Nehyet Günay and Others v. Turkey (51210/99)

Date	20081021
Article	2, 3
Decision	violation

CHAMBER JUDGMENT NEHYET GÜNAY AND OTHERS v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Nehyet Günay and Others v. Turkey (application no. 51210/99).

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 failure by the Turkish authorities to comply with their obligation to protect the life of Deham Günay;

· a violation of Article 2 of the Convention on account of the failure by the authorities to conduct an effective investigation into the circumstances in which Deham Günay disappeared; and,

· a violation of Article 3 (prohibition of inhuman or degrading treatment) on account of the suffering endured by the applicants following their relative’s disappearance.

Under Article 41 (just satisfaction), the Court awarded Narin Günay 30,000 euros (EUR) in respect of all heads of damage and the five other applicants EUR 30,000 jointly in respect of non-pecuniary damage and EUR 2,000 to all the applicants for costs and expenses. (The judgment is available only in French.)

1. Principal facts

The applicants, Nehyet Günay, Narin Günay, Kudret Günay, Hüsniye Öğlü, Suzan Saruhan and Behiye Özdek, were born in 1975, 1941, 1961, 1968, 1971 and 1982 respectively. They all live in Silopi (Turkey). They are the brother, mother and sisters, respectively, of Deham Günay, who was born in 1980 and disappeared during the night of 11 to 12 July 1997, aged 17.

It is not disputed that on 11 July 1997, near the Iraqi-Turkish border, Deham Günay was arrested together with his brother Nehyet by police officers. The subsequent events are in dispute between the parties.

According to the applicants, the police officers took them to some waste ground next to the field where they had been working and, pointing to two bags containing weapons, asked them whether they were theirs. After replying that they were not, the police officers allegedly beat them with their rifle butts, and Deham, who had been struck on the head, fainted. Nehyet stated that he did not see his brother again after he had fainted.

The Turkish Government submitted that the two brothers had been arrested red-handed in possession of weapons given to them by persons who had come from Iraq. Deham stated that he had been involved in this trafficking for the first time, without having informed his brother, and offered to cooperate with the police officers in arresting the traffickers.

According to the report drawn up by the police officers on 12 July 1997, Deham Günay told them that a meeting had been arranged with Iraqi arms traffickers and that he could cooperate with the police officers with a view to arresting them. Accordingly, at about 3 a.m. the police officers set up an ambush in the presence of Deham, saying that they had taken “the necessary safety measures”. They let the young man go towards the border to meet the Iraqis while they kept a lookout. They saw the Iraqis and Deham exchange words and then take flight in the direction of the Hezir border river. They opened fire without taking aim, but did not succeed in stopping the fugitives. 108 bullets were fired during the incident. Deham Günay has not been seen since.

Criminal proceedings were brought against the two Günay brothers for arms trafficking. According to the indictment, the accused had been noticed by a guard who had observed them from a border control tower as they went to collect bags filled with weapons that had been left there by three people who had come from Iraq. Nehyet’s lawyer stated that the two brothers had been badly beaten by the police officers when they were arrested. He alleged that Deham had died from blows to the head inflicted by the police officers and that in order to cover up their crime the police officers had drawn up a bogus report stating that Deham Günay had escaped. At the end of the proceedings Nehyet Günay was sentenced to ten years’ imprisonment.

Following a complaint lodged by their father, Sadun Günay, an investigation was opened before the Silopi Public Prosecutor’s Office against the nine police officers responsible for arresting the two brothers. The proceedings ended with a decision not to prosecute.

2. Procedure and composition of the Court The application was lodged with the European Court of Human Rights on 14 September 1999.

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

Josep Casadevall (Andorran), President,
Elisabet Fura-Sandström (Swedish),
Corneliu Bîrsan (Romanian),
Boštjan M. Zupančič (Slovenian),
Alvina Gyulumyan (Armenian),
Egbert Myjer (Dutch),
Işıl Karakaş (Turkish), judges,

and also Santiago Quesada, Section Registrar.

3. Summary of the judgment2

Complaints

The applicants alleged, among other things, that their relative, Deham Günay, had died in circumstances engaging the responsibility of the security forces and that the suffering they had endured following his disappearance amounted to inhuman and degrading treatment. They relied in particular on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment) and 5 (right to liberty and security).

Article 2

The death of Deham Günay

The applicants alleged that Deham Günay had been killed by police officers who had struck him on the head with their rifle butts. Finding scarce evidence in the case enabling it to verify the applicants’ allegation that Deham Günay had been murdered at the time of his arrest, and having regard to the lack of other probative evidence that could cast doubt on the official version, the Court found the latter to have been established.

The Court noted that Deham Günay had been under the entire responsibility of the security forces when he disappeared during the night ambush organised by them. That operation had been conducted in circumstances that posed a definite risk to his life. In particular, the police officers had opened very intensive fire, firing 108 bullets “without taking aim”. In their report they had merely employed a general formula stating that they had taken “the necessary safety measures”, without specifying what those measures had been.

In the Court’s view, the death of the fugitives was a foreseeable possibility, if not a likelihood, and in the total absence of any information for over ten years regarding Deham Günay’s possible whereabouts, it considered that the young man could be presumed dead.

The Court considered that the competent authorities had failed to take measures which, judged reasonably, could be deemed appropriate to safeguard against the risk run by Deham Günay. Accordingly, the responsibility of the State was engaged regarding the latter’s disappearance in circumstances which created a real risk of death, in violation of Article 2.

As to the alleged inadequacy of the investigation

The Court noted a number of shortcomings in the investigation, amongst which were the fact that Nehyet Günay, the main witness to the alleged events, had never been heard; the Silopi Public Prosecutor’s Office had not visited the scene of the incident for the purpose of carrying out investigations; the Public Prosecutor’s Office appeared to have confined itself to adopting the version of events submitted by the police officers from the outset; neither the applicants nor their lawyer had been informed of the progress of the investigation or its completion; and, lastly, no search had been undertaken by the security forces to find the young man who had disappeared.

Consequently, the Court considered that the domestic authorities had not conducted a proper investigation into the circumstances in which Deham Günay had disappeared, which amounted to a further violation of Article 2.

Having regard to its conclusion under Article 2, the Court considered that it was not necessary to examine separately the complaints based on Articles 3 and 5 concerning the conditions of Deham Günay’s arrest.

Article 3

The Court noted that the applicants’ concern was attested by the numerous steps taken by Deham Günay’s family to ascertain what had happened to him and to find him, dead or alive. The applicants and other relatives of Deham Günay had made enquiries of the authorities, who had let them take responsibility themselves for finding out what had happened. Moreover, the applicants had not been able to take an active part in the domestic proceedings instituted following their complaint.

The Court observed, lastly, that the applicants’ concern for the fate of their relative remained, and considered that his disappearance amounted, in their regard, to inhuman and degrading treatment contrary to Article 3.