CASE OF ER AND OTHERS v. TURKEY
(Application no. 23016/04)
JUDGMENT
STRASBOURG
31 July 2012
This judgment will become final in the circumstances set out in Article 44 � 2 of the Convention. It may be subject to editorial revision.
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This judgment will become final in the circumstances set out in Article 44 � 2 of the Convention. It may be subject to editorial revision.
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
��������� Fran�oise Tulkens, President, ��������� Danutė Jočienė, ��������� Dragoljub Popović, ��������� Isabelle Berro-Lef�vre, ��������� Andr�s Saj�, ��������� Işıl Karakaş, ��������� Guido Raimondi, judges, and Stanley Naismith , Section Registrar,
�1. Everyone�s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
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In the case of Er and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
��������� Fran�oise Tulkens, President,
��������� Danutė Jočienė,
��������� Dragoljub Popović,
��������� Isabelle Berro-Lef�vre,
��������� Andr�s Saj�,
��������� Işıl Karakaş,
��������� Guido Raimondi, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 3 July 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
THE FACTS
THE CIRCUMSTANCES OF THE CASE
A. Introduction
B. The applicants� submissions on the facts
C. The Government�s submissions on the facts
D. Documentary evidence submitted by the parties
he had seen Ahmet Er in a military vehicle, wearing handcuffs.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
�1. Everyone�s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.�
A. Admissibility
�In a complex disappearance situation such as the present, arising in a situation of international conflict, where it is alleged that there is a complete absence of any investigation or meaningful contact with the authorities, it may be expected that the relatives bring the case within, at most, several years of the incident. If there is an investigation of sorts, even if sporadic and plagued by problems, the relatives may reasonably wait some years longer until hope of progress being made has effectively evaporated. Where more than ten years has elapsed, the applicants would generally have to show convincingly that there was some ongoing, and concrete, advance being achieved to justify further delay in coming to Strasbourg. Stricter expectations would apply in cases where the applicants have direct domestic access to the investigative authorities.�
B. Merits
1. The Court�s assessment of the evidence and establishment of the facts
2. Ahmet Er�s disappearance
... where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which an issue arises under Article 3 of the Convention .... In the same vein, Article 5 imposes an obligation on the State to account for the whereabouts of any person taken into detention and who has thus been placed under the control of the authorities .... Whether the failure on the part of the authorities to provide a plausible explanation as to a detainee�s fate, in the absence of a body, might also raise issues under Article 2 of the Convention will depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on concrete elements, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody ....
In this respect the period of time which has elapsed since the person was placed in detention, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time goes by without any news of the detained person, the greater the likelihood that he or she has died. The passage of time may therefore to some extent affect the weight to be attached to other elements of circumstantial evidence before it can be concluded that the person concerned is to be presumed dead. In this respect the Court considers that this situation gives rise to issues which go beyond a mere irregular detention in violation of Article 5. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2, which ranks as one of the most fundamental provisions in the Convention ....�
2. Effectiveness of the investigation into Ahmet Er�s disappearance
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF AHMET ER
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE APPLICANTS
�No one shall be subjected to torture or to inhuman or degrading treatment or punishment.�
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
�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:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
....�
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
�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.�
Consequently, there has been a violation of Article 13 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
�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
B. Non-pecuniary damage
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the alleged ill-treatment to which the applicants� relative Ahmet Er was subjected in the gendarmerie station inadmissible and the remainder of the application admissible;
2. Holds that there has been a violation of Article 2 of the Convention on account of the disappearance and presumed death of the applicants� relative;
3. 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 adequate and effective investigation into the disappearance of the applicants� relative and his subsequent presumed death;
4. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants;
5. Holds that there has been a violation of Article 5 of the Convention on account of the applicants� relative�s unlawful detention at the gendarmerie station;
6. Holds that there has been a violation of Article 13 of the Convention;
7. Holds
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 � 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 35,000 (thirty-five thousand euros), plus any tax that may be chargeable, jointly to the first to seventh applicants in respect of pecuniary damage;
(ii) EUR 25,000 (twenty-five thousand euros), plus any tax that may be chargeable, to the eighth applicant, Mr Ali Er, in respect of pecuniary damage;
(iii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, to each of the eighth and ninth applicants, namely Mr Ali Er and Ms Mumi Er, in respect of non-pecuniary damage;
(iv) EUR 55,000 (fifty-five thousand euros), plus any tax that may be chargeable, jointly to the remaining seven applicants in respect of non-pecuniary damage;
(v) EUR 250 (two hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(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;
