CASE OF İKİNCİSOY v. TURKEY
(Application no. 26144/95)
This version was rectified on 15 March 2005
under Rule 81 of the Rules of the Court
27 July 2004
In the case of İkincisoy v. Turkey,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Mr J. Casadevall, President,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mrs E. Fura-Sandström,
Ms L. Mijović, judges,
Mr F. Gölcüklü, ad hoc judge,
and Mr M. O'Boyle, Section Registrar,
Having deliberated in private on 6 July 2004,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 26144/95) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals of Kurdish origin, Mr Abdurrazak İkincisoy1 and Mr Halil İkincisoy (“the applicants”), on 19 May 1994.
2. The applicants were represented by Mr Boyle and Ms Hampson, lawyers in the United Kingdom. The Turkish Government (“the Government”) did not designate an agent for the purposes of the proceedings before the Court.
3. The applicants alleged that Mehmet Şah İkincisoy, the son of the first applicant and the brother of the second applicant, was killed in circumstances engaging the responsibility of the respondent Government. In this respect, they invoked Articles 2, 3, 5, 6, 8, 9, 13 and 14 of the Convention as well as former Article 25 of the Convention
4. The application was declared partly admissible by the Commission on 26 February 1996. Delegates of the Commission then took oral evidence at a hearing in Ankara between 28 June and 2 July 1999.
5. The case was transmitted to the Court on 1 November 1999 in accordance with Article 5 § 3, second sentence, of Protocol No. 11 to the Convention, the Commission not having completed its examination of the case by that date.
6. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr R. Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).
7. The applicants and the Government each filed observations on the merits (Rule 59 § 1) The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations.
8. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).
I. THE CIRCUMSTANCES OF THE CASE
9. The applicants were born in 1933 and 1974 respectively and live in Diyarbakır.
A. The facts
10. The facts surrounding the arrest and subsequent death of Mehmet Şah İkincisoy (“Mehmet Şah”) are in dispute between the parties.
1. Facts as presented by the applicants
11. On 22 November 1993 at about 1 a.m. plain-clothes police officers arrived at the first applicant, Abdurrazak İkincisoy's (“Abdurrazak”)2, apartment in Diyarbakır. They entered the apartment, carried out a quick search and inquired about Mehmet Şah. Abdurrazak informed them that Mehmet Şah was spending the night in his uncle Abdülkadir İkincisoy's apartment. Leaving one of the officers with Abdurrazak1, Garipşah İkincisoy, Hüseyin İkincisoy, Makbule İkincisoy and Nefise İkincisoy, the rest of the officers left taking the second applicant, Halil İkincisoy (“Halil”), with them to show them the way.
12. When they arrived at Abdülkadir İkincisoy's apartment, one of the police officers remained at the entrance of the building. Halil and two officers went up to the second floor. When they entered the apartment, the police officers carried out a search and an identity check. Several members of the İkincisoy family were present in the apartment, namely Mehmet Şah, Abdülkadir, Nasır, Adile, Sabriye, and Bilgi İkincisoy, as well as fourteen grandchildren of Abdülkadir İkincisoy and two of Mehmet Şah's friends. One of the police officers interrogated these two men in one of the rooms. The rest of the group was held in the sitting room. Suddenly, a gun shot was heard from the room and an armed clash broke between the police officers and the two men. The police officer who was interrogating the two men was shot dead. When the shooting started, the second police officer grabbed Mehmet Şah by his arm and dragged him downstairs. Halil and the others saw the two men try to escape. They heard further gunshots from downstairs. The group subsequently learnt that one of the men had died, the other had escaped and the officer who was waiting outside the building had been wounded.
13. Approximately ten minutes following the incident, several police teams surrounded the building. Halil, Abdülkadir, Adile, Nasır, Sabriye and Bilgi İkincisoy were arrested and taken to the Çarşı Police Station by a minibus. When they arrived at the Çarşı Police Station, they were detained in the entrance hall. On the right hand side of the entrance hall, there were three rooms, two of which were used for interrogation and the third was the office of the superintendent. Halil was called in to one of the small rooms for interrogation. When he entered the room, he saw his brother Mehmet Şah, lying on the floor face down, with his red leather jacket pulled over his head. In the meantime Abdurrazak3, Hüseyin, Makbule, Nefise and Garipşah İkincisoy were also arrested and brought to the Çarşı Station by another minibus. When the second group entered the station, they were told to cover their heads with their jackets. Abdurrazak1 however was able to see through the parting of his jacket. He also saw his son Mehmet Şah standing behind him. The group was subsequently transferred to another location by a minibus. Abdurrazak1 saw Mehmet Şah also in this second location. They were then brought to the Rapid Intervention Headquarters for interrogation, where the applicants heard the cries of Mehmet Şah.
14. The first applicant was held in custody until 25 November 1995. When he was released, the police officers told him that if anyone asked about his son Mehmet Şah, the applicant had to say that he had fled to the mountains to join the guerrillas. The second applicant was released on 3 December 1993, eleven days after his arrest.
15. On 6 December 1993 the first applicant went to the Diyarbakır State Security Court Public Prosecutor and submitted a petition outlining his concerns for the fate of his son. The public prosecutor showed him some photographs and from these photos the first applicant identified the body of Mehmet Şah. The public prosecutor informed him that Mehmet Şah had died in an armed clash on 25 November 1993 and that his body had been buried. When Abdurrazak4 went to the cemetery, two unmarked graves were shown to him and he was told that one of them belonged to Mehmet Şah. On 13 December 1993 Abdurrazak1 submitted a petition to the Diyarbakır State Security Court Chief Public Prosecutor's office and requested permission to open his son's grave. His request was rejected verbally. On 13 December 1993 Abdurrazak1 lodged two petitions with the Diyarbakır State Security Court Chief Public Prosecutor's Office. He requested that an autopsy be conducted on Mehmet Şah's body in order to learn the true circumstances surrounding his death. He was told to go to the court to get permission for an autopsy. He filed another petition with the State Minister responsible for human rights and requested an investigation of the circumstances surrounding the death of his son. On 21 March 1993 the Ministry replied that Mehmet Şah had never been taken into custody.
16. Following the communication of the application to the Government, Abdurrazak1 was summoned to the Diyarbakır public prosecutor's office on 6 June 1995. He was questioned about his application to the Commission and was forced to sign a statement in which he expressed his wish to retract his application. Thereafter he went to the Diyarbakır Human Rights Association and informed them about this incident.
2. Facts as presented by the Government
17. The Government stated that while the Anti-Terrorism Department of the Diyarbakır Security Court was taking a statement from an arrested person in connection with an ongoing investigation, they were informed that a person called Mehmet Şah İkincisoy was aiding and abetting the PKK. Accordingly a team of police officers went to Abdurrazak's1 apartment searching for his son Mehmet Şah. When they arrived at the apartment, the officers were informed that Mehmet Şah was spending the night at his uncle's apartment. Taking Halil with them to show them the way, the officers subsequently went to Abdulkadir İkincisoy's apartment. The officers carried out a search and found four men sleeping in one of the rooms. As they interrogated them, one of the men opened fire and killed one of the police officers. Another officer was wounded during the incident. The Government further stated that the four men tried to escape however one of them was shot dead.
18. The Government further submitted that on 23 November 1993 the security forces received an anonymous telephone call, informing them that two armed men had been seen hiding in a hut near the Ongözlü Bridge. Accordingly, an operation was conducted. When the officers arrived near the hut, an armed clash broke out and lasted approximately twenty minutes. Following the clash, two men were found dead in the hut. The officers took photographs of the bodies to enable their identification. On 24 November 1993 an autopsy was conducted on one of the bodies, which was later identified as Mehmet Şah from the photographs. Furthermore, according to the ballistic examination reports, the guns that were found in the hut matched those used on 22 November 1993 in Abdulkadir İkincisoy's apartment.
