CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 8 avril 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 } .sFE832CA2 { margin-top:0pt; margin-left:18pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .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 }   EUROPEAN COURT OF HUMAN RIGHTS   [No.] 8.4.2004   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF ÖZALP AND OTHERS v. TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Özalp and Others v. Turkey (application no. 32457/96).   The Court held unanimously that there: had been a violation of Article   2 (right to life) of the European Convention on Human Rights concerning Cavit Özalp’s death; had been a violation of Article   2 of the Convention concerning the failure to conduct an effective investigation into the death of Cavit Özalp; had been no violation of Article   3 (prohibition of torture); had been a violation of Article   13 (right to an effective remedy); and, that there was no need to determine whether there had been a breach of Article 6 § 1 (right to a fair hearing).   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 30,000   euros   (EUR) for pecuniary damage, EUR   25,000 for non-pecuniary damage and EUR   6,000 for costs and expenses. (The judgment is available only in English.)     1.     Principal facts   The applicants, Makbule Özalp, Suat Özalp, Hacı Özalp, Sercan Özalp, Gülcan Özalp, Mehmet Özalp, and Osman Özalp, are Turkish nationals, born in 1955, 1975, 1977, 1979, 1981, 1985, and 1988 respectively. They are the wife and children of the deceased, Cavit Özalp, and were living, at the material time, in the province of Diyarbakır (Turkey).   On 24 August 1995 Cavit Özalp was taken into custody by gendarmes from Bismil Gendarme District Command on suspicion of being a member of the PKK (proscribed as a terrorist organisation) and of aiding and abetting the PKK. The same day, Hacı Özalp stated that he saw his father, Cavit Özalp, but was not allowed to speak to him.   The Turkish Government claimed that Cavit Özalp informed the gendarmes that PKK terrorists were occasionally staying in his house and that he was providing them with food and military equipment, such as weapons, clothes and medicine. He allegedly also stated that he had dug a shelter with the terrorists, on the slopes of a hill near the Pamuk River in the Sarıhüseyin hamlet attached to the Serçeler village, to hide equipment.   On 24 August 1995 Cavit Özalp was taken to Bismil Health Centre for a medical examination. According to the medical report, there were no signs of ill-treatment on his body.   According to the Government, on 26 August 1995 at 4 a.m., gendarmes conducting a search to locate the shelter were guided by Cavit Özalp to a shelter near the Şedat road in the village of Kamberli. The soldiers asked Cavit Özalp to open the shelter, while protecting themselves at a safe distance. As Cavit Özalp opened the cover, there was an explosion, which killed him. The soldiers allegedly found weapons, medical equipment and clothes in the shelter.   On 24 November 1995 the public prosecutor at Diyarbakır State Security Court decided that no prosecution should be brought against Cavit Özalp on the ground that he had died.   On 14 November 1995 Bismil public prosecutor accused the non-commissioned officer in charge of the search of causing Cavit Özalp’s death through negligence. Not having the jurisdiction to bring proceedings against the non-commissioned officer, however, he transferred the case file to Bismil District Administrative Council.   On 5 February 1996 the applicants’ representatives filed a petition with the public prosecutor attached to Diyarbakır State Security Court, requesting a copy of the arrest and autopsy reports as well as the public prosecutor’s decision of non-prosecution.     The public prosecutor refused to provide the documents.   On 28 February 1996 the district administrative council issued a decision stating that no prosecution should be brought against the members of the security forces, who had performed their duty with diligence.     2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 4 March 1996 and transmitted to the Court on 1 November 1998. It was declared partly admissible on 31 August 2000.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Peer Lorenzen (Danish), Giovanni Bonello (Maltese), Nina Vajić (Croatian), Egil Levits (Latvian), Snejana Botoucharova (Bulgarian), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge , and also Santiago Quesada , Deputy Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants alleged, among other things, that Cavit Özalp was killed while in custody and that there was no effective investigation into the circumstances of his death. They relied on Articles: 2, 3, 6 § 1 and 13.   Decision of the Court   Article 2   The death of Cavit Özalp The Court noted that the authorities were certainly in a position to evaluate the risks inherent in visiting the alleged site of the shelter in question, at the relevant time. Being aware of the risk of explosion when Cavit Özalp opened the door of the shelter, the gendarmes had protected themselves. In the absence of any indication of other steps taken to protect Cavit Özalp’s life, it could reasonably be inferred that the authorities had failed to take preventative measures to protect his life. The Court therefore considered that there had been a violation of Article 2 concerning Cavit Özalp’s death.   Lack of effective investigation The Court noted that serious doubts arose as to the ability of the administrative authorities concerned to carry out an independent investigation into Cavit Özalp’s death. The rapporteur appointed by the District Administrative Council to conduct further investigations based his findings solely on the evidence provided by the accused gendarme officers, without requesting expert reports or any submissions from Cavit Özalp’s family or the village mayor who had signed the incident report. Bismil Administrative Council adopted the rapporteur’s report and decided that there was no need to bring criminal proceedings against the accused gendarme officers. The case was then automatically referred to the Diyarbakır Regional Administrative Court which upheld the Administrative Council’s decision. The Court observed, therefore, that the domestic authorities seemed to have accepted the accused gendarme officers’ account of the facts without question and without hearing any further witnesses. The authorities had therefore failed to carry out an effective investigation into the circumstances of Cavit Özalp’s death, in violation of Article   2.   Article 3   The Court observed that the applicants had initially submitted that Cavit Özalp had been tortured while in custody. However they had failed to provide any evidence in support of their allegations. In a written statement submitted to the Court, Hacı Özalp stated that he had seen his father in custody, but had made no mention of his being ill-treated. The Court further noted that a medical report of 24 August 1995 found no signs of ill-treatment on Cavit Özalp’s body.     The Court found nothing in the case-file to enable it to conclude that Cavit Özalp had been tortured in custody and, therefore, held that there had been no violation of Article 3.     Articles 6 § 1 and 13   The Court recalled that, although the authorities had had an obligation to carry out an effective investigation into the circumstances of Cavit Özalp’s death, there had been no effective criminal investigation within the meaning of Article 13. The Court further noted that the applicants’ representative had been refused copies of the arrest and autopsy reports and that no statement was taken from the Özalp family during the investigation. The applicants having been denied access to an effective remedy, including compensation, the Court held that there had been a violation of Article 13.   In the light of that finding the Court did not find it necessary to determine whether there had been a violation of Article 6 § 1.   ***   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.