ITEMID: 001-59199
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF ERTAK v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of Art. 2;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm
TEXT: 8. The applicant, İsmail Ertak, a Turkish national born in 1930, lives in Şırnak, in south-eastern Turkey. He applied to the Commission on his own behalf and on behalf of his son Mehmet Ertak, who, he alleged, had disappeared in circumstances engaging the responsibility of the State.
9. The facts surrounding the disappearance of the applicant's son are disputed.
10. The version submitted by the applicant is set out in Section 1 below. In his memorial to the Court, Mr Ertak relied on the facts as established by the Commission in its report and on his previous submissions to the Commission.
11. The facts as presented by the Government are set out in Section 2.
12. A description of the material submitted to the Commission is given in Part B.
13. In the light of the dispute over the circumstances surrounding the disappearance of the applicant's son, the Commission conducted its own investigation with a view to establishing the facts, pursuant to former Article 28 § 1 (a) of the Convention. To that end, it examined a number of documents submitted by the applicant and the Government in support of their respective assertions and appointed three delegates to take evidence from witnesses at hearings held in Ankara on 5, 6 and 7 February 1997. The Commission's assessment of the evidence, and its subsequent findings, are summarised in Part C.
14. Following incidents in Şırnak (a town in south-eastern Turkey) between 18 and 20 August 1992, several people were taken into police custody at the Şırnak gendarmerie command and security police headquarters on 21 August. At the time of the events the applicant's son, Mehmet Ertak, was working at a coal mine.
15. At Bakımevi checkpoint, police officers in blue uniforms stopped the taxi in which Mehmet Ertak was travelling home from work together with three other people, namely Abdulmenaf Kabul, Süleyman Ertak and Yusuf Ertak. The police officers took their identity papers and one of them asked which one was Mehmet Ertak. Mehmet Ertak identified himself and the officers took him away.
16. On 24 August 1992 Abdullah Ertur, an acquaintance who had been taken into police custody on 21 August 1992 and released on 23 August 1992, told the applicant that he had shared a cell with Mehmet Ertak for a whole day and night.
17. Abdurrahim Demir, a lawyer taken into police custody on 22 August 1992 and released on 15 September 1992, told the applicant that he had spent five or six days in the same room as Mehmet Ertak. He also stated that Mehmet Ertak had been severely tortured; in particular, on the last occasion he had remained in the “torture room” for about fifteen hours and, on being brought back to his cell, had been unconscious, displaying no signs of life. A few minutes later he had been dragged out of the cell by the legs. Another person, Ahmet Kaplan, who had likewise been released on 15 September 1992, told the applicant that he had seen his son while in custody. Three further people detained at police headquarters at the same time as Mehmet Ertak informed the applicant, when he went to visit them at Şırnak Prison, that they had seen Mehmet Ertak during that time.
18. The applicant requested the Şırnak provincial governor to explain why his son had not been released and to inform him of his whereabouts. He was accompanied by local councillors Abdullah Sakın and Ömer Yardımcı, and by another of his sons, Hamit Ertak. The provincial governor, Mustafa Malay, interviewed an eyewitness, Abdullah Ertur, who confirmed that he had seen Mehmet Ertak at the police headquarters. The provincial governor conducted enquiries among members of the armed forces and the police. The police officers interviewed maintained that Mehmet Ertak had never been detained in police custody. In a letter of 4 November 1992 the provincial governor requested the national police headquarters to appoint an investigating officer to carry out enquiries into the applicant's allegations.
19. On 2 October 1992 the applicant lodged a complaint with the Şırnak public prosecutor, asking what had happened to his son. He explained that although several witnesses had said that they had seen his son during their time in detention, the provincial governor's office, the police and the armed forces had all maintained that Mehmet Ertak had never been taken into police custody.
20. On 8 April 1993 the investigating officer submitted his report to the Şırnak Administrative Council, proposing that no court proceedings be brought.
21. On 21 June 1993 the Şırnak public prosecutor ruled that he did not have jurisdiction and forwarded the case file to the Administrative Council of the province of Şırnak to enable it to carry out the investigation.
22. On 11 November 1993 the Şırnak Administrative Council issued an order signed by the deputy provincial governor and the directors or deputy directors of the province's various public services (the post of Director of Legal Affairs was vacant at the time). The order stated that no criminal proceedings should be brought against the officers from Şırnak police headquarters. The Administrative Council held that the alleged facts had not been established.
23. On 22 November 1993, in accordance with the legislative provisions in force, the case was referred to the Supreme Administrative Court. In a judgment of 22 December 1993 that court upheld the Administrative Council's decision that there was no case to answer, finding as follows:
“... Offences committed by civil servants acting in the performance of their duties or in their official capacity are subject to the procedures governing prosecutions of civil servants ..., an administrative investigating officer responsible for conducting the investigation is appointed by means of an order ...
... In order that an investigation may be conducted in respect of a civil servant, the civil servant concerned must first of all be accurately identified. Failing any accurate identification, no investigation can be carried out, no investigation report can be drawn up and no court with jurisdiction in the matter may give judgment.
The information in the investigation file has not made it possible to determine who committed the alleged offence; consequently, that investigation should not have been commenced. However, an investigation file was compiled by the appointed investigating officer and, on the basis of that file, the Administrative Council of the province decided that there was no case to answer, on the ground that the persons responsible were unknown and that it was impossible to investigate the case. The Supreme Administrative Court decides unanimously, for the aforementioned reasons, to uphold the decision of the Administrative Council and to close the investigation.”
24. According to the applicant, the authorities prosecuted Tahir Elçi, a lawyer, for the role he had played in the lodging of certain applications, including that of the applicant, with the Commission. The applicant maintained that on 23 November 1993 all the documents relating to the case had been seized by the security forces when Tahir Elçi was arrested.
25. It was true that following clashes in the town of Şırnak between 18 and 20 August 1992, an operation was carried out and nearly one hundred people were taken into police custody. However, Mehmet Ertak was not arrested by the security forces. As the national police headquarters stated in a letter of 21 December 1994, the custody register indicated that he had never been arrested or held in custody.
26. On 23 February 1995 the Government forwarded to the Commission a record of the documents seized from Tahir Elçi, together with the Diyarbakır National Security Court's decision of 10 January 1994, listing the documents that had been returned to him.
27. Those appearing before the Court submitted various documents concerning the investigation in respect of the applicant's criminal complaint.
28. The applicant alleged that, following the events in Şırnak, his son had been arrested during an identity check on 20 August 1992, while returning home from work with three members of his family. He gave the names of eyewitnesses who had stated that they had seen his son while he was in police custody, and requested information as to what had happened to his son.
29. In this order, the Şırnak public prosecutor's office ruled that it did not have jurisdiction to deal with the applicant's criminal complaint against the officers from Şırnak police headquarters. It pointed out that the actions of members of the security forces who were under the authority of the governor of the state of emergency region were governed by the rules on prosecution of civil servants, and referred the case to the Administrative Council of the province of Şırnak.
30. In a letter dated 4 November 1992 the Şırnak provincial governor, Mustafa Malay, referring to the petition which the applicant had lodged with the governor's office on 10 September 1992, requested the national police headquarters to appoint an investigating officer to carry out an inquiry into the applicant's allegations.
31. In a letter dated 3 December 1992 the national police headquarters' investigation department appointed Detective Sergeant Yahya Bal as the investigating officer. On 12 and 13 January 1993 Yahya Bal took witness evidence from Abdulmenaf Kabul, Süleyman Ertak, Yusuf Ertak and Abdullah Ertur. Süleyman Ertak's statement was obtained with the assistance of an interpreter. The witnesses' statements were taken down as follows:
(a) Abdulmenaf Kabul: “I lived in the same hamlet as Mehmet Ertak and knew him personally. However, his father's name is not Mehmet, as you said it was, but İsmail. When the incidents occurred, I was at home. I was not taken into custody [at the police headquarters] as was alleged, either that day or the following days. I heard about his disappearance when I gave evidence to the Şırnak public prosecutor, on which occasion I said the same things as I am now saying to you. My relatives and I worked as village guards in 1987. Mehmet Ertak's brother, Salih, is currently a PKK militant and has gone off to the mountains. As we support the government, those people attacked my house and my relatives' houses, and I and several members of my family were injured and my cousin Hasan Ertak was killed. Since then, we have been involved in a dispute with them. That's why they would have wanted to bring our name into this case to cause us harm. I do not have any information on Mehmet Ertak's alleged disappearance and, contrary to what has been said, I was not taken into police custody with him.”
