Information Note on the Court’s case-law 195

April 2016

Cangöz and Others v. Turkey - 7469/06

Judgment 26.4.2016 [Section II]

Article 3

Degrading treatment

Bodies of applicants’ relatives displayed at military base for the purpose of examination by prosecutor and doctors: no violation

Article 2

Article 2-1

Effective investigation

Article 2-2

Use of force

Fatal shooting of applicants’ relatives by military for ces and ineffectiveness of ensuing investigation: violations

Facts – In 2005 the applicants’ seventeen relatives were killed by members of the security services in south-east Turkey. The national investigating authorities concluded that the deceased were members of an outlawed organisation who had been killed when the se curity forces returned their fire after coming under attack. No prosecution was brought in respect of the killings.

Law

Article 2

(a) Substantive aspect – It was undisputed that the applicants’ relatives had been killed by members of the armed forces of t he respondent State. Long before the killing the security forces had been aware of their presence in the area and their reason for being there, which was to hold a meeting, not to carry out acts of violence. However, there was no information in the case fi le to suggest that alternative and non-fatal methods for apprehending them had been considered. The Court therefore had strong doubts about whether lethal force had been necessary.

The ensuing investigation was so manifestly inadequate and left so many ob vious questions unanswered that it was incapable of establishing the true facts surrounding the killings. The Government had thus failed to discharge their burden of proving that the killing of the applicants’ relatives constituted the use of force which w as absolutely necessary or a proportionate means of achieving the purposes they advanced.

Conclusion : violation (unanimously).

(b) Procedural aspect – From the beginning, the investigation file was categorised as “confidential” by a judge at the prosecutor’s request, thus leaving the applicants unable to take any part in the investigation. This decision had also prevented them from seeing the investig ation file until it was submitted to the Court by the Government in the context of the Convention proceedings. A very large number of pertinent requests made by the applicants – such as for the prosecutor to visit the area, to question the security forces, to establish which weapons the security forces had used, to look for fingerprints on the rifles, and to try and eliminate the inconsistencies between the military reports – had not been taken on board by the prosecutor. It followed that the national autho rities had failed to carry out an effective investigation into the deaths.

Conclusion : violation (unanimously).

Article 3: After the military operation ended the bodies of the applicants’ relatives were brought to a military base, placed outdoors, stripped of their clothes and examined by the prosecutor and two doctors. The bodies could thus be seen by a number of soldiers. After the prosecutor concluded his examination, the bodies were not given to the relatives but taken to a forensic-medicine institute f or autopsies to be carried out. Regardless of whether or not the applicants actually saw their relatives’ corpses in person, in view of their knowledge of the conditions in which the bodies were examined, there was little doubt that they must have endured mental suffering. Thought could have been given by the authorities to protecting the deceased’s dignity and their relatives’ feelings by using a screen to block the bodies from view and carrying out the necessary procedure in a more appropriate manner.

Nev ertheless, the circumstances of the instant case distinguished it from those cases, concerning the mutilation of bodies, burning of houses or bombing civilians with fighter jets, in which the Court had found violations of Article 3 of the Convention, as th e acts in question in those cases were carried out deliberately and without lawful excuse. In the present case, however, the applicants’ suffering stemmed from lawful action by a prosecutor who was performing his duties to investigate but failed to appreci ate the consequences. Accordingly, and in view of the purpose of the treatment, which was to enable the prosecutor and doctors to examine the bodies, the circumstances were not such as to give the applicants’ suffering a dimension and character distinct fr om the emotional distress which may be regarded as inevitably caused to any family member of a deceased person in a comparable situation.

Conclusion : no violation (unanimously).

Article 41: EUR 65,000 each applicant in respect of non-pecuniary damage.

(Se e the Factsheet on the Right to life ; see also Mustafa Tunç and Fecire Tunç v. Turkey [GC], 24014/05, 14 April 2015, Information Not e 184 ; and Benzer and Others v. Turkey , 23502/06, 12 November 2013, Information Note 168 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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