AKDENIZ and others - Turkey (Nº 23954/94)

Judgment 31.5.2001 [Section II]

Facts: The applicants are relatives of eleven persons who went missing in October 1993 during a massive security operation against the PKK in south-east Turkey. The applicants maintain that the missing persons were taken away by the security forces and that while in detention they were allegedly kept tied up (except for one) in the open air and were in a state of distress. The Government assert that the missing persons were probably kidnapped by the PKK. A delegation of the European Commission of Human Rights took evidence and considered the testimony of the applicants to be credible and reliable, whereas that of the members of the security forces was not regarded as reliable. The Commission found it established that the eleven men had been taken into detention by the security forces and treated in the manner alleged. It also found evidence of beating, although the nature and extent was not apparent. The Commission found that the men had last been seen in detention. The applicants approached numerous authorities in an effort to find out about their relatives. However, few steps were taken to investigate. Moreover, the applicants were questioned by the authorities about their applications to the Commission and two of them were detained in that connection.

Law: The Court found that the Commission had approached its task of assessing the evidence with the requisite caution and that the Government's criticisms did not raise any matters of substance which might warrant the Court exercising its own powers of verifying the facts. It accepted the facts as established by the Commission.

Article 2 (disappearances) – The Commission had established that the missing persons were last seen in the custody of the security forces in 1993. The Court noted that there were no records of that custody. It drew very strong inferences from the length of time which had elapsed, the lack of documentary evidence and the inability of the Government to provide a satisfactory and plausible explanation. It concluded that the missing men must be presumed dead and that the responsibility of the State was engaged. Liability for the deaths was attributable to the Government.

Conclusion: violation (6 votes to 1).

Article 2 (effective investigation) – The applicants brought the substance of their complaints to the notice of numerous authorities but one public prosecutor ceded jurisdiction to another, who did not take any statements until August 1994 and then declined jurisdiction in April 1997. No substantive progress was made after the file was returned to the first prosecutor. Having regard to the inactivity of the prosecutors and their reluctance to pursue any lines of enquiry concerning the involvement of the security forces, the investigation did not provide any safeguard in respect of the right to life.

Conclusion: violation (6 votes to 1).

Article 3 (missing persons) – The Commission had established that the missing persons were detained in the open and that most of them were bound. Moreover, some beating occurred. This, in addition to the fear and anguish, reached the threshold of inhuman and degrading treatment.

Conclusion: violation (6 votes to 1).

Article 3 (applicants) – While it is not disputed that the applicants suffered, and continue to suffer, distress as a result of the disappearances, the Court was not satisfied that the case disclosed the special circumstances referred to in the Çakiçi judgment and did not consider that the applicants could claim to be victims of the authorities' conduct to an extent which disclosed a breach of Article 3.

Conclusion: no violation (6 votes to 1).

Article 5 – The Court's reasoning and findings in relation to Article 2 leave no doubt that the detention of the applicants' relatives was also in breach of this provision. The relatives were detained, there has been no plausible explanation for their whereabouts and the investigation was not adequate. Moreover, the lack of custody records is particularly serious. There has thus been a particularly grave violation of the right to liberty and security of person.

Conclusion: violation (unanimously).

Article 13 – There can be no doubt that the applicants have an arguable complaint and were entitled to an effective remedy. No effective criminal investigation can be considered to have been conducted in accordance with this provision, the requirements of which may be broader than the obligation to investigate imposed by Article 2.

Conclusion: violation (6 votes to 1).

Article 34 (former Article 25) – The applicants were questioned by police and public prosecutors about their applications to the Commission and two were held in custody. They must have felt intimidated by these contacts with the authorities, which went beyond an investigation of the facts underlying their complaints. This constituted undue interference.

Conclusion: failure to comply with obligations (6 votes to 1).

The Court found it unnecessary to determine whether the failings identified were part of a practice.

Article 41 – The Court found that there was a causal link between the violations and the loss by the families of the financial support of the missing persons. While the figures put forward in respect of income derived from their farming activities were not supported by any documentary evidence and involved a degree of speculation, the Government had not provided any detailed arguments to contradict the basis of the calculations or suggested a figure they would regard as reasonable. The Court found it appropriate to make awards in this respect and awarded the applicants between £12,000 and £80,000 (GBP). As regards non-pecuniary damage, it awarded each applicant £20,000 to be held for the widows, children or heirs of the missing persons, and also £2,500 in respect of the applicant's own suffering. Finally, the Court made an award in respect of costs and expenses.