Information Note on the Court’s case-law 29

April 2001

Tanli v. Turkey - 26129/95

Judgment 10.4.2001 [Section III]

Article 2

Article 2-1

Life

Death in police custody and effectiveness of investigation: violation

Article 3

Inhuman treatment

Death allegedly resulting from torture in police custody: violation

Facts : The applicant's son was taken into custody by gendarmes. Two days later, the applic ant was summoned to the police station, where he was told that his son had died of a heart attack. An autopsy carried out by two doctors who were not forensic specialists confirmed the cause of death as a heart attack. The applicant lodged a petition, clai ming that his son must have been tortured since he had been in good health before being taken into custody. However, he withdrew the petition and also his request to have a proper forensic examination of the body, fearing for his own safety. Proceedings we re nonetheless brought against three policemen, whose account was that the applicant's son had become agitated and collapsed during questioning. They were acquitted after a forensic examination of the exhumed body proved inconclusive due to the advanced st ate of decomposition. The report criticised the initial autopsy, in particular noting that no dissection of the heart appeared to have been carried out.

The Court considered that fact-finding would not clarify the situation, in view of the time which had p assed since the events.

Law : The applicant's son was in good health and had no history of medical problems when taken into custody. The domestic proceedings did not medically establish the cause of death and in particular it has not been shown that the death was due to natural cause s. Moreover, it may be accepted that the applicant withdrew his request for a forensic examination due to the inherent strain of undertaking the responsibility for such an exercise and to associated anxieties as to possible adverse reactions.

Article 2 (de ath) – The autopsy was defective in fundamental aspects and neither post mortem examination provided an explanation for the death. The authorities have therefore failed to provide any plausible or satisfactory explanation for the death in police custody an d the responsibility of the State is engaged.

Conclusion : violation (6 votes to 1).

Article 2 (effective investigation) – The autopsy was defective and was not carried out by qualified forensic doctors as required by the law, there being no exceptional urg ency and no reason why a specialist could not have been involved in the following days. Moreover, the prosecutor did not require the applicant's consent to have a further forensic examination carried out and responsibility for carrying out an effective inv estigation lies with the authorities. The acquittal of the policemen was not surprising given the defects in the investigation.

Conclusion : violation (unanimously).

Article 3 – There were no marks indicative of torture and no evidence of torture other than the unexplained cause of death. It is not appropriate to draw the inferences proposed by the applicant and, to the extent that it is alleged that the failings in th e post mortem examination prevented any concrete evidence of ill-treatment coming to light, the complaint falls to be considered under Article 13. Moreover, while the applicant has undoubtedly suffered as a result of his son's death, there is no basis for finding a violation of Article 3 in that respect.

Conclusion : no violation (unanimously).

Article 5 – The Court was not satisfied that the authorities acted without reasonable suspicion that the applicant's son had committed an offence, nor was it persuade d that "unlawfulness" had been made out on the grounds of a lack of proper documentation recording the detention. Moreover, it is not possible to establish what information may have been given to him or when. Under Article 5 § 3, it is speculation to assum e that a violation would inevitably have occurred. On the same basis, it cannot be concluded that the applicant's son was denied the opportunity to challenge the lawfulness of his detention.

Conclusion : no violation (unanimously).

Article 13 – Given the fi ndings under Article 2, no effective remedy was available to the applicant.

Conclusion : violation (unanimously).

Articles 14 and 18 – The complaints under these provisions are unsubstantiated.

Conclusion : no violation (unanimously).

Article 41 – The Court found that there was a causal link between the violation of Article 2 and the loss by the applicant's son's widow and child of the financial support which he provided for them. Noting that the Government had not queried the amount claimed by the applicant, beyond a general assertion that it was excessive, and having regard to the detailed submissions by the applicant concerning the actuarial basis of calculation of the appropriate capital sum to reflect the loss of income due to his son's death, the Court a warded the sum of £38,754.77 (GBP) to be held by the applicant for his son's widow and child. It also awarded £20,000 for non-pecuniary damage, to be held by the applicant for his son’s widow and child, as well as £10,000 for non-pecuniary damage suffered by the applicant in his personal capacity. Finally, it 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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