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EUROPEAN COURT OF HUMAN RIGHTS    131  27.2.2001 Press release issued by the Registrar   JUDGMENT IN THE CASE OF ÇİÇEK v. TURKEY   The European Court of Human Rights has today notified in writing[1] judgment in the case of Çiçek v. Turkey. The Court held:   by six votes to one that there had been violations of Article 2 (right to life) of the European Convention on Human Rights in respect of the applicant’s sons; unanimously, that there had been no violation of Article 3 (prohibition of torture or inhuman and degrading treatment or punishment) in respect of the applicant’s sons; unanimously, that there had been a violation of Article 5 (right to liberty and security) in respect of the applicant’s sons; unanimously, that there had been a violation of Article 3 in respect of the applicant; by six votes to one, that there has been a violation of Article 13 (right to an effective remedy) in respect of the applicant; unanimously, that there had been no violation of Article 14 (prohibition of discrimination) taken together with Articles 2, 3, 5 and 13 of the Convention; unanimously, that it was not necessary to decide on the applicant’s complaint under Article 18 (limitation on use of restrictions on rights); unanimously, that there had been no violation of the Convention in respect of the applicant’s grandson.   Under Article 41 (just satisfaction), by six votes to one, the Court awarded the applicant’s sons’ heirs 10,000 pounds sterling (GBP) for pecuniary damage and GBP 40,000 for non-pecuniary damage, GBP 10,000 to the applicant for non-pecuniary damage and, unanimously, GBP 10,000 to the applicant for costs and expenses.   1.  Principal facts   The applicant, Hamsa Çiçek, born in 1930, is a Turkish citizen living in Dernek, a village in the Lice District of Diyarbakır in South-East Turkey. She brought her application on behalf of herself and her two sons, Tahsin and Ali İhsan Çiçek, and her grandson Çayan Çiçek, all three of whom disappeared in 1994 when they were, respectively, 44, 20 and 16-years-old.   The circumstances surrounding their disappearance were disputed by the parties.   In its judgment, the Court accepted that, on 10 May 1994, soldiers came to Dernek and ordered the villagers to gather by the mosque, where an identity check was conducted. Six villagers, including the applicant’s two sons, were then taken to Lice Regional Boarding School, where they were blindfolded and detained together in the basement of the building. None of the detainees was subjected to ill-treatment. Two days later, the detainees heard a male voice telling Tahsin and Ali İhsan Çiçek they were free. The two brothers were then taken out of the room. A day after their release, the other detainees were released. On returning to the village, however, they found that Tahsin and Ali İhsan Çiçek had not come back.   2.  Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 8 November 1994. Having declared the application admissible on 26 February 1996, the Commission, with a view to establishing the facts in the light of the dispute over the circumstances surrounding the disappearance of the applicant’s two sons and her grandson, conducted its own investigation under former Article 28 § 1 (a) of the Convention. The Commission appointed three delegates to take evidence from witnesses at hearings conducted in Ankara in June 1997 and June 1998. The case was transmitted to the Court on 1 November 1999.   Judgment was given by a Chamber of seven judges, composed as follows:   Elisabeth Palm (Swedish), President, Wilhelmina Thomassen (Dutch), Luigi Ferrari Bravo[2] (Italian), Boštjan Zupančič (Slovenian), Tudor Panţîru (Moldovan), Rait Maruste (Estonian), judges, Feyyaz Gölcüklü (Turkish), ad hoc judge,   and also Michael O’Boyle, Section Registrar.   3.  Summary of the judgment[3]   Complaints   The applicant, relying on Articles 2, 3, 5, 13, 14 and 18 of the Convention, alleged that her two sons, Tahsin and Ali İhsan Çiçek and her grandson, Çayan Çiçek, had disappeared in circumstances for which the Turkey authorities were responsible.   Decision of the Court   Article 2   Concerning the applicant’s two sons In deciding whether Tahsin and Ali Çiçek should be presumed dead, the Court found that six-and-a-half years had elapsed since they were apprehended and detained. Furthermore, it had been established that the two brothers were taken to a place of detention by authorities for whom the State was responsible. Finally, the fact that the soldiers did not release Tahsin and Ali Ihsan Çiçek together with the other villagers within a few days, taken together with the other elements in the file, suggested that both were identified as persons under suspicion by the authorities. In the general context of the situation in South-East Turkey in 1994, it could by no means be excluded that the unacknowledged detention of such a person would be life-threatening.   Taking into account that no information had come to light concerning the whereabouts of the applicant’s sons for a period of six-and-a-half years, the Court was satisfied that Tahsin and Ali Ihsan Çiçek must be presumed dead following an unacknowledged detention by the security forces.   Finding: violation. Concerning the alleged inadequacy of the investigation, the Court reiterated the obligation on State authorities to conduct some form of effective official investigation when individuals had been killed as a result of the use of force. The Court observed that it was only one-and-a-half years after the detention of the applicants’ sons that enquiries were first made by the Lice gendarmes and the public prosecutor of Lice heard testimonies from the co-detainees of Tahsin and Ali İhsan three-and-a-half years after the incident. On the other hand, it was not in dispute that the applicant had apprised the Lice gendarme authorities and the public prosecutor’s office at the Diyarbakır State Security Court that her sons had not been released with other villagers arrested at the same time. Moreover, there is no evidence to suggest that the public prosecutors themselves made an attempt to verify the information contained in the custody ledgers or the places of detention; nor were the Lice gendarmes or other soldiers asked with any insistence to account for their actions on 10 May 1994. The Court therefore found that the investigation carried out into the disappearance of the applicant’s sons was inadequate and in breach of Turkey’s procedural obligations to protect the right to life.   Finding: violation.   