B. Documents submitted by the parties
19. The parties submitted various documents to the Court. While delivering its judgment, the Court had particular regard to the following documents:
1. Incident report dated 22 November 1993 concerning the events at Abdülkadir İkincisoy's apartment
20. The report stated that in connection with an ongoing investigation, a search was conducted in a house on 22 November 1993. The officers were looking for Hanefi İkincisoy5 however they were informed that Hanefi İkincisoy was at his uncle's house. Accordingly, taking Halil with them to show them the way, the police officers left the apartment. When they arrived at the second apartment, the officers conducted a quick search and found four or five men sleeping in one of the rooms. When the officers asked the men to show their identification paper, they were attacked and a gun was fired. One person was arrested and while he was being taken to the police vehicle downstairs, another police officer was shot and wounded. The arrested person escaped and the person who had shot the officer was killed.
2. Report dated 23 November 1993 concerning the anonymous telephone call received by the police
21. According to the report, which was signed by officer Mustafa Şen, on 23 November 1993 at about 3 a.m. the anti-terrorism department received an anonymous telephone call informing them that the perpetrators of the incident of the previous day, who had caused the death of a police officer and the wounding of another, had been seen in a hut near the Ongözlü Brigde.
3. Incident report dated 23 November 1993 concerning the clash
22. The report states that following information from an anonymous telephone call at about 3 a.m. that two armed men were hiding in a hut near the Öngözlü Bridge, a police operation was carried out. Taking the necessary safety precautions, the officers positioned themselves 15 metres away from the hut and ordered the two men to surrender. Shots were fired from the hut in the direction of the security forces and a clash broke out. The clash lasted approximately twenty minutes. When the firing ceased, police officers entered the hut and found two dead bodies. One of the bodies had an ammunition belt with four cartridge clip holders, a Kalashnikov rifle and a cartridge clip. A Browning pistol was found on the second body. There were no identity cards on the bodies, which were subsequently taken to the State Hospital morgue.
4. Body examination and autopsy report dated 24 November 1993
23. The autopsy report stated that rigor mortis had set in and bruising had appeared on the body. Two bullet entrance holes on the back side of the neck and two exit holes in the chest were noted. The report further stated that no other signs were observed. As the gunshot wounds were the certain cause of death, it was not considered necessary to carry out a full post-mortem examination. Finally, the estimated time of death was given as thirty-six hours before the autopsy was carried out.
5. Photographs of the three dead bodies
24. The Government have provided the photographs of the three dead bodies and photographs taken in the hut where Mehmet Şah was shot.
6. Custody records
25. The custody records of the Diyarbakır Security Directorate concerning the period of 21 November and 26 November 1993 do not contain the name of Mehmet Şah İkincisoy. They further indicate that Adile, Nefise, Bilgin, Garipşah, Makbule, Sabriye, Halil, Abdülkadir, Abdurrazak6, Nasır and Hüseyin İkincisoy were taken in custody on 22 November 1993 at 3 a.m.
7. Police statements of Abdurrazak İkincisoy1, Makbule İkincisoy, Hüseyin İkincisoy and Garipşah İkincisoy dated 25 November 1993
26. In their police statements, Abdurrazak1, Makbule, Hüseyin and Garipşah İkincisoy submitted that on the night of the incident at about 1 a.m. police officers had arrived at their apartment, looking for Mehmet Şah. Abdurrazak1 informed them that Mehmet Şah was spending the night at his uncle's house. Accordingly, the police officers left, taking Halil with them to show them the way. About an hour later, the police officers returned and arrested them.
8. Medical report dated 25 November 1993
27. The report which was delivered by the Diyarbakır State Hospital indicates that there were no signs of ill-treatment on the bodies of Bilgin, Adile, Nefise, Makbule, Hüseyin, Garipsah and Abdurrazak İkincisoy7.
9. Police statements of Halil İkincisoy, Abdülkadir İkincisoy, Nasır İkincisoy and Sabriye İkincisoy dated 1 December 1993
28. In his police statement Halil explained that on the night of the incident, he was at his father Abdurrazak's1 house. At about 1 a.m. police officers arrived looking for his brother Mehmet Şah. Abdurrazak1 informed the officers that Mehmet Şah was spending the night at his uncle Abülkadir's house. Accordingly, Halil went with the officers to show them the way. When they arrived at Abdülkadir's apartment, the police officers asked for Mehmet Şah and they were told that he was sleeping in one of the rooms. Halil waited in the living room together with the other family members while the officers entered the room where Mehmet Şah and his friends were sleeping. A few minutes later a gun shot was heard and everyone in the living room fled to the neighbour's apartment. Halil further stated seeing Mehmet Şah and his two friends running away.
29. As to the police statements of Abdülkadir, Nasır and Sabriye İkincisoy, they all stated that on the day of the incident Mehmet Şah had been staying at their apartment together with his two friends. At about 2 a.m. the same night, police officers came looking for Mehmet Şah. They conducted a search in the apartment and one of the officers entered the room where Mehmet Şah and his two friends were sleeping. A few minutes later, they heard a gun shot. All the family members fled to the neighbour's apartment whereas Mehmet Şah and his two friends tried to run away.
10. Medical report dated 3 December 1993
30. The report of the Diyarbakır State Hospital indicates that there were no signs of ill-treatment on the bodies of Halil, Abdülkadir and Sabriye İkincisoy. The report further stated that there were certain marks on the body of Nasır İkincisoy.
11. Statements of Halil İkincisoy, Abdülkadir İkincisoy, Nasır İkincisoy and Sabriye İkincisoy taken by the public prosecutor, dated 3 December 1993
31. In their statements to the public prosecutor, Halil, Abdülkadir and Nasır İkincisoy essentially repeated their police statements. As to Sabriye İkincisoy, while she reiterated the general account of the events, in her statement to the public prosecutor she did not mention that she had seen Mehmet Şah running away.
12. Statements of Nasir İkincisoy and Abdülkadir İkincisoy taken by the Diyarbakır State Security Court, dated 3 December 1993
32. In their statements Abdülkadir and Nasır İkincisoy stated that on 22 November 1993, while they were sleeping at home, police officers had come to their apartment looking for Mehmet Şah. He and his two friends had been spending the night with them. Nasır and Abdülkadir İkincisoy further explained that while the officers interrogated Mehmet Şah and his two friends in one of the rooms, a gun shot was heard. The family members fled to the neighbours' apartment and they were all subsequently arrested by the police. Nasır and Abdülkadir İkincisoy further denied their statements taken by the police and the public prosecutor.
13. Ballistic report dated 3 December 1993
33. According to the report, prepared by the Regional Criminal Police Laboratory, a Kalashnikov automatic rifle, a Browning semi-automatic pistol, 251 bullet cases, and 12 bullets were taken into examination following the clash of 23 November 1993. It was further established that the bullets fired by the Kalashnikov rifle had been used in the killing of police officer Alişan Eol on 22 November 1993. The report further concluded that the Browning pistol had not been used in any previous incidents.
14. Identification report dated 6 December 1993
34. According to the report prepared by the Diyarbakır State Security Court Public Prosecutor, Abdurrazak8 identified the body of Mehmet Şah from the photographs.
15. Petition of Abdurrazak İkincisoy9 to the Diyarbakır Public Prosecutor, dated 13 December 1993
35. The first applicant requested information about the fate of his son, who had been arrested on 22 November 1993 at Abdülkadir İkincisoy's apartment.
16. Petition of Abdurrazak İkincisoy1 to the Diyarbakır State Security Court Public Prosecutor, dated 13 December 1993
36. Upon learning from the public prosecutor that his son, Mehmet Şah, had died in a clash on 25 November 1993, the first applicant submitted to the prosecutor that he believed that his son had died in custody. He accordingly requested that an autopsy be conducted on the body of Mehmet Şah to clarify the exact cause of his death.
17. Petition of Abdurrazak İkincisoy1 to the State Minister responsible for human rights, dated 13 December 1993
37. The first applicant maintained that his son was taken into custody on 22 November 1993 together with twelve members of his family. He further stated that he had seen him both at the Çarşı Police Station and at the Rapid Intervention Headquarters. Although the first applicant was informed by the Diyarbakır State Security Court Public Prosecutor that his son had died in a clash on 25 November 1993, he requested the Minister to conduct a further investigation into the real circumstances surrounding the death.
