PKK-verdachte Ikincisoy vindt dood tijdens detentie - Mensenrechtenhof veroordeelt Turkije (en)

Press release issued by the Registrar

CHAMBER JUDGMENT IN THE CASE OF

?K?NC?SOY v. TURKEY

The European Court of Human Rights has today notified in writing a judgment¹ in the case of Ikincisoy v. Turkey (application no. 26144/95).

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 death of Mehmet Sah Ikincisoy;

· a violation of Article 2 (right to life) on account of the lack of an effective investigation into the circumstances of Mehmet Sah Ikincisoy’s death;

· no violation of Article 3 (prohibition of inhuman or degrading treatment);

· no need to determine whether there had been a violation of Article 6 (right to a fair trial);

· no violation of Article 5 §§ 1, 3, 4 and 5 (right to liberty and security) in respect of Abdülrezzak Ikincisoy;

· no violation of Article 5 § 1 in respect of Halil ?kincisoy;

· a violation of Article 5 § § 3, 4 and 5 in respect of Halil ?kincisoy;

· no violation of Article 8 (right to respect for private and family life), Article 9 (right to freedom of thought, conscience and religion) and Article 14 (prohibition of discrimination);

· a violation of Article 13 (right to an effective remedy);

· a violation of former Article 25 (individual petition), now Article 34 of the Convention.

Under Article 41 (just satisfaction) of the Convention, the Court awarded Mehmet ?ah ?kincisoy’s heirs 25,000 euros (EUR) for the non-pecuniary damage incurred as a result of his death. The Court also awarded each applicant EUR 3,500 for non-pecuniary damage and Halil ?kincisoy EUR 4,000 for the non-pecuniary damage sustained as a result of being held in police custody. It also awarded the applicants EUR 15,000 for costs and expenses.

(The judgment is available only in English.)

• 1. 

  Principal facts

The applicants, Abdülrezzak ?kincisoy and his son Halil, are Turkish nationals who were born in 1933 and 1974 respectively and live in Diyarbak?r (Turkey). Their application concerned the circumstances surrounding the death of Mehmet ?ah ?kincisoy, who was the son of the first applicant and the brother of the second applicant. The facts were in dispute between the parties.

The applicants claim that at about 1 a.m. on the night of 22 November 1993 plain-clothes police officers arrived at Abdülrezzak ?kincisoy’s apartment and asked him where his son was. They then went to his uncle’s apartment where they found him. While the police officers had started questioning the people present in the apartment gun shots were fired killing one police officer and another person present on the premises.

The applicants, Mehmet ?ah ?kincisoy and other members of their family were arrested and taken to Çar?? Police Station before being transferred to the Rapid Intervention Headquarters. Some of them claim to have seen Mehmet ?ah ?kincisoy at the police station and to have heard his cries at the Rapid Intervention Headquarters.

After spending several days in police custody, the applicants were released. On 6 December 1993 Abdulrezzak ?kincisoy asked Diyarbak?r State Security Court Public Prosecutor for news of his son. He was informed that his son had died in a clash with the police on 25 November 1993 and that his body had been buried. Despite his requests, he was not allowed to have his son’s grave opened or an autopsy conducted. After applying to the European Commission of Human Rights Abdulrezzak ?kincisoy was summoned to the Diyarbak?r public prosecutor’s office, questioned about his application to the Commission and, he alleged, forced to sign a statement expressing his wish to withdraw his application.

The Turkish Government submitted that they had been informed by a suspect that Mehmet ?ah ?kincisoy was aiding and abetting the PKK (Workers’ Party of Kurdistan – proscribed as a terrorist organisation under Turkish law). The security forces went to his father’s apartment and then to his uncle’s. While searching the apartment they found four men sleeping in one of the rooms. As they questioned them, one of the men opened fire killing one of the police officers and injuring another. Mehmet ?ah ?kincisoy allegedly then escaped.

