CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 17 février 2004

.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 } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .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 } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .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 079 17.02.2004   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF İPEK v. TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of İpek v. Turkey (application no. 25760/94). (The judgment is available only in English.)   The Court held unanimously that there had been: a violation of Article 2 (right to life) of the European Convention on Human Rights on account of the presumed death of the applicant’s two sons; a violation of Article 2 (right to life) of the Convention on account of the domestic authorities’ failure to carry out an adequate and effective investigation into the disappearance of the applicant’s two sons and their subsequent presumed death; a violation of Article 3 (prohibition of inhuman treatment) in respect of the applicant; a violation of Article 5 (right to liberty and security) in respect of the applicant’s two sons; a violation of Article 1 of Protocol No. 1 (protection of property) in respect of the applicant; a violation of Article 13 (right to an effective remedy) in respect of the applicant and his two sons; no violation of Article 14 (prohibition of discrimination); no violation of Article 18 (limitation on use of restrictions on rights); a failure by the Turkish Government to fulfil their obligation under Article 38 § 1 (a).   Under Article 41 (just satisfaction), the Court awarded: 7,000 euros (EUR) for each of the applicant’s sons for pecuniary damage, to be held by the applicant for his two sons’ heirs; and for the applicant EUR 29,400 for pecuniary damage and EUR 15,000 for non-pecuniary damage. The Court also awarded the applicant’s representatives EUR 13,130 in respect of costs and expenses less EUR 1,050 granted by way of legal aid.     1.     Principal facts   The applicant, Abdurrezak İpek, is a Turkish national, born in 1942 and living in Diyarbakır, Turkey. At the time of the events in question, he was living in the Çaylarbaşı ( Dahlezeri in Kurdish) hamlet, attached to Türeli village in the Lice district of the province of Diyarbakır.   The facts of the case being in dispute between the parties, the Court conducted an investigation and concluded as follows.   On 18 May 1994, a military convoy arrived in the hilly area in the vicinity of Dahlezeri hamlet. Armed soldiers went down to the hamlet on foot. The applicant and the other inhabitants were ordered to leave their homes and were assembled under guard at the school on the outskirts of the hamlet. The soldiers took the identity cards of the adult males, including those of the applicant and his sons İkram and Servet İpek.   Soldiers also set the houses in the hamlet on fire, most of which were burned down or badly destroyed. The inhabitants assembled at the school were aware of what was happening, but were prevented from returning to their homes.   At some point before noon, the soldiers selected six young men, including   İkram and Servet İpek, to help carry equipment, giving assurances that they would be able to return. The soldiers returned the identity documents to the inhabitants, but kept those taken from the selected six.   The inhabitants went back to the hamlet and found that their homes had been destroyed, including the applicant’s house, belongings and livestock. Some inhabitants set about salvaging their belongings and extinguishing the flames. At some point in the afternoon of 18 May 1994, the soldiers returned and threatened the inhabitants with violence if they extinguished the fires. The soldiers burned any houses that remained standing.   The applicant’s sons were later taken to an unidentified military establishment in Lice, from where they were never released.     2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 18 November 1994 and transmitted to the Court on 1 November 1998. It was declared admissible on 14 May 2002. The Court conducted an investigation, under Article 38 § 1 (a) of the Convention, taking evidence from eight witnesses at hearings in Ankara between 18 and 20 November 2002. The Chamber decided that no hearing on the merits was required.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , Loukis Loucaides (Cypriot), Riza Türmen (Turkish), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Wilhelmina Thomassen (Netherlands), Mindia Ugrekhelidze (Georgian), judges , and also Lawrence Early , Deputy Section Registrar .     3.     Summary of the judgment [2]   Complaints The applicant complained about the disappearance of his two sons, İkram and Servet İpek, as well as the alleged destruction of his family home and property by security forces in the course of an operation conducted in his hamlet of Dahlezeri, near Lice, on 18 May 1994. He also maintained that no effective investigation was carried out concerning either his sons’ disappearance or the destruction of his property.   He relied on: Article 2 (right to life), Article 3 (prohibition of inhuman treatment), Article 5 (right to liberty and security), Article 13 (right to an effective remedy), Article 14 (prohibition of discrimination) and Article 18 (limitation on use of restrictions on rights) of the Convention and Article 1 of Protocol No. 1 (protection of property) to the Convention.   Decision of the Court   Article 2   Whether the applicant’s sons could presumed dead The applicant’s two sons were seen being taken away by soldiers and were last seen in the hands of the security forces in an unidentified military establishment. Although the Court was unable to determine their fate, given the general context of the situation in south-east Turkey in 1994, there were strong grounds for believing that their unacknowledged detention would be life-threatening.   