18. Response of the Minister dated 5 April 1994
38. In his letter the Minister informed the first applicant that Mehmet Şah was never taken into custody.
19. Letter of the Ministry of Justice International Law and Foreign Affairs Directorate to the Diyarbakır Public Prosecutor, dated 25 May 1995
39. In their letter, the Ministry of Justice requested the Diyarbakır Chief Public Prosecutor to conduct an investigation concerning the individual application of Abdurrazak1 and Halil İkincisoy to the European Commission of Human Rights. The prosecutor was asked to take statements from the two applicants concerning certain documents that they had sent to the Commission.
20. Statement of the first applicant dated 6 June 1995, taken by the Diyarbakır Public Prosecutor
40. In response to the public prosecutor's question about the individual application that he had lodged with the European Commission of Human Rights, the first applicant explained that following the death of his son, Mehmet Şah, he had gone to the Diyarbakır Human Rights Association where he had signed certain documents. However he stated that he did not recall giving authorisation to British lawyers to initiate proceedings in Europe. He further indicated that he wished to retract his application.
21. Statement of the first applicant dated 31 October 1995, taken by the Diyarbakır Human Rights Association
41. In his statement, which was addressed to the European Commission of Human Rights, the first applicant stated that he had been taken by plain-clothes police officers to the public prosecutor's office in May 1995. On the way to the public prosecutor's office, the officers forced him to deny that he wanted to pursue his application with the Commission. He maintained that he had to sign a statement in the public prosecutor's office out of fear and without knowing its content as he is illiterate.
B. Oral evidence
42. The facts of the case being in dispute between the parties, three Delegates of the Commission took oral evidence in Ankara between 28 June and 2 July 1999 from ten witnesses, including the applicants. The evidence of those who attended the hearing may be summarised as follows:
1. Abdurrazak İkincisoy10
43. The witness, who is the first applicant, stated that on the day of the incident at about 1 a.m. police officers had come to his house, looking for his son Mehmet Şah. He informed the officers that Mehmet Şah was staying at his uncle's house and told his other son Halil to show them the way. About half an hour after they had left, police officers came back and arrested everyone in the apartment, namely Hüseyin, Nefise, Makbule and Garipşah İkincisoy. They were first taken to the Çarşı Police Station. The police officers forced them to cover their heads with their jackets but the witness was able to see through the parting of his jacket. He saw that his two sons Halil and Mehmet Şah were also in the station. Thereafter, they were taken to the police headquarters by minibus. The witness further recalled seeing Mehmet Şah in the minibus. They waited for about half an hour at the police headquarters before being taken to the Rapid Intervention Force Headquarters, where they were blindfolded and the witness was able to hear the cries of Mehmet Şah. The witness and his daughters were released from custody three days after their arrest. At the time of his release, the officers told him that his son had fled to the mountains. They gave him Mehmet Şah's leather jacket but the witness refused to take it stating that his son would be cold without his jacket. The younger son of the witness, Halil, was released fourteen days after his arrest. When Mehmet Şah did not return home, the witness went to the Diyarbakır public prosecutor and asked about his son's whereabouts. The public prosecutor showed him some photos and asked him whether any of were of his son Mehmet Şah. The applicant identified his son's body. The prosecutor informed him that his son had died during an armed clash between the PKK and the security forces.
44. The witness further explained that after he filed his application with the European Commission of Human Rights, he was summoned to the public prosecutor's office in 1995. The public prosecutor was angry with him for filing an application with the Commission. Out of fear, the witness stated before the public prosecutor that he would retract his application. However, before the Delegates, the witness affirmed that he intended to pursue his application. Finally he stated that he was able to visit his son's grave and pray for him.
2. Halil İkincisoy
45. The witness, who is the second applicant, stated that on 22 November 1993 police officers had come to their house at about 1 a.m. He saw Feyzi Tatlı, a distant relative, with the police officers. The police officers carried out a quick search in the house and asked for his brother Mehmet Şah. His father, Abdurrazak11, told them that Mehmet Şah was staying at his uncle's house. Accordingly, the witness accepted to accompany the three police officers to his uncle's house. When they arrived, the witness knocked on the door. Sabriye İkincisoy answered the door and let them in. One of the police officers remained outside and two of them entered. The officers conducted a search and carried out an identity check. When they found Mehmet Şah, they arrested him. Taking Mehmet Şah by his arm, one of the officers went out. The witness followed them. As they were walking along the corridor, they heard gunshots. The police officer, who was holding Mehmet Şah by his arm, dragged him downstairs. At that time, the witness saw Mehmet Şah's two friends running downstairs but he did not see where they went. The witness then fled to the neighbour's flat. His uncle Abdülkadir, his cousin Nasır, Nasır's wife and Abdülkadir's wife also joined him. Some time later, they were all arrested by the police and taken to the Çarşı Police Station. The police officers told them to cover their heads with their jackets. When they arrived at the Çarşı Station, they were forced to wait in a corridor. He described the entrance of the station and stated that there was a small hall followed by a long corridor, at the end of which there was a room. The witness saw Mehmet Şah lying face down on the floor in that room. Mehmet Şah was wearing a shirt, a pull over, a brownish leather jacket and denim jeans.
46. The witness further confirmed seeing his father and sisters in the Çarşı Station. Subsequently, they were taken to a second place in a car, where they waited for a few minutes. The witness stated that he did not see Mehmet Şah in the second place. Then they were taken to a third place. The witness did not see anyone in this third place but heard the voices of his uncle, Feyzi Tatlı, and Mehmet Şah. Mehmet Şah was screaming in pain. The witness was kept there for thirteen days and he was allegedly ill-treated. The officers told him that his brother had escaped to the mountains. He was forced to sign a statement without reading its content. When he was released from custody, the witness went to the public prosecutor with his father to discover the fate of Mehmet Şah. The witness stated that when Mehmet Şah's body was identified from the photographs, they were told that he had been buried. An officer showed them two graves and informed them that he did not know which one was Mehmet Şah's.
3. Nasır İkincisoy
47. The witness, who is the first applicant's nephew, stated that on the night of 22 November 1993, he was at his father's house. His father (Abdülkadir İkincisoy), his mother (Adile), his wife (Sabriye), his children, his brother (Muhlis), and his brother's children were also at home. He recalled that his uncle's son, Mehmet Şah and his two friends had spent the night with them. The witness maintained that at about 1 a.m. two plain-clothes police officers had come to their house, together with his cousin Halil, searching for Mehmet Şah. At that time Mehmet Şah was sleeping in the guest room, together with his two friends and the brother of the witness, Muhlis. The police officers carried out an identity check and then told Mehmet Şah and his two friends that they had to come to the police station for interrogation. One of the officers held Mehmet Şah by the arm. At that moment they heard a gun shot. The police officer who was holding Mehmet Şah also started shooting. Mehmet Şah tried to prevent the police officer from shooting but the same police officer dragged him down the stairs. The witness further recalled that the family members fled to their neighbour's to protect themselves. After some time, more police officers arrived and arrested everyone. While they were being taken to the police station, the witness saw that one of the persons who had come with Mehmet Şah had been shot dead. The witness was put in a car and taken to the Rapid Intervention Headquarters. He remembered standing in a long corridor. Despite the fact that he was blindfolded, the witness was able to see around. He saw that his mother, his wife, the daughter of Muhlis and his uncle were also there. He also saw Feyzi Tatlı, a distant cousin. The witness said that he was taken to a room which was wet, where he saw Mehmet Şah, who was being tortured. Mehmet Şah was lying on the floor. He said to the witness “Our family is ruined. They will kill us all. What is this we are going through?”. The witness stated that this was the last time he saw Mehmet Şah.