Article 3   Concerning the applicant’s two sons The Court found that where an apparent forced disappearance was characterised by a total lack of information, whether the person was alive or dead or the treatment which he or she might have suffered could only be a matter of speculation. The applicant had not presented any specific evidence that her sons were indeed the victims of ill-treatment; nor was the allegation that her sons were the victims of an officially-tolerated practice of disappearances and associated ill-treatment of detainees substantiated.   The Court therefore considered that there was no evidential basis on which to reach a conclusion to the applicable standard of proof that Tahsin Çiçek and Ali İhsan Çiçek suffered ill-treatment contrary to Article 3.   Finding: no violation.   Concerning the applicant The Court recalled that the complainant was the mother of victims of grave human rights violations and herself the victim of the authorities’ complacency in the face of her distress. She and her daughter had made several applications to the public prosecutor and the gendarme commander following her sons’ disappearance. However, no serious consideration was given to her complaint.  The Court observed that the applicant had had no news of her sons for almost six years and had been living with the fear that they were dead. The uncertainty, doubt and apprehension she suffered over a prolonged and continuing period of time had undoubtedly caused her severe mental distress and anguish.   Finding: violation.   Article 5   Concerning the applicant’s two sons The Court stressed that the unacknowledged detention of an individual was a most grave violation of Article 5. Having assumed control over that individual, it was incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person had been taken into custody and had not been seen since.   Against that background, the Court recalled that the detention of Tahsin and Ali İhsan Çiçek at Lice Boarding School was not logged and that there was no official trace of their subsequent whereabouts or fate. This enabled those responsible for the act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability. In the view of the Court, the absence of holding data recording such matters as the date, time and location of detention, the name of the detainee as well as the reasons for the detention and the name of the person effecting it must be seen as incompatible with the very purpose of Article 5.   Moreover, it appeared from the statements of the gendarmes given before the Commission delegates that the gendarmes had set up a practice according to which there was a difference between detaining suspected persons and putting them into custody. The period between these two acts was called “period for observation” and which could be prolonged by up to 24 hours. Detained persons could be interrogated in this period. The detention during this period was not logged. The Court noted however that such an “unofficial” period of detention was not allowed by national law.   Furthermore, the Court considered that the public prosecutor should have been alert to the need to investigate more thoroughly the applicant’s complaint.   The Court concluded that the authorities had failed to offer any credible and substantiated explanation for the whereabouts and fate of the applicant’s two sons after they were detained and that no meaningful investigation was conducted into the applicant’s repeated assertion that they were in detention and that she was concerned for their life. It had, therefore, to be accepted that they have been held in unacknowledged detention in the complete absence of the safeguards contained in Article 5.   Finding: violation. Article 13   Concerning the applicant In the Court’s view, where the relatives of a person had an arguable claim that the latter had disappeared at the hands of the authorities, the notion of an effective remedy for the purposes of Article 13 entailed, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible. However, Ms Çiçek’s complaint was never the subject of any serious investigation. No written statement was taken from her by the public prosecutor and no enquiries were pursued with the soldiers who allegedly participated in the operation conducted in Dernek on 10 May 1994.   The public prosecutor had a duty under Turkish law to carry out an investigation of allegations of unlawful deprivation of liberty. The superficial approach which he took in response to the applicant’s insistence that her sons had not been seen since being taken into custody cannot be said to be compatible with that duty and was tantamount to undermining the effectiveness of any other remedies that may have existed.   In view of the lack of any meaningful investigation, the Court found that the applicant was denied an effective remedy in respect of her complaint that her sons had disappeared in circumstances engaging the responsibility of the authorities.   Finding: violation.   Article 14   The Court noted that the applicant had not substantiated her allegations that her sons were the deliberate targets of a forced disappearance on account of their ethnic origin or that she was denied effective access to judicial process on account of the failure of the Turkish authorities to make adequate provision for the use of the Kurdish language before gendarmes, prosecutors and other officials exercising judicial functions.   Finding: no violation.   Article 18   The Court found it unnecessary to examine this complaint separately since the applicant’s allegations had in essence been examined under Articles 2 and 3.   Concerning the applicant’s grandson   The Court found that there was no evidence to substantiate the allegations that the applicant’s grandson had been detained by the security forces.   Finding: no violation.           Article 41   Under Article 41 (just satisfaction), by six votes to one, the Court awarded the applicant’s sons’ heirs 10,000 pounds sterling (GBP) for pecuniary damage and GBP 40,000 for non-pecuniary damage, GBP 10,000 to the applicant for non-pecuniary damage and, unanimously, GBP 10,000 to the applicant for costs and expenses.   Judge Maruste expressed a concurring opinion and Judge Gölcüklü expressed a partly concurring and partly dissenting opinion, both of which are annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts: Roderick Liddell (telephone: (0)3 88 41 24 92)  Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court.  In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.   [2] Judge elected in respect of San Marino. [3].  This summary by the Registry does not bind the Court.