TAŞ - Turkey
(N˚ 24396/94)Facts: The applicant's son, M., was shot in the knee and taken into custody by gendarmes in October 1993. He allegedly admitted to being a member of the PKK. After being seen by a doctor, he was handed over to the provincial gendarmerie to be transferred to Şirnak, where he was seen by another doctor at the military hospital. However, there are no other records relating to the detention of M. or his interrogation by three officers, only one of whom remembered M. when giving evidence to a delegation of the European Commission of Human Rights. The Commission found the officers' evidence to be unconvincing and in particular noted that the sole interview which one officer recalled did not account for the fact that the detention was extended twice for 15 days by the public prosecutor. A gendarme report of November 1993 states that M. escaped while assisting the gendarmes to locate PKK shelters, but the Commission considered it highly unlikely that M. would have been able to walk or run normally by then and dismissed the report as an unreliable document. The Government subsequently stated that it was not possible to identify the officers who had signed the report. The evidence of two former PKK members who confirmed that M. had escaped was also found by the Commission not to be reliable or credible. The Commission concluded that there was no explanation for what happened to M. after being treated at the military hospital.
The applicant lodged a number of petitions seeking information about his son but the public prosecutor took no steps to investigate. Certain steps were taken after communication of the application to the Government but ultimately the matter was transferred to the provincial administrative council, which terminated the proceedings after an investigation by a gendarme officer. The Government submitted certain relevant documents to the Commission after the taking of evidence had been closed and the Commission found in this respect that the Government had fallen short of its obligations under former Article 28(1)(a) of the Convention in failing to make them available earlier.
Law: The Court did not find that the Government's criticisms of the Commission's fact-finding raised any matter of substance warranting the exercise of its own powers of verifying the facts and consequently accepted the facts as established by the Commission. Noting the lack of explanation for the late submission of relevant documents, the Court confirmed the Commission's conclusion that the Government had fallen short of their obligations to furnish all necessary facilities.
Article 2 (death) – No entries were made in any custody records after the date on which M. was taken into custody and no reliable evidence has been forthcoming as to where he was held. Very strong inferences may be drawn from this absence of documentary evidence and from the failure of the Government to provide a satisfactory and plausible explanation as to what happened to him. Moreover, the claim that M. escaped entirely lacks credibility and has not been substantiated by any reliable evidence. M. must be presumed dead following his detention by the security forces, thus engaging the responsibility of the State. Since the authorities have not accounted for what happened and do not rely on any ground of justification for the use of lethal force, liability is attributable to the Government.
Conclusion: violation (6 votes to 1).
Article 2 (investigation) – The public prosecutor took no investigative steps in response to the applicant's petitions and the lack of reaction to a report that the security forces have "lost" someone detained on suspicion of serious offences is incompatible with the obligation to ensure that detainees enjoy the safeguards accorded by law and the judicial process. While some steps were taken later, these were not pursued with any conviction. The Court has already held that the use of provincial administrative councils to investigate allegations of unlawful killings does not comply with the requirement that an investigation be carried out by an independent body. In sum, the investigation was not prompt, adequate or effective.
Conclusion: violation (unanimously).
Article 3 (applicant's son) – M. received prompt and effective medical treatment and the lack of records as to his subsequent care is an insufficient basis for concluding that he was the victim of treatment contrary to Article 3. Nor is it appropriate to make any findings as to the effect incommunicado detention may have had on M.
Conclusion: no violation (unanimously).
Article 3 (applicant) – Having regard to the indifference and callousness of the authorities to the applicant's concerns and the acute anguish and uncertainty which he has suffered and continues to suffer, he may claim to be a victim of the authorities' conduct, to an extent which discloses a breach of Article 3.
Conclusion: violation (unanimously).
Article 5 – The reasoning and findings in relation to Article 2 leave no doubt that M.'s detention was in breach of Article 5. The authorities have failed to provide a plausible explanation for his whereabouts and fate after the date of his detention and the investigation was neither prompt nor effective. In this respect, the absence of entries in official custody records is particularly serious. Furthermore, the period of detention was twice extended for 15 days, while only exceptionally can a period of more than four days without being brought before a judge be justified. This incommunicado detention is incompatible with paragraphs 3 and 4 of Article 5, while the lack of available compensation is contrary to paragraph 5. There has therefore been a particularly serious breach of the right to liberty and security of person.
Conclusion: violation (6 votes to 1).
Article 13 – The applicant had an arguable claim in relation to the disappearance of his son and was entitled to an effective remedy. For the reasons already given, no effective criminal investigation can be considered to have been conducted in accordance with Article 13, the requirements of which are broader than those under Article 2.
Conclusion: violation (6 votes to 1).
Article 18 – In the light of the above conclusion, it is unnecessary to examine this complaint.
Conclusion: not necessary to examine (unanimously).
The Court did not find it necessary to determine whether the failings identified in the case formed part of a practice adopted by the authorities.
Article 41 – The Court awarded £20,000 (GBP) in respect of the violations concerning M., to be paid to the applicant and held by him for M.'s heirs. It awarded the applicant himself £10,000 in respect of non-pecuniary damage and also made an award in respect of costs and expenses.