CEDH · PRESS;GENERAL;ENG — 15 janvier 2004

.s800EAC49 { font-size:12pt } .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 } .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 } .s76CF415B { page-break-before:always; clear:both } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .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 } EUROPEAN COURT OF HUMAN RIGHTS     019   15.1.2004   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF TEKDAĞ v. TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Tekdağ v. Turkey (application no. 27699/95).   The Court held unanimously ● that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights as regards the applicant’s allegations about the abduction and killing of her husband; ● that there had been a violation of Article 2 of the Convention on account of the failure to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicant’s husband; ● that there had been no violation of Article 3 (prohibition of inhuman and degrading treatment); ● that there had been no violation of Article 5 (right to liberty and security); ● that there had been no violation of Article 14 (prohibition of discrimination) read in conjunction with Articles 2, 3, 5, 10 (freedom of expression), 13 and 18; ● that there had been no violation of Article 18 (limitation on use of restrictions on rights); ● that the Turkish Government had failed to fulfil their obligations under Article 38 (obligation to furnish all necessary facilities for the examination of the case); and ● that it was not necessary to examine separately the complaint under Article 34   (right of individual petition);   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 the applicant, by six votes to one, 14,000 euros (EUR) for non-pecuniary damage and EUR 14,000 for costs and expenses, less EUR 1,513 already received from the Council of Europe in legal aid.   (The judgment is available only in English.)   1.     Principal facts   The applicant, Hatice Tekdağ, is a Turkish national of Kurdish origin, who lives in Diyarbakır. Her husband, Ali Tekdağ, disappeared in Dağkapı on 13 November 1994.   The facts of the case are disputed between the parties.   The applicant states that she and her husband went shopping in the village of Küçükkadı on 13 November 1994. When they got off the bus in Dağkapı her husband told her that he had to attend to something and asked her to wait for him for a few moments. He returned shortly afterwards, pretending not to recognise her, told her not to come near him and went off into a nearby street. He was being followed by armed men carrying walkie-talkies. Shots were fired and plain-clothes policemen subsequently arrived on the scene and took the applicant’s husband away in a white minibus.   The applicant maintains that she has had no news of her husband since that day. She petitioned the Diyarbakır public prosecutor and the provincial governor for news of her husband and provided them with statements by witnesses who claimed that her husband had been seen at the headquarters of the Diyarbakır Rapid Intervention Force and in prison.   The applicant’s husband had previously been arrested by the security forces 19 times and had been taken into custody on 17 of those occasions. He had changed his identity and assumed the name Mehmet Aslan to avoid being recognised, arguing that the police detained him whenever they saw the name “Tekdağ”.   According to the applicant, the police raided her house several months after her husband’s disappearance.   The Turkish Government contest her version of the events. They assert that a letter from the Diyarbakır public prosecutor to the Ministry of Justice indicates that the applicant’s husband was never taken into custody. Following his unlawful change of identity, he might have joined the PKK (Workers’ Party of Kurdistan) terrorist organisation. The Government add that the applicant’s daughter was arrested in November 1995 on charges of aiding and abetting the PKK and that the applicant’s brother was murdered by the Hizbullah terrorist group.   As regards the investigations carried out into the disappearance, the Turkish authorities point out that the file contains about a hundred documents, including instructions by the judicial authorities and the security forces, information supplied to the prosecuting authorities and judicial decisions given in the case.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 26 June 1995. It was declared admissible on 25 November 1996 and referred to the Court on 1   November 1998. From 9 to 14 October a delegation from the Court carried out a fact-finding mission in Ankara.   Judgment was given by a Chamber of 7 judges, composed as follows:   Christos Rozakis (Greek), President , András Baka (Hungarian), Peer Lorenzen (Danish), Marc Fischbach (Luxemburger), Margarita Tsatsa-Nikolovska (Macedonian), Egil Levits (Latvian), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge , and also Søren Nielsen , Deputy Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicant complained under Article 2 of the Convention that her husband had been abducted and killed by agents of the State and that the authorities had failed to carry out an effective and adequate investigation into the matter. She also submitted that having to live without knowing what had happened to her husband constituted treatment in breach of Article 3. She complained under Article 5 that she had not been informed of the reasons for her husband’s detention, that he had not been brought promptly before a judge after his arrest and that she had been unable to bring proceedings to determine the lawfulness of his detention. She further alleged a violation of Article 13 (right to an effective remedy). In addition, she maintained that her husband had been killed because of his Kurdish origins, in breach of Article 14 (prohibition of discrimination), read in conjunction with Articles 2, 3, 5, 10, 13 and 18 (limitation on use of restrictions on rights). Furthermore, relying on Article 18, she complained of restrictions on her rights and freedoms under the Convention. Lastly, she alleged a violation of Article 34 of the Convention.   