Grand Chamber judgment Tahsin Acar v. Turkey 08.04.04

EUROPEAN COURT OF HUMAN RIGHTS

178

8.4.2004

Press release issued by the Registrar

GRAND CHAMBER JUDGMENT IN THE CASE OF

TAHSİN ACAR v. TURKEY

The European Court of Human Rights has today delivered at a public hearing a Grand Chamber judgment[1] in the case of Tahsin Acar v. Turkey (application no. 26307/95).

The Court held unanimously that:

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 10,000 euros (EUR) for non-pecuniary damage and EUR 10,000 for costs and expenses, less EUR 2,299.77 already received from the Council of Europe in legal aid.

(The judgment is available in English and French.)

1. Principal facts

The applicant, Tahsin Acar, is a Turkish national who was born in 1970 and lives in Sollentuna (Sweden).

The case concerns the disappearance of the applicant’s brother, Mehmet Salim Acar, in circumstances which are in dispute between the parties. Mehmet Salim Acar, born in 1963, was a farmer in Ambar, a village in the Bismil district in south-east Turkey.

According to the applicant, Mehmet Salim Acar was abducted on 20 August 1994, while working in a field in Ambar, by two unidentified people, allegedly plain-clothes police officers.

His family lodged a series of petitions and complaints about his disappearance with the authorities in order to find out where and why Mehmet Salim Acar was being detained. In July 1995 the applicant provided the Bismil public prosecutor with the names of two gendarmes, İzzet Cural and Ahmet Babayiğit, and a village guard, Harun Aca, whom he suspected of being responsible for his brother’s abduction. The public prosecutor declined jurisdiction (görevsizlik kararı) and referred the investigation that had been opened to the Diyarbakır Administrative Council for further proceedings under the Prosecution of Civil Servants Act (Memurin Muhakematı Kanunu). In January 1997 the Administrative Council decided not to prosecute the officials in question, on the ground that there was insufficient evidence. The Supreme Administrative Court (Danıştay) upheld that decision on 14 January 2000.

Furthermore, in February 2000 Mehmet Salim Acar’s mother, wife and sister maintained that they had seen him in a news broadcast on the NTV television channel, during which a newsreader had announced that a man of that name had been arrested. They informed the prosecuting authorities, but in spite of their request, the Diyarbakır public prosecutor decided not to open an investigation (tapiksizlik kararı) into the matter.

According to the Government, effective investigations were carried out by the relevant authorities following the abduction and disappearance of the applicant’s brother. His name is still on the list of persons being searched for by the gendarme forces in Turkey.

2. Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 29 October 1994 and was declared admissible on 30 June 1997. It was transmitted to the Court on 1 November 1998. In a judgment of 9 April 2002 a Chamber of the Court decided by six votes to one to strike the application out of the list of cases. Under Article 43 of the Convention, the applicant requested on 8 July 2002 that the case be referred to the Grand Chamber, and a panel of the Grand Chamber accepted that request on 4 September 2002.

In a judgment of 6 May 2003, following a hearing on 29 January 2003 on the question of the application of Article 37 (striking out) of the Convention, the Grand Chamber decided by 16 votes to one to reject the Government’s request of 27 August 2001 to strike the application out on the basis of a unilateral declaration they had made, and to pursue its examination of the merits of the case.

Judgment was given by the Grand Chamber of 17 judges, composed as follows:

Luzius Wildhaber (Swiss), President,Christos Rozakis (Greek),Jean-Paul Costa (French),Georg Ress (German),Nicolas Bratza (British),Antonio Pastor Ridruejo (Spanish),Giovanni Bonello (Maltese),Lucius Caflisch (Swiss)[2],Françoise Tulkens (Belgian),Viera Strážnická (Slovakian),Peer Lorenzen (Danish),Nina Vajić (Croatian),Matti Pellonpää (Finnish),Margarita Tsatsa-Nikolovska (Macedonian),Egil Levits (Latvian),Lech Garlicki (Polish), judges,Feyyaz Gölcüklü (Turkish), ad hoc judge,and also Paul Mahoney, Registrar.