(b) Süleyman Ertak: “I know Mehmet Ertak. We lived in the same hamlet and sometimes worked together at the coal mines. However, his father's name is not Mehmet, as you said it was, but İsmail. When the incident took place, my nephew Yusuf and I were working in the coal mines. We heard shooting from the direction of the town and went to the main road to go back there. We hailed a taxi coming from the direction of Cizre. Mehmet Ertak was in the taxi, and we got in and went towards the town. At the entrance to the town, the police were carrying out an identity check. They checked the identity papers of all three of us and handed them back. My nephew and I went home; as for Mehmet Ertak, he said he had some shopping to do and went off towards the grocery stores across the road. I have never seen him since. I don't know where he is. I was not taken into police custody on the date of the incident – 18 August 1992 – or after that date, either alone or with Mehmet Ertak, contrary to what his father alleged. I don't know why his father made that allegation.”
(c) Yusuf Ertak: “I know Mehmet Ertak. We lived in the same hamlet. Although we have the same surname, we are not related. However, his father's name is not Mehmet, as you said it was, but İsmail. I was not taken into police custody on 18 August 1992 at the national highways authority maintenance point [Bakımevi], as Mehmet Ertak's father alleged. At the time of the incidents, I was working at a coal mine 5 or 6 km away from the town. We heard shooting from the direction of the town and tried to go back there with the other workers, but the road was blocked by soldiers who were preventing anyone from entering or leaving. We were thus unable to get back to Şırnak; as a result, I was not taken into police custody. I don't know whether Mehmet Ertak was taken into custody by the police. I forgot to tell you that after the incidents – I can't remember the exact time – a taxi with Mehmet Ertak in it arrived from the direction of Cizre. I don't know who the taxi belonged to. The soldier who was at the scene made Süleyman Ertak and me get into the taxi and sent us off to Şırnak. At the entrance to the town there were police officers. They checked our identity papers and then Mehmet Ertak went off towards the grocery stores across the road. We went home. However, neither ourselves nor Mehmet Ertak were taken into police custody. I don't know why his father said that.”
(d) Abdullah Ertur (Ertuğrul): “On 18 August 1992, following the events in Şırnak during the day, I was arrested at home by police officers – or, I should say, by soldiers, who handed me over to the police. After an investigation was conducted by the security police, I was released the following day. When I returned home, Mehmet Ertak's father, whose son I knew personally because we worked together at the coal mine, came to see me. He asked whether I had been held in police custody and whether his son was also at the police headquarters. I replied that there had been forty or fifty of us but that I had not seen his son among the detainees. However, in his criminal complaint, he lied by saying the opposite. I don't know why he did that, but we don't talk to the Ertak family. Their son Salih Ertak, who is with the PKK, and his friends killed my uncle Hasan Ertak. He said that to cause a dispute between us and the security forces. I repeat that he is lying. I was not detained in the same cell as Mehmet Ertak and I don't know where he is now.”
32. The investigating officer stated that in the course of his inquiries he had visited the scene of the events and examined the custody registers, copies of which were appended to his report. He said that, although letters had been sent to the police headquarters requesting an interview with İsmail Ertak (who had apparently moved to Silopi), the authorities had been unable to find the latter's address. He noted that it was clear from the statements by Abdulmenaf Kabul, Süleyman Ertak and Yusuf Ertak that they had not been taken into police custody either before or after the incidents, a fact corroborated by an inspection of the custody registers. The investigating officer also referred to the letter sent by the Şırnak police confirming that Mehmet Ertak had not been taken into custody during or after the incidents in question, and noted that Abdullah Ertur, according to the statement he had made, had been arrested by the gendarmes after the incidents in Şırnak on 18 August 1992 and handed over to the police before being released the next day; his name appeared under number 602 in the custody register. He observed that Abdullah Ertur had maintained that he had not seen Mehmet Ertak at the police headquarters and had therefore not stayed in the same cell. The investigating officer reached the following conclusion:
“I propose that no court proceedings be brought, given that the allegations made by İsmail Ertak and a member of Parliament, Orhan Doğan, concerning Mehmet Ertak's detention in police custody and disappearance while being detained are wholly unfounded.”
33. On 5, 6 and 7 February 1997 three Commission delegates obtained the following statements in Ankara.
34. This witness – the applicant – is Mehmet Ertak's father. In August 1992 he heard shooting, which went on for three days. On the night of the incidents, his son Mehmet Ertak was working at the coal mine.
35. He repeated the facts as set out in his application.
36. The witness stated that he had gone to the gendarmerie command, where a major, after checking the list of those detained, had told him that his son had not been detained at the barracks. He had also attended a meeting at the barracks, on which occasion he had again demanded information as to what had happened to his son. Together with two local councillors (muhtars) – Abdullah Sakın (muhtar for the Yeşilyurt district) and Ömer Yardımcı (muhtar for the Gazipaşa district) – he had gone to the Şırnak provincial governor and introduced him to Abdullah Ertur, who told the governor that while in police custody he had spent one night in the same cell as Mehmet Ertak. The governor had handed a letter to the muhtars and had advised them to contact the police. The witness's son Hamit Ertak had gone to the police headquarters with Abdullah Sakın and Abdullah Ertur.
37. The witness maintained that he had lodged a complaint with the Şırnak public prosecutor's office, but could not remember whether the prosecuting authorities had questioned Abdullah Ertur and the other people referred to in his complaint. The public prosecutor had remarked that it was highly likely that the witness's son had gone away to the mountains. The witness had contested that allegation, explaining that Mehmet had four children and that his wife was still very young.
38. He stated that his son Mehmet Ertak had been questioned by police officers earlier that year. He did not know why his son had been summoned by the police. He added that one of his sons, Mehmet Salih Ertak, had been missing since 1989; he had heard that he had gone off to join the PKK (Workers' Party of Kurdistan), but he did not know whether he was alive or dead. Another of his sons, Mesut Ertak, had been convicted for his part in an explosion and sentenced to twelve years' imprisonment. The witness repeated that his son Mehmet Ertak, who had four young children, had been doing nothing but “work all hours of the day to feed them”. He stated: “That child [Mehmet] is innocent. His brother went away to the mountains nine years ago. Maybe that's what they hold against him.”
39. This witness was provincial governor of Şırnak in August 1992. He explained that on 18 August 1992 there had been clashes between the security forces and terrorists, who had launched an attack. Several people had been shot dead. The attacks had originated in the area where the coal mines were situated. Following the incidents, the security forces – police officers and gendarmes – had carried out searches and more than one hundred people had been arrested and brought before the courts. Some of them had been taken into custody at the police headquarters and others at the gendarmerie's detention centre. Two separate registers had been kept.
40. The witness stated that he had met a man in his office who said that he had spent a whole night in the same cell as Mehmet Ertak. He could not remember whether that witness's name was Abdullah Ertuğrul. He had advised İsmail Ertak to take the eyewitness to the public prosecutor. He had also interviewed other people who had said that they had seen Mehmet Ertak while in custody at the police headquarters. He said that İsmail Ertak had not given up and had come back to his office five or six times with the same allegations. The witness had written a confidential letter to the national police headquarters in Ankara and to the Ministry of the Interior, requesting the appointment of an investigating officer to carry out inquiries. He added that he had subsequently inspected the police headquarters' custody registers and found that Mehmet Ertak's name was not on the list of detainees. The gendarmerie had informed him orally that Mehmet Ertak had not been detained on their premises. An investigating officer had been appointed to conduct the investigation. The witness had been transferred to another post in February 1993 and had consequently received no further information on the progress of the investigation.
41. This witness had been working at the coal mines at the material time. Mehmet Ertak was his cousin. When the incidents occurred in Şırnak he had been at work in the mines. Mehmet Ertak, Abdulmenaf Kabul and Yusuf Ertak had also been at the mines, working in different areas. Because of the incidents they had been unable to return to Şırnak between 18 and 22 August. They had been warned by the gendarmerie office near the mine not to leave the site.
42. The witness stated that there had been clashes in the town but not in the area by the mines. After spending four days in the mines, he, Mehmet Ertak, Abdulmenaf Kabul and Yusuf Ertak had started out along the main road and, in order to go back to Şırnak, had taken a taxi which had arrived from Cizre. It had almost been night time. Near Şırnak, at the checkpoint inside the town, police officers in blue uniforms had stopped the taxi and asked for their identity cards. After examining their papers in a hut, the officers had returned and asked: “Which one of you is Mehmet?” Mehmet Ertak had replied: “I am.” The officers had taken him away with them and ordered the others to leave immediately. They had got into the taxi and returned home.
43. The witness said that İsmail Ertak had asked him where his son was, and that he had told him about the incident. He had not been interviewed on the matter by the authorities.
44. This witness is Mehmet Ertak's brother. At the material time he had been living in Diyarbakır. At the time of the incidents he had been in Şırnak visiting his family. On 22 August 1992 he had left the town, along with his family.