4. Garipşah İkincisoy
48. The witness, who is the daughter of the first applicant and the sister of the second, was at her father's house on the night of the incident. She said that while they were sleeping at home, some police officers came to their house and asked about her brother Mehmet Şah. When her father explained to the police officers that Mehmet Şah was staying at his uncle's house, the police officers left the house, taking Halil with them. Some time after, the police officers came back and arrested everyone in the house, including the witness. They were first taken to Çarşı Police Station and then to the police headquarters. The witness explained that she had not seen Mehmet Şah in the Çarşı Station but she had seen him at the police headquarters. When they arrived at the police headquarters, they walked upstairs and were taken into a hall. Their eyes were not covered but they were forced to hold their hands behind the back of their necks. They were made to stand facing the wall. When the witness glanced over her shoulder, she saw that Mehmet Şah was standing next to her. This was the last time she saw him. However she recalled hearing his voice at the Rapid Intervention Force, which was the third place they were taken to. He was moaning. She was kept in a cell, together with Makbule, Nefise, Adile, Bilge and Sabriye İkincisoy. At some point, Sabriye and Makbule were taken out of the cell and when they came back they were shivering. They therefore requested a blanket from the guardians and the guardians gave them a brown leather jacket which belonged to Mehmet Şah.
5. Şerif Akay
49. The witness affirmed that he was a police officer at the Anti-Terrorism Branch of Diyarbakır Security Directorate at the time of the events. He recalled that after receiving information from Feyzi Tatlı, a person who was under custody, that Mehmet Şah had been aiding and abetting the PKK, an operation was prepared. Feyzi Tatlı was asked to point out the house of Mehmet Şah to a group of five police officers, including the witness. On 22 November 1993 at about 1 a.m. they arrived at the apartment of Abdurrazak12, the father of Mehmet Şah. Abdurrazak1 told them that his son was staying at his uncle's house. Accordingly, taking a young person with them to show them the way, and leaving one police officer in the house of Abdurrazak1, they left. When they arrived at Mehmet Şah's uncle's house, one police officer remained near the patrol car, and the witness stayed outside the building. Two police officers went upstairs. A few minutes later the witness heard gun shots from upstairs. One of the police officers, Mustafa Hünerlitürkoğlu, came downstairs, holding someone by the wrist. He told the witness that the third police officer, Alişan, had been shot. The witness entered the building to help his colleague. At that time Mustafa went outside, still holding the detainee by the wrist. The witness then heard footsteps and he hid under the stairs. A person fired a Kalashnikov rifle at the witness and wounded him in the abdomen. The witness fired back and killed the person who had fired at him. He then went out of the building to get help. When officer Mustafa saw that the witness was wounded, he left the detainee and ran towards him. The person who had been in custody ran away. The witness was subsequently taken to hospital, where he underwent an operation. When he regained consciousness in the hospital, his colleagues asked him to sign the incident report they had prepared. The public prosecutor further took his statement while he was still in intensive care. The witness accepted that there had been a mistake in the names that appeared in the incident report. He agreed that instead of Hanefi İkincisoy, the name should have read Mehmet Şah İkincisoy. The witness further explained that he had not been involved in the arrests or interrogations of the people who had been in the house at the time of the incident.
6. Mustafa Hünerlitürkoğlu
50. The witness confirmed that he was one of the five police officers who had gone to Mehmet Şah's apartment on 22 November 1993 at about 1 a.m. He recalled that after Feyzi Tatlı, a detainee, confessed during a police interrogation that Mehmet Şah was aiding and abetting the PKK, an operation was conducted to apprehend this person. Feyzi Tatlı showed them where Mehmet Şah lived. When they set off to arrest Mehmet Şah, the officers did not know what he looked like. One of the police officers stayed in the car, and the other four went into the house. Feyzi Tatlı was sent back to the police station in another vehicle. An elderly person opened the door, and informed them that Mehmet Şah was staying at his uncle's house that night. A young person accompanied the officers to the house in question. One of the police officers stayed behind in the house to ensure that no one could call Mehmet Şah to warn him. Accordingly, the three police officers and the young person went to the house of Mehmet Şah's uncle. A middle aged lady opened the door. The witness stated that they told the lady they would carry out an identity check and they entered the apartment. The witness went inside the room that was on the opposite side of the entrance. In that room, there were women and children. In the meantime, his colleague Alişan went inside another room from which an old man and a younger man had come out. The officers found a third room, in which four persons were sleeping. The witness made them stand in the corridor, while Alişan stayed in the room and called them in one by one for an identity check. A few minutes later, the witness heard noises coming from the third room and when he went in, he saw that a man was struggling with officer Alişan. The witness tried to help however the other persons interfered. One of the men had a Kalashnikov rifle and he fired at Alişan. When the witness saw that Alişan was shot, he grabbed one of the men, who did not have a gun, to use him as a shield. The witness ran downstairs to get help, still holding that man by his wrist. Downstairs, he met the third officer, Şerif, and told him that an armed clash had broken out upstairs and that Alişan had been shot. The witness then went outside the building to go to the car to use the radio. At that time, he heard Şerif ordering someone to surrender and subsequently he heard gun shots. The witness ran back to the building, letting go off the person he was holding. When he entered the building he saw that Şerif had been shot and the person who had shot at him had been killed. They called for reinforcements. 15 to 20 minutes after the incident, they were able to send Şerif to the hospital and thereafter he drafted the incident report by hand. The witness further explained that he had given the incident report to his colleagues who had arrived at the scene of incident and they had typed it up. He remembered signing the typed incident report at the hospital. When asked about the names indicated in the incident report, the witness admitted that there was a mistake. He had written Mehmet Şah's name as Hanefi İkincisoy. The witness further maintained that he had given a statement to the public prosecutor in the hospital. The witness also stated that he had not seen the photos of the two terrorists who were killed in a clash, the day after the incident.
7. Dr. Lokman Eğilmez
51. The witness confirmed that he had signed the autopsy report of Mehmet Şah İkincisoy. He is a doctor specialised in forensic medicine and pathology. He has been a forensic doctor since 1991. The witness did not recall the autopsy of Mehmet Şah however by looking at the documents he explained that the estimated time of death was 36 hours before the autopsy was carried out. There were no bruises on the body. There were certain discoloured spots but these were not signs of beating or force. The cause of death was the two bullets that had entered from the upper back region. There was an exit hole around the left breast, and another exit hole on the upper right side of the chest. Dr Eğilmez concluded that the entry and exit holes made it clear that the person had not been shot at close range.
8. Ramazan Sürücü
52. The witness affirmed that he was the head of Diyarbakır Anti-Terrorism Department at the time of the incident. He recalled that on the basis of information received from a detainee, Feyzi Tatlı, an operation was carried out to apprehend certain people. The witness was the head of the Central Branch however the interrogation office was located in the Rapid Intervention Force Building, which was also known as the police school. Officer Sürücü stated that as a general rule, the detainees were taken directly to the police school for interrogation. When asked about the armed clash, during which Mehmet Şah had allegedly been killed, the witness stated that he had not been directly involved in the operation. Although his name appeared on the incident report, he explained that these reports were usually signed by the officers who were replacing him and who had the power to sign for him. He remembered however that, on the day of the clash, they had received an anonymous call indicating that the two terrorists, who had escaped the day before, were hiding in a hut.
53. The witness further confirmed that he had never been interrogated concerning the allegation that Mehmet Şah had died under torture.
9. Mustafa Taner Şentürk
54. The witness, who is a police officer, stated that he was serving at the interrogation office of the Anti-Terrorism Department of Diyarbakır police headquarters in November 1993. He was police superintendent. The witness explained that, at that time, there were three interrogation teams and he was in charge of the first team. When asked about the general procedure that was followed after a person was arrested, he explained that before being brought for interrogation, all arrested persons were first sent for a medical examination. He emphasized the fact that the detainees were not blindfolded during the interrogation and that no one had been ill-treated. The interrogation office command was located in the headquarters of the Rapid Intervention Force in Diyarbakır. All the interrogations were conducted there. He refused the suggestion that the detainees could first be taken to the Çarşı Police Station. When a detainee was interrogated, the officers first asked about his past, and then certain questions were put to him. There was no standard form of procedure for interrogation.
