mehmet Salim Acar had been abducted by State agents and was to be presumed dead, that it did not contain any undertaking to investigate the circumstances of the case and that the compensation was to be paid ex gratia .   In a judgment of 9 April 2002 a Chamber of the Court decided by six votes to one to strike the case out.   2.     Procedure and composition of the Court   On 8 July 2002 the applicant requested that the case be referred to the Grand Chamber [1] under Article 43 of the Convention and Rule 73 of the Rules of Court. On 4 September 2002 the panel of the Grand Chamber accepted that request.   Judgment was given by a Grand Chamber of 17 judges, composed as follows:   Luzius Wildhaber (Swiss), President , Christos Rozakis (Greek), Jean-Paul Costa (French), Georg Ress (German), Nicolas Bratza (British), Antonio Pastor Ridruejo (Spanish), Lucius Caflisch (Swiss) [2] , Françoise Tulkens (Belgian) , Viera Strážnická (Slovakian) , Peer Lorenzen (Danish) , Marc Fischbach (Luxemburger) , Nina Vajić (Croatian) , Matti Pellonpää (Finnish) , Margarita Tsatsa-Nikolovska (Macedonian) , Egil Levits (Latvian) , Lech Garlicki (Polish), judges , Feyyaz Gölcüklü (Turkish) , ad hoc judge , and also Paul Mahoney , Registrar .   3.     Summary of the judgment [3]   Complaints   The applicant complained of the unlawfulness and excessive length of his brother’s detention, of the ill-treatment and acts of torture to which his brother had allegedly been subjected while deprived of his liberty, and of the failure to provide his brother with the necessary medical treatment during that time. He further submitted that his brother had been deprived of the services of a lawyer and of any contact with his family. He relied on Articles 2 (right to life), 3 (prohibition of torture and ill-treatment), 5 (right to liberty and security), 6 (right to a fair hearing), 8 (right to respect for private and family life), 13 (right to an effective remedy), 14 (prohibition of discrimination) and 18 (limitation on use of restrictions on rights) of the Convention.   Decision of the Court   Preliminary issue: the scope of the case   The Court noted that it had full jurisdiction within the limits of the case referred to it, as determined in the decision on admissibility taken by the Commission on 30 June 1997. Within those limits, the Court was able to deal with all questions of fact and law arising in the course of the proceedings instituted before it. In the particular circumstances of the case, the Court nevertheless considered that it should limit the scope of its examination, at the present stage of the proceedings and without prejudice to the merits, to the question whether the unilateral declaration submitted by the respondent Government offered a sufficient basis for holding that it was no longer justified to continue the examination of the application.   Article 37 of the Convention   The Court considered that, under certain circumstances, it might be appropriate to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wished the examination of the case to be continued. It would depend on the particular circumstances of the case whether the unilateral declaration offered a sufficient basis for the Court to hold that respect for human rights as defined in the Convention did not require it to continue its examination of the case.   Depending on the particular circumstances of each case, various considerations could come into play in the assessment of a unilateral declaration. It might be appropriate to examine whether the facts were in dispute between the parties, and, if so, to what extent. Other factors that might be taken into account were the nature of the complaints made, whether the Court had already ruled on similar issues in previous cases, the nature and scope of any measures taken to enforce judgments delivered in such cases, and the impact of those measures on the case before the Court. The Court should also ascertain, among other things, whether in their declaration the Government had made any admissions concerning the alleged violations of the Convention and, if so, should determine the scope of such admissions and the manner in which the Government intended to provide redress to the applicant.   The present case was different in several respects from the case of Akman v. Turkey , which had concerned an act of homicide and had likewise been struck out following a unilateral declaration by the Government. The Court noted that there was substantial disagreement between the parties as to the facts of the present case. It further considered that the Government had negated the admission of liability contained in their declaration by subsequently making firm submissions to the effect that the declaration could in no way be interpreted as entailing any admission of responsibility or liability for any violation of the Convention.   The unilateral declaration made in the present case did not adequately address the applicant’s grievances. In the Court’s view, where a person had disappeared or had been killed by unknown persons and there was prima facie evidence to support allegations that the domestic investigation had fallen short of what was necessary under the Convention, a unilateral declaration should at the very least contain an admission to that effect, combined with an undertaking by the respondent Government to conduct, under the supervision of the Committee of Ministers, an investigation that fully complied with the requirements of the Convention as defined by the Court in previous cases of a similar nature.   As the Government’s unilateral declaration in the present case did not contain any such admission or undertaking, it did not offer a sufficient basis for the Court to hold that it was no longer justified to continue the examination of the application. The Court accordingly rejected the Government’s request to strike the application out under Article 37 § 1 (c) of the Convention and decided to pursue its examination of the merits of the case.   Judge Ress expressed a concurring opinion, Judges Bratza, Tulkens and Vajić a joint concurring opinion and Judge Gölcüklü a dissenting opinion. The opinions are annexed to the judgment.   ***   The Court’s judgments are available 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] .     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. 2.     Elected as the judge in respect of Liechtenstein. [3] .     This summary by the Registry does not bind the Court.