45. The witness described the incidents that had taken place in Şırnak. On the morning of 22 August he and his father had been told about his brother's arrest. Abdullah Ertuğrul had informed them that he had been detained in the same police cell as Mehmet Ertak. Several people had been detained in the same place and they had all been blindfolded. Abdullah Ertuğrul had lifted up his blindfold and had thus been able to see Mehmet Ertak and speak to him. Early the next day Abdullah Ertuğrul had been released. In the afternoon Abdulmenaf Kabul, Süleyman Ertak and Yusuf Ertak had told them that, while they had been on their way home from the mines, the police had carried out an identity check at the Bakımevi checkpoint in Şırnak and had taken Mehmet Ertak away.
46. The witness explained that he had met Abdurrahim Demir, a lawyer, and had asked him about the circumstances in which he had seen Mehmet Ertak. He had received the following reply: “When Mehmet Ertak was brought into the cell, there were about twelve of us there. From time to time some of the detainees would be taken away for questioning and would come back later; that happened repeatedly. Mehmet Ertak was also taken away and brought back several times. We were tortured.” The witness added in that connection that Abdurrahim Demir had maintained that he had spent seven or eight days in the same cell as Mehmet Ertak. On the last day, Mehmet Ertak had been thrown into the cell, having been given a beating. He had lain on the floor as though dead. Shortly afterwards, he had been taken away and Abdurrahim Demir had not seen him again. The witness stated that his father had obtained the same information from Abdurrahim Demir, who had told him: “Your son was practically dead the last time he was brought back. He was in such a bad state that he had no chance of surviving.”
47. The witness said that he had helped his father to draft the complaint which he had lodged with the public prosecutor, and had gone with him to the Diyarbakır Human Rights Association. He had also distributed petitions among parliamentary delegations visiting Şırnak.
48. This witness stated that he worked as a lawyer in Diyarbakır. On 18 August 1992 (the first day of the incidents in Şırnak) he had been arrested by the security forces. He had spent twenty-nine days in police custody. After being arrested, he had been taken to the gendarmerie station and had stayed there for two days. Approximately 1,200 people had been detained there. On 21 August informers and Special Branch officers had come to choose 128 people and had taken them to Şırnak police headquarters. The witness said that he had remained at the police headquarters until he was released on about 20 September.
49. On the witness's second or third day in custody at the police headquarters (24 or 25 August), Mehmet Ertak had been brought into the room in which the witness was being detained. As the witness had been subjected to torture, he could not remember exactly how many days he had spent with Mehmet Ertak – perhaps four, five or six. He stated that there had been more than twelve detainees in a single room. He could remember some of their names: Nezir Olcan, Kıyas Sakın, Şeyhmus Sakın, Celal Demir and İbrahim Satan.
50. The witness explained that during their time in custody at the police headquarters, the detainees had been systematically subjected to torture. For several days they were taken away to be tortured two or three times a day. They had been treated like “animals” and had often had to relieve themselves where they lay. He said that Mehmet Ertak had also been subjected to such treatment. He had been taken away once a day for about fifteen minutes. On one occasion the witness and Mehmet Ertak had been taken away together, with two or three others, to the “torture room”. The witness explained that he had been able to see through his blindfold how they were being tortured. They had been stripped and hung up; some of them had received electric shocks. They had been severely beaten and sprayed with cold water. On that particular day the witness had been hung up for about an hour; when he had left the room, Mehmet Ertak was still hanging there. He had been brought back to the cell about ten hours later. The witness stated: “When Mehmet Ertak was brought back to the cell he was unable to speak; he was dead – that is to say, he had become stiff. I am 99% certain that he was dead. Two or three minutes later they dragged him out by the legs. One of his shoes was left behind in the cell. We never saw him again.” He explained that Mehmet Ertak had been in the habit of putting this shoe under his head whenever he went to sleep on the concrete floor.
51. İsmail Ertak had visited the witness in prison but the witness had said that he would speak after he was released. When İsmail Ertak came to see him after he had returned home, the witness had informed him that his son had died while in police custody. İsmail Ertak had called him a liar.
52. The witness said that the Diyarbakır public prosecutor had taken a statement on the incident from him. In the statement he had set out the facts he had related to the Commission delegates; he had signed the record containing his statement. He had not been interviewed by any other authorities.
53. Throughout his time in detention he had stayed in the same cell – number 8 – and had been blindfolded. He stated that Mehmet Ertak had been tortured more than the others. He had not had the strength to speak and had not been able to converse with the witness except when the latter first arrived in the cell. He had told the witness that, after his arrest, he had been taken directly to the police headquarters. The witness explained that after they had been beaten, someone would apply ointment to the bruises on their faces. One of his teeth had been broken and his face was swollen. He had been in that state when interviewed by the public prosecutor. The public prosecutor had asked whether he had been tortured and he had replied in the affirmative. The public prosecutor had replied that that did not “correspond to the truth” and that he had caused the swelling himself.
54. The witness explained that, for fear of reprisals, he had not lodged a complaint against the police officers who had tortured him. He maintained that he had told the truth and had only mentioned the bare minimum of what he and his fellow detainees had endured. In his opinion, the incidents in Şırnak had been triggered by agents of the State as a means of oppressing the population, which had previously attended the funerals of two PKK militants and voted for a pro-Kurdish party, the HADEP.
55. This witness, a lawyer, represented the applicant at the time when he lodged his application with the Commission. He pointed out that he had not represented the applicant before the domestic authorities. He had merely given him advice and drafted letters.
56. The witness stated that, following his arrest in November 1993, the security forces had searched his office and seized all documents relating to his professional activities, including those on the case concerning the disappearance of Mehmet Ertak. He had been held in custody for twenty-one days at the intelligence branch (JİTEM) of Diyarbakır gendarmerie command.
57. The witness said that he had not obtained statements from the eyewitnesses mentioned in İsmail Ertak's complaint. Some were in prison and did not feel safe, while he was afraid to go to the prison himself to take statements from them. He had subsequently met Abdurrahim Demir, who had stated that he had seen Mehmet Ertak during his time in police custody. The witness said that İsmail Ertak had given a very brief outline of his conversation with Abdurrahim Demir. İsmail Ertak had refused to admit that his son might be dead, even though he had known deep down that he was. The witness stated in that connection that if a person had been detained for a week and no request for an extension of the period of custody had been submitted to the public prosecutor, it could be concluded with some certainty that the detainee's life was in danger or that he was dead.
58. Tahir Elçi believed that Mehmet Ertak had died while in police custody. He himself had witnessed a number of similar cases.
59. This witness was a superintendent at Şırnak police headquarters. On the night of 18 August, he had been at the police station. Suddenly, he and his colleagues had heard shooting from the direction of the town centre. They had been informed via the radio that terrorists had attacked Şırnak. They had taken precautions to protect themselves. The witness explained that he had not been a member of the team that had carried out arrests. His job had been to protect public buildings. For four or five days while the incidents were taking place, he had not left the police station.
60. The witness examined the record drawn up on 23 August 1992, which stated that, following the clashes between 18 and 21 August, houses in the town centre had been searched and no spent cartridges had been found. He acknowledged that the document bore his signature. Contrary to what he had previously maintained, he admitted that he had been part of the team that had searched the houses.
61. At the material time this witness was governor of Elazığ Prison. He said that registers were kept of detainees and visitors. The names Şeyhmus Sakın, Kıyas Sakın and Emin Kabul sounded familiar but he was unable to give a more precise answer.
62. The witness described the manner in which the registers were kept. They contained all the information on such aspects as the reason for the detention and the person or authority who had sent the detainee or convict to the prison. He pointed out that the registers did not include any information on detention in police custody.
63. The witness stated that, following the incidents in Şırnak between 18 and 20 August, several detainees had been taken to Elazığ Prison.
64. At the material time this witness was head of the interrogation and intelligence squad at the anti-terrorist branch of the Şırnak police. He described his duties as being part of the team that arrested and interrogated persons suspected of terrorist activities.
65. The witness stated that the “August incidents” had begun on the night of 15 August. Shots had been fired from all directions by heavy weapons. Two police officers, one of whom had been a member of the “rapid intervention force” (çevik kuvvet), and two or three members of the district gendarmerie had been killed.
66. When asked for an explanation of the fact that, according to the registers, eighty people had been taken into custody at the police headquarters' detention centre in late August, the witness explained that the August incidents had constituted extraordinary circumstances. He maintained that the detainees had been held in custody for forty-eight hours.
67. The witness could not remember whether all those who had been arrested had been taken to the gendarmerie station or straight to the police headquarters. According to instructions, they should have been taken into custody at the gendarmerie station, but where two or three people were involved, they had been detained at the police headquarters. Doctors, nurses and a number of families had been accommodated in the basement of the police headquarters for their protection. He acknowledged that on 21 August, 57 people involved in the incidents had been taken away from the gendarmerie station. He was unable to say precisely where another group of 22 people taken away the following day and a group of 12 taken away on 24 August had come from. The situation at the time had been chaotic.
