Enzile Özdemir v. Turkey (54169/00)
|Article||2, 3, 5, 14|
Press release issued by the Registrar
CHAMBER JUDGMENT ENZİLE ÖZDEMİR v. TURKEY
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Enzile Özdemir v. Turkey (application no. 54169/00).
The Court held, unanimously, that there had been:
· a violation of Article 2 (right to life) of the European Convention on Human Rights on account of the disappearance and presumed death of Mehmet Özdemir;
· a violation of Article 2 of the Convention on account of the failure to carry out an effective investigation into the circumstances in which Mehmet Özdemir disappeared;
· a violation of Article 3 (prohibition of inhuman or degrading treatment) concerning Enzile Özdemir;
· no violation of Article 3 concerning Mehmet Özdemir;
· a violation of Article 5 (right to liberty and security) concerning Mehmet Özdemir; and
· no violation of Article 14 (prohibition of discrimination).
Under Article 41 (just satisfaction), the Court awarded the applicant 40,000 euros (EUR) in respect of pecuniary damage, EUR 23,500 in respect of non-pecuniary damage and EUR 2,176 for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The applicant, Enzile Özdemir, is a Turkish national who was born in 1953 and lives in the village of Bağivar, Diyarbakır. She is married to Mehmet Özdemir with whom she has eight children.
The case concerned Ms Özdemir’s allegations that her husband was abducted and killed by Turkish security forces and that the authorities failed to carry out an adequate and effective investigation into her allegations.
Ms Özdemir submitted that her husband, a member of HADEP (People’s Democracy Party), had been harassed by the security forces and had had criminal proceedings brought against him in 1995 and 1997 on charges of involvement with the PKK (The Kurdistan Workers’ Party). 20 days before her husband disappeared, their home had been raided and he had allegedly been instructed to report to the police every day.
On 26 December 1997, Ms Özdemir alleged that, according to eye-witnesses, her husband, sitting in a coffee house with friends, was approached by armed men in civilian clothes and then forcibly taken away in a taxi.
On 29 December 1997 Ms Özdemir lodged a complaint with the Public Prosecutor’s Office at Diyarbakır State Security Court requesting information as to the whereabouts of her husband. Her complaint was stamped “taken into custody by Security Directorate”. She was later informed that it had been stamped by mistake and her husband was not in custody.
Ms Özdemir made other complaints to the Diyarbakır authorities, namely the Public Prosecutor’s Disappearance Bureau and the Security Directorate, as well as to the Human Rights Commission of the Turkish National Assembly. In each complaint, she repeated the date, place and manner in which her husband had been abducted. She maintained that she could not name eye-witnesses to the abduction as they were afraid to testify.
The public prosecutor opened an investigation almost immediately after the disappearance. Custody records were checked, Ms Özdemir and her sister-in-law were interviewed and the security forces were regularly requested to provide updated information as to developments in the case. The security forces repeatedly denied that Mehmet Özdemir was in custody.
On 19 December 2003 the prosecutor decided not to open criminal proceedings regarding Mehmet Özdemir’s abduction. The official enquiry into his disappearance was left open until the end of 2007.
Ms Özdemir has had no news of her husband for more than ten years and she presumes that he must be dead.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 7 September 1999.
Judgment was given by a Chamber of seven judges, composed as follows:
Nicolas Bratza (British), President,
Josep Casadevall (Andorran),
Giovanni Bonello (Maltese),
Riza Türmen (Turkish),
Kristaq Traja (Albanian),
Stanislav Pavlovschi (Moldovan),
Lech Garlicki (Polish), judges,
and also Fatoş Aracı, Deputy Section Registrar.
3. Summary of the judgment2
Relying on Article 2 (right to life), Article 5 (right to liberty and security) and Article 13 (right to an effective remedy), the applicant alleged that her husband had been abducted and killed by Turkish security forces and that the authorities had failed to carry out an adequate and effective investigation into those allegations. Also relying on Article 3 (prohibition of inhuman or degrading treatment), she further alleged that her husband had probably been subjected to ill-treatment in detention and complained about the anguish and uncertainty she had suffered from not knowing of her husband’s whereabouts. Lastly, she alleged that her husband had been subjected to discrimination on account of his Kurdish ethnic origin and political opinions, in breach of Article 14 (prohibition of discrimination).
Decision of the Court
Concerning the disappearance and presumed death of Mehmet Özdemir
The Court noted the circumstances surrounding Mr Özdemir’s disappearance, particularly the criminal proceedings against him, and recalled that it had previously found that the disappearance in south-east Turkey in the mid-1990s of a person suspected by the authorities of involvement with the PKK could be considered life-threatening. Indeed, Ms Özdemir’s claims concerning the way in which her husband had been abducted were credible and similar to other such disappearances reported at that time.
Furthermore, Ms Özdemir’s version of events had been consistent and her allegations, although denied, had not been challenged by the Government.
No news having been heard of Mr Özdemir for more than ten years, the Court came to the conclusion that he had to be presumed dead following unacknowledged detention. No explanation had been given by the Turkish authorities as to what had occurred following that detention. The Court therefore found that the responsibility for his death lay with Turkey and held that there had been a violation of Article 2.
Concerning the alleged inadequacy of the investigation
The Court found that there had been striking omissions to the prosecutor’s investigation which had not gone beyond the most basic procedural steps. It was struck by the fact that the prosecutor had made no attempt to identify possible eye-witnesses, such as the owner of the coffee house, the waiters or nearby shopkeepers, to an abduction which had occurred in a public place. No attempt had been made either to clarify why the applicant’s complaint of 29 December 1997 had received an official stamp. It had simply been dismissed as a mistake.
The Court therefore concluded that the investigation carried out had been inadequate, in further violation of Article 2.
Concerning Mehmet Özdemir
The Court noted that there was no evidence, namely eye-witness testimony or Mr Özdemir’s physical remains, to establish exactly how he had died and was therefore unable to find beyond all reasonable doubt that he had been subjected to ill-treatment. Consequently, the Court held that there had been no violation of Article 3 as concerned Mr Özdemir.
Concerning Enzile Özdemir
The Court found that the applicant had suffered for ten years, and continued to suffer, distress and anguish as a result of the disappearance of her husband and of her inability, despite her persistent efforts, to find out what had happened to him. She had never received any plausible explanation as to what had become of her husband following his detention apart from denials or simply having been informed that an investigation had been ongoing. The manner in which her complaints had been dealt with by the authorities had to be considered to constitute inhuman treatment, in violation of Article 3.
The Court found it to be a serious failing that, apart from the applicant’s stamped complaint of 29 December 1997, there was no official trace of her husband’s detention.
Furthermore, the Court’s findings in relation to Article 2 left no doubt that the authorities had failed to take prompt and effective measures to safeguard Mr Özdemir against the risk of disappearance.
Accordingly, the Court found that Mr Özdemir had been held in unacknowledged detention, in violation of Article 5.
The Court held unanimously that it was not necessary to examine separately the applicant’s complaint under Article 13.
The Court found that there was no evidence in the case file to substantiate the applicant’s allegation that her husband had been a deliberate target of a forced disappearance on account of his ethnic origin or his political opinions. There had therefore been no violation of Article 14.