For the above reasons, and taking into account that no information had come to light concerning the whereabouts of the applicant’s sons for almost nine-and-a-half   years, the Court was satisfied that Servet and İkram İpek must be presumed dead following their unacknowledged detention by the security forces. Finding that liability for their death was   attributable to the Turkish Government, the Court held that there had been a violation of Article 2.   Adequacy of the investigation The Court noted that, despite the applicant’s serious and detailed allegations, the responses given by the authorities were limited to denials that the security forces had ever conducted an operation in the region and that the applicant’s sons had ever been taken into custody. The investigations carried out did not go beyond the acceptance of the confirmations received by them that the applicant’s sons did not appear in the custody records or various wanted lists.   The Court also noted that, following the communication of the application before the European Court of Human Rights to the Turkish authorities, an investigation was carried out, but there were striking omissions and defects in the conduct of the investigation. Among other things, no attempts were made to take statements from members of the security forces and no steps were taken to seek any evidence from eye-witnesses. More importantly, the authorities did not consider it necessary to visit the hamlet with a view to verifying the applicant’s allegations and to collecting evidence. For the Court, this omission was sufficient, of itself, to warrant the conclusion that the investigation was seriously deficient. Finding that the investigations carried out into the disappearance of the applicant’s two sons were seriously inadequate and deficient, the Court concluded that there had been a further violation of Article 2.   Article 3   The Court found that the applicant suffered, and continued to suffer, distress and anguish as a result of the disappearance of his two sons and of his inability to find out what had happened to them. Furthermore, the Court considered that the applicant’s anguish about the fate of his sons must have been exacerbated by the destruction of his family home. The manner in which his complaints had been dealt with by the authorities had to be considered to constitute inhuman treatment contrary to Article 3. The Court concluded therefore that there had been a violation of Article 3 in respect of the applicant.   Article 5   The Court noted that the applicant’s sons’ detention was not logged in the relevant custody records and that there existed no official trace of their subsequent whereabouts or fate. This fact in itself had to be considered a most serious failing since it enabled those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of holding data recording such matters as the date, time and location of detention, the name of the detainee as well as the reasons for the detention and the name of the person effecting it had to be seen as incompatible with the very purpose of Article 5.   The Court further considered that the authorities should have been alert to the need to investigate more thoroughly and promptly the applicant’s complaints that his two sons were taken away in life-threatening circumstances and held in detention by the security forces. However, its reasoning and findings in relation to Article 2 above left no doubt that the authorities failed to take effective measures to safeguard the İpek brothers against the risk of disappearance.   The Court therefore concluded that the authorities had failed to provide a plausible explanation for the whereabouts and fate of the İpek brothers after they had been taken away from the hamlet of Dahlezeri and that the investigation carried out into their disappearance was neither prompt nor effective. It considered that it was confirmed in its conclusion by the prosecuting authorities’ failure to take statements from members of the security forces and eye-witnesses and by their unwillingness to go beyond the military authorities’ assertion that the custody records showed that the İpek brothers had neither been apprehended nor held in detention. The unreliability and inaccuracy of custody records had to be considered of relevance in that connection.   Accordingly, the Court found that the İpek brothers were held in unacknowledged detention in the complete absence of the safeguards contained in Article 5 and that there had been a violation of the right to liberty and security guaranteed by that provision.   Article 1 of Protocol No. 1   The Court reiterated its finding that the security forces deliberately destroyed the applicant’s family home and possessions, obliging his family to leave their village. There was no doubt that those acts constituted a grave and unjustified interference with the applicant’s right to the peaceful enjoyment of his possessions.     Accordingly, the Court concluded that there had been a violation of Article 1 of Protocol No. 1.   Article 13   The Court concluded that there was no available effective remedy in respect of the disappearance and presumed death of the applicant’s sons and the destruction of the applicant’s property in Dahlezeri hamlet. Accordingly, there had been a violation of Article 13 in conjunction with Articles 2, 3 and 5 and Article 1 of Protocol No. 1.   Articles 14 and 18   The Court found that no violation of Article 14 or Article 18 could be established on the basis of the evidence before it.   Article 38 § 1 (a)   The Court found that the Turkish Government fell short of their obligation under Article 38 § 1 (a) of the Convention to furnish all necessary facilities to the Court in its task of establishing the facts.   ***   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. [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.