Lexploria

Information Note on the Court’s case-law 77

July-August 2005

Tanış and Others v. Turkey - 65899/01

Judgment 2.8.2005 [Section IV]

Article 2

Article 2-1

Life

Unexplained disappearance after being summoned to show up at a police station, and effectiveness of the investigation: violation

Article 3

Degrading treatment

Inhuman treatment

Psychological suffering of family members of missing persons: violation

Article 5

Article 5-1

Security of person

Unexplained disappearance after having been seen for the last time entering a police station: violation

Article 38

Examination of the case

Obligation to furnish all necessary facilities

Omission of the Government to furnish pieces of evidence in its possession, and non-appearance before the Court delegates of two State agents: failure to comply with Article 38

Facts : The applicants are relatives of two leaders of the local branch of a political party who went missing in January 2001 under circumstances which were disputed between the parties. The Court conducted an on-site mission to establish the facts. It emerged t hat, prior to their disappearance, the party leaders had been subjected to harassment by the authorities. On the day of their disappearance, they were approached in the street by men dressed in civilian clothing claiming to be police officers, who told the m to get into their car, which they refused to do. One of them then received a call on his mobile phone from an officer summoning him to an interview at the district gendarmerie station with the commanding officer. The national authorities made an order re quiring the identity of the person who made the call to remain secret. The two men were seen entering the gendarmerie station the same day. While the Government maintained that they left the premises half an hour later, it could not be established with cer tainty that they left freely or were not detained subsequently. Since that time, their families, friends and colleagues have had no news of the two men. Information received subsequent to their disappearance suggesting that they were alive and in Iraq or h ad been killed in a vendetta was never corroborated. Following a complaint lodged by the men’s relatives, a criminal investigation was launched. The applicants continued to maintain that their relatives had previously been subjected to intimidation and thr eats by the commanding officers of the gendarmerie and had been in fear of their lives. The judge imposed restrictions on access to the investigation file. The investigation resulted in a finding that there was no case to answer. The applicants appealed. T he State Security Court observed that there had been gaps in the investigation, but no further investigation was ordered. The applicants alleged before the Court that their relatives had been victims of an extrajudicial execution during a period in police custody that had not been acknowledged by the authorities. The Court asked the respondent Government in vain for a copy of the investigation file indicating the information that had been withheld on grounds of confidentiality following a decision by the na tional judicial authorities.

Law: Assessment of evidence with a view to establishing the facts : A delegation of judges visited Ankara in order to establish the facts. However, two important witnesses who had been summoned failed to appear, and information in the domestic investigation file continued to be withheld. In the Court’s view when, as in the instant case, the respondent Government alone had access to the information and was solely responsible for ensuring the appearances of witnesses capable of con firming or refuting the applicants’ allegations, any failings on their part without a satisfactory explanation could give rise to the drawing of inferences as to the well-foundedness of the applicants’ allegations.

Furthermore, in cases where, although it had not been proven that an individual had been placed in police custody by the authorities, it had been established that the person had been summoned officially by the military or police authorities and had entered premises under military or police contro l and never been seen again, it was incumbent upon the Government to provide a plausible and satisfactory explanation as to what had occurred on the premises and to demonstrate that the person concerned had not been detained by the authorities but had left the premises without being deprived subsequently of his or her liberty. In the absence of such explanation, the Court could examine whether there had been a violation not just of Article 5 but also, in certain circumstances, of Article 2 of the Convention .

Article 38(1)(a) - The Government’s failure to act with due diligence and grant the Court’s requests for evidence which it considered necessary to enable it to examine the application, such as the investigation file indicating the information that had be en withheld on grounds of confidentiality at the request of the public prosecutor’s office, and the fact that the Court had been unable to hear evidence from the commanding officer of the gendarmerie or the person who had telephoned immediately before the men’s disappearance and whose name had not been provided, were Not compatible with the State’s obligations under Article 38(1)(a) of the Convention.

Conclusion : failure to comply with Article 38 (unanimously).

Article 2 – The disappearances : The decisive f actor was that the two men had gone to the gendarmerie command headquarters following a call from a gendarme (who was identified by the public prosecutor) and had not been seen since. There was sufficient persuasive evidence that they had been threatened b y the commanding officers of the gendarmerie on account of their political activities, and a credible witness statement had described an attempted abduction on the very day of their disappearance. Having regard to the context in which the men had disappear ed, the fact that their fate was still unknown four years later and the fact that the investigation had neglected certain aspects and been based on preconceived assumptions, and in the absence of a proper investigation and a plausible explanation from the authorities with regard to what had happened, the Court was of the opinion that the State’s responsibility was engaged by their disappearance.