Turkije veroordeeld door EVRM-Hof vanwege politie-optreden tegen Koerden (en)

The European Court of Human Rights has today notified in writing a judgment [1] in the case of Taniş and Others v. Turkey (application no. 65899/01).

The Court held, unanimously, that there had been:

a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the disappearance of Serdar Tanış and Ebubekir Deniz;

a violation of Article 2 concerning the inadequate nature of the investigation into the circumstances surrounding the disappearance of Serdar Tanış and Ebubekir Deniz;

a violation of Article 3 (prohibition of inhuman or degrading treatment) on account of the distress that the applicants had experienced and continue to experience with regard to the fate of their relatives;

a violation of Article 5 (right to liberty and security);

a violation of Article 13 (right to an effective remedy);

a violation of Article 38 on account of Turkey's failure to furnish all necessary facilities to the Court to enable it to examine the application.

Under Article 41 (just satisfaction) of the Convention, the Court awarded 40,000 euros (EUR) to Selma Güngen for pecuniary damage and EUR 50,000 jointly to Divan Arsu (partner of Ebubekir Deniz and mother of four children) and Zehra Deniz (wife of Ebubekir Deniz). In addition, it awarded EUR 20,000 to each of the applicants for non-pecuniary damage and EUR 20,000 EUR to the applicants jointly for costs and expenses, less the EUR 2,004.71 already received from the Council of Europe by way of legal aid.

(The judgment is available only in French.)

• 1. 

  Principal facts

The application was lodged by four Turkish nationals who live in Şırnak, Turkey. The applicants were Yakup Tanış, born in 1978, Mehmet Ata Deniz, born in 1969, Şuayip Tanış, born in 1955 and Selma Güngen (whose date of birth is unknown).

The application concerned the disappearance of their relatives, Serdar Tanış and Ebubekir Deniz, who were president and secretary respectively of the HADEP party (the People's Democracy Party - Halkın Demokrasi Partisi) in Silopi.

The facts were disputed between the parties.

According to the applicants, Serdar Tanış and Ebubekir Deniz had received death threats from the Silopi gendarmerie command and the Şırnak gendarmerie regiment on account of their political activities.

On the day of their disappearance, namely 25 January 2001, individuals in civilian clothing attempted to force Serdar Tanış into a vehicle with a view to taking him to the central gendarmerie headquarters, but he refused. He subsequently received a call on his mobile telephone from the gendarmerie command and went to the gendarmerie station, accompanied by Ebubekir Deniz. The gendarmerie commanding officer, questioned a short time later by relatives concerned at the lack of news from Mr Tanış and Mr Deniz, allegedly informed them that Mr Tanış and Mr Deniz had not gone to the station.

Following the lodging of a complaint by the applicants on 26 January 2001, the Silopi public prosecutor gathered statements from eye-witnesses. After the incident had been described in the press, the Şırnak Regional Governor issued a written statement on 1 February 2001 indicating that the individuals concerned had gone to the gendarmerie station on 25 January but that they had left those premises half an hour later.

Since that day, the applicants have had no further news of Serdar Tanış and Ebubekir Deniz.

For their part, the Turkish Government maintained that Serdar Tanış and Ebubekir Deniz had indeed gone to the gendarmerie station on 25 January 2001 at about 2 pm, in order to see the commanding officer. Since he was not present, they had left the premises at about 2.30 pm, signing the register as they left. The investigation opened against the commanding officer of the Şırnak gendarmerie and gendarmes in connection with the abduction of Mr Tanış and Mr Deniz resulted in a finding on 9 February 2004 that there was no case to answer. The case file was returned to the Diyarbakır prosecutor's office.

The Turkish authorities claimed to have seized a letter, mentioning the presence of Serdar Tanış and Ebubekir Deniz in a PKK camp in Doloki (Iraq), in the course of a search carried out on 3 March 2001 of a car that had entered the country from northern Iraq.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 9 February 2001 and declared admissible on 11 September 2001. A delegation from the Court visited Ankara from 28 to 30 April 2003 in order to hear witnesses.

Judgment was given by a Chamber of 7 judges, composed as follows:

Nicolas Bratza (British), President,

Josep Casadevall (Andorran),

Riza Türmen (Turkish),

Matti Pellonpää (Finnish),

Rait Maruste (Estonian),

Stanislav Pavlovschi (Moldovan),

Javier Borrego Borrego (Spanish), judges,

and also Michael O'Boyle, Section Registrar.

• 3. 

  Summary of the judgment [2]

Complaints

The applicants alleged that Serdar Tanış and Ebubekir Deniz had been the victims of an extra-judicial killing during a period in police custody which had not been acknowledged by the authorities. They relied on Articles 2, 3, 5 and 13 of the Convention.

