Facts: The applicant, Izzet Çakici, a Turkish national, was born in 1953 and lives in Diyarbakir, Turkey. The application was lodged on his behalf and on behalf of his brother Ahmet Çakici.

On 8 November 1993, an operation was carried out by gendarmes from Hazro at the village of Çitlibahçe where Ahmet Çakici lived. The gendarmes were looking for, among other things, evidence concerning the kidnapping and murder of teachers and an imam by the PKK and for anyone who might have been involved. In a co-ordinated operation, gendarmes from Lice apprehended three persons at the neighbouring village of Baglan, who were transferred the next day to the Diyarbakir provincial gendarme headquarters.

The applicant and the Government have put forward different versions of the events in question.

According to the applicant, the Hazro gendarmes apprehended Ahmet Çakici when they came to Çitlibahçe. They took him to Hazro from where he was transferred to Diyarbakir provincial gendarme headquarters. He was detained there for sixteen to seventeen days in the same room as the three people who had been apprehended at Baglan. One of these three, Mustafa Engin, reported when he was released that Ahmet Çakici had been beaten, a rib being broken and his head split open. According to him, Ahmet Çakici had also been taken out for interrogation and received electric shock treatment. The applicant later learned from Hikmet Aksoy, who had been detained by gendarmes at Kavaklibogaz station, that his brother had been taken from Diyarbakir provincial gendarme headquarters to Hazro gendarme station and from there to Kavaklibogaz, where he had talked to Hikmet Aksoy. The applicant and his family had received no further news about Ahmet Çakici, until the Government provided information during the proceedings before the European Commission of Human Rights.

According to the Government, Ahmet Çakici was not taken into custody by the gendarmes during the operation on 8 November 1993. They rely on the custody records of Hazro gendarme station and Diyarbakir provincial gendarme headquarters, where there are no entries concerning Ahmet Çakici. During the Commission proceedings, they provided information that it had been reported that Ahmet Çakici’s identity card had been found on one of the bodies of terrorists killed during a clash with security forces from 17 to 19 February 1995 on Killibogan hill, Hani district.

On 13 June 1996, the Hazro public prosecutor issued a decision of lack of jurisdiction concerning the allegations about Ahmet Çakici’s disappearance, finding, among other things, that Ahmet Çakici’s identity card had been found on the body of a dead terrorist and that this confirmed the terrorist’s identity as Ahmet Çakici.

The applicant complained of violations of Articles 2, 3, 5, 13, 14 and 18 of the European Convention on Human Rights.

Law: The Court’s assessment of the facts: The Court accepted the facts found by the Commission which had carried out fact-finding missions in this case. It was accordingly established that the applicant’s brother had been taken into custody by the security forces on 8 November 1993, that he had been taken to Hazro gendarme station that night and that he had been detained at Diyarbakir provincial gendarme command from 9 November until at least 2 December 1993 when he was last seen by Mustafa Engin. It was established that during his detention Ahmet Çakici was beaten, one of his ribs broken, his head split open and that he had been given electric shock treatment twice. Though report was made by Hazro district gendarmerie that his identity card had been found on the body of a dead member of the PKK in February 1995, there was no evidence as to the identification of the body or the release of the body for burial and it could not be regarded as established that Ahmet G akici’s body had been found as alleged. The Court noted that the Commission’s task of establishing the facts had been made more difficult since the Government had failed to provide the Commission’s delegates with the opportunity to inspect original custody records, to facilitate the attendance of the witness Hikmet Aksoy and to secure the attendance before the delegates of two state officials. The Court, considering that it was of the utmost importance for the effective operation of the system of individual petition instituted under former Article 25 of the Convention (now replaced by Article 34) that States provide all necessary facilities to make possible a proper and effective examination of applications (former Article 28 § 1 (a), now replaced by Article 38), found that the Government had fallen short of this duty.

Government’s preliminary objection: The Court rejected the Government’s preliminary objection that the applicant had failed to exhaust domestic remedies. The Court found that the applicant and his father had made petitions and enquiries to the State Security Court prosecutor in relation to the disappearance of Ahmet Çakici and that though the authorities had been made aware of their concerns no effective response was made. It observed that, although statements were taken from the applicant and Ahmet Çakici’s wife which confirmed their allegations, no measures were taken by the various public prosecutors beyond enquiring about possible entries in custody records and taking two brief statements from the witness Mustafa Engin. No steps at all were taken by the public prosecutor to verify the report that Ahmet Çakici’s body had been found. In these circumstances, the applicant had done all that could reasonably be expected of him to exhaust domestic remedies.

Article 2 of the Convention: The Court found that the disappearance of Ahmet Çakici after he had been taken into custody 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 happened to him during his detention, the Government were liable for his death and there was a violation of Article 2 of the Convention. There was additionally a violation of Article 2 in that the inadequate investigation into the disappearance and alleged finding of Ahmet Çakici’s body referred to above disclosed a failure to protect his right to life.

Conclusion: Violation (unanimous).

Article 3 of the Convention: The Court found that the ill-treatment which Ahmet Çakici suffered during his detention (see above) constituted torture contrary to this provision. It did not find however that the disappearance of Ahmet Çakici disclosed a basis for finding that the applicant had himself suffered inhuman and degrading treatment at the hands of the authorities. It emphasised that there was no general principle that a relative of the victim of a disappearance was also a victim of treatment contrary to Article 3. That would depend on the existence of special factors giving the suffering of the relative a dimension and character distinct from the distress inevitably caused in the circumstances. Of particular relevance were the authorities’ reactions and attitudes to the situation when it was brought to their attention by the family. No special features existed in this case which justified a finding of a violation of Article 3 in respect of the applicant.

Conclusion: Violation in respect of the applicant's brother (unanimous), no violation in respect of the applicant himself (14 votes to 3).

Article 5 of the Convention: The Court held that the disappearance of Ahmet Çakici 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 accurate and reliable records of the detention of persons taken into custody by gendarmes and the lack of any prompt or meaningful enquiry into the circumstances of Ahmet Çakici’s disappearance.

Conclusion: Violation (unanimous).

Article 13 of the Convention: Referring to its reasoning in, among other things, its judgment of 19 February 1998 in the case of Kaya v. Turkey, the Court considered that the national authorities had been under an obligation to carry out an effective investigation into the circumstances of the disappearance of Ahmet Çakici. Reiterating its findings under Articles 2 and 5 of the Convention that no such effective investigation had been conducted, the Court concluded that there had been a violation of Article 13.

Conclusion: Violation (16 votes to 1).

Articles 14 and 18 of the Convention: The Court found that it did not have any evidence before it substantiating the alleged breaches of Articles 14 and 18. Accordingly, there had been no violation of these provisions.

Conclusion: No violation (unanimous).

Article 41 of the Convention: In respect of pecuniary damage, the applicant had claimed 4,7000,000 Turkish liras for a sum allegedly taken from Ahmet Çakici on his apprehension and GBP 11,534.29 for his surviving spouse and children in respect of the loss of his earnings. The applicant also claimed GBP 40,000 for non-pecuniary damage and GPB 32,205.17 by way of reimbursement of his costs and expenses.

The Court, ruling on an equitable basis, awarded GBP 11,534.29 for pecuniary damage for the applicant’s brother’s spouse and children, GBP 25,000 for non-pecuniary damage for his brother’s heirs, GBP 2,500 for non-pecuniary damage for the applicant himself and GBP 20,000 for costs and expenses.

Judges Jungwiert, Thomassen, Fischbach and Gölcüklü expressed partly dissenting opinions and these are annexed to the judgment.