The Court held unanimously that:

 

• there had been a violation of Article 2 (right to life) of the European Convention on Human Rights on account of the death of the applicant’s brother and of the lack of an adequate and effective investigation into the circumstances of his disappearance;

   

   

• there had been a violation of Article 5 (right to liberty and security);

   

   

• there had been a violation of Article 13 (right to an effective remedy).

   

Under Article 41 (just satisfaction) of the Convention, the Court awarded 200,000 French francs (FRF) for non-pecuniary damage (which was to be held by the applicant for his brother’s heirs), FRF 25,000 for pecuniary damage and FRF 45,000 for legal costs and expenses.

Kenan Bilgin was detained in the offices of the antiterrorist section of the Ankara Security Headquarters after operations conducted in the locality on 12 September 1994. He remained there until at least 3 October 1994. Eleven witnesses said that they had seen him and heard him cry out for help and moan while they were being held in custody on the premises.

The applicant had written to State Counsel at the Ankara National Security Court requesting information about his brother’s disappearance. An investigation had been carried out by the Ankara Public Prosecutor, who had heard evidence from eyewitnesses and instructed the Ankara Security Headquarters to open an inquiry into the applicant’s allegations.

The applicant complained that his brother had disappeared while in custody and had probably been killed by the security forces during interrogation. He added that he had not had an effective remedy in respect of the violations of his brother’s rights. He relied on Articles 2, 5 and 13 of the Convention

The Court was satisfied that Kenan Bilgin had to be presumed dead after being taken into custody by the security forces, although they had refused admit that he had been detained. His death therefore engaged the responsibility of the respondent State. Since the authorities had not furnished any explanation as to what had happened after Kenan Bilgin was taken into custody and had not put forward any ground justifying recourse to lethal force by its agents, responsibility for the death was attributable to the respondent Government. There had therefore been a violation of Article 2 on that account.

As to the allegation that the investigation had been inadequate, the Court stated that the police denials that they had held Kenan Bilgin and their firmly-held view that the allegations of the alleged eyewitnesses were intended solely "to mislead public opinion and damage the police in their operations against illegal organisations" had impeded the public prosecutor’s investigation. Moreover, the Court was particularly struck by the fact that the public prosecutor had not been given a list of the police officers on duty at the material time and had been unable to take evidence from them or to arrange a meeting with the alleged eyewitnesses, despite the fact that he was an independent civil servant in charge of the inquiry and did not accept the information that had been provided by the police. Furthermore, the Court expressed concern over the public prosecutor’s remarks that "he had been unable to visit the cells at Ankara Security Headquarters because, at the material time, the police enjoyed a form of impunity".

The Court found that the authorities had failed to conduct a proper inquiry into the applicant’s allegations. In it’s view, the relevant authorities had not discharged their fundamental responsibilities in that regard. There had therefore also been a violation of Article 2 on that account.

The Court observed that its reasoning and findings set out above with regard to Article 2 left no room for doubt that Kenan Bilgin’s detention had infringed Article 5. There was no mention of his place of detention in the custody record or any official trace of his whereabouts or regarding his fate. That of itself had to be seen as a most serious omission as it permitted people who had deprived others of their liberty to conceal their participation in a crime, to cover their tracks and to escape responsibility for the fate of those concerned. Thus, for detention to be compatible with the formal requirements of Article 5 § 1, for each person detained, a precise record had to be kept of the date, time and place of detention, the grounds for detention and the names of those in charge.

The Court noted that the authorities had not furnished any plausible explanation regarding the whereabouts of the applicant’s brother or what had become of him and that no proper inquiry had been conducted, despite the fact that there were some ten witnesses who continued to affirm that Kenan Bilgin had been held in the Security Headquarters offices and that his condition when they had seen him had been critical. Consequently, the Court concluded that Kenan Bilgin had been taking into custody unofficially and that his custody did not satisfy any of the requirements laid down by Article 5. It accordingly found a violation of Article 5.

The Court noted that the applicant had indisputably had prima facie grounds for alleging that his brother had been taken into custody. He had given the authorities precise information regarding the place and the length of the alleged detention and had also supplied the names of the people who had seen him in custody. Furthermore, since the Court had found that the authorities had failed to discharge their obligation to protect the applicant’s brother’s life, the applicant was entitled to an effective remedy. Consequently, the authorities had been under a duty to carry out an effective investigation into the disappearance. The Court concluded that the respondent State had failed to perform that obligation. There had therefore been a violation of Article 13.