Information Note on the Court’s case-law 61

February 2004

Ä°pek v. Turkey - 25760/94

Judgment 17.2.2004 [Section II]

Article 2

Article 2-1

Life

Abduction and killing by security forces following a military operation, and effectiveness of the investigation: violation

Facts : The facts were disputed between the parties. Having regard to the documentary evidence submitted by the parties and the taking of witness evidence by delegates of the Court, the Court established the facts as follows. A military operation was conducted on 18 May 1994 in the hamlet of Dahlezeri. Soldiers from the security forces set the houses in the hamlet on fire and subsequentl y chose at random six young men (among which were two of the applicant’s sons) and took them away to a military establishment in Lice. Some of the men were released unharmed the next morning, but not the applicant’s sons and a third person. The applicant f iled several petitions to various judicial and administrative authorities to find out the whereabouts of his sons but was unable to obtain any information on them from any of these authorities.

Law: Article 2 (disappearance) – The applicant’s sons were las t seen in the hands of the security forces in an unidentified military establishment in Lice. Taking into account that no information has come to light concerning their whereabouts for almost nine and a half years, the Court was satisfied that they must be presumed dead. In cases like the present one, the burden of proof must be regarded as resting on the authorities, which had however not provided any explanation as to what occurred to the applicant’s sons following their apprehension. The responsibility o f the State for their death was therefore engaged.

Conclusion : violation (unanimously).

Article 2 (effective investigation) – This provision had also been breached under its procedural limb. The investigation had only commenced after the Court communicated the application to the Government, despite previous petitions by the applicant. The investigation was flawed and lacked due diligence and vigour. No steps had been taken to seek evidence from eyewitnesses or to seriously question the applicant on his comp laints. It was striking that the authorities had not considered it necessary to visit the hamlet with a view to verifying the applicant’s allegations. Finally, at a certain stage of the investigation, jurisdiction was transferred to the Lice Administrative Council, which the Court has on several occasions recalled cannot be regarded as an independent body.

Conclusion : violation (unanimously).

Article 3 – The applicant suffered, and continues to suffer, distress and anguish as a result of the disappearance of his two sons and of his inability to find out what happened to them (and his anguish must have been exacerbated by the destruction of his family home). The reaction of authorities vis-à-vis the family members of a “disappeared person” is an essential element when examining a complaint under this Article. The Court considered that the manner in which the authorities had dealt with the applica nt’s petitions constituted inhuman treatment contrary to Article 3. Despite the applicant’s tireless endeavours to discover the fate of his sons, he never received any plausible explanation from the authorities nor was he ever informed of the outcome of th e investigations.

Conclusion : violation (unanimously).

Article 5 – Although authorities are expected to conduct a prompt and effective investigation into an arguable claim that a person has been taken into custody and has not been seen since, in the prese nt case they failed to do so (see Article 2 above). The detention of the applicant’s sons was not logged in the relevant custody records nor was there any official trace of their subsequent whereabouts or fate. This represented a most serious failing enabl ing those responsible for an act of deprivation of liberty to conceal their involvement in a crime. Accordingly, the Court found that the applicants’ sons had been held in unacknowledged detention in complete absence of the safeguards contained in Article 5.

Conclusion : violation (unanimously).

Article 1 of Protocol No. 1 – The security forces had deliberately destroyed the applicant’s family home and possessions, which had constituted a grave and unjustified interference with the applicant’s right to the p eaceful enjoyment of his possessions.

Conclusion : violation (unanimously).

Article 13 – The applicant’s complaints under Articles 2, 3, 5 and Article 1 of Protocol No. 1 were clearly arguable for the purposes of Article 13. As there had not been a thorough and effective investigation into the applicant’s petitions, the Court conc luded that no effective remedy had been available as regards these complaints.

Conclusion : violation (unanimously).

Article 38 § 1 (a) – The Government had fallen short of their obligation under this Article to furnish all the necessary facilities to the Court in its task of establishing the facts.

Article 41 – The Court awarded the applicant 58,400 euros for pecuniary and non-pecuniary damage (including 14,000 euros to be held for his sons’ heirs). It also made an award in respect of costs and expenses.

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

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