3. Summary of the judgment[3]

Complaints

The applicant complained of the unlawfulness and excessive length of his brother’s detention, of the ill-treatment and acts of torture to which his brother had allegedly been subjected while deprived of his liberty, and of the failure to provide his brother with the necessary medical treatment during that time. He further submitted that his brother had been deprived of the services of a lawyer and of any contact with his family. He relied on Articles 2 (right to life), 3 (prohibition of torture and inhuman and degrading treatment), 5 (right to liberty and security), 6 (right to a fair hearing), 8 (right to respect for private and family life), 13 (right to an effective remedy), 14 (prohibition of discrimination), 18 (limitation on use of restrictions on rights), 34 and 38 of the Convention.

Decision of the Court

Article 2 of the Convention

The disappearance of the applicant’s brother

The Court noted that the alleged involvement of gendarmerie officers in the disappearance of Mehmet Salim Acar was not only contradicted by the repeated and consistent statements of the two eyewitnesses but was also not corroborated by any other evidence. Having regard to the information in its possession, the Court considered that the allegation that the applicant’s brother had been abducted and detained by agents of the State was based on hypothesis and speculation rather than on reliable evidence. In those circumstances, the Court concluded that it had not been established beyond reasonable doubt that the Turkish Government’s responsibility had been engaged in the abduction and disappearance of Mehmet Salim Acar.

The alleged inadequacy of the investigation

The Court noted that the Bismil public prosecutor had opened an investigation immediately after Mrs Acar had reported her son’s disappearance to the authorities. Although the initial investigation might at first sight appear to have been in accordance with the authorities’ obligations under Article 2 of the Convention, the Court considered that the manner in which it had been pursued once the applicant had informed the authorities in July 1995 of his suspicions against the two gendarmes and the village guard in connection with his brother’s disappearance could not be regarded as complete or satisfactory.

The Court noted that it had not been until September and October 1995 that the Bismil public prosecutor had taken evidence from those suspected of being involved in the abduction. It was also struck by the prosecutor’s failure to take any steps to ascertain the manner in which the initial investigation – under the command of one of the gendarmes who was suspected – had been carried out. In addition, no investigation had been conducted into the claims by Mehmet Salim Acar’s wife that her husband had had a quarrel shortly before the events with the brother of Harun Aca, one of the alleged suspects. Lastly, the Diyarbakır public prosecutor had not made any attempt to obtain a video recording of the television broadcast in which Mehmet Salim Acar had allegedly been seen. This was particularly surprising as it was a relevant and important piece of evidence for the investigation and would not have been difficult for the authorities to obtain.

The Court accordingly concluded that the domestic authorities had not conducted an adequate and effective investigation into the disappearance of Mehmet Salim Acar and that there had therefore been a breach of Turkey’s procedural obligations under Article 2 of the Convention.

Article 3 of the Convention

It had not been established beyond reasonable doubt that the applicant’s brother had been abducted and detained in the circumstances and by the persons alleged by the applicant. Nor was there a sufficient evidentiary basis for concluding that the applicant’s brother had been subjected to ill‑treatment or torture by persons for whose acts the State was liable. There had therefore been no violation of Article 3 in respect of Mehmet Salim Acar.

The inadequacy of the authorities’ investigation into his brother’s disappearance might have caused the applicant feelings of anguish and mental suffering. However, the Court considered that it had not been established that there were any special factors which could justify finding a violation of Article 3 of the Convention, and accordingly held that that provision had not been breached in respect of the applicant himself.

Articles 5, 6 and 8 of the Convention

Observing that it had not been established beyond reasonable doubt that any State agent or person acting on behalf of the State authorities had been involved in the alleged abduction and detention of the applicant’s brother, the Court considered that there was no factual basis for concluding that there had been a violation of Articles 5, 6 or 8 of the Convention.

Articles 13 and 14 of the Convention

As these complaints had been raised after a decision on the admissibility of the application had been given, the Court had no jurisdiction to examine them.

Article 18 of the Convention

On the basis of the facts as established in this case, the Court found no violation of Article 18 of the Convention.

Articles 34 and 38 of the Convention

The Turkish Government’s failure to act with due diligence in complying with requests by the Commission and the Court to make available evidence considered necessary for the examination of the application was incompatible with the Government’s obligations under Article 38 § 1 (a) of the Convention. The Court considered that no separate issue arose under Article 34 in that regard. It accordingly concluded that Turkey had failed to comply with its obligations under Article 38 of the Convention.

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The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human RightsF – 67075 Strasbourg CedexPress contacts: Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92) Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)Fax: +00 33 (0)3 88 41 27 91

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.

[1] Grand Chamber judgments are final (Article 44 of the Convention).

[2] Elected in respect of Liechtenstein.

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