CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 30 mars 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 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sFE832CA2 { margin-top:0pt; margin-left:18pt; margin-bottom:0pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s331C3E28 { margin-top:0pt; margin-bottom:6pt } .s48A8B0C6 { margin-top:6pt; margin-bottom:6pt } .s47E2B0C6 { margin-top:6pt; margin-bottom:0pt } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; 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 } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } 30.3 EUROPEAN COURT OF HUMAN RIGHTS   160 30.3.2004     Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF NURAY ŞEN v. TURKEY (No. 2)   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Nuray Şen v. Turkey (No. 2) (application no. 25354/94).   The Court held unanimously that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights concerning the applicant’s allegation that her husband was abducted and killed by State agents or people acting on behalf of the State authorities; there had been a violation of Article 2 (right to life) of the Convention concerning the lack of an effective investigation into his death; there had been no violation of Article 3 (prohibition of torture); there had been a violation of Article 13 (right to an effective remedy); there had been no violation of Article 14 (prohibition of discrimination); it was not necessary to examine separately whether there had been a violation of Article 34 (former Article 25).   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 14,500   euros   (EUR) for non-pecuniary damage and EUR   36,000 for costs and expenses, less EUR   3,966 received in legal aid from the Council of Europe. (The judgment is available only in English.)     1.     Principal facts   The applicant, Nuray Şen, is a Turkish national of Kurdish origin, born in 1951 and, at the time her application was lodged, living in Nizip, Gaziantep, Turkey. Since then, she has been granted asylum and lives in Paris.   The case concerns the death, in 1994, of her husband Mehmet Şen, who was an active member of the Democratic Party (DEP). An inconclusive investigation was carried out following his death.   Ms Şen claimed that her husband was abducted, tortured and killed by members of the security forces and that, prior to his death, he had complained of being followed by possible hit men. She also maintained that the authorities had failed to carry out an effective investigation into his killing.   The Turkish Government denied that Mr Şen had been in the hands of the security forces at the time of his death. They claimed that his murderers had not been identified and that the investigation was still under way.   In its assessment of the facts of the case, the European Court of Human Rights concluded that Mr Şen was not tortured before being killed. The Court was unable to make a finding as to who might have been responsible for his abduction and death.     2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 4 April 1994 and declared admissible by the Commission on 5 March 1996. The facts of the case being in dispute between the parties, a fact-finding mission was undertaken by a delegation from the European Commission of Human Rights in Ankara between 16 and 18   June 1998.   The case was transmitted to the Court on 1 November 1999.   Judgment was given by a Chamber of seven judges, composed as follows:   Viera Strážnická (Slovakian), President , Josep Casadevall (Andorran), Rait Maruste (Estonian), Stanislav Pavlovschi (Moldovan), Lech Garlicki (Polish), Javier Borrego Borrego (Spanish), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge , and also Michael O’Boyle , Section Registrar .     3.     Summary of the judgment [2]   Complaints   The applicant claimed that her husband was abducted, tortured and killed by members of the security forces and that the authorities failed to carry out an effective investigation into his killing. She also alleged that only Turkish citizens of Kurdish origin had regularly suffered unlawful killings and that there was a discriminatory practice in the failure to investigate fully or prosecute the perpetrators in these cases. She relied on Articles 2, 3, 13, 14 and 34 of the Convention.       Decision of the Court   Article 2   Death of Mr Şen   The Court recalled that, in 1993 and 1994, as a result of the conflict in south-east Turkey, there were rumours that contra-guerrilla elements were involved in targeting people suspected of supporting the PKK, proscribed as a terrorist organisation under Turkish law. It was undisputed that there were a significant number of killings which included prominent Kurdish figures. The Court therefore considered that the circumstances of Mr Şen’s death, his membership of the DEP Party (allegedly subjected to intimidation, threats and criminal attack) and his political ambitions might have given credence to the applicant’s allegations.   However, the applicant’s allegations had not been proved beyond reasonable doubt. It appeared from the evidence that no eye-witnesses could identify the people who had abducted and killed the applicant’s husband. In particular, it had not been established that any State official was involved. The witnesses relied on by the applicant gave inconclusive statements to the gendarmerie and failed to give evidence before the Commission’s delegates. The only evidence available was hearsay statements from the applicant herself. The Court therefore considered that the material in the case file did not enable it to conclude beyond all reasonable doubt that the applicant’s husband was abducted and killed by any State agent or person acting on behalf of the State authorities. It followed that there had been no violation of Article 2 on that basis.   Failure to carry out an adequate and effective investigation   The Court noted that there were striking omissions in the conduct of the investigation into the abduction and ultimate death of Mr Şen, including: no real coordination between the different gendarmes authorities concerned, no forensic examination of Mr Şen’s body or clothes, and, no statements taken by the prosecutor from eye-witnesses to the abduction.   In such a serious murder case, the Court considered that the prosecutors should have shown greater initiative, and that it was significant that a key prosecutor failed to appear before the Commission delegates.   The Court found that there had been a violation of Article 2, given the national authorities’ failure to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicant’s husband.   Article 3   In the light of convincing medical evidence that Mr Şen had not been tortured before being killed, the Court found no factual basis for the applicant’s allegations and concluded that there had been no violation of Article 3 concerning Mr Şen.   The Court considered that the acute anguish suffered by the applicant and her daughter should more appropriately be dealt with under Article 41 (just satisfaction).   Article 13   Noting that the Turkish authorities had failed to carry out an effective investigation into the circumstances surrounding the death of Mr Şen, the Court concluded that there had been a violation of Article 13.   Article 14   Considering the applicant’s allegations of discrimination unsubstantiated, the Court found no violation of Article 14.   Article 34 The Court noted that the applicant’s complaint that she had been arrested and assaulted in relation to her application to the Court was not specified sufficiently early to allow an exchange of observations between the parties on the subject. In the circumstances of the case, the Court considered that it was not necessary to examine the matter separately.   ***   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.