Decision of the Court   Assessment of the evidence and establishment of the facts   When submitting their observations in February 1996 the Turkish Government had failed to provide the Court with the full file on the investigation of the case, and it was apparent that during the Court’s fact-finding mission, a considerable portion of the file had been withheld before the Court had been able to consult it. The Court had repeatedly requested the authorities to forward all the documents in their possession in order to ensure the file was complete. Documents crucial to the establishment of the facts had been submitted at the last minute.   The Court considered that the Turkish Government had not given a convincing explanation for the delays and for their failure to comply with the Court’s requests for information and documents. Bearing in mind the difficulties inherent in an on-the-spot investigation of this kind and the importance of cooperation by the respondent Government in Convention proceedings, the Court held that the Turkish Government had failed to furnish all necessary facilities within the meaning of Article 38 § 1 (a) to assist the Court in establishing the facts.   As regards the assessment of the facts, the Court considered that the applicant’s statements about her husband’s disappearance were consistent. However, her allegations that her husband had been arrested by plain-clothes policemen and detained by agents of the State were not supported by any evidence or eyewitness accounts and had therefore not been sufficiently proved.   Article 2 of the Convention   Alleged failure to protect the right to life The Court reiterated its finding that the applicant’s allegations concerning her husband’s abduction and killing had not been sufficiently proved. It appeared that no witnesses were able to corroborate those assertions, and the witnesses mentioned by the applicant had been impossible to trace or had preferred to remain anonymous. In those circumstances, the Court considered that it was unable to conclude beyond all reasonable doubt that the applicant’s husband had been abducted and killed by agents of the State or by persons acting on behalf of the authorities.   Alleged failure to carry out an adequate and effective investigation The Court noted that an investigation had indeed been carried out into the disappearance and alleged death of the applicant’s husband. However, there had been considerable shortcomings in the conduct of the investigation. For example, the failure to forward documents and information relating to the investigation suggested a lack of coordination between the various prosecutors concerned. The Court also considered that by not following up possible leads provided by the applicant or taking steps on their own initiative to identify possible witnesses to the abduction, the prosecuting authorities had failed to pursue the investigation. The Court therefore held that there had been a violation of Article 2 on that account.   Article 3 of the Convention   The Court reiterated that it had not been established beyond all reasonable doubt that the authorities had been involved in the disappearance and death of the applicant’s husband. Furthermore, there was nothing in the content or tone of the authorities’ replies to the applicant’s enquiries that could be described as inhuman or degrading treatment. The Court considered that the lack of coordination in conducting the investigation and the failure to pursue it could not justify a finding of a violation of Article 3 in relation to the applicant.   Article 5 of the Convention   The Court referred to its finding that it had not been proved that the Turkish authorities had been involved in the disappearance or death of the applicant’s husband. Furthermore, as it could not be established from any witness statements that Mr Tekdağ had been detained in Diyarbakır Prison or at the Silvan military base, the Court considered that there was no evidence of a violation of Article 5 of the Convention.   Article 13 of the Convention   The authorities had had an obligation to carry out an effective investigation into the circumstances surrounding the disappearance of the applicant’s husband. However, in the present case no criminal investigation could be considered to have been conducted in accordance with Article 13, the requirements of which were broader than those of Article   2.   The Court accordingly held that there had been a violation of Article 13.   Article 14 read in conjunction with Articles 2, 3, 5, 10, 13 and 18 of the Convention   In the light of the evidence before it, the Court considered the applicant’s allegations unfounded.     Article 18 of the Convention   The Court had already examined the applicant’s allegations in the light of the evidence submitted to it and had found them to be unsubstantiated. Accordingly, no violation of Article   18 could be made out.   Article 34 of the Convention   The Government’s conduct during the fact-finding mission had already been examined by the Court under Article 38. Accordingly, the Court did not consider it necessary to consider the matter under Article 34.   As regards the intimidation to which the applicant had allegedly been subjected by agents of the State, the Court noted that she had been unable to identify or describe the persons who had raided her house at night. Her allegation that they had been plain-clothes police officers was a mere supposition. Having regard to the applicant’s failure to produce any evidence on the matter and to the ambiguous nature of her submissions, the Court considered her allegations unfounded.   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 Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (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 by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. [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] This summary by the Registry does not bind the Court.