55. The witness affirmed that he had been involved in the interrogation of Feyzi Tatlı as well as the İkincisoy family members. However he could not remember the interrogation of the İkincisoy family members very clearly as it was almost six years ago. He recalled that upon receipt of intelligence to the effect that the two persons who had escaped the day before had been seen in a hut, an operation was conducted to apprehend them. The witness further took part in the operation together with 14 police officers. They were all wearing bullet proof vests. Before the armed clash, the officers asked the two persons to surrender but the two men started shooting at the officers. The clash lasted for about twenty minutes. They were about 15 metres away from the hut. No officer was wounded. When no-one returned their fire, the officers entered the hut and found two bodies. The hut was about ten square metres, it had a wooden door and a small window. Shortly after the armed clash, another team arrived and took photographs in the hut. The witness explained that he had never referred to this incident or showed the photographs to the İkincisoy family members during their interrogation.
10. Mustafa Atagun
56. The witness affirmed that he had been the Diyarbakır Public Prosecutor from December 1993 to September 1995. He recalled that he had taken a statement from the first applicant concerning his application to the European Commission of Human Rights on 6 June 1995. The witness explained that, by a letter dated 24 May 1995 from the International Law and Foreign Affairs Directorate of the Ministry of Justice, he was instructed to take the applicant's statement concerning his application to Strasbourg and to verify certain signatures on some documents. Accordingly, he had written to the Diyarbakır Security Department to notify the applicant that he was called to the office of the public prosecutor. The public prosecutor stated that the applicant had come to his office alone, of his own free will. No police officer had accompanied him to the public prosecutor's office. His statement was taken in the office of the clerks and not in the interrogation room. While they were in the office, the applicant seemed relaxed. The public prosecutor showed him certain documents, which were annexed to the letter from the Ministry. While accepting that these signatures belonged to him, the applicant stated that he did not remember signing these documents. The public prosecutor further recalled that the applicant had clearly stated that he did not want any foreign lawyers to make any applications before international bodies. The public prosecutor wrote down everything the applicant told him and read it out. The applicant accordingly signed his statement. The public prosecutor further admitted that he had not taken any steps to investigate the complaint, mentioned in the applicant's statement, that he had been ill-treated in custody and that his ribs had been broken.
II. RELEVANT DOMESTIC LAW
57. A full description of the relevant domestic law may be found in Tanli v. Turkey (no. 26129/95, §§ 92-105, ECHR 2001-III) and Dalkılıç v. Turkey (no. 25756/94, §§ 15-16, 5 December 2002).
I. THE COURT'S ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS
A. Arguments of the parties
1. The applicants
58. The applicants mainly argued that Mehmet Şah İkincisoy had died as a result of torture at the hands of police officers at the Diyarbakır Rapid Intervention Force Headquarters.
2. The Government
59. The Government denied the applicants' version of the facts and maintained that Mehmet Şah İkincisoy had been killed in a clash on 23 November 1993.
B. General principles
60. The Court recalls that, in assessing evidence, it adopts the standard of proof “beyond reasonable doubt” (see Orhan v. Turkey, no. 25656/94, § 264, 18 June 2002). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. The Court is sensitive to the subsidiary nature of its role and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Where domestic proceedings have taken place, it is not the Court's task to substitute its own assessment of the facts for that of the domestic authorities and, as a general rule, it is for those authorities to assess the evidence before them (see Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, p. 17, § 29). Though the Court is not bound by the latter's findings, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact they have reached (ibid., p. 18, § 30). In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 161).
C. The Court's evaluation of evidence and establishment of the facts
61. The Court observes in the first place that the documentary evidence and the witnesses' oral testimony are in the main consistent as regards the general account of the events. The respondent state accepted that on 22 November 1993 a police team composed of five police officers from the Anti-Terrorism Branch of the Diyarbakır Security Directorate conducted a search in the first applicant's apartment. Their aim was to find Mehmet Şah İkincisoy and to take him to the police headquarters for interrogation in connection with an ongoing investigation. When they were informed that Mehmet Şah was staying at his uncle's house, the police officers took the second applicant as a guide and left the first applicant's apartment. The Government further agreed that when the officers had arrived at Abdülkadir İkincisoy's apartment, one of the police officers stayed at the entrance of the building and two officers went inside the apartment together with the second applicant. They were informed that Mehmet Şah was there, together with his two friends. The two officers then started to interrogate them in a room and one of the men who was staying with Mehmet Şah shot and killed one of the police officers. These facts are also in conformity with the testimonies of Abdurrazak13, Halil, Nasır and Garipşah İkincisoy before the Delegates. The Court has carefully examined these testimonies and compared them with the statements taken from the two police officers who had participated in the operation. Accordingly, it accepts the above account as the true facts of the case until the killing of the first police officer.
62. The Court further observes that the parties have divergent accounts concerning the events that took place following the shooting in Abdülkadir İkincisoy's apartment. The İkincisoy family members, who were in Abdülkadir's apartment, stated that subsequent to the shooting of the police officer, the second officer grabbed Mehmet Şah and dragged him downstairs (see paragraphs 45 and 47). This fact is also confirmed by officers Hünelitürkoğlu and Akay, who maintained that officer Hünerlitürkoğlu used Mehmet Şah as a shield. However it is maintained that when the second officer was shot, Mehmet Şah had escaped (see in this respect paragraphs 49-50). The witnesses and the custody records submitted by the Government revealed that subsequent to the shooting, all family members who had been present in Abdülkadir's and Abdurrazak's14 apartments had been taken into custody (see paragraphs 25, 43, 45, 47 and 48). Although the İkincisoy family members argued that they were first taken to the Çarşı Police Station and then to the Rapid Intervention Force (see paragraphs 43, 46 and 48), the officers denied this submission, insisting that the arrested persons had been directly taken to the Rapid Intervention Headquarters for interrogation (see paragraphs 52 and 54).
63. The Court observes that in their testimonies Abdurrazak1, Halil, Nasır and Garipşah İkincisoy maintained that they had seen Mehmet Şah in the Çarşı Police Station and heard his voice at the Rapid Intervention Force. The Court notes that the testimony of the applicants and their witnesses essentially reiterated the content of their written statements. They submitted important details such as a description of his clothes and of the place where they had last seen him. On the other hand, the Government denied that Mehmet Şah had been detained by the police officers. They argued that he had escaped after the shooting of the second officer and died the day after in an armed clash. The Government witnesses further referred to the custody records which did not contain the name of Mehmet Şah, whereas it contained the names of all the rest of the İkincisoy family members who had been detained that night. The Court must therefore examine whether these custody records can be regarded as irrefutable evidence that Mehmet Şah had not been detained. It recalls both its own findings and those of the Commission as to the general inadequacy and unreliability of custody records (see İrfan Bilgin v. Turkey, no. 25659/94, § 130, ECHR 2001-VIII, Çakıcı v. Turkey [GC], no. 23657/94, § 105, ECHR 1999-IV, and Aydın v. Turkey, judgment of 25 September 1997, Reports of Judgments and Decisions 1997-VI, p. 1941, § 172). Concluding that such records cannot in general be relied upon to prove that a person was not taken into custody, the Court considers that the fact that Mehmet Şah İkincisoy's name was not in the custody record at the Diyarbakır Security Directorate does not itself prove that he was not in custody.
64. On the other hand, the Court observes that the testimonies of Abdurrazak1, Halil, Nasır and Garipşah İkincisoy, who were detained at the Rapid Intervention Force, were balanced, detailed and consistent with each other. It therefore accepts the evidence of the four witnesses who stated that they had seen Mehmet Şah when they were themselves being held on the same premises.
65. The Court accordingly concludes that Mehmet Şah was taken into custody on 22 November 1993 and that he was subsequently shot dead.
66. On the basis of these findings, the Court will proceed to examine the applicants' complaints under the various Articles of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
A. General principles
67. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, §§ 146-147).
68. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, amongst other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). The obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (Orhan, cited above, § 326).
69. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, Çakıcı, cited above, § 85, Ertak v. Turkey, no. 20764/92, § 32, ECHR 2000-V, Timurtaş v. Turkey, no. 23531/94, § 82, ECHR 2000-VI, and Orhan, cited above, § 327).
B. Alleged failure to protect the right to life
70. The Court has accepted above (paragraph 65) that Mehmet Şah İkincisoy was taken into custody on 22 November 1993 and died on 23 November 1993 while he was under the control of the security authorities of the respondent state.