According to the Turkish authorities, on 23 November 1993 the police received an anonymous telephone call informing them that two armed men had been seen hiding in a hut near the Ongözlü Bridge. When the officers arrived, an armed clash broke out which lasted approximately 20 minutes following which two people were killed. It could subsequently be seen from photographs of the bodies that one of them was Mehmet ?ah ?kincisoy. Furthermore, according to the ballistic examination reports, the guns that were found in the hut matched those used during the shoot-out in Abdulkadir ?kincisoy’s apartment the previous day.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 19 May 1994 and declared partly admissible on 26 February 1996. A delegation from the Commission conducted an on-the-spot investigation in Ankara from 28 June to 2 July 1999. The application was transmitted to the Court on 1 November 1999.

Judgment was given by a Chamber of 7 judges, composed as follows:

Josep Casadevall (Andorran), President,

Rait Maruste (Estonian),

Stanislav Pavlovschi (Moldovan),

Lech Garlicki (Polish),

Elisabet Fura-Sandström (Swedish),

Ljiljana Mijovi? (citizen of Bosnia and Herzegovina), judges,

Feyyaz Gölcüklü (Turkish), ad hoc judge,

and also Michael O’Boyle, Section Registrar.

• 3. 

  Summary of the judgment²

Complaints

The applicants claimed that Mehmet ?ah ?kincisoy had died as a result of torture at the hands of police officers at the Rapid Intervention Force Headquarters. They argued that this treatment and the suffering which his family had had to endure as a result of his death and their inability to learn the true circumstances of his death had resulted in a violation of Articles 2 and 3. The applicants also claimed that their detention in police custody had been contrary to Article 5 of the Convention. They complained further of the police custody of four of Abdulrezzak ?kincisoy’s children, namely Hüseyin, Makbule, Nefise and Garip?ah ?kincisoy. Relying on Article 6, they complained of the lack of an effective investigation into their relative’s death and alleged that they had been deprived of access to a tribunal. They submitted that the searches at their homes had been contrary to Article 8, that their inability to have their relative’s grave opened had violated Article 9 and alleged that they had been discriminated against on account of their Kurdish origins in breach of Article 14. The applicants submitted, lastly, that there had been an infringement of their right of individual petition contrary to Article 25 of the Convention.

Decision of the Court

In the light of the evidence submitted to it, the Court found it established that on 22 November 1993 a team of police officers from the Anti-Terrorism Branch of the Diyarbak?r Security Directorate had undertaken searches in order to find Mehmet ?ah ?kincisoy. They had gone to his father’s and then to his uncle’s apartment, where a shoot-out had occurred. Mehmet ?ah ?kincisoy had been arrested the same day and shot dead the following day while under the control of the authorities.

Article 2 of the Convention

Regarding Mehmet ?ah ?kincisoy’s death

The Court drew very strong inferences from total lack of any evidence indicating that Mehmet ?ah ?kincisoy had been taken into custody. It reiterated that, having regard to the general context of the situation in south-east Turkey at the time, an unacknowledged detention could be life-threatening. Furthermore, the autopsy examination, which had critical importance in determining the causes of the death, had been defective in fundamental aspects. In that connection the Court was struck by the authorities’ refusal to deliver Mehmet ?ah ?kincisoy’s body to his family, who had intended to request a detailed autopsy.

Consequently, it could not be established beyond reasonable doubt that Mehmet ?ah ?kincisoy had died during a clash with police officers. The authorities had, moreover, failed to establish the real circumstances surrounding his death.

Accordingly, the Court concluded that Mehmet ?ah ?kincisoy had died in circumstances engaging Turkey’s responsibility without there being anything to suggest that this had been made necessary. There had therefore been a violation of Article 2.

As regards the investigations carried out following Mehmet ?ah ?kincisoy’s death

The investigations conducted by the public prosecutor had been defective in a number of fundamental aspects. The Court was struck by the heavy reliance placed by the public prosecutor on the conclusion of the incident report dated 23 November 1993. He did not appear to have compared the facts as stated in the incident report with the photographs taken on the premises and appeared to have excluded the possibility that the circumstances surrounding the death of Mehmet ?ah ?kincisoy could have been different from those stated in the incident report despite the fact that the applicants had brought to his attention the possibility that their relative could have been killed under torture.

Without taking statements from the family members of the deceased who had also been arrested that day or the police officers who had been involved in the clash, the public prosecutor had concluded that Mehmet ?ah had died during the clash.