68. Despite what he had previously said, he admitted that in cases where twenty-three people had been held in custody for over twenty days pending questioning, they had been detained in the large room. Such a situation had arisen twice in the course of his duties: that August and on 21 March. He said that the cells, the large room, the interrogation room, the boiler room, the toilets and a small room with tea-making facilities had all been located in the basement.
69. The witness admitted that he had taken part in the interrogations in connection with the investigation into the incidents of 18 August. His squad had not kept records of when, or by whom, particular detainees had been questioned. The squad's internal records included memoranda signed by the officer who had drafted them; the memoranda had not been included in the official registers.
70. The squad's investigation had proceeded as follows: he and his colleagues had inspected the registers, and had not found Mehmet Ertak's name; they had checked his criminal record; they had then conducted inquiries as to which team had arrested him and the manner in which he had been arrested. However, their inquiries had been inconclusive.
71. The witness said that he had not been at the police headquarters continuously. During his absence, the duty officer had looked after the registers. He considered it inconceivable that the name of a person taken into custody should not have been entered in the register; the police officers concerned followed fairly rigorous written and oral instructions to that effect. The witness stated that a custody report was sent daily to the head of the branch. He was unable to give a clear reply as to why the name of Emin Kabul, who had been transferred to Elazığ Prison, had not been listed in the custody register. However, the name seemed familiar to him.
72. The witness said that he was unable to give a logical explanation as to the fact that six people had maintained that they had seen Mehmet Ertak in police custody, even though his name had not appeared in any register.
73. The witness acknowledged that the checkpoint on the road from the mines was at the entrance to the town. Checks were carried out there by members of the “rapid intervention force” and the intelligence and anti-smuggling squads. When they made an arrest, they would take the suspects to the relevant branch of the police. The witness said that the officers in question also kept custody registers but that no cells were set aside for people detained in custody at their branch. With regard to the colour of their uniforms, he said that at the material time they had been green, but that they had subsequently been replaced by blue uniforms; however, he was unable to give the precise date on which that change had taken place. He maintained that officers from the “rapid intervention force” used to take suspected terrorists to the police headquarters.
74. The witness was deputy governor of the province of Şırnak at the material time. On behalf of the governor, he had chaired the Şırnak Administrative Council, which on 11 November 1993 had issued a decision not to prosecute the security police officers.
75
76. The witness was a detective sergeant in the police's investigation department, and was the investigating officer in the instant case. He acknowledged that the governor's letter of 4 November 1992 setting out the allegations made by İsmail Ertak and a member of Parliament had been the main document relied on in the investigation. While conducting the investigation, he had had no knowledge of the complaint lodged by İsmail Ertak with the public prosecutor's office on 2 October 1992, which mentioned the names of the people who had said that they had seen Mehmet Ertak while in police custody. The witness said that he had not been informed that one of the witnesses, Abdullah Ertur, had previously told the Şırnak provincial governor that he had seen Mehmet Ertak while he had been detained in custody at the police headquarters. He acknowledged that if he had been given that information, he would have held a further hearing in order to clarify the facts, in view of the discrepancies between the various statements.
77. The witness stated that, in letters sent to the Şırnak police on 13 and 18 January and 3 March 1993, he had requested a warrant to interview İsmail Ertak. According to a report drawn up by the Şırnak police and signed by four officers, including Serdar Çevirme and the local councillor Ömer Yardımcı, İsmail Ertak had moved to Silopi and the authorities had been unable to find his address. The investigating officer had not asked the other witnesses with the same surname whether they knew where İsmail Ertak now lived. The witness emphasised that he might have been assisted in his inquiries if he had been able to interview the complainant at the start of the investigation.
78. The witness said that he had visited the scene of the incidents and had interviewed the witnesses in a room at Şırnak police headquarters. The local police had collected the witnesses from their homes and taken them to him; they had given evidence on oath. He explained that he had not contacted the public prosecutor during the investigation, which he had carried out solely on the basis of the file which had been forwarded to him.
79. The following witnesses were also summoned by the Commission but did not appear: Ahmet Berke, the Şırnak public prosecutor, who issued the order of 21 July 1993 ruling that he did not have jurisdiction ratione materiae; and Şeyhmus Sakın, Kıyas Sakın and Emin Kabul, who lived in the same district as the applicant and had told him that they had seen Mehmet Ertak while they were in police custody.
80. The Commission approached its task in the absence of any findings of fact made by domestic courts and of any thorough judicial examination or other independent investigation of the events in question. In so proceeding, it assessed the written and oral evidence before it, having regard, inter alia, to the conduct of the witnesses who were heard by the delegates at the hearing in Ankara and to the need to take into account when reaching its conclusions the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Its findings may be summarised as follows.
81. The Commission found that it was not disputed that clashes had taken place in Şırnak between 18 and 20 August 1992. It noted in that connection that Serdar Çevirme, head of the police anti-terrorist branch's interrogation and intelligence squad, had stated that the incidents had begun on 15 August. The evidence adduced from the documents and oral testimony was mostly consistent as regards the operations conducted in response to the incidents that had occurred during that period. After the incidents, the security forces – comprising police officers and gendarmes – carried out a search in the town, arresting more than one hundred people, including Abdullah Ertur, Abdurrahim Demir, Ahmet Kaplan, Kıyas Sakın, Şeyhmus Sakın, Nezir Olcan, Celal Demir, İbrahim Satan and Emin Kabul. Some of those arrested were taken to the gendarmerie station, while others were detained at the police headquarters. Identity checks were carried out at the entrance to the town, and persons suspected of terrorist acts were taken directly to the police headquarters by the “rapid intervention force”.
82. As regards Mehmet Ertak's arrest, the Commission found that the oral evidence given to the delegates by Süleyman Ertak was consistent with the applicant's allegations. It noted in that connection that Süleyman Ertak had confirmed that at the checkpoint police officers in blue uniforms had stopped the taxi in which he and the others had been sitting and, after checking their identity papers, had taken Mehmet Ertak away with them. Having examined the investigation file and the oral testimony given by the investigating officer Yahya Bal to its delegates, the Commission found that Süleyman Ertak, in his statement of 13 January 1993 to the investigating officer, had said that the police officers had returned the men's identity papers after checking them and that Mehmet Ertak had gone off to the shops. Yusuf Ertak made a statement to the same effect on 12 January 1993.
83. The Commission noted that it was clear from the documents in the file prepared by the investigating officer that Süleyman Ertak, Abdülmenaf Kabul, Yusuf Ertak and Abdullah Ertur had been summoned by the police to Şırnak police headquarters and had made statements to the investigating officer in the presence of a police officer, who had taken down the statements in writing. In that connection, the Commission was struck by the fact that the statements by Süleyman Ertak and Yusuf Ertak were drafted in a stereotypical form and were generally very similar in content. It noted that the police officers interviewed by the delegates had stated that checks had been carried out by the security forces at the checkpoint, as Süleyman Ertak had related. With regard to the colour of the police officers' uniform, Serdar Çevirme had stated that officers from the “rapid intervention force” had been posted at the checkpoint, and had emphasised that at the material time they had worn green uniforms. Without mentioning an exact date, he had added that those officers now wore blue uniforms.
84. The Commission noted that the police officers who gave evidence to the delegates had acknowledged that, following incidents in which two police officers and two soldiers had been killed, several teams of security forces personnel had made arrests in the town. More than a hundred people had been taken into police custody, and the atmosphere had been chaotic. Serdar Çevirme had stated that officers from the “rapid intervention force” carried out checks at the entrance to the town and did not take suspects directly to the police headquarters. He had added that separate registers were kept at the police headquarters. However, the Commission observed that later in his statement Serdar Çevirme had admitted that people arrested during identity checks by the officers in question had been taken directly to the police headquarters.
85. As for the way the custody registers were kept, they did not include Emin Kabul's name and Serdar Çevirme was unable to offer any explanation as to why not. The Commission observed that that witness's statements on the matter had lacked precision and clarity. It also noted that the Government had not produced copies of the registers kept by the squad and the regional gendarmerie, despite being expressly requested to do so.
86. Abdurrahim Demir had said that on 24 or 25 August Mehmet Ertak had been taken into the same detention room in which he himself was being held and that he had spent five or six days in his company. Abdurrahim Demir had given a detailed description of the circumstances in which they had been held at the police headquarters and the conversation he had had with Mehmet Ertak. The details given by Abdurrahim Demir – particularly the fact that the detainees had been blindfolded during their time in custody, and his account of the detention room and its location – were consistent with the version of the facts given by Serdar Çevirme. Abdurrahim Demir's statement corroborated the evidence given to the delegates by the applicant and his son Ahmet Ertak. The Commission also noted that Abdurrahim Demir had emphasised that he had given evidence to the public prosecutor, to whom he had set out the same version of the facts as given to the delegates, and that he had signed his statement. It regretted that the statement had not been among the documents in the file prepared by the investigating officer.
