Information Note on the Court’s case-law 52

April 2003

AktaÅŸ v. Turkey - 24351/94

Judgment 24.4.2003 [Section III]

Article 2

Article 2-1

Life

Death in custody and lack of effective investigation: violation

Article 3

Torture

Torture in custody: violation

Article 38

Obligation to furnish all necessary facilities

Refusal of witnesses to give evidence without security measures: failure to comply wit h Article 38

Facts : The applicant's brother died in custody in 1990, allegedly as a result of torture. Although there was extensive bruising on the body, the autopsy and subsequent forensic examination failed to establish the cause of death. Two gendarmes were prosecuted bu t were acquitted in 1994. As the Government denied that the death had resulted from ill-treatment, a delegation of the European Commission of Human Rights carried out an investigation. The delegates refused requests by the Government for a number of gendar mes to be allowed to give evidence in the absence of the applicant's representatives or at least separated from them by a screen, although the delegates suggested that evidence could be given in the absence of the applicant and his relatives. As a result o f the delegates' refusal, the witnesses did not appear before them.

Law : Article 38 § 1 (a) and inferences to be drawn – The Court expressed concern over three matters. Firstly, it was struck by the Government's stated inability to trace the doctor who had pronounced the applicant's brother dead. Secondly, it was not convinced of the necessity for security reasons of the witnesses – some of whose evidence would have been invaluable – being heard in the absence of the applicant and his relatives and represen tatives. Thirdly, photographs of a body said to be that of the applicant's brother had been handed to the Commission delegates only after the applicant had been heard; they bore no identifying information and for reasons that had never been explained the G overnment had been unable to produce the negatives. In these circumstances, the Court considered that it was entitled to draw inferences from the Government's conduct.

Evaluation of the facts – The available medical evidence indicated that at the time of h is arrest, the applicant's brother was not suffering from any potentially fatal condition and did not bear the bruises and scars subsequently observed in the post mortem examination. In the light of the absence of any hospital record of the death and the f ailure of the Government to produce the doctor who pronounced the applicant's brother dead, it could be inferred that the applicant's brother was dead on arrival at the hospital and thus had died in the hands of the gendarmerie. The Court therefore found i t proven beyond a reasonable doubt that the applicant's brother had been a prisoner of the authorities and had been subjected to violence which had directly caused his death.

Article 2 – In the light of the established facts, the applicant's brother had be en deprived of his life in circumstances engaging the responsibility of the respondent State and there was nothing to suggest that this was necessary for any of the reasons set out in the second paragraph of Article 2. There had therefore been a violation in that respect. As to the effectiveness of the investigation, firstly the inspection of the premises had been carried out by members of the gendarmerie itself, including several actually attached to the unit involved, so that the inspection could not be r egarded as part of an “effective investigation”. Secondly, no responsible gendarmerie official seemed to have taken the initiative of immediately alerting any competent authority to the death in custody. Thirdly, the provincial administrative council to wh ich the case was later referred did not satisfy the requirements of independence and such councils had already been found to be unlikely to initiate effective investigative measures. Fourthly, whether or not the major who took part in the investigation had interrogated the applicant's brother, he was a member of the gendarmerie and part of the same chain of command as those he was investigating. Fifthly, there was an unexplained delay in taking statements from gendarmes and it was not apparent that any had been asked to account for the injuries on the body. In conclusion, the investigation was not capable of yielding the information required to determine whether the force used was justified or of securing evidence sufficient to bring the perpetrators to just ice. There had therefore been a violation also in that respect.

Conclusion : violation (unanimously).

Article 3 – On the basis of its finding that the applicant's brother had been ill-treated while in detention, the Court concluded that he had been the victim of inhuman and degrading treatment. There could be no doubt that the treatment was particularly se rious, as it had resulted in death, and in the light of the evidence that the marks on the body were consistent with mechanical asphyxiation such as would result from pinioning of the chest so as to prevent breathing, crucifixion or Palestinian hanging, th e Court had no difficulty in drawing the inference that the suffering was particularly severe and cruel. Moreover, as it was not disputed that the victim had been interrogated, it was reasonable to infer that the purpose of the ill-treatment was to obtain information or a confession and the treatment therefore constituted torture. In addition, there had been a violation of this provision on account of the inadequacy of the investigation.

Conclusion : violation (unanimously).

Article 6 – The Court found it ap propriate to examine the complaint of lack of access to a court under the more general obligation to provide an effective remedy under Article 13.

Conclusion : not necessary to examine (unanimously).

Article 13 – For the reasons already given, no effective criminal investigation could be considered to have been conducted. The applicant had therefore been denied an effective remedy.

Conclusion : violation (six votes to one).

Article 14 – The Court could not find that the treatment of the applicant's brother le ading to his death was linked to his ethnic origins as such.

Conclusion : no violation (unanimously).

Article 34 – It had not been alleged that any authority had tried to enter into direct contact with the applicant in connection with the application. The c omplaint seemed to be rather that by failing to conduct a proper investigation the respondent Government had made it more difficult for him to present his case. The Court had already found violations under Articles 2, 3 and 13 with regard to the investigat ion and it would serve no useful purpose to consider the matter also under Article 34.

Conclusion : not necessary to examine (unanimously).

Article 38 § 1 (a) – In its report, the Commission had expressed the view that a request for security measures should be decided in the light of the particular circumstances of the case to which it related. To that end it was imperative that due notice be given and sufficient reasons provided to allow it to examine whether there existed an objective situation justifying the measures requested as well as a reasonable, plausible and subjective fear on the part of each witness to whom the request applied. In the present case, the requests had been made at a very late stage and observations regarding the reasons had been subm itted only after the Commission had already decided on the requests. The Commission had pointed out that many members of the security forces had been heard by its delegates since 1995 without a need for security measures having been expressed and that no i ndication had been provided of how the present case fell to be distinguished. Moreover, the Commission could not see why its proposal to take evidence in the absence of the applicant and his relatives would not have sufficed to allay concerns. In so far as it was suggested that the appearance of the witnesses before the applicant's representatives might lead to their descriptions being communicated to terrorists, the Commission had considered this to be unbecoming and unsubstantiated. The Commission had con cluded that the Government had fallen short of their obligation under former Article 28 § 1 (a) to furnish all necessary facilities. The Court agreed with this conclusion.

Conclusion : failure to fulfil obligations (unanimously).

Article 41 – The Court awar ded 226,065 € in respect of future loss of earnings and 58,000 € in respect of non-pecuniary damage, to be held by the applicant for his brother's widow and daughter. It also awarded the applicant 4,000 € as an “injured party”, despite the fact that no bre ach of Article 3 had been found with regard to him and he could not be considered a victim in his own right of the violations found. Finally, the Court 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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