Osmanoğlu v. Turkey (48804/99)

Date	20080124
Article	2, 3
Decision	violation

CHAMBER JUDGMENT OSMANOĞLU v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Osmanoğlu v. Turkey (application no. 48804/99).

The Court held:

· unanimously, that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights concerning the abduction of the applicant’s son, allegedly by the Turkish security forces, and his presumed death;

· by four votes to three, that there had been a violation of Article 2 of the Convention in that Turkey had failed to protect the life of the applicant’s son;

· unanimously, that there had been a violation of Article 2 on account of the failure of the Turkish authorities to conduct an effective investigation into the circumstances of the disappearance of the applicant’s son and his presumed death;

· by four votes to three, that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) in respect of the applicant;

· unanimously, that there had been no violation of Article 5 (right to liberty and security);

· unanimously, that there had been no violation of Article 14 (prohibition of discrimination); and,

· that the Government had complied with Article 38 § 1 (a) (obligation to furnish necessary facilities for examination of the case).

Under Article 41 (just satisfaction), the Court awarded the applicant, by six votes to one, 60,000 euros (EUR) in respect of pecuniary damage and EUR 20,000 in respect of non-pecuniary damage, to be held by him for the partner and heirs of his son. The Court further awarded the applicant, by six votes to one, EUR 10,000 in respect of non-pecuniary damage and EUR 15,000 for costs and expenses. (The judgment is available in English and French.)

1. Principal facts

The applicant, Muhyettin Osmanoğlu, is a Turkish national who was born in 1942. He lives in Diyarbakır (Turkey) where he owns a wholesale grocery store. The store was run by his son, Atilla Osmanoğlu.

The case concerned, in particular, the applicant’s allegation that his son was taken into police custody and that he subsequently disappeared.

The applicant moved with his family to Diyarbakır in 1992 because his son had been threatened by a police officer. In 1994 the applicant was detained in police custody for 28 days but subsequently acquitted of all charges against him.

On 25 March 1996 the applicant submitted that he arrived at his grocery shop to see his son being escorted into a car by two armed men carrying walkie-talkies. The two men claimed to be police officers and that they were taking the applicant’s son to police headquarters.

On 26 March 1996 the applicant applied to the Governor’s Office and the Chief Prosecutor’s Office at the State Security Court enquiring as to his son’s whereabouts. Between 29 March and 16 May 1996 he made five more applications. On 4 April 1996 the prosecutor informed the applicant that his son was not on any custody records. On 20 May 1996 the applicant was interviewed at Diyarbakır police murder desk. He gave a description of the two men who had taken his son away, adding that the same two men had visited his shop two days beforehand. He stated that he and neighbouring shop owners would be able to identify the men if required.

On 4 July 2006 the newspaper Özgür Gündem published an alleged confession in which Abdulkadir Aygan, a former agent of the JİTEM (Jandarma İstihbarat Terörle Mücadele – Anti-terror Intelligence Branch of the Gendarmerie), described the abduction and killing of the applicant’s son. Mr Aygan allegedly stated that Attila Osmanoğlu had been kidnapped by the JİTEM and that his head had been smashed with a hammer by a certain Cindi Acet –also known as Koçero – so that it would not be possible to identify the body. The body had been found on 30 March 1996 and buried in a cemetery in Silopi reserved for unclaimed bodies.

The Government denied any involvement of the Turkish security forces in the abduction or killing of the applicant’s son. It submitted that no investigation was carried out on the grounds that there were no custody records to prove that the applicant’s son had been detained and no evidence to indicate that he had been the victim of an unlawful act, such as kidnapping. Mr Aygan’s allegations were not investigated either as they were considered to be vague and based on hearsay.

The applicant has been shown pictures of the body buried in Silopi but was unable to make a positive identification of his son. He has had no news of his son for more than 11 years.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 25 September 1996 and declared admissible on 15 June 2006.

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

Christos Rozakis (Greek), President,
Loukis Loucaides (Cypriot),
Rıza Türmen (Turkish),
Nina Vajić (Croatian),
Elisabeth Steiner (Austrian),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian), judges,

and also Søren Nielsen, Section Registrar.

3. Summary of the judgment2

Complaints

Relying on Articles 2 (right to life), 5 (right to liberty and security) and 13 (right to an effective remedy), the applicant alleged that his son was abducted by the Turkish security forces and that he subsequently disappeared and that the authorities’ failed to carry out an adequate investigation into those allegations. Also relying on Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life), the applicant complained about the prolonged distress and anguish caused by his son’s disappearance and lack of an effective investigation. The applicant further claimed that his son’s disappearance and presumed death and the failure of the authorities to carry out an effective investigation had been due to the fact that he and his son were of Kurdish origin, in breach of Article 14 (prohibition of discrimination).

Article 2

As no information had come to light concerning the whereabouts of Atilla Osmanoğlu for more than 11 years, the Court accepted that he had to be presumed dead.