87. The Şırnak provincial governor at the material time, Mustafa Malay, had acknowledged in his oral statement that the applicant had come to see him several times with allegations that his son Mehmet Ertak had disappeared after being taken into police custody, and that he had heard an eyewitness confirm that he had seen Mehmet Ertak at the police headquarters. The Commission noted that Abdullah Ertur's statement, obtained by the investigating officer, contradicted the applicant's version of events and the evidence he had given to the provincial governor. Pointing out that the governor, believing the eyewitness's evidence to be sufficiently credible, had requested inquiries to be carried out into the matter, it favoured the version given to the delegates by the applicant and Mustafa Malay with regard to Abdullah Ertur's allegations. It concluded that the fact that Mehmet Ertak's name did not appear in the police headquarters' custody register did not in itself prove that he had not been taken into police custody, and accepted the evidence given by Süleyman Ertak, the applicant, Ahmet Ertak, Abdurrahim Demir and Mustafa Malay, which the delegates had found to be credible and convincing.
88. The Commission noted that a lawyer, Abdurrahim Demir, named as an eyewitness in the complaint lodged by the applicant with the Şırnak public prosecutor's office on 2 October 1992, had stated in his oral testimony to the delegates that on 24 or 25 August 1992 Mehmet Ertak had been brought into the room in which he himself was being held. Abdurrahim Demir had mentioned the names of several other people detained in the room. The names were listed in the custody registers kept by the anti-terrorist branch of the security police. Abdurrahim Demir had given a detailed description of the circumstances in which he and others had been arrested, and of the conditions during their time in custody. He had pointed out that, further to the criminal complaint lodged by İsmail Ertak, he himself had been interviewed by the Diyarbakır public prosecutor and, in his statement, had mentioned the names of some of those detained at the same location. With regard to the conditions in which they had been detained, he had given a detailed description of the treatment which they had allegedly suffered while being interrogated: they had been stripped, hung up, severely beaten and sprayed with cold water. He had stated that, on one occasion, he and two or three other detainees had been taken to the “torture room” together. One of them had been Mehmet Ertak, who, like him, had been stripped and hung up. As far as Abdurrahim Demir could tell, his own ill-treatment had lasted for an hour, while Mehmet Ertak had not been brought back until ten hours later. Abdurrahim Demir had made the following statement: “When Mehmet Ertak was brought back to the cell he was unable to speak; he was dead – that is to say, he had become stiff. I am 99% certain that he was dead. Two or three minutes later they dragged him out by the legs. One of his shoes was left behind in the cell. We never saw him again.”
89. The Commission regretted that the Government had not produced the file of the investigation opened by the Şırnak public prosecutor's office further to the applicant's criminal complaint of 2 November 1992 and that the public prosecutor Ahmet Berke had not appeared before the delegates. It was clear from the material in the file prepared by the investigating officer Yahya Bal that the latter had not interviewed Abdurrahim Demir as an eyewitness.
90. The Commission observed that all Abdurrahim Demir's descriptions of where the detainees were held and interrogated corroborated the version given by Serdar Çevirme, who had also admitted that there had been a chaotic atmosphere around the time of the incidents of 15 to 18 August and that hundreds of people had been taken into police custody. The Commission further noted that when interviewed by the delegates the Şırnak provincial governor had acknowledged that he had met in his office persons who had alleged that they had seen Mehmet Ertak while in police custody. In particular, he admitted that he had interviewed an eyewitness.
91. The Commission noted that Abdurrahim Demir had given precise, detailed replies to all the questions put by the delegates and the representatives of the parties, particularly with regard to the ill-treatment suffered during the interrogation sessions, and that he had stated categorically on several occasions that Mehmet Ertak had been dead when he was “thrown” into the cell. It accordingly found his statement that he had seen Mehmet Ertak “dead” at the police headquarters to be plausible.
92. The Commission noted that the applicant had made representations and put questions to the Şırnak public prosecutor and provincial governor in connection with Mehmet Ertak's disappearance. Regarding the independence of the bodies which, following the Şırnak provincial governor's written request of 4 November 1992 to the national police headquarters, carried out the preliminary inquiries culminating in a decision not to prosecute, the Commission observed that they had comprised an investigating officer and members of the Şırnak Administrative Council. The investigating officer had been a detective sergeant belonging to the same administrative hierarchy as the members of the security forces in respect of whom he was carrying out his investigation. The Administrative Council, which, on a proposal from the investigating officer, had decided to discontinue the proceedings, had been chaired by the deputy provincial governor and made up of senior provincial officials – that is to say, the directors or deputy directors of the central authorities' various departments. The senior officials had been under the authority of the provincial governor, who had at the same time been liable, from a legal standpoint, for the acts committed by the security forces personnel implicated in the case. The detective sergeant appointed as investigating officer and the members of the Administrative Council had therefore not provided the outward signs of independence, the guarantees of irremoveability and the legal safeguards that might have protected them against pressure from their superiors.
93. The Commission observed that the investigating officer had questioned four witnesses in a room at Şırnak police headquarters. It noted in that connection that the local police had collected the witnesses from their homes and taken them to the police headquarters. In the statements thus obtained, the witnesses had completely denied the applicant's allegations. The Commission also found that the statements were drafted in a stereotypical form and were generally very similar in content. It noted that the investigating officer had not interviewed the applicant and observed in that connection that the police had drawn up a memorandum stating that İsmail Ertak had left his home and had probably gone to Silopi. It was clear from the facts that the eyewitnesses who might have been able to provide relevant information for the investigation had been referred to in the complaint which the applicant had lodged with the public prosecutor's office on 2 November 1992. However, the administrative bodies responsible for the investigation had not made any request to interview those witnesses, even though the testimony of one of them – Abdullah Ertur – had been in complete contradiction to the statements he had made to the provincial governor, Mustafa Malay.
94. The Government have not submitted in their memorial any details on domestic legal provisions which have a bearing on the circumstances of this case. The Court accordingly refers to the overview of domestic law set out in other judgments, in particular the Kurt v. Turkey judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1169-70, §§ 56-62; the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 151213, §§ 25-29; and Çakıcı v. Turkey [GC], no. 23657/94, §§ 56-67, ECHR 1999-IV.
95. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK. This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.
96. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-eastern Turkey. Under Article 4 (b) and (d) of the decree, all security forces and the Gendarmerie Public Peace Command are at the disposal of the regional governor.
97. The second, Decree no. 430 (16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:
“No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.”
98. Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows:
“All acts or decisions of the administration are subject to judicial review ...
...
The administration shall be liable to make reparation for any damage caused by its own acts and measures.”
99. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus, the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
100. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.
101. The Turkish Criminal Code makes it a criminal offence
(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);
(b) to issue threats (Article 191);
(c) to subject an individual to torture or ill-treatment (Articles 243 and 245); and
(d) to commit unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450).
102. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not to bring a prosecution (Article 153). Complaints may be made in writing or orally. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
103. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Code of Obligations, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated for by the civil courts pursuant to Article 46 of the Code of Obligations and awards may be made for non-pecuniary or moral damage under Article 47.
104. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey.
105. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the regional governor shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 on the prosecution of civil servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. These councils are made up of civil servants, chaired by the governor. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
106. In his written submissions to the Court, the applicant drew attention to international material on the issue of forced disappearances, such as
(a) the United Nations Declaration on the Protection of All Persons from Enforced Disappearance (GA res. 47/133, 18 December 1992);
(b) the case-law of the United Nations Human Rights Committee (HRC); and
(c) the case-law of the Inter-American Court of Human Rights, in particular the Velásquez Rodríguez v. Honduras judgment of 29 July 1988 (Inter-Am. Ct. HR (Ser. C) no. 4 (1988)); the Godínez Cruz v. Honduras judgment of 20 January 1989 (Inter-Am. Ct. HR (Ser. C) no. 5 (1989)); and the Cabellero-Delgado and Santana v. Colombia judgment of 8 December 1995 (Inter-Am. Ct. HR).
VIOLATED_ARTICLES: 2


ITEMID: 001-92137
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF A. v. NORWAY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1957 and lives in Kristiansand.
6. On 19 May 2000, two girls of eight and ten years of age were raped and stabbed to death in Baneheia, a recreation area in the city of Kristiansand. Two young men were later convicted of the crimes and sentenced to 21 and 19 years of imprisonment respectively for rape and murder committed in particularly aggravating circumstances. The case received intense and extensive coverage in the national media.