The autopsy report had further shown that Mehmet ?ah ?kincisoy had been shot from behind by a bullet. It was striking that the public prosecutor had not sought any further explanation as to how a person involved in an intense clash could be shot from behind and probably by a person who was standing above him. The Court reiterated in that connection that there had been major flaws in the autopsy report.

In those circumstances the Court concluded that the investigation could not be considered to have been effective as required by Article 2 and accordingly held that there had been a violation of the Convention in that respect as well.

Article 3 of the Convention

The Court observed from the photographs of Mehmet ?ah ?kincisoy’s body and from the autopsy report that there had been no marks or injuries on the body consistent with the applicants’ allegations of torture. In those circumstances, and having regard to its conclusions under Article 2, the Court could not conclude that Mehmet ?ah ?kincisoy had been subjected to torture or inhuman or degrading treatment.

The suffering endured by the applicants following the events was not a basis for a finding of a violation of Article 3. Consequently the Court held that there had not been a violation of that provision.

Article 5 of the Convention

As regards the police custody of Hüseyin, Makbule, Nefise and Garip?ah ?kincisoy

As the applicants were not victims within the meaning of Article 34 of the Convention, they could not raise this complaint.

Article 5 § 1 (c): allegation of arbitrary and unlawful arrest

The applicants had been arrested on suspicion of having aided and abetted the PKK and having been involved in the events which had resulted in the killing of a police officer and the wounding of another. The Court was satisfied that there had been reasonable and sufficient grounds to believe that the applicants had been involved in an offence justifying their arrest. Accordingly, it held that there had been no violation of Article 5 § 1 (c).

Article 5 § 3: allegation that the applicants had not been brought promptly before a judge

Abdulrezzak ?kincisoy had been kept in police custody for less than three days. Noting the speed with which he had been released, the Court held that there had not been a breach of Article 5 § 3 as far as he was concerned.

Halil ?kincisoy had been held in police custody for 11 days. Even supposing that there had been a link between his activities and a terrorist threat, the Court could not accept that it had been necessary to detain him for 11 days without judicial intervention. Accordingly, it held that there had been a breach of Article 5 § 3 as far as he was concerned.

Article 5 § 4: inability to have the lawfulness of the detention decided speedily by a court

Having regard to the conclusion it had reached with regard to Article 5 § 3 concerning Abdulrezzak ?kincisoy, the Court concluded that there had not been a breach of Article 5 § 4.

With regard to Halil ?kincisoy, the judge did not intervene until 11 days after his arrest. Finding that such a lengthy period did not comply with the notion of “speedily”, the Court concluded that there had been a breach of Article 5 § 4 in this regard.

Article 5 § 5: inability to obtain compensation for a breach of Article 5

In the absence of a finding of a breach of Article 5 regarding Abdulrezzak ?kincisoy, the Court concluded that there had been no violation of Article 5 § 5.

At the material time the Turkish legislation permitted police custody for up to a maximum of 15 days. Accordingly, a compensation request for police custody which lasted for 11 days would not succeed before the domestic courts. The Court therefore concluded that there had also been a violation of Article 5 § 5 of the Convention in respect of Halil ?kincisoy.

Article 6 of the Convention

In the Court’s view, it was more appropriate to examine the Article 6 complaints in relation to the more general obligation under Article 13. It accordingly did not find it necessary to determine whether there had been a violation of Article 6.

Articles 8, 9 and 14 of the Convention

Having regard to the evidence submitted to it, the Court concluded that there had been no violation of these provisions of the Convention.

Article 13 of the Convention

The Turkish authorities had had an obligation to carry out an effective investigation into the circumstances of Mehmet ?ah ?kincisoy’s death. However, no effective criminal investigation could be considered to have been conducted in accordance with Article 13 in the present case. There had therefore been a violation of Article 13 of the Convention.

Former Article 25 of the Convention

The parties did not dispute the fact that on 6 June 1995 Abdulrezzak ?kincisoy had been interviewed by the public prosecutor concerning his application to the Commission, upon the instructions of the Ministry of Justice International Law and Foreign Relations Directorate. Accordingly, the Court found that the applicant had been subjected to indirect and improper pressure to make statements in respect of his application which had interfered with the free exercise of his right of individual petition. The Court accordingly held that Turkey had failed to comply with its obligations under former Article 25 of the Convention.

***

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