ÇIÇEK - Turkey (Nº 25704/94)
*Judgment 27.2.2001 [Section I]
Facts: The applicant claims that security forces came to her village in 1994 and took away several men, including her two sons. The other men were later released. They believed that the applicant's sons had already been released. However, the applicant's sons have not been seen since. The Government deny that any military operation took place in the village and deny that any of the men concerned were ever detained; there is no record of such detentions. The applicant further claims that her sixteen year-old, partially sighted grandson has disappeared since being taken from the family garden by security forces. Again, the Government deny that he was detained. The applicant's daughter lodged several petitions but was told verbally that none of her three relatives was in custody.
A delegation of the European Commission of Human Rights took evidence from witnesses, some of whom confirmed that they had been in custody with the applicant's sons. However, contrary to the applicant's allegations, the witnesses stated that they had not been subjected to any ill-treatment in custody.
Law: The Court was satisfied that the villagers who had given evidence had given a truthful and essentially accurate account of the incident, whereas it could not accept the testimony of the officials who had given evidence. It therefore accepted that several men, including the applicant's sons, had been detained by security forces. It further considered that the absence of any record of their detention did not prove that they had not been held in custody, given the inaccuracy and unreliability of custody records which it had already found in previous cases, while the evidence of those who claimed also to have been in custody was well-balanced, detailed and consistent. It did not accept it as an established fact that the two men had been released.
Article 2 (with regard to the applicant's two sons) – In view of the time which has passed and the fact that it has been established that the two men were held in custody by authorities for whom the State is responsible, as well as the fact that they were not released with the other detainees – suggesting that they were under suspicion – they must be presumed dead following an unacknowledged detention. The State is responsible and has not provided any explanation of what occurred after the men were taken into detention or attempted to justify the lethal use of force. There has thus been a violation of Article 2 in that respect. Moreover, given the time it took before an official investigation was instigated and the manner in which relevant information was ignored by the authorities, the investigation was inadequate and in breach of the State's procedural obligations. There has therefore been a violation of Article 2 also in that respect.
Conclusion: violation (6 votes to 1).
Article 3 (with regard to the applicant's two sons) – The Court was not satisfied that the disappearance of the applicant's sons could be categorised in terms of this provision. The evidence of the witnesses was that they had not been ill-treated and the applicant had not provided any further specific evidence, nor was it substantiated that her sons were the victims of an officially tolerated practice.
Conclusion: no violation (unanimously).
Article 5 – The failure to log the detentions and absence of official trace of the subsequent whereabouts of the detainees is a
most serious failing, since it enables those responsible for the deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability. The absence of holding data is incompatible with the very purpose of Article 5. In particular, there was a practice – not recognised in domestic law – of holding for a "period of observation" prior to placing in proper custody. In addition, the public prosecutor did not carry out a proper investigation. The authorities have failed to offer any credible and substantiated explanation for the whereabouts and fate of the applicant’s two sons after they were detained and no meaningful investigation was conducted. The authorities have thus failed to discharge their responsibility to account for the two detainees who, it must be accepted, were held in unacknowledged detention in the complete absence of safeguards.Conclusion: violation (unanimously).
Article 3 (with regard to the applicant) – The applicant has had no news of her sons for almost six years and has been living with the fear that they are dead. Moreover, the authorities have not given serious consideration to her claims. The uncertainty, doubt and apprehension over a prolonged and continuing period of time has undoubtedly caused her severe mental distress and anguish. Having regard also to the fact that she is the mother of victims of grave human rights violations as well as herself the victim of the authorities’ complacency, there has also been a breach of Article 3 in respect of the applicant.
Conclusion: violation (unanimously).
Article 13 – The applicant's complaint was never taken seriously and the superficial approach taken by the public prosecutor cannot be regarded as compatible with his duties of investigation under Turkish law. Furthermore, it undermined the effectiveness of any other possible investigations.
Conclusion: violation (unanimously).
Article 14 in conjunction with Articles 2, 3 and 5 – The applicant has not produced any evidence to substantiate her claim that the treatment of her sons was due to their ethnic origin.
Article 14 in conjunction with Article 13 – As to the applicant's complaint that no account was taken by the authorities of the fact that she does not speak Turkish, the law provides for an interpreter in such circumstances and the applicant has not maintained that she asked for such assistance. Moreover, her daughter had the assistance of a lawyer from the Diyarbakır Human Rights Association.
Conclusion: no violation (unanimously).
Article 18 – The Court found it unnecessary to examine this complaint separately, since the allegations had been examined under Articles 2 and 3.
Conclusion: not necessary to examine (unanimously).
Article 3 (with regard to the applicant's grandson) – The evidence relating to the disappearance of the applicant's grandson is inconsistent and she was unable to give the names of witnesses who had told her about his purported arrest. There is thus no evidence to substantiate the alleged detention.
Conclusion: no violation (unanimously).
Article 41 – The Court awarded the applicant, in respect of each of her sons, £5,000 (GBP) for pecuniary damage and £20,000 for non-pecuniary damage, to be held by her for their heirs. It awarded the applicant herself £10,000 in respect of non-pecuniary damage. It also made an award in respect of costs and expenses.