7. In 1988 the applicant had been convicted of murder, attempted murder and eight instances of assault, all committed by the use of knife in June 1987 in Kristiansand. He had been sentenced to 11 years’ imprisonment and to five years’ security measures (sikring) (which under the relevant law at the time, could be imposed where it was established that the person concerned was not mentally ill (and thus criminally liable) but had an underdeveloped and permanently impaired mental capacity and that, because of this condition, there was a clear risk of his or her committing further criminal offences). Shortly before the expiry of the security measures on 20 September 1999, the public prosecutor had requested a prolongation, which a first instance court had granted in March 2000 for a period of three years (but which an appellate court refused in January 2001). In May 1999 the applicant had been released from security detention (lukket sikring) and had been placed under supervision at liberty (fri sikring). Thereafter he had lived in Kristiansand, partly in a camping cabin and partly in his family’s cabin by the river and had been working at a protected workplace for persons on rehabilitation scheme. He was a substance abuser and was connected to a group which used to gather at the so-called “Acid Knoll”, a place in the recreation area where the murders had taken place.
8. During the early stages of the murder investigation, the applicant and a number of other previously convicted persons were interrogated as witnesses. The police’s interest in the applicant attracted considerable media attention.
9. Two days after the murder, the police collected the applicant from his workplace and brought him to the police station. The police interrogated him for 10 hours until 00.30 am on 24 May 2000, and then brought him to his home. The interrogation became known to the press and was presented in the national media on 23 and 24 May 2000 together with information about his criminal trial in 1988 and the imposition of security measures in his case. In their issues published on those dates, three national newspapers, Aftenposten, Dagbladet and Verdens Gang, reported on the applicant but without stating his identity.
10. Also a national television channel, the TV2, gave extensive reports. In a news broadcast on 23 May 2000, at 9 pm (while the applicant was being interrogated), it stated:
“Possibly the most special candidate of these persons (former convicted, Court’s addition) is precisely this 42-year-old because of his past and because he has been seen in the area where the murder occurred, at the time when it occurred, but so far there are no suspects, and it is precisely that which now is a little exciting in this case. Habitually, this type of investigation takes a long time, but when one carries out this type of alibi checkups, the case may soon take a new and special turn.”
11. In a news broadcast on 24 May 2000, 6.30 pm, TV2 reported that members of the press had followed a 42 year old murderer from Kristiansand in his footsteps. Then ensued an interview with the applicant, during which he was filmed from behind and partly from the side, on his way to the so-called “Acid Knoll” in the Baneheia area.
12. On 25 May 2000 Dagbladet published information about the applicant’s place of residence, in a report which also contained an interview with him.
13. On 24 May 2000, the newspaper Fædrelandsvennen, which is mainly a subscription newspaper (45,000 subscribers) and the principal district newspaper on the southern coast of Norway, published a report on the Baneheia case. The front page carried the following headline and introduction:
“Convicted Murderer: I am completely innocent
AT WORK: At 7.10 this morning, a 42-year-old convicted murderer from Kristiansand toddled off to the bus to return to work. Last night, he had been driven home by the police, after having been interrogated for approximately 10 hours concerning his movements on Friday, the day when C and D were killed.
ALIBI: - I am completely innocent, said the 42-year-old to Fædrelandsvennen in the early hours of today. The man says he has an alibi for Friday night. The 42-year-old, who was seen by several witnesses in Baneheia on Friday, is probably the most interesting of several criminally convicted persons whose movements are now being checked by the police.
SENTENCE TO SECURITY MEASURES: In 1988, the 42-year-old was sentenced to 11 years imprisonment and five years security measures [sikring] for one murder by knife, one attempted murder and several other acts of violence, with knife. The term of security measures [sikringstid] imposed on him expired on 20 September last year, but as late as in March this year, he was sentenced to another three years of security measures. The judgment has been appealed against.”
Inside the newspaper at page 4 appeared an article entitled
“Murder convict returns to work today”
With the subtitle:
“I am completely innocent”
14. The article contained a brief interview with the applicant, in which he stated that he had nothing to do with the matter and that he had witnesses. Next to the article appeared a large photograph showing the applicant from the side while entering a bus, not showing his head and the upper part of his bust inside the bus. A caption stated that the 42 year old was on his way to work at 7 am and: “‘I am completely innocent`”, says the previously murder convicted man who yesterday was interrogated for 10 hours.”
15. Underneath on the same page, the paper reproduced another article entitled:
“Sent home after 10 hours’ interrogation”
The introduction stated:
“At 2 pm yesterday a 42 year old murder convict was fetched by the police at his workplace. 11 hours later he was brought to his home”
16. The article was accompanied by a large photograph of “the 42-year-old”, with his head blurred, accompanied by two police officers.
17. The article stated that the police had collected him at his workplace in the afternoon of 23 May 2000 for a 10 hour long interrogation. It described inter alia the background for the police’s interest in the applicant, reiterating that he had purportedly been seen by several witnesses in Baneheia on Friday night when the two girls had disappeared. Furthermore, reference was made to the factual background of his conviction in 1988. The following sub-titles were used: “Seen by the police”, “Released for one year”, “Berserk with a knife”, and “Victims at random”.
18. The article further quoted statements by a Chief Constable, Mr A. Pedersen, underlining that there “were still no suspects in the case” and that all of the people summoned for questioning had “formal status as witnesses in the case.” This point was further elaborated on in an interview with the Chief Constable on the same page, entitled “No one imprisoned today.”
19. In yet another article appearing under the heading “Have got the murderer in the papers”, the Chief Constable was quoted to have said to Verdens Gang that “the police have received so much information of substance that they have the answer in their documents to the question who had murdered the two young girls.”
20. The Baneheia case was also the main item on the front page of Fædrelandsvennen on 25 May 2000, with the heading “DNA traces found at murder place”. The article reiterated that according to the preliminary autopsy report, both of the girls had been sexually abused, that they had been murdered with a pointed and sharp penetrating arm, most probably with a knife. Page 6 of the paper contained an interview with some neighbours of the 42 year old, entitled “Neighbours fear prejudgment”, published together with a photograph of a residential development site. The article named a specific residential development area, Q, and its precise location, Z, stating that it was the “nearest neighbour to the 42-year-old convicted of murder.”
21. In a further article on the same page, under the heading “They want to know where I am”, the paper mentioned the name of the street where the applicant lived (Y), that of his neighbourhood (Z), and that of the company where he worked. The article rendered a statement by the applicant maintaining his innocence and informing that the police had wanted to know his whereabouts but had let him in peace. Next to the article appeared a photograph of the applicant seen from behind, at a relatively long distance, on his way down towards the Z-river, with the caption: “The 42 year old murder convict on his way home yesterday”.
22. On the same page appeared an article headed “Searching for a locally known murderer”, which quoted Chief Constable Pedersen as stating inter alia that the main emphasis of their investigation had been based on the belief that the murderer(s) had been locally known but that a wider Nordic focus had also been discussed. He had added that it was dangerous to concentrate the investigation on a specific milieu.
23. At the material time, Fædrelandsvennen was published in the afternoon, whereas Dagbladet, Verdens Gang and Aftenposten were published in the morning.
24. In October 2000, after the arrest of the actual perpetrators in the Baneheia case, the applicant, represented by a lawyer, demanded that Fædrelandsvennen apologise for its coverage and compensate him for pecuniary and non-pecuniary damage he had sustained. As the newspaper refused, in December 2000 the applicant’s lawyer brought on his behalf defamation proceedings before the Kristiansand City Court (tingrett) against Fædrelandsvennen, its editor-in-chief, Mr F. Holmer-Hoven and journalist B. The applicant claimed compensation for pecuniary and non-pecuniary damage.
25. By a judgment of 16 April 2003 the City Court rejected the applicant’s action.
26. The applicant then appealed to Agder High Court (lagmannsrett). He waived his claim for pecuniary damage, which matter was formally discontinued (hevet), but maintained his claim for non-pecuniary damage.
27. By a judgment of 23 December 2004, the High Court, sitting with three judges, found that an ordinary reader could perceive the impugned press reports published by the Fædrelandsvennen on 24 and 25 May 2005 as pointing to the applicant as a possible perpetrator of the murders of the two girls in Baneheia. The High Court observed that, although the paper had not mentioned the applicant by name, it ought to have been possible for those who knew him in advance to recognise him, in particular from the photograph taken of him from behind and from the information about his residence- and work places contained in the 25 May 2000 issue. It was hard to derive anything specific about the strength of the suspicion. Although it was true that formally speaking the applicant had only been given witness status, seen as a whole the report was capable of giving the ordinary reader the impression that the paper regarded the applicant as a person who already at an early stage of the investigation had stood out as the most probable perpetrator among those who had been in the police’s search light. The High Court moreover noted a number of other aspects of the publications confirming this impression. It concluded that the impugned publications were defamatory in the sense of Article 247 of the Penal Code.
