DEMIRAY - Turkey (N° 27308/95)
*Judgment 21.11.2000 [Section III]

Facts: The applicant’s husband, Ahmet Demiray, was arrested in 1994. A few days later, following a complaint by Mr Demiray’s father alleging that his son had been abducted by village guards, the public prosecutor advised him that his son was being held at the gendarmerie. However, subsequently, the applicant was informed that her husband’s body had been found – some three weeks after his disappearance – near a village in a neighbouring district. The authorities said that an autopsy had been performed by a general practitioner (no pathologists being available) and the body buried, since none of the deceased’s relatives had been in the vicinity to attend to the funeral. The authorities also said that after his arrest Mr Demiray had admitted to being a member of the PKK and had offered to take the security forces to one of its munitions dumps. When they had reached the site and as he approached the dump, he had been killed by the explosion of a booby-trapped grenade planted by the PKK. None of the three gendarmes accompanying him were injured by the explosion. According to a sketch map drawn by the gendarmes, Mr Demiray was a metre away from the munitions dump when the device exploded, whereas the three gendarmes accompanying him were respectively thirty and fifty metres behind. The public prosecutor's office dealing with the case found that the cause of death had been the detonation of a booby-trapped grenade and declared that it had no jurisdiction to start an investigation into the complaint against the village guards. It forwarded the complaint to the local administrative committee for it to examine in accordance with the law concerning proceedings against public servants. Those administrative proceedings were still pending. A second set of proceedings, the aim of which was to identify Mr Demiray’s presumed killers, was also pending.

The law: Article 2 – The circumstances of the death. The circumstances surrounding the applicant’s husband’s death were disputed. While the applicant did not dispute the cause of death, she alleged that her husband had been used as a human shield. While it was impossible to establish from the evidence on the case file the exact circumstances of death with any degree of certainty, the Court had to determine whether the relevant authorities had done everything possible to prevent it. Firstly, the authorities had without doubt been in a position to evaluate the risks entailed by visiting the alleged munitions dump. Further, the information supplied by the Government indicated that the applicant’s husband had been a metre away from the dump at the time of the explosion, whereas the three gendarmes accompanying him had been thirty or more metres away. As the Government had been unable to explain the reasons for so proceeding or to indicate what measures had been taken to reduce the risk run by the applicant’s husband, the respondent had breached its obligation to protect the life of a person held in custody.

Conclusion: violation of Article 2 on account of the death of the applicant’s husband (four votes to three).

The investigation conducted by the authorities. The representatives of the public prosecutor’s office that had started the investigation did not appear to have visited the site of the accident or to have questioned any of the gendarmes present at the scene. The autopsy had been performed by a general practitioner and contained little forensic evidence. Contrary to what the authorities had maintained, the autopsy should have been carried out by a pathologist given the circumstances of the death. The public prosecutor's office had confined itself to deciding that it had no jurisdiction ratione materiae. In its decision it had established the cause of death solely on the basis of the reports of the gendarmeries and "all the information in the case file". The public prosecutor's office’s conclusion could in any event be regarded as hasty given the scant amount of information at its disposal. As to the investigation by the administrative bodies – and leaving aside the grave reservations which the Court had about the independence of such bodies – the Government had provided no information on the progress of the investigation, other than to say that it was still pending, despite the fact that the case file had been transferred four years’ previously. Nor had the Government produced any evidence regarding the investigation that was supposed to be under way – and was still pending – to find the presumed killers of the applicant’s husband. In conclusion, the authorities had not complied with their obligation to carry out an investigation into the circumstances of Mr Demiray’s death. The lack of security in south-east Turkey could not, by itself, justify the failure to seek evidence or release the authorities from their obligation to carry out an effective investigation.

Conclusion: violation of Article 2 on account of the lack of an effective investigation (unanimously).

Article 41: The Court awarded the applicant 40,000 US dollars for pecuniary and non-pecuniary damage and a certain sum for costs and expenses.