Information Note on the Court’s case-law 19

June 2000

TimurtaÅŸ v. Turkey - 23531/94

Judgment 13.6.2000 [Section I]

Article 2

Article 2-1

Life

Disappearance and lack of effective investigation: violation

Article 3

Inhuman treatment

Mental suffering due to disappearance of applicant's son: violation

Article 5

Article 5-1

Security of person

Unacknowledged detention: violation

Article 13

Effective remedy

Absence of effective remedy in respect of disappearance: violation

(Extract from press release)

Facts : The applicant, Mehmet T imurtaş, a Turkish national, was born in 1928 and lives in Istanbul. The applicant alleged that his son, Abdulvahap Timurtaş, born in 1962, was taken into custody by security forces on 14 August 1993 near the village of Yeniköy in the Silopi district of Şı rnak province and has since disappeared. He filed a complaint with the Turkish authorities but on 3 June 1996 the Şırnak public prosecutor issued a decision not to instigate a prosecution in view of the abstract character of the applicant’s allegations and the likelihood that Abdulvahap Timurtaş was a member of the Kurdistan Workers’ Party (PKK). In support of his account the applicant submitted a photocopy of a document said to be a post-operation report drawn up by security forces in which the apprehensio n of Abdulvahap Timurtaş was recorded. According to the Government, the applicant’s son was not taken into custody. They relied on the custody records of the police and district gendarmerie headquarters in Silopi, the Şırnak provincial central gendarmerie headquarters and the interrogation centre at the Şırnak provincial gendarmerie headquarters, none of which contained entries concerning Abdulvahap Timurtaş. Moreover, the Government disputed the authenticity of the document mentioned above since the refere nce number that featured on this photocopied document in reality belonged to a different document. The Government submitted that they were not,  however, in a position to provide this last document as it had been classified as secret.

The applicant complai ned that his son was taken into custody by security forces and deprived of the guarantees pertaining to the protection of the right to life contrary to Article 2 of the European Convention on Human Rights and the right to liberty and security of person con trary to Article 5. He also complained that his son’s disappearance caused him such anguish as to amount to inhuman and degrading treatment, in breach of Article 3 of the Convention. Further, he alleged that the lack of an effective official investigation into the disappearance deprived him of an effective remedy as guaranteed by Article 13. Finally, the applicant invoked Articles 18 and 34 of the Convention, claiming that the conspiracy on the part of the security forces to conceal from him the unlawful de tention of his son was incompatible with the rule of law and frustrated the effective exercise of his right of individual petition.

Law : The Court’s assessment of the facts - The Court noted that the Commission had carried out a hearing of witnesses in thi s case but that it had not been presented with any eye-witness evidence of the apprehension of the applicant’s son or his alleged subsequent detention. However, the applicant’s allegations of the apprehension of his son were confirmed in the document submi tted on his behalf. The question whether this document was a photocopy of an authentic post-operation report was therefore of overriding importance to the establishment of the facts and their assessment.

The Court considered that a photocopied document sho uld be subjected to close scrutiny before it could be accepted as a true copy of an original, the more so as modern technological devices could be employed to forge or tamper with documents. At the same time, it was of the utmost importance for the effecti ve operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications. It was inherent in proceedings relating to cases where an individual applicant accused State agents of having violated his rights under the Convention, that in certain instances solely the respondent Government had access to information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information which was in their hands without a satisfactory explanation might give rise to the drawing of inferences as to the well-foundedness of those allegations. It was for these reasons that the Court was of the opinion that the Government had been in a pre-eminent position to assist the Commission in its task of establishing the facts by providing access to the document which they claimed was the genuine document bearing the reference number which featured on the photocopy. It was insufficient for the Government to rely on the allegedly secret nature of that document. Consequently, the Court found it appropriate to draw an inference from the Government’s failure to produce the document without a satisfactor y explanation. Having regard, furthermore, to a number of factors which pointed in favour of the document’s authenticity, the Court agreed with the Commission that it was indeed a photocopy of a genuine post-operation report.

The Court accepted the facts as established by the Commission. It was accordingly established that Abdulvahap Timurtaş had been apprehended on 14 August 1993 by gendarmes attached to the Silopi district gendarmerie and taken into detention. The Court further noted the lack of any sati sfactory or convincing explanation by the Government as to the non-attendance of an importance official witness at the hearing before the Commission’s delegates as well as their failure to provide specific detention records. It confirmed the finding reache d by the Commission in its report that in this case the Government had fallen short of their obligations under former Article 28 § 1 (a) of the Convention to furnish all necessary facilities to the Commission in its task of establishing the facts.