71. The Court draws very strong inferences from the lack of any documentary evidence indicating that Mehmet Şah was taken into custody. It has held in its earlier judgments that an unacknowledged detention would be life-threatening in the general context of the situation in south-east Turkey in 1993 (see Taş v. Turkey, no. 24396/94, § 66, 14 November 2000, Çiçek v. Turkey, no. 25704/94, § 146, 27 February 2001, and Timurtaş, cited above, § 85).
72. Furthermore, as explained below (see paragraph 79), the autopsy examination, which had critical importance in determining the circumstances surrounding the death of Mehmet Şah, was defective in fundamental aspects. In this respect, the Court is further struck by the refusal of the domestic authorities to deliver Mehmet Şah's body to his family, who intended to request a detailed autopsy.
73. The Court therefore concludes that it cannot be established beyond reasonable doubt that Mehmet Şah died during a clash. The authorities have thus failed to establish the real circumstances surrounding the death of Mehmet Şah, who was under their custody.
74. In view of the above, the Court concludes that Mehmet Şah was deprived of his life in circumstances engaging the responsibility of the respondent State. There is nothing to suggest that this was necessary for any of the reasons set out in the second paragraph of Article 2 of the Convention.
75. There has therefore been a violation of Article 2 of the Convention in that respect.
C. Alleged inadequacy of the investigation
76. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, § 105). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see, for example, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII).
77. For an investigation into an alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, §§ 81-82, and Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III). The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances (Kaya, cited above, § 87) and to the identification and punishment of those responsible (Oğur, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eye-witness testimony (see, concerning witnesses, for example, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (Orhan, cited above, § 355).
78. Turning to the particular circumstances of the case, the Court observes that the investigation conducted by the public prosecutor was defective in a number of fundamental aspects. The Court is struck by the heavy reliance placed by the public prosecutor, who investigated the death of Mehmet Şah, on the conclusion of the incident report dated 23 November 1993. According to this incident report an intense clash had taken place which lasted for twenty minutes. Furthermore, according to the ballistic report 251 bullet cases had been recovered from the place of the incident. However it does not appear from the file whether the public prosecutor compared the facts as stated in the incident report with the photographs of the hut taken after the incident. The public prosecutor appears to have excluded the possibility that the circumstances surrounding the death of Mehmet Şah could have been different than those stated in the incident report. In this respect, it should also be recalled that the applicants had brought to the public prosecutor's attention the possibility that Mehmet Şah could have been killed under torture. Without taking statements from the family members of the deceased who were also arrested that day or the police officers who were involved in the clash, the public prosecutor concluded that Mehmet Şah had died during a clash.
79. It further appears from the autopsy report that Mehmet Şah was shot from behind by a bullet which entered from the upper part of his shoulder and exited from below his chest. It is striking that the public prosecutor did not seek any further explanation as to how a person involved in an intense clash could be shot from behind and most probably by a person who was standing above him. The Court also observes in this context that the autopsy report lacked valuable and important information which would clarify the circumstance surrounding the death of Mehmet Şah. The absence of any indication about the approximate positions of the person who fired and the victim and the distance between them at the moment of the shot as well as the size of the bullet entry and exit wounds constitute important deficiencies.
80. In the light of the foregoing, the Court concludes that the investigation cannot be considered to have been effective as required by Article 2 of the Convention. It accordingly holds that there has been a violation of Article 2 on this account also.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF MEHMET ŞAH İKİNCİSOY
81. The applicants complained that Mehmet Şah İkincisoy was tortured before his death, invoking Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
82. The applicants submitted that Mehmet Şah had been tortured in custody. They maintained in this respect that several members of the İkincisoy family had heard his screams at the rapid Intervention Force Headquarters.
83. The applicants further alleged a breach of Article 3 of the Convention as a result of the anguish they have suffered due to their inability to learn the true circumstances surrounding the death of Mehmet Şah.
84. The Government submitted that the applicants' allegation was untrue and unsubstantiated.
85. The Court refers to its finding above where it has established that Mehmet Şah had died while he was under the control of the domestic authorities (see paragraph 65). However contrary to the applicants' allegations of torture, it observes from the photographs and the autopsy report that there were no marks or injuries on the body of Mehmet Şah which were consistent with the allegations of torture. It notes that the applicants' allegations of torture are solely based on the assumption that some of the persons who were detained in the Rapid Intervention Force Headquarters had heard the cries of Mehmet Şah. On the basis of the material in its possession and noting that the allegation of ill-treatment is not corroborated by any other evidence, the Court notes that the applicants' complaints are based on hypothesis and speculation rather than on reliable evidence.
86. In these circumstances, and having regard to its conclusion under Article 2 of the Convention, the Court does not find it appropriate to draw inferences proposed by the applicants as to whether torture or ill-treatment occurred (see, in this respect, Tanlı, cited above, § 159).
87. As regards the applicants' submission concerning the effects of the events on themselves, the Court has no doubt of the profound suffering caused by the death of Mehmet Şah. It finds no basis however for finding a violation of Article 3 in this context.
88. The Court finds that it has not been established that there has been a violation of Article 3 of the Convention. It consequently finds no violation of that provision.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
89. The applicants alleged that their police custody breached Article 5 §§ 1 (c), 3, 4 and 5 of the Convention, which provide:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
A. Concerning the police custody of Hüseyin, Makbule, Nefise and Garipşah İkincisoy
90. The applicants contended that the first applicant's four children, Hüseyin, Makbule, Nefise and Garipşah İkincisoy, had not been brought promptly before a judge. In this respect they invoked Article 5 of the Convention.
91. In so far as the applicants complain about the police custody of Hüseyin, Makbule, Nefise and Garipşah İkincisoy, the Court recalls in the first place that the term victim in Article 34 of the Convention denotes the person directly affected by the act or the omission which is at issue (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p.30, § 66).
92. The Court observes that the two applicants are not personally concerned by the detention of these four persons. Furthermore, they cannot substantiate the reason why these persons have themselves refrained from lodging applications with the Court.
93. Accordingly, the Court concludes that the applicants cannot claim to be victims within the meaning of Article 34 of the Convention regarding the police custody of Hüseyin, Makbule, Nefise and Garipşah İkincisoy.
B. Article 5 § 1 (c) of the Convention
94. The applicants contended that their arrests were arbitrary and unlawful, in breach of Article 5 § 1 of the Convention.
95. The Court reiterates that the “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 § 1 (c). Having a reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (Labita v. Italy [GC], no. 26775/95, § 155, ECHR 2000-IV). What may be regarded as reasonable will however depend on all the circumstances (see Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, p. 16, § 32).
96. The Court recalls in particular that the reasonable suspicion referred to in Article 5 § 1 (c) of the Convention does not mean that the suspected person's guilt must at that stage be established. It is precisely the purpose of the investigation that the reality and nature of the offences laid against the accused should definitely be proved (see Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55). Sub-paragraph (c) of Article 5 § 1 does not even presuppose that the police should have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant was in custody (see Erdagöz v. Turkey, judgment of 22 October 1997, Reports 1997-VI, p. 2314, § 51).
97. In the instant case the Court observes that the applicants were taken into custody, on suspicion of aiding and abetting the PKK and for being involved in the events which resulted in the killing of a police officer and the wounding of another. The Court is therefore satisfied that there were reasonable and sufficient grounds to believe that the applicants had been involved in an offence. It has examined these elements and has not disclosed any manifestly unreasonable or arbitrary conclusions drawn by the competent authorities from them. It thus sees no reason to doubt that the elements of which the authorities disposed were sufficient to believe, at that time, that the applicants had been involved in an offence.
98. In the light of the foregoing, the Court concludes that there has been no violation of Article 5 § 1 of the Convention.
C. Article 5 § 3 of the Convention
99. Under Article 5 § 3 of the Convention, the applicants complained that they were not brought promptly before a judge.
100. The Court recalls that Article 5, in general, aims to protect the individual against arbitrary interference by the State with his right to liberty. Article 5 § 3 intends to avoid the arbitrariness and to secure the rule of law by requiring a judicial control of the interference by the executive (see Sakık and Others v. Turkey, judgment of 26 November 1997, Reports 1997-VII, p. 2623, § 44).