8. Dismisses the remainder of the applicants� claim for just satisfaction.
Done in English, and notified in writing on 31 July 2012, pursuant to Rule 77 �� 2 and 3 of the Rules of Court.
Stanley Naismith���������������������������������������������������������������� Fran�oise
Tulkens
������ Registrar����������������������������������������������������������������������������� President
In accordance with Article 45 � 2 of the Convention and Rule 74 � 2 of the Rules of Court, the separate opinion of Judge A. Saj� is annexed to this judgment.
F.T.
S.H.N.
CONCURRING OPINION OF JUDGE SAJ�
I agree with my colleagues that the case is admissible. I also agree with the findings of violations on all counts. I would just like to add some reasons that justify the interpretation of the �six-month rule� that was applied in the present case.
Article 35 � 1 of the Convention provides that the Court may only deal with a matter within a period of six months from the date on which the final decision was taken. There is no specific rule applicable to situations where no final decision is taken, for example in cases of disappearance. In such circumstances the rule applicable to such situations has to be developed and interpreted in conformity with the purpose of the Convention, namely securing the effective recognition and observance of the rights protected by the Convention. Nevertheless, it is sometimes argued that the six-month rule must be interpreted strictly to satisfy the exigencies of legal certainty. However, in the context of the Convention such legal certainty attributed to the six-month rule would serve a very specific expectation, namely that, whatever had happened (even the most outrageous mass violation of human rights), the authorities and the State would not be held accountable. The logic applied in �ilih v. Slovenia [GC] (no. 71463/01, 9 April 2009) indicates that this is unacceptable to the Court. The State Party interest in the six-month rule is very different from the reliance interest generally protected in a domestic system with regard to the finality of a judgment. Lord Bingham has voiced the opinion that when it comes to procedure a non-formalistic approach is appropriate. ("Procedural idiosyncrasy is not (like national costume or regional cuisine) to be nurtured for its own sake, and in answering the question before us we must have regard to the realities of litigation in this country and the purpose of the Convention, not to tradition, nomenclature or rules developed for other purposes." [Dresser UK -v- Falcongate Freight Management Ltd; The Duke of Yare [1992] 5 CL 373; [1992] QB 502].)
������ The present judgment relied on the interpretation of the six-month rule that was adopted in a case concerning an international conflict: Varnava and Others v. Turkey [GC] (nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, � 166, ECHR 2009). Given the domestic difficulties in the present case, that extension is eminently reasonable. What I find difficult to follow is the logic that where more than ten years has elapsed the applicants would generally have to show convincingly that there was some ongoing, and concrete, advance being achieved to justify further delay in coming to Strasbourg. I understand that a clear rule like this offers guidance as to expectations and may push potential applicants to take action more swiftly, but on the other hand it may not serve the purposes of the Convention. There is nothing magical about the ten-year mark that would change an ongoing situation. As long as there is a reasonable expectation that domestic remedies will be provided and the potential applicants behave reasonably in pursuing available remedies, the general principles of Varnava should apply. This is the interpretation that best satisfies the dictates of subsidiarity. Subsidiarity is based on the undertaking, entered into by the member States of the Council of Europe, to pursue the �further realisation of human rights and fundamental freedoms.� Most importantly, this is the interpretation that best serves the interests of human rights protection in cases where the most serious breaches of human rights are alleged.
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