Decision of the Court

Article 38

As the Court had held in previous cases, it was of the utmost importance for the effective operation of the system of individual petition that States should furnish all necessary facilities to make possible a proper and effective examination of applications. A failure on a Government's part to submit such information which was in their hands without a satisfactory explanation could not only reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention, but could also give rise to the drawing of inferences by the Court as to the well-foundedness of the allegations.

The Court considered that two factors had hindered its work in establishing the facts of this case. Firstly, the Court delegation had been unable to hear two witnesses, namely Levent Ersöz, who had been the commanding officer of the Şırnak gendarmerie at the relevant time, and the person who had telephoned Serdar Tanış on 25 January 2001 and whose name had not been provided. Secondly, the Court had been unable to obtain the documents from the investigation file indicating the information which had been withheld.

In those circumstances, the Court considered that the Turkish Government's failure to act with due diligence and to grant its requests to obtain evidence which it considered necessary for examination of the application had not been compatible with the obligations arising under Article 38 § 1 (a) of the Convention.

Establishing the facts

Based on the statements made to its delegates, the Court found the account by a number of witnesses to the effect that the HADEP's leaders had been the subject of official harassment to be coherent, credible and convincing. It also found convincing the testimony from members of the families of Mr Tanış and Mr Deniz, and from the presidents of the party, indicating that such harassment had been particularly directed against Mr Tanış and Mr Deniz from the point at which their intention to set up a local branch of the party had become known.

Having regard to the information available to it, the Court was convinced that it was a gendarme who had summoned Serdar Tanış by telephone to the district gendarmerie station. It was clear from the evidence submitted to it that, after having been summoned to the district gendarmerie station and been seen entering the building, neither of the two men had ever been seen or heard from again, whether by their families, friends or colleagues from the HADEP party.

As to the allegation that Mr Tanış and Mr Deniz were in PKK camps in northern Iraq, the Court considered that the letter revealing that information did not provide any basis for concluding that the two men were still alive or that they had been or were still in northern Iraq as was claimed.

Finally, the Court noted that the authorities had failed to offer any credible and substantiated explanation for the fate of Mr Tanış and Mr Deniz following their arrival at the Silopi gendarmerie headquarters. Further, the evidence disclosed serious defects in the reliability, thoroughness and independence of the investigation, although the applicants continued to maintain that their relatives had previously been subjected to intimidation and threats by the commanding officers of the gendarmerie and that they had been afraid for their lives.

Article 2

As to the disappearance of Serdar Tanış and Ebubekir Deniz

In the Court's opinion, the decisive factor was that Serdar Tanış and Ebubekir Deniz had gone to the gendarmerie command headquarters following a call from a gendarme and had not been seen since. There were sufficient persuasive indications to establish that Mr Tanış and Mr Deniz had been threatened by the commanding officers of the Silopi and Şırnak gendarmeries on account of their political activities within the HADEP, and a credible witness statement had described the attempted abduction of Mr Tanış on the very day that he had disappeared.

No criminal proceedings had been opened to identify those responsible for the disappearance of Mr Tanış and Mr Deniz and the investigation into the conduct of the commanding officer of the Şırnak gendarmerie and the gendarmes had resulted in a finding that there was no case to answer. Although the investigation had not yet been officially closed, there was nothing to suggest that additional and effective measures were still being taken in this respect. In those circumstances, the Court considered that the authorities had failed to implement the hypothetically adequate procedures for investigating the disappearances.

Having regard to the context in which Serdar Tanış and Ebubekir Deniz had disappeared and the fact that their fate was still unknown four years later, and in the absence of a proper investigation and plausible explanation from the authorities with regard to what had happened, the Court was of the opinion that Turkey was answerable for the disappearance of Serdar Tanış and Ebubekir Deniz. Accordingly, the Court concluded that there had been a violation of Article 2.

As to the nature of the investigation

In the circumstances of the case and on the basis of the factors set out above, the Court found that the investigation into the disappearance of the applicants' relatives had been inadequate. According, the Court concluded that there had been a violation of Article 2.

Article 3

The applicants' anxiety was attested by the numerous steps they had taken in order to find out what had happened to their relatives. Noting that the applicants' distress with regard to the fate of their relatives had not been relieved, the Court considered that the latter's disappearance amounted to inhuman and degrading treatment, contrary to Article 3 of the Convention, in respect of the applicants themselves.

Article 5

The Court noted that such an unexplained disappearance represented a particularly grave violation of the right to liberty and security of person guaranteed under Article 5 of the Convention.

Article 13

In view of the fact that the Court had found that the domestic authorities had failed in their obligation to protect the life of the applicant's relatives, the applicants were entitled to an effective remedy. Thus, the authorities had been under an obligation to conduct an effective investigation into the disappearance of the applicants' relatives, and the Court concluded that there had been a violation of Article 13.

***

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments. More detailed information about the Court and its activities can be found on its Internet site.

[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] This summary by the Registry does not bind the Court.