28. As to the question whether the publications were unlawful (rettstridig), the High Court was of the view that it generally should fall within the State’s margin of appreciation to strike a fair balance between the interests in protection of freedom of speech under Article 10 of the Convention and the interests in protection of reputation under Article 8, bearing in mind also the presumption of innocence under Article 6 § 2. On the particular facts of this case, the High Court considered that there was undoubtedly a great public interest in the investigation of the murders and in the pursuit of the culpable persons. However, with two votes to one, the High Court found that, on balance, the interests in allowing the publications weighed more heavily than those against and that the impugned news coverage had therefore not been unlawful.
29. The dissenting member found that the “identification” of the applicant and its extensive press coverage by Fædrelandsvennen had been unlawful and that he should be awarded compensation under section 3-6 of the Damage Compensation Act 1969, namely NOK 150,000 by the newspaper and NOK 25,000 each from the editor-in-chief and from the journalist.
The applicant appealed against the High Court’s application of the law to the Supreme Court, alleging that it entailed a violation of Articles 6 § 2 and 8 of the Convention. He maintained that in its coverage on 24 and 25 May 2000 the Fædrelandsvennen had portrayed him as the perpetrator of the most aggravated offences seen in modern times in Norway. He had not consented to the media coverage which had been a great burden to him. He had lost his job and home and suffered from serious psychological problems.
30. By a judgment of 14 December 2004 the Supreme Court, by three votes to two, found in favour of the respondents and rejected the applicant’s claim.
31. Mr Justice Stang Lund, whose reasoning was endorsed in the main by the other judges in the majority, inter alia concurred with the High Court’s finding that, the Fædrelandsvennen’s focus on the applicant as a previously convicted knife killer, his presence in Baneheia on the day when the criminal acts had been committed and the investigation of the applicant, for an ordinary reader must have been perceived as if he could be suspected of having committed the murders. It had already been publicly known that the perpetrators of the murders had used pointed penetrating weapons against the girls. This information together with the rendering of parts of the judgment by which the applicant had been convicted in 1988 and the security measures case, were likely to harm his good name and reputation and to expose him to hatred and contempt, thus fulfilling the objective constitutive elements in Article 247 of the Penal Code. On these points Mr Justice Stang Lund stated:
“(56) Taking as a starting point the wording, typography, the internal context and the use of photographs it must be ascertained how the report and articles were likely to be understood by the ordinary reader.... The statements must be considered in the context of the whole report they are part of.
(57) The High Court unanimously found that the factual information had to be considered in the context of the other content of the reports and the articles published on 24 and 25 May 2000, and concluded:
‘In the High Court’s opinion the conclusion of the interpretation is that Fædrelandsvennen pointed to [the applicant] as a possible perpetrator of the murders of the two girls in Baneheia. His name is not stated, but it was possible for those who previously knew [the applicant] to recognize him in particular because of the photograph taken of him from behind and because of the information about where he lives and the work place in the report dated 25 May. It is difficult to evaluate how strong the suspicion created was. Even though it is correctly underlined that the police had given [the applicant] only a witness status without formally charging or suspecting him, in the High Court’s view the report as a whole was capable of giving the ordinary viewer the impression that the newspaper considered [the applicant] to be a man who already at this early stage in the investigation stood out as the most likely perpetrator among the persons who were in the police’s search light.’
(58) The High Court, amongst other aspects, emphasised that in the front page story of 24 May it was stated that [the applicant] was ‘probably the most interesting of several convicted persons whose movements are now being checked by the police’, that he had been questioned for 10 hours after having been collected by the police at his work place, and that the report was illustrated with Dagbladet’s photograph of [the applicant] with his head blanked, being escorted by two police officers. The High Court found that the photograph created associations of arrest. This was presented together with the information that, after having been brought home, another police car with a dog patrol had arrived at the house, had passed by in low speed, had turned and had vanished in the dark. In addition to this the newspaper rendered statements by a police inspector to Verdens Gang that the police had received much information with substance, and that the answer to who had killed the two little girls was to be found in the police records. Also the rendering on 25 May that the police were looking for a locally known murderer with a greatly deviant personal character, in the High Court’s opinion supports the view that the applicant may be a person with the special character that are a requisite for committing such a heinous crime. The High Court did not find that the rendering of [the applicant]’s denial and of the neighbours’ warning against prejudging were sufficient to weaken the suspicion created by the newspaper coverage as a whole.
(59) I concur with the High Court in that the focus by Fædrelandsvennen on [the applicant] as a previously convicted knife killer, his presence in Baneheia that afternoon the misdeed was carried out, and the investigation of him, for an ordinary reader must have been perceived as if he could be suspected of having committed these killings. It was already publicly known that the perpetrator(s) had used knives when the girls were killed. This information, together with the description of parts of his criminal conviction from 1988 and the security measures [sikring], was likely to harm [the applicant]’s good name and reputation and to expose him to hatred and contempt. The objective description of the offence in Article 247 is therefore fulfilled.
(60) The adversary party has stated that the reports in Fædrelandsvennen of 24 and 25 May did not contribute to identify [the applicant] beyond that occurred in TV2 in the evening of 24 May, where he was interviewed and filmed from behind and from the side while walking towards Baneheia. My comment to this is that Fædrelandsvennen in connection with the reports of 25 May 2000 about [the applicant] informed about ‘the 42 year old’s’ work place and place of residence. The photograph from the previous day depicting [the applicant] entering a bus, a new photograph of 25 May showing [the applicant] with the same jacket and with a plastic bag on his way home ‘to the house in ....[the applicant]’s road at Z’, and the article from the newly constructed housing area in Æ at Z, may have led to more people in the near environment becaming aware of [the applicant]’s identity.”
32. As to the further question whether the allegations were unlawful (rettstridige), Mr Justice Stang Lund observed inter alia
“(76) It is self-evident that the rapes and killings in Baneheia on Friday, 19 May 2000 were of great public interest. The news media had a duty to report, and the public had a right to receive, information about the misdeed, the investigation and the progress in the case. It is clearly a matter of public interest that previously convicted felons are in the police’s searchlight, and that interrogations and other police work is taking place to check witnesses out of the case or to charge them. In the near environment it may be of public interest to be informed about the fact that a previously convicted killer in the area in respect of whom a case concerning prolongation of security measures was pending, has been brought in by the police for questioning.
(77) This must however be weighed against the interest of privacy and the protection of reputation, when the media circles in and identifies one or a few previously convicted persons being under investigation. At this stage the public normally has no legitimate interest to receive detailed information about previously convicted persons and their identity, hereunder descriptions of the criminal offences for which they have been convicted. However, in this very special case people living in the vicinity had a particular interest in knowing that a person who had previously been found guilty of murder and of violent assault and who had been sentenced to security detention, was living in the area, so that they could protect their own and their children’s interests.
(78) The character of the allegation and, in particular, its seriousness is an important factor in the balancing exercise to be carried out when determining whether the interests of protection of personal life justify an interference with the freedom of expression, see Norwegian case-law reports (Norsk Retstidende (Rt.)) 2002 p. 764 on pp 774-775. In accordance with the case-law of the European Court and the Norwegian Supreme Court a distinction ought to be made between statements of fact and value judgments, because only statements of fact may be susceptible to proof. Normally statements which may be understood to mean that a person is or may be suspected of a criminal offence must be considered to be statements of facts which need to be proven.
(79) The respondents have argued that the impugned statement only concerns whether the unnamed 42 year-old ‘is probably the most interesting among several previously convicted felons whose movements are now being checked by the police’. The leader of the investigation has later confirmed that the applicant was the most interesting person on whom efforts were deployed at the beginning of the investigation. The statement is alleged to have been correct, and its publication is claimed not to be unlawful.
(80) When one, as I do, has reached the conclusion that the newspaper’s reports and articles considered as a whole left the impression that [the applicant] could be a suspect in the case, the evidence must concern whether he has committed the crime he has been accused of. It is not sufficient that the newspaper gave an accurate description of the factual circumstances adduced to show that there was a basis for suspicion. As an exception to this general rule case law has accepted the publication of charges. Here the evidence is acceptable when it is proven that the reporting of the charge in itself is correct, see Rt. 1999 p. 1742 (Landåssaken). There is no corresponding exception for reporting on suspicion.
