The Court held:

 

• by six votes to one, that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights in that the authorities failed to carry out an adequate and effective investigation into the circumstances of Mehmet Şerif Avşar’s death;

   

   

• by six votes to one, that there had been a violation of Article 2 of the Convention in respect of the death of Mehmet Şerif Avşar;

   

   

• unanimously, that there had been no violation of Article 3 (prohibition of torture or degrading treatment or punishment);

   

   

• by six votes to one, that there had been a violation of Article 13 (right to an effective remedy);

   

   

• unanimously, that there had been no violation of Article 14 (prohibition of discrimination).

   

Under Article 41 (just satisfaction) of the Convention, by six votes to one, the Court awarded the applicant:   40,000 pounds sterling (GBP) for pecuniary damage to be held on behalf of Mehmet Şerif Avşar’s wife and children;  GBP 20,000 for non-pecuniary damage to be held on behalf of Mehmet Şerif Avşar’s wife and children and GBP 2,500 for non-pecuniary damage in respect of the applicant himself and GBP 17,320 for costs and expenses. (The judgment is available only in English.)

Mehmet Şerif Avşar was abducted by five village guards and Mehmet Mehmetoğlu. The guards had been sent to Diyarbakır by the Hazro gendarmes to take part in the apprehension of four other suspects. A seventh man also appeared on the scene, who acted with authority as a member of the security forces. The seven men brought Mehmet Şerif Avşar back to the gendarmerie at Saraykapı, where their presence would have been known to the gendarmes. After a while, Mehmet Mehmetoğlu, the seventh man and two of the guards took Mehmet Şerif Avşar out of Diyarbakır.

Despite the complaints of the Avşar family, Mehmet Mehmetoğlu and the five village guards were allowed to return to their homes. They were only taken into custody on or about 5 May 1994. Their statements made no reference to any seventh person, minimised their contacts with the gendarmes and the official nature of the visit to Diyarbakır and were stereotyped. No steps were taken to identify, question or locate the seventh person who had been at the gendarmerie with Mehmet Şerif Avşar and the village guards. His identity, in the circumstances, was likely to have been known to at least some of the gendarmes at the station.

The body of Mehmet Şerif Avşar was found on 7 May 1994, outside Diyarbakır. There was no precise dating as to when he died nor any analysis of marks to verify if he had been ill-treated before his death.

An investigation was effectively conducted by the Saraykapı station commander, which ended on 9 May 1994. The public prosecutor took no further investigatory steps concerning the seventh person, relying in the indictment on the accounts of the village guards. On 5 July 1994, the five village guards appeared before the court and retracted their initial statements, supporting the family’s account that a seventh person, a security officer, had been involved.

Five years, ten months after the commencement of the proceedings, one of the guards was convicted of murder and Mehmet Mehmetoğlu and the other four were convicted of abduction. They were sentenced to 20 years and six years and eight month’s imprisonment respectively.

The applicant complained that his brother was arbitrarily killed while in the custody of security officials and that there was a failure by the authorities to protect his life and to carry out an effective investigation into his killing, in violation of Article 2. Relying on Article 3, he also alleged that his brother had been the victim of serious human rights violations on the basis of racial discrimination. He further relied on Articles 6 and 13 concerning the investigation and criminal trial conducted into his brother’s death and alleged that his brother and family had been victims of discrimination contrary to Article 14.

The alleged failure to carry out an adequate investigation into the killing – The Court observed that the mere fact that the authorities were informed of the abduction of Mehmet Şerif Avşar by village guards and others presenting themselves as security officers, following which he was found dead, gave rise to an obligation under Article 2 to carry out an effective investigation into the circumstances surrounding the incident.

The Court concluded that the investigation by the gendarmes, public prosecutor and before the criminal court did not provide a prompt or adequate investigation of the circumstances surrounding the killing of Mehmet Şerif Avşar and was, therefore, in breach of the State’s procedural obligation to protect the right to life. This rendered recourse to civil remedies equally ineffective in the circumstances. The Court therefore held that there had been a violation of Article 2 in this respect.

The killing of Mehmet Şerif Avşar – The Court was satisfied that Mehmet Şerif Avşar might be regarded as having died after having been taken into custody by agents of the State. It did not accept that the crime was committed by persons acting in their private capacity without the knowledge of the authorities and thereby beyond the scope of the State’s responsibility.

The Court recalled that there was a lack of accountability as regarded the security forces in south-east Turkey in or about 1993 and further noted that this case additionally highlighted the risks attached to the use of civilian volunteers in a quasi-police function. It had been established in this case that guards were used regularly on a variety of official operations, including the apprehension of suspects. According to the regulations provided by the Government, village guards were hierarchically subordinate to the district gendarme commander. However, it was not apparent what supervision was, or could be exerted over guards who were engaged in duties outside the jurisdiction of the district gendarme commander. Nor, as the village guards were outside the normal structure of discipline and training applicable to gendarmes and police officers, was it apparent what safeguards there were against wilful or unintentional abuses of position carried out by the village guards either on their own initiative or under the instructions of security officers who themselves were acting outside the law.

Although there was a prosecution which resulted in the conviction of the village guards and Mehmet Mehmetoğlu, there was a failure to investigate promptly or effectively the identity of the seventh person, the security official, and thereby to establish the extent of official knowledge of or connivance in the abduction and killing of Mehmet Şerif Avşar. The investigation and court proceedings did not provide sufficient redress for the applicant’s complaints concerning the authorities’ responsibility for his brother’s death and he might still claim to be a victim, on behalf of his brother, of a violation of Article 2.

No justification for the killing of Mehmet Şerif Avşar being provided, the Court concluded that the Turkish Government was liable for his death. There had accordingly been a breach of Article 2 in this respect.

Since the applicant’s complaint under Article 6 essentially concerned the delay in the criminal trial and he was not a party in the proceedings, the Court considered it appropriate to deal with the applicant’s complaints under Article 13, which was broad enough to encompass all the issues raised by the applicant with regard to the investigation and trial.

Given the fundamental importance of the right to protection of life, Article 13 required, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and including effective access for the complainant to the investigation procedure.

On the basis of the evidence adduced in the present case, the Court had found that the Government were responsible under Article 2 of the Convention for the death of the applicant’s brother.  The authorities thus had an obligation to carry out an effective investigation into the circumstances of the death of the applicant’s brother.

However, no effective criminal investigation could be considered to have been conducted in accordance with Article 13. The Court found therefore that the applicant had been denied an effective remedy in respect of the death of his brother and thereby access to any other available remedies at his disposal, including a claim for compensation. Consequently, there had been a violation of Article 13.

The Court did not consider that there was sufficient evidence to justify any findings that the applicant, his brother Mehmet Şerif Avşar or other members of his family, who were not applicants, had been victims of intimidation based on their ethnic status or political opinions. Accordingly, there had been no breach of Article 14 in this respect

Judge Gölcüklü expressed a dissenting opinion, which is annexed to the judgment.