101. To be in accordance with Article 5 § 3, judicial control must be prompt. Promptness has to be assessed in each case according to its special features (see De Jong, Baljet and Van den Brink v. the Netherlands, judgment of 22 May 1984, Series A no. 77, pp. 24-25, §§ 51-52). However, the scope of flexibility in interpreting and applying the notion of promptness is very limited (Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B, pp. 33-34, § 62).
102. The Court has accepted on several occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems (see the following judgments: Brogan and Others, cited above, p. 33, § 61, Murray, cited above, p. 27, § 58, Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2282, § 78, and Demir and Others v. Turkey, judgment of 23 September 1998, Reports 1998-VI, p. 2653, § 41). This does not mean, however, that the investigating authorities have carte blanche under Article 5 to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved (see Murray, cited above, p. 27, § 58).
103. Concerning the police custody of the first applicant, the Court recalls that the fact that a detained person is not charged or brought before a court does not in itself amount to a violation of the first part of Article 5 § 3. No violation of Article 5 § 3 can arise if the arrested person is released “promptly” before any judicial control of his detention would have been feasible (see De Jong, Baljet and Van den Brink, cited above, p. 25, § 52, and Brogan and Others, cited above, pp. 31-2, § 58). The Court finds that the release of the first applicant, who was held in police custody for no more than three days, may be regarded as “prompt” for these purposes. Accordingly, there has been no violation of Article 5 § 3 of the Convention in his case.
104. As to the length of the police custody of the second applicant, the Court observes that he was held in police custody for eleven days from 22 November to 3 December 1993. It recalls that in the Brogan and Others case it held that detention in police custody which had lasted four days and six hours without judicial control fell outside the strict constraints as to the time laid down by Article 5 § 3 of the Convention, even though its purpose was to protect the community as a whole against terrorism (see Brogan and Others, cited above, p. 33, § 62).
105. Even though the investigation of terrorist offences, as supposed in this case, presents the authorities with special problems, the Court cannot accept that it was necessary to detain the second applicant for eleven days without judicial intervention.
106. Therefore the Court concludes that there has been a breach of Article 5 § 3 in respect of the second applicant.
D. Article 5 § 4 of the Convention
107. The applicants complained that they had not been able to take proceedings to have the lawfulness of their detention decided by a judge.
108. Concerning the first applicant, the Court recalls its finding under Article 5 § 3 (see paragraph 103) that he was released before any judicial control of his detention would have been feasible and concludes that there has accordingly been no violation of Article 5 § 4 in respect of the first applicant.
109. Concerning the second applicant, the Court notes that a judge did not intervene until the end of his police custody, that is to say eleven days after his arrest. Having regard to the conclusion it reached with regard to Article 5 § 3 (see paragraph 106), the Court considers that such a lengthy period sits ill with the notion of “speedily” (see Sakık and Others, cited above, § 53). In conclusion, there has been a breach of Article 5 § 4 of the convention in respect of the second applicant.
E. Article 5 § 5 of the Convention
110. Lastly, the applicants alleged that, in breach of Article 5 § 5, under Turkish law it was not possible for them to claim compensation for a violation of Article 5 in the domestic courts.
111. In respect of the first applicant, the Court reiterates that this provision guarantees an enforceable right to compensation only to those who have been the victims of arrest or detention contrary to Article 5 of the Convention (see Benham v. the United Kingdom, judgment of 10 June 1996, Reports 1996-III, p. 755, § 50). In the absence of any such finding in the present case, the Court is of the opinion that there is no violation of Article 5 § 5 in respect of the first applicant.
112. As regards the second applicant who was held in custody for eleven days, the Court notes that the domestic legislation which was in force at the time of the events permitted police custody up to fifteen days without being brought before a judge. Accordingly, a compensation request for police custody which lasted for eleven days would not succeed before the domestic courts. The Court therefore concludes that there has been a violation of Article 5 § 5 of the Convention in respect of the second applicant.
V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
113. The applicants further complained that there was no effective investigation into Mehmet Şah's death and that they were denied access to a court, in violation of Article 6 § 1 of the Convention, which in relevant part, provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] tribunal ...”
114. The Court observes that the essence of the applicants' complaint under Article 6 § 1 of the Convention concerns the domestic authorities failure to mount an effective criminal investigation into Mehmet Şah's death. In the Court's view, it is therefore more appropriate to examine the applicants' Article 6 complaint in relation to the more general obligation on Contracting States under Article 13 of the Convention to provide an effective remedy in respect of violations of the Convention (see, amongst other authorities, Kaya, cited above, p. 329, § 105 and Aksoy, cited above, p. 286, § 93).
115. It accordingly does not find it necessary to determine whether there has been a violation of Article 6 § 1.
VI. ALLEGED VIOLATION OF ARTICLES 8, 9 AND 14 OF THE CONVENTION
116. The applicants complained that the search which was conducted in their house on 22 November 1993 constituted a breach of Article 8 of the Convention. They further alleged a breach of Article 9 of the Convention referring to their inability to open the grave of Mehmet Şah İkincisoy. Finally, they invoked Article 14 of the Convention alleging that they had been subjected to discrimination because of their Kurdish origin.
117. The Government did not address these issues beyond denying the factual basis of the complaints.
118. The Court has examined the applicants' allegations in the light of the evidence submitted to it, and considers them unsubstantiated. There has therefore been no violation of these provisions.
VIII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
119. The applicants asserted that they had been denied access to an effective domestic remedy and alleged a breach of Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
120. The applicants complained that despite the fact that they had lodged petitions with the public prosecutor to ensure that the allegations of torture and the death of Mehmet Şah were properly investigated, no effective investigation had been conducted into the circumstances of the death.
121. The Government alleged that there had been no shortcomings in the investigation concerning the killing of Mehmet Şah.
122. As the Court has held many times, Article 13 guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or the omissions of the authorities of the respondent State (Aksoy, cited above, § 95, Aydın, cited above, § 103, and Kaya, cited above, § 89).
123. The nature of the rights safeguarded under Articles 2 and 3 of the Convention has implications for Article 13. Where there is an arguable claim that an individual has been tortured or subjected to serious ill-treatment, or deprived of his or her life, by agents of the State, Article 13 requires, 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 treatment in question or the deprivation of life, including effective access for the complainant to the investigation procedure (Salman, cited above, § 121).
124. On the basis of the evidence adduced in the present case, the Court has found that the Government are responsible under Article 2 of the Convention for the death of Mehmet Şah while he was under custody. The applicants' complaints in this regard are therefore “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52, and Kaya, cited above, § 107).
125. The authorities thus had an obligation to carry out an effective investigation into the circumstances of the death of Mehmet Şah İkincisoy. For the reasons set out above (see paragraphs 78-80), no effective criminal investigation can be considered to have been conducted in accordance with Article 13, the requirements of which may be broader than the obligation to investigate imposed by Articles 2 and 3 (Kaya, cited above, pp. 330-331, § 107, Salman, cited above, § 123, and Nuray Şen v. Turkey (no. 2), no. 25354/94, § 193, 30 March 2004).
126. The Court therefore concludes that there has been a violation of Article 13 of the Convention.
X. ALLEGED VIOLATION OF FORMER ARTICLE 25 OF THE CONVENTION
127. The applicants complained that there had been a serious interference with the exercise of their right of individual petition, in breach of Article 25 of the Convention (now replaced by Article 34), which provides as follows:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
128. The applicants submitted that on 6 June 1995 the first applicant was taken before the public prosecutor for interrogation concerning his application with the Commission. He was questioned about his individual application and was asked whether the signatures on the letter of authority and his statement to the Human Rights Association belonged to him. The first applicant had to sign his statement under pressure and stated that he would retract his application.
129. The Government denied these assertions. They insisted that the authorities had never brought pressure on the applicants to withdraw their application to the Convention organs.
130. The Court recalls that it is of the utmost importance for the effective operation of the system of the individual petition instituted by former Article 25 (now replaced by Article 34) that applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Şarli v. Turkey, no. 24490/94, § 84, 22 May 2001). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a convention remedy.
