Lexploria

Information Note on the Court’s case-law 39

February 2002

Abdurrahman Orak v. Turkey - 31889/96

Judgment 14.2.2002 [Section I]

Article 2

Article 2-1

Life

Death in police custody and lack of effective investigation: violation

Facts : On 11 June 1993 the applicant’s son, A.O., who was 23 years old and had three children, and one A.G. were arrested and taken to a gendarmerie station, before being transferred to a gendarmerie barracks, where they were detained. According to the Government, A.O. and A.G. tried to escape on 14 June 1993 while they were under surveillance in a corridor in the barracks. During the attempted escape a fight allegedly broke out with the gendarmes. According to the incident report, A.O. found himself trapped between a wall and a door which had been forced open by gendarmes who had been called in as reinforcements. He did not undergo any kind of medical examination after the fight. He subs equently went on hunger strike, during which he received only serotherapy. As his state of health was giving cause for concern, he was transferred to hospital on 20 June 1993. The doctors who examined him found that he had lost consciousness and had injuri es all over his body. Following the examination, he was diagnosed as suffering from cranial trauma. On 23 June 1993 A.O. died. The following day an autopsy was carried out; it was again noted that A.O. had sustained injuries all over his body and the cause of his death was given as a stroke. On 6 July 1993 the applicant lodged a complaint with the public prosecutor’s office against the gendarmes in whose custody his son had been placed. In the course of the investigation the public prosecutor took evidence from the gendarmes in question. At his request, a panel of four forensic medical experts drew up a report, concluding that the death had been caused by a traumatic shock to the cranium. In October 1993 the public prosecutor instituted proceedings against t he gendarmes in the Assize Court, accusing them of causing death by excessive use of force during the attempted escape. Three of the persons charged and a number of other gendarmes who had been present at the time of the incident gave evidence. A.G.’s stat ement was obtained by means of a request for evidence on commission; he did not admit offering resistance to the gendarmes or attempting to escape, and maintained that he and A.O. had been tortured while in custody. At the public prosecutor’s request, the criminal proceedings were stayed in accordance with a decree concerning the authority of the governor of the state-of-emergency region and the case was referred to the Administrative Council. On 17 August 1995 the Administrative Council decided not to brin g criminal proceedings against the gendarmes in question, as there was insufficient evidence. That decision was quashed by the Supreme Administrative Court. On 25 November 1997 the Assize Court acquitted the gendarmes, holding that it was not possible on t he basis of the evidence adduced before it to establish that the traumatic shock from which the applicant’s son had died was attributable to them.

Law : Article 2 – It was not disputed that the applicant’s son’s death had been caused by a stroke resulting f rom traumatic shock. The point on which the parties disagreed concerned the origin of the injury. However, irrespective of the origin of the injury that had led to A.O.’s death, reliable and persuasive evidence that the death was imputable to the State had been adduced. Firstly, it was not disputed that A.O. had been in good health when he was arrested and had shown no signs of illness or previous injuries. Following his arrest he had been detained at two gendarmerie posts. Accordingly, the injuries noted d uring that period engaged, in principle, the responsibility of the State: on the one hand, a “negative” responsibility, consisting in refraining from excessive use of force, even in circumstances covered by Article 2 § 2, sub-paragraphs (a), (b) and (c), a nd, on the other hand, a positive responsibility to protect the lives of persons deprived of their liberty. Although the applicant’s son had injuries all over his body and was suffering from cranial trauma, he had not been transferred to hospital until six days after the alleged escape attempt; he had then fallen into a coma and died. In addition, the Government had not supplied any plausible explanation for the injuries or the cranial trauma which had apparently caused his death. Moreover, while in custody A.O. had merely received serotherapy, even though his injuries were serious. Accordingly, the State’s responsibility for the applicant’s son’s death was engaged.

As regards the alleged inadequacy of the investigation, the fact that the authorities had bee n informed of A.O.’s death in custody in itself imposed a duty on them to conduct an effective investigation into the circumstances of his death. Following the applicant’s complaint, the public prosecutor did not appear to have doubted the gendarmes’ versi on of events since he had charged them with causing death through the excessive use of force during the alleged escape attempt. During the preliminary investigation he had neglected to question A.G., whose statements were nonetheless crucial in that he had been the only witness present, apart from the gendarmes, when the fight had broken out. Yet A.G.’s statements had not been obtained until 3 March 1994, by means of a request for evidence on commission. None of the investigating or trial judges in the case had questioned this key witness, who had denied that there had been an attempt to escape followed by a fight. The subsequent inquiry conducted by the administrative authorities had not remedied those shortcomings, since no proceedings had been brought aga inst the gendarmes for want of sufficient evidence. Lastly, the Assize Court that had considered the case had acquitted the gendarmes in question. That conclusion, based solely on the evidence given by the accused and by other gendarmes who had been presen t when the incident occurred, could not be accepted, given the absence of any explanation for the radical difference between the gendarmes’ and A.G.’s versions of events and the nature of A.O.’s injuries. Nor had it been established that an appeal on point s of law – a remedy that had, in principle, been open to the applicant – would have made it possible to clarify or supplement the evidence available or been capable of altering to any significant extent the outcome of the criminal investigation or the tria l. Accordingly, the applicant had complied with the requirement to exhaust domestic remedies. In conclusion, the authorities had not conducted an effective investigation into the circumstances surrounding the applicant’s son’s death, thereby rendering civi l remedies likewise ineffective.

Conclusion : violation (unanimously).

Article 3 – The autopsy report stated that A.O. had injuries all over his body. That report, and the one subsequently drawn up by a panel of four forensic medical experts, confirmed the presence of traumatic lesions on the deceased’s body. In the absence of any plausible explanation from the Government, it had been established that the injuries observed on A.O.’s body had been caused by treatment for which the State bore the responsibilit y.

Conclusion : violation (unanimously).

Articles 6 and 13 – On the basis of the evidence adduced before the Court the State had been held responsible for the applicant’s son’s death and for the ill-treatment to which he had been subjected while in custody; the applicant’s complaints in that conn ection could therefore be described as “arguable” for the purposes of Article 13. The authorities had consequently been under an obligation to conduct an effective investigation into the circumstances surrounding the death. For the reasons set out above, t he judicial investigation could not be regarded as effective within the meaning of Article 13, the requirements of which provision may be broader than the obligation under Article 2 to conduct an investigation. Accordingly, the applicant had been denied an effective remedy and had not had access to any other remedies that were available in theory, such as an action for damages.

Conclusion : violation (six votes to one).

Articles 5, 14 and 18 – These complaints concerned the same facts as those considered und er Articles 2, 3 and 13. In view of the Court’s conclusion as regards compliance with those provisions, it was not necessary to examine the complaints separately.

Conclusion : not necessary to examine separately (unanimously).

Article 41 – The Court awarded 45,000 euros (EUR) for pecuniary damage, to be held by the applicant for his son’s heirs, and EUR 457 for funeral expenses. It also awarded EUR 22,500 for the non-pecuniary damage sustained by the applicant’s son’s heirs and EUR 4,000 for the non-pecuniary damage sustained by the applicant. Lastly, it awarded EUR 2,660 for costs and expenses, less 4,100 French francs paid by the Council of Europe in legal aid.

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