Concerning the alleged abduction and presumed death of Atilla Osmanoğlu

The Court was prepared to accept that the applicant’s son had been taken away by two men but it was unable to decide, on the basis of the evidence in the file, whether or not the two men had indeed been police officers. It was therefore not able to establish who might have been responsible for the disappearance and held that there had been no violation of Article 2 with respect to the abduction of the applicant’s son by the Turkish security forces and his presumed death.

Concerning the failure to protect the right to life of Atilla Osmanoğlu

The Court observed that, on a number of occasions, it had reached the conclusion that the disappearance of a person in south-east Turkey at the relevant time could be regarded as life-threatening. The lack of any suggestion that the applicant’s son might have been involved in PKK-related activities did not make his disappearance any less life-threatening. Indeed, the applicant and his son had had a history of harassment by the police and the way in which the applicant’s son had been abducted had been similar to other such disappearances reported at that time.

The authorities had been informed on 26 March 1996 that the applicant’s son had been abducted and, from that date, had been under an obligation to take immediate steps to protect his right to life which had been at real and immediate risk.

Nevertheless, as acknowledged by the Government, no investigation was opened into the disappearance of Atilla Osmanoğlu. The Court found that the mere checking of custody records was not sufficient to protect the right to life.

A number of basic steps could have been taken to give a reasonable prospect of success in finding the applicant’s son. The prosecutor should have obtained information from the applicant, the neighbouring shop owners and any other potential eyewitnesses. It should have been verified whether the two men who had taken the applicant’s son away had indeed been police officers. An inspection could have been carried out of the relevant gendarmerie or police headquarters or any other premises to which the applicant’s son might have been taken and the officers on duty and those held in custody there could have been interviewed. Furthermore, there had been a large number of police and gendarmerie checkpoints on the roads in the area which could have been alerted to be on the lookout for the applicant’s son.

Instead, the prosecutor had remained completely and incomprehensibly inactive at a time when it had been known that many people had been killed in that region of Turkey.

The Court concluded that the authorities had failed to take reasonable measures, available to them under Turkish criminal law, to prevent a real and immediate risk to the life of Atilla Osmanoğlu, in violation of Article 2.

Concerning the inadequacy of the investigation

As conceded by the Government, no investigation at all had been carried out into the disappearance of the applicant’s son.

The Court regretted, in particular, that Mr Aygan’s allegations had not spurred the Government into action and disagreed that those allegations had been vague. Mr Aygan had named the alleged killer of the applicant’s son, given details of how he had been killed and where he had been buried. It was only due to the national authorities’ failure to investigate those allegations that they continued to amount to no more than circumstantial evidence. The decision not to investigate had been illogical as allegations could not be found to be unsubstantiated unless they had been investigated first.

Consequently, the Court concluded that there had also been a violation of Article 2 on account of the total failure to carry out an investigation into the disappearance and presumed death of the applicant’s son.

Article 3

The applicant was the father of Atilla Osmanoğlu. He had witnessed him having been taken away by two men claiming to be police officers more than 11 years ago. He had not heard from him since. He had reported the abduction and disappearance and had repeatedly attempted to obtain information about his son. However, the authorities had taken no action other than telling him that his son’s name had not appeared in any custody records.

The Court therefore found that the applicant had suffered, and continued to suffer, distress and anguish as a result of the disappearance of his son and his inability to find out what had happened to him. The manner in which his complaints had been dealt with by the authorities had to be considered to constitute inhuman treatment, in violation of Article 3.

Article 5

The Court reiterated that it had been unable to make a finding as to who might have been responsible for the disappearance of the applicant’s son. There was therefore no factual basis to substantiate the applicant’s allegation that his son had been detained by the Turkish authorities. Consequently, the Court found that there had been no violation of Article 5.

Given the findings under Article 2 concerning the lack of an investigation, the Court did not consider it necessary to examine separately whether there had been the same failure under Article 5.

Article 14 in conjunction with Articles 2 and 5

The Court stressed that the applicant’s allegation that his son had been abducted by Turkish security forces had not been established and there was therefore no factual basis to substantiate that his disappearance and presumed death had been due to his Kurdish origin.

Concerning the further allegation that the underlying reason for the failure to investigate the abduction of his son had been due to his ethnic origin, the Court pointed out that, as there had been no investigation at all, there was no evidence with which to examine whether the investigation authorities had been responsible for discriminatory treatment.

There had therefore been no violation of Article 14 taken in conjunction with Articles 2 and 5.

Articles 8 and 13

The Court did not consider it necessary to examine further the applicant’s complaints under Articles 8 and 13.

Article 38 § 1 (a)

The Court noted that the Government had submitted copies of the custody records after the applicant’s case had been declared admissible and could therefore but conclude that the Government had complied with their obligations under Article 38 § (a).

Judges Türmen, Vajić and Steiner expressed a joint partly dissenting opinion, which is annexed to the judgment.