Article 2 - (a) Alleged failure to protect life: The Court examined whether, in the absence of a body, an issue could arise under Article 2 of the Convention from the failure by the authorities to provide a plausible explanation as to a detainee’s fate. It held th at this would depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on concrete elements, from which it could be concluded to the requisite standard of proof that the detainee must be p resumed to have died in custody. In this respect the period of time which has elapsed since the person has been placed in detention, although not decisive in itself, is a relevant factor to be taken into account, since the more time that goes by without an y news of the detained person, the greater the likelihood that he or she has died. The passage of time may therefore to some extent affect the weight to be attached to other elements of circumstantial evidence before it can be concluded that the person con cerned is to be presumed dead.

Noting that more than six and a half years has gone by since Abdulvahap Timurtaş’ apprehension and having regard to all the other circumstances of the case, the Court found that the disappearance of Abdulvahap Timurtaş after he had been taken into detention led, in the circumstances of this case, to a presumption that he had died. No explanation having been provided by the Government as to what had happened to him during his detention, the Government were liable for his death and there was a violation of Article 2 of the Convention.

Conclusion : violation (6 votes to 1).

(b) Alleged inadequacy of the investigation: The Court noted the length of time it took before an official investigation into the disappearance of Abdulvahap Timurtaş was started and before statements from witnesses were obtained, the inadequate questions put to the witnesses and the manner in which relevant information was ignored and subsequently denied by the investigating authorities. The Court was further struck by the fact that it was not until two years after the applicant’s son had been taken into detention that enquiries were made of the gendarmes in Şırnak despite the fact that the applicant had apprised the authorities long before then of the informat ion he had obtained to the effect that his son had been transferred to Şırnak. Moreover, there was no evidence to suggest that the public prosecutors involved in the investigation had made an attempt to inspect custody records or places of detention  thems elves, nor that the Silopi district gendarmerie alleged by the applicant to have apprehended his son were asked to account for their actions on the day of his apprehension.

Accordingly, the Court found that the investigation carried out into the disappeara nce of the applicant’s son was inadequate and therefore in breach of the State’s procedural obligations to protect the right to life. The Court concluded that there had also been a violation of Article 2 of the Convention on this account.

Conclusion : viola tion (6 votes to 1)

Article 3 - The Court found that the disappearance of the applicant’s son amounted to inhuman and degrading treatment contrary to Article 3 in relation to the applicant. Apart from the close family connection, the Court had particular r egard to the reactions and attitudes of the authorities when the disappearance of Abdulvahap Timurtaş was brought to their attention: not only did the investigation into the applicant’s allegations lack promptitude and efficiency, certain members of the se curity forces also displayed a callous disregard from the applicant’s concerns by denying, to the applicant’s face and contrary to the truth, that Abdulvahap Timurtaş had been taken into custody. In addition, the applicant’s anguish concerning his son’s fa te continued to the present day.

Conclusion : violation (6 votes to 1).

Article 5 - The Court held that the disappearance of Abdulvahap Timurtaş during an unacknowledged detention disclosed a particularly grave violation of the right to liberty and security of person guaranteed by this provision. It referred in particular to the lack of a prompt and effective enquiry into the circumstances of Abdulvahap Timurtaş’ disappearance and the lack of accurate and reliable records of detention of persons taken into c ustody by gendarmes.

Conclusion : violation (unanimous).

Article 13 - Referring to its reasoning in, among other things, its judgment of 25 May 1998 in the case of Kurt v. Turkey, the Court considered that the national authorities had been under an obligati on to carry out an effective investigation into the circumstances of the disappearance of Abdulvahap TimurtaÅŸ. Reiterating its findings under Articles 2 and 5 of the Convention that no such effective investigation had been conducted, the Court concluded th at there had been a violation of Article 13.

Conclusion : violation (6 votes to 1).

Article 18 - Having regard to its other findings in respect of the disappearance of Abdulvahap TimurtaÅŸ the Court did not consider it necessary to examine this complaint sep arately.

Conclusion : not necessary to examine (unanimous).

Article 34 - The Court did not consider that the circumstances of the present case disclosed a failure to comply with the obligation of Article 34 in fine on the part of the respondent Government.

Conclusion : no failure to comply with obligations (unanimous).

Article 41 - As regarded non-pecuniary damage the Court awarded GBP 20,000 in  respect of the Abdulvahap Timurtaş, to be held by the applicant for his brother’s heirs, and GBP 10,000 for the ap plicant himself. For costs and expenses, it awarded GBP 20,000 less the amount awarded for legal aid by the Council of Europe.

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

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