131. Turning to the facts of the instant case, the Court observes that it is accepted by the parties that the applicant was indeed interviewed by the public prosecutor on 6 June 1995 as alleged upon the instructions of the Ministry of Justice International Law and Foreign Relations Directorate concerning his application with the Commission (see paragraphs 39 and 56).
132. The Court therefore finds that the applicant was subjected to indirect and improper pressure to make statements in respect of his application to the Commission which interfered with the free exercise of his right of individual petition guaranteed under Article 25.
133. The Court accordingly holds that the respondent State has failed to comply with its obligations under former Article 25 of the Convention.
XI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
134. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary Damage
135. The applicants submitted that Mehmet Şah İkincisoy was twenty- two years old and had worked as a livestock trader before his death. Although he did not have a stable income, he had an average annual income of 3,000,000,000 Turkish liras (TRL). Taking into account his age and average life expectancy in Turkey, the calculation according to Ogden actuarial method resulted in the capitalised sum of 68,010.40 pounds sterling (GBP).
136. The Government claimed that the allegations were unsubstantiated and that there was no basis for awarding compensation. In any event, they submitted that the sum claimed was excessive.
137. The Court notes that Mehmet Şah İkincisoy was unmarried and had no children. It is not claimed that the applicants were in any way dependent on him. In the present case, the claims for pecuniary damage relate to alleged loss of earnings accruing subsequent to the death of the first applicant's son and the second applicant's brother. The Court notes that the applicants have not proved that they suffered the pecuniary loss they alleged. The Court does not find it appropriate in the circumstances of this case to make any award to the applicants under this head.
B. Non-pecuniary damage
1. Concerning the death of Mehmet Şah İkincisoy
138. The applicants claimed, having regard to the seriousness and number of violations, GBP 40,000 in respect of Mehmet Şah İkincisoy and GBP 2,500 each in respect of the suffering they had to face due to their inability to learn the exact circumstances surrounding the death of Mehmet Şah.
139. The Government requested the refusal of the applicants' claims.
140. The Court considers that an award should be made in respect of non-pecuniary damage bearing in mind the seriousness of the violations which it has found in respect of Articles 2 and 13 of the Convention concerning the death of Mehmet Şah.
141. Accordingly, having regard to the sums which it has awarded in comparable cases and deciding on an equitable basis, the Court awards 25,000 euros (EUR) for non-pecuniary damage, such sum to be held by the applicants for the heirs of Mehmet Şah İkincisoy.
142. The Court accepts that the applicants have themselves suffered non-pecuniary damage which cannot be compensated solely by the findings of violations. Making its assessment on an equitable basis, the Court awards EUR 3,500 to each of the applicants.
2. Concerning the police custody of the second applicant
143. The second applicant claimed the sum of GBP 10,000 for non-pecuniary damage in respect of his detention for a period of eleven days before being brought before the public prosecutor.
144. The Government did not make any comments on this point.
145. The Court recalls its finding above and considers that the second applicant should be awarded compensation for non-pecuniary damage since he must have suffered distress, fear and anxiety considering that he was kept in police custody for eleven days without any judicial intervention. Deciding on an equitable basis, as required by Article 41, the Court awards him the sum of EUR 4,000.
146. Accordingly, the following amounts are awarded to the applicants by way of non-pecuniary compensation, all sums to be converted into Turkish liras at the rate applicable at the date of payment:
(a) EUR 25,000 to both applicants to be held by them for the heirs of Mehmet Şah İkincisoy;
(b) EUR 3,500 to each of the applicants;
(c) EUR 4,000 to the second applicant.
C. Punitive or exemplary damages
147. In relation to the interference with the exercise of the applicants' right of individual petition, in breach of Article 25 of the Convention (now replaced by Article 34), the applicants requested the Court to rule for an exemplary punitive damage.
148. The Government denied these assertions.
149. The Court notes that in a number of recent Grand Chamber cases it has rejected requests by applicants for exemplary and punitive damages (see Orhan, cited above, § 448, Selçuk and Asker v. Turkey, judgment of 24 April 1998, Reports 1998-II, p. 918, § 119, and Lustig-Prean and Beckett v. the United Kingdom, nos. 31417/98 and 32377/96, §§ 22-23, 27 September 1999).
150. The Court therefore dismisses the applicants' claim under this head.
D. Costs and expenses
151. Finally, submitting a schedule of costs, the applicants claimed a total sum of GBP 14,446.58 for costs and expenses. These claims comprised:
(a) GBP 4,355 for fees of United Kingdom-based lawyers;
(b) GBP 105.60 for administrative costs incurred by the United Kingdom-based lawyers;
(c) GBP 1,380 for administrative costs incurred by the Kurdish Human Rights Project (“KHRP”);
(d) GBP 1,485 for translations carried out by the KHRP;
(e) GBP 6,750 for fees of Turkish lawyers
(f) GBP 370.98 for costs incurred by Turkish lawyers
152. The Government considered these claims exorbitant and unsubstantiated. They disputed that any sum should be awarded in respect of the role of the KHRP, which organisation could be categorised neither as an applicant nor as a representative.
153. The Court reiterates that only legal costs and expenses necessarily and actually incurred can be reimbursed under Article 41 of the Convention. Furthermore, the amounts claimed must be reasonable as to quantum. It notes in this connection that the present case involved complex issues of fact and law requiring detailed examination, including the taking of evidence from witnesses in Ankara. However, the Court is not satisfied that in the instant case all the costs and expenses were necessarily and actually incurred.
154. Making its own estimate based on the information available, the Court awards the applicants in respect of costs and expenses EUR 15,000 exclusive of any value-added tax that may be chargeable, such sum to be converted into pounds sterling and paid into the applicants' representatives' bank account in the United Kingdom as set out in their just satisfaction claim.
E. Default interest
155. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 2 of the Convention in relation to Mehmet Şah İkincisoy's death;
2. Holds that there has been a violation of Article 2 of the Convention on account of the failure of the authorities of the respondent State to conduct an effective investigation into the circumstances of the death of Mehmet Şah İkincisoy;
3. Holds that there has been no violation of Article 3 of the Convention;
4. Holds that it is unnecessary to determine whether there has been a breach of Article 6 of the Convention;
5. Holds that the applicants cannot claim to be victims within the meaning of Article 34 of the Convention regarding Hüseyin, Makbule, Nefise and Garipşah İkincisoy's complaints under Article 5 of the Convention;
6. Holds that there has been no violation of Article 5 §§ 1, 3, 4 and 5 of the Convention in respect of the first applicant;
7. Holds that there has been no violation of Article 5 § 1 of the Convention in respect of the second applicant;
8. Holds that there has been a violation of Article 5 § 3 of the Convention in respect of the second applicant;
9. Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the second applicant;
10. Holds that there has been a violation of Article 5 § 5 of the Convention in respect of the second applicant;
11. Holds that there has been no violation of Articles 8, 9 and 14 of the Convention;
12. Holds that there has been a violation of Article 13 of the Convention;
13. Holds that the respondent State has failed to comply with its obligations under former Article 25 § 1 of the Convention;
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts free of any tax that may be chargeable, to be converted into Turkish liras at the rate applicable at the date of payment and to be paid into the bank account in Turkey indicated by the applicants:
(i) EUR 25,000 (twenty-five thousand euros) in respect of Mehmet Şah İkincisoy, which sum is to be held by the applicants for the heirs of Mehmet Şah İkincisoy;
(ii) EUR 3,500 (three thousand five hundred euros) to each of the applicants in respect of non-pecuniary damage;
(iii) EUR 4,000 (four thousand euros) in respect of non-pecuniary damage to the second applicant concerning his police custody;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
(a) that the respondent State is to pay the applicants' representatives, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand euros) in respect of costs and expenses, exclusive of any value added tax that may be chargeable to be converted into pounds sterling at the rate applicable at the date of settlement and paid into the bank account in the United Kingdom indicated by the applicants;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
16. Dismisses the remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing on 27 July 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Michael O'Boyle Josep Casadevall
İKİNCİSOY v. TURKEY JUDGMENT
İKİNCİSOY v. TURKEY JUDGMENT