(81) In this case Fædrelandsvennen has not rendered a suspicion stated by others. The newspaper coverage and the articles mainly consist of reporting on the judgment from 1988, the relevant preventive supervision case [sikringssak] and the statements made by leaders of the investigation. It appears clearly that the applicant has been interrogated as a witness and that neither he nor anyone else is under investigation as a suspect. The most direct statement indicating suspicion is attenuated in its form in that [the applicant] according to the newspaper is ‘probably the most interesting of several criminally convicted persons whose movements are now being checked by the police’. His statements in an interview published on 24 May 2000 about his being completely innocent, has been published in the head line on top of the front page.
(82) In balancing the competing interests in the concrete case I have with some doubt found that it was not unlawful for Fædrelandsvennen on 24 and 25 May 2000 to publish that [the applicant] was the most interesting of several convicted persons investigated by the police, even though this in the context may be perceived to mean that he was or could be a suspect. The monstrous sexual offences and consequent killings in Baneheia were of particularly great public interest throughout the country, especially in Kristiansand and in the Agder counties. The people in the vicinity around Baneheia and in the vicinity where [the applicant] lived, had a particular interest in receiving continuous and concrete information about the investigation.
(83) In my opinion the journalist and the editor have not been negligent. The intense and extensive interest shown by the national news media directed against [the applicant] before Fædrelandsvennen’s own publishing, his own statements to the media and the public interest justified the publication of the information about [his] workplace and place of residence and the use of anonymous photos of his person. When considering the question of negligence, I also emphasize that the coverage and articles were balanced, that their main content consisted of reporting true factual information, and that the police underlined that no one was under suspicion and that the [applicant]’s view was presented clearly. I add that since this case presented itself at the early stage of the investigation, the newspaper had no cause to investigate further if [the applicant] could be the perpetrator....”
33. Mrs Justice Coward, whose opinion was endorsed in the main by the other judge of the minority, stated, amongst other:
“(93) There was obviously public interest attached to the investigation in the Baneheia case. The nation was shocked, and it was a task for the media to inform of the crimes and the work of the police. In the High Court it was agreed that it must be allowed to impart an information that a previously convicted felon was in the police’s search light and had been subjected to a long interrogation - even though the reporting would make it possible to understand who this was for those who had special knowledge or for those who carried out investigations on their own. I too agree with that. The disagreement in the High Court concerned whether the further identification provided by Fædrelandsvennen - in particular by revealing the workplace and residence was justified.
(94) In assessing the character of the allegation it is a point that this constituted an affirmation of suspicion, which when considering the seriousness is different from an accusation of being the perpetrator. But, on the other hand, the suspicion was related to particularly heinous crimes. The crimes aroused strong feelings of abhorrence and hatred in the population, and it is difficult not to think that it must have been awful to have been exposed to suspicion for having committed them. I agree with the High Court minority when it states that ‘strong reasons for protecting the privacy militate for protecting the identity of an individual who for different reasons has come in the search light of the police in the investigation of criminal cases. This consideration is, not the least, important in serious criminal cases where great public interests are attached to clearing up the case’. And precisely a person like [the applicant], who with his background more easily than others would be suspected, had a special need for the protection offered by the presumption of innocence.
(95) I cannot see that it betters things, as stated by Fædrelandsvennen, that [the applicant] was given the opportunity to declare his innocence on the front page of the newspaper’s issue of 24 May 2000: ‘Convicted murderer: I am completely innocent’. It emerges from this report that none of ‘a not insignificant number of people’ being checked in the case were under suspicion. However, neither this was likely to weaken the suspicion towards [the applicant] as the likely perpetrator. I agree with the High Court - all three justices - when it states:
‘Not in the least the High Court finds that the total search light directed against [the applicant] is important. He represents both the starting point and most of the reporting done by Fædrelandsvennen covering the Baneheia-case those days. Given the reluctance the press in accordance with the ethics of journalism usually show by not identifying individuals being in the police’s search light, this to a large extent must strengthen the ordinary reader’s impression of [the applicant] as being the most possible perpetrator.’
(96) I cannot see that the total reporting by Fædrelandsvennen should be considered balanced, even though the factual information taken apart had not been incorrect, [the applicant] had been given the opportunity to claiming his innocence and the police’s statement that no one was to be suspected had been referred to. When it comes to heinous crimes of such gravity as here, in my opinion the press should not be allowed to publish untrue suspicions against identifiable individuals, even though the coverage should otherwise be characterized as being balanced.
(97) I add that [the applicant] was persecuted by assertive media people against whom he found it difficult to protect himself. That he at no point accepted to be identified, must be obvious.
(98) The difference of opinion between the majority and the minority of the High Court was related to the significance of other media identifying [the applicant]. In the evening of 24 May 2000 TV2 showed a report where he was filmed from behind and somewhat from the side. On 25 May 2000 Dagbladet informed that he worked in a protected workplace in Kristiansand and lived in his brother’s cabin in Y at Z. The newspaper also showed a photo of him taken from behind. Fædrelandsvennen went the furthest in publishing identifying information about [the applicant] - in particular by revealing his workplace and residence, but besides this the articles in this most important district newspaper must have made it possible for more people to identify him than those who watch TV2 or read Dagbladet.
(99) The High Court minority point to an important consideration in emphasising at the end stating the need for the individual to be protected from collective media pressure:
‘The minority also attaches considerable weight to the fact that the coverage in Faedrelandsvennen appeared as an extensive and independent contribution from the newspaper and that the damaging effect for [the applicant] and the problems caused for him must have been caused by the total pressure from the media coverage during a short and concentrated period of time where Fædrelandsvennen’s contribution was of particular significance. The minority is inclined to accept that [the applicant] had become ‘free game’ as a result of the fact that some media had identified him. Such a solution is not adequate for protecting each individual against libellous reporting in mass media and does not coincide with the independent responsibility each newspaper has in circumstances where judicial and ethical press norms may be under challenge due to a situation of competitiveness .’
(100) I concur with this, and conclude - in accordance with the vocabulary used by European Court - that a pressing need existed for interfering with the freedom of expression in the way of a reaction to the coverage by Fædrelandsvennen.
(101) The conditions for compensation in accordance with section 3-6 of the Damage Compensation Act have been fulfilled. Since I am aware that I represent a minority, I see no reason to go into detail with regard to the amount of compensation. However, in view of Fædrelandsvennen’s pleadings I point to the fact the harm caused by the offence to a large extent must be objectified: Also people who are socially marginalised must enjoy effective protection against libellous allegations. Like the minority in the High Court, I vote for compensating [the applicant] with NOK 150,000 from the newspaper and NOK 25,000 from the editor. The contribution from the journalist was more peripheral, and she should not be ordered to pay compensation. ...”
34. In October 2003 the applicant brought defamation proceedings against TV2 AS (Ltd.) before the Kristiansand City Court claiming compensation with regard to TV2’s news coverage on 23 and 24 May 2000 of the Baneheia case. The City Court found for TV2 and rejected the applicant’s claims. On an appeal by the applicant, on 8 December 2006 the Agder High Court upheld the applicant’s claim that the news coverage constituted unlawful defamation and ordered the defendants to pay him NOK 250,000 in compensation for non-pecuniary damage and discontinued the case with regard to his claim for pecuniary damage. As regards the contents of the disputed broadcasts and their defamatory effect, the Agder High Court made similar findings in the TV2 case as made by the appellate courts in the present case. In finding the defamation unlawful it had regard to several factors, notably TV2’s national as opposed to local media role, unlike that of Fædrelandsvennen, the potency of the televised medium, the rule of caution applicable to the press with regard to identification of person regarding coverage of early stages of criminal investigations and the fact that, although aware of an autopsy report made available on 24 May 2000 revealing that the murders had involved rape, TV2 had in the evening news of that date continued to focus on the applicant notwithstanding the fact that his 1988 criminal conviction had not concerned sexual offences. TV2 had also been the first medium to insinuate suspicion against the applicant and to identify him in its broadcasts and had taken the lead in this regard. On 19 February 2007 the Appeals Leave Committee of the Supreme Court refused TV2 leave to appeal.
35. Conditions for holding a defendant liable for defamation are set out in Chapter 23 of the Penal Code, Article 247 of which provides:
“Any person who, by word or deed, behaves in a manner that is likely to harm another person’s good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.”
A limitation to the applicability of Article 247 follows from the requirement that the expression must be “unlawful” (“rettsstridig”). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement.
36. For further specific information on the relevant national law, reference is made to paragraphs 41 to 45 and 47 of Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, ECHR 2007...
37. The Appendix to the Recommendation Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings (Adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers’ Deputies) contains the following principle of particular interest to the present case:
“Principle 8 - Protection of privacy in the context of on-going criminal proceedings
The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”
VIOLATED_ARTICLES: 8


ITEMID: 001-86524
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: CLARKE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr William Clarke, is a British national who was born in 1946 and lives in Sheffield. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 16 January 2000. In October 2000, the applicant made a claim for widows’ benefits. On 26 January 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.