Tanli v. Turkey

The applicant in this case was a Turkish national who lodged his complaint before the European Court of Human Rights (the ECHR) alleging that his son had been tortured to death in detention in Turkey. He relied on Articles 2, 3, 5, 13, 14 and 18 of the European Convention on Human Rights (the Convention).

The applicant stated that his son had been in a good health by the time he was taken by the police and it was two days later that he had been informed of his son’s heart attack that led to his death. The applicant believed his son’s death resulted from torture and not from heart attack as he didn’t suffer from any disease. There were bruises and incision on the deceased’s body which were claimed to have resulted from the surgery performed during the heart attack. In fear of the authorities, the applicant signed a document wothout knowing what its content was and later notified the branch Human Rights Association that his son was tortured to death under police custody. The applicant petitioned to the chief public prosecutor for an investigation in to his son’s death. He petitioned (but later withdrew) for a referral of his son’s body to the Forensic Medical Institute stating that the previous post-mortem examination hadn’t been conducted by experts. The chief public prosecutor initiated proceedings against the three interrogating police officers. After several adjournments, the Criminal Court acquitted the accused stating that it couldn’t establish the cause of the deceased’s death.

Under Article 2, the applicant further claimed that the matter hadn’t sufficiently and effectively been investigated.  The applicant stated that his son had been tortured and this matter hadn’t been adequately investigated by the authorities in violation of Article 3. The applicant further submitted that his son’s detention hadn’t been lawful and had violated Article 5 of the Convention. Under Article 13, the applicant argued that he hadn’t been provided with effective remedy. Under Articles 14 and 18, the applicant claimed that there was a discriminatory policy by the government against Kurdish citizens.

The government submitted that the deceased was suspected with aiding and abetting the PKK by the time he was taken to custody. When he was questioned by the three interrogators, he began developing a shock and was already cyanotic by the time the physician arrived. The deceased couldn’t be saved after “artificial respiration and cardiac massage”. [Para.22] The government also submitted that post-mortem examination had been carried out by two physicians that concluded that there was no trace of lesions, traumas or the use of force on the head and no fresh bruises.” [Para. 23] At first the applicant agreed for forensic examination to be carried out but later changed his mind and buried the body. After a “prompt, thorough and effective” investigation had been conducted, the Criminal Court passed a judgment that had been upheld by the Court of Cassation which rejected the applicant’s appeal for his failure to intervene in the criminal proceeding. The government argued that the result of the post-mortem examination had been conducted by two competent physicians and was satisfactory to the public prosecutor who wasn’t obligated to order forensic examination.

As to the applicant’s allegations under Article 3, the government argued that they hadn’t been supported by evidence; they argued that “the incision on the body and other marks were the result of the autopsy. If his son had been subjected to electric shock treatment or hosing, there would have been subtle marks left which the doctors at the first post mortem examination would have seen and recorded. All the findings from the investigation, however, pointed to death occurring from natural causes. They disputed that there were any failings in the investigation”. [Para. 157]

Regarding the unlawful detention allegation under Article 5, the government argued that there had been a ‘reasonable suspicion’ as to the involvement of the deceased in terrorist activities for which he was taken to custody for examination, and thus there was no violation of Article 5.

The ECHR noted that the deceased had been in good health by the time he was taken to custody. The ECHR also noted, from the findings of the European Committee for the Prevention of Torture (CPT), that detainees whose cases would relate to PKK had been tortured in custody. It also noted that it hadn’t been confirmed by domestic authorities whether or not the deceased died of ‘natural causes’. [Para. 121] The ECHR reiterated that the prohibition under Article 2 of the Convention applied to unintentional deaths that resulted from ‘permitted use of force’. The second examination of the body by the Forensic Medicine Institute found the first (the post-mortem) report to be ‘without scientific value’ after finding a different result that there hadn’t been a dissection of the deceased’s heart. A separate expert report presented by the applicant also found that the cause of the death hadn’t been adequately recorded and thus wasn’t reliable. Neither did the post-mortem examination rebut the applicant’s allegation that his son was tortured to death. Moreover, the authorities failed to sufficiently explain the death. The ECHR thus concluded that the death couldn’t be said to have resulted from natural causes and held that the government was responsible for the death of the deceased in detention. The ECHR found that there had been a violation of Article 2 of the Convention.

As regards the second examination on the body, the ECHR noted that the ‘shortcomings’ of the first examination could have been addressed by the second examination of body had this been done shortly after death. The ECHR held that since authorities had the ‘primary’ responsibility to investigate a death in their custody, the public prosecutor could refer the body for examination without obtaining the applicant’s consent. It thus found a violation of Article 2 in this regard due to the authorities’ failure to carry out an ‘effective investigation’ in to the death of the deceased.

As regards the allegations under Article 3, the ECHR noted that the authorities failed to provide sufficient explanation for the death of the applicant’s son under their custody after entering in a state of good health. Nor did the applicant or the forensic expert he instructed establish that the deceased had been tortured. The ECHR, therefore, concluded that there hadn’t been a violation of Article 3 of the Convention. The ECHR also couldn’t conclude that the deceased had been denied the chance to question the legality of his detention and thus found no violation of any of the elements of Article 5 of the Convention. The ECHR found the investigation in to the death of the applicant’s son to be ineffective as it failed “to provide an explanation for the death in custody and undermined the effectiveness of the criminal proceedings brought against the three police officers”. [Para. 173] It thus found a violation of Article 13 of the Convention.

The ECHR noted that the applicant hadn’t supported his allegations under Articles 14 and 18 to show that his son had been discriminated based on his race and thus found no violation under these provisions. The ECHR awarded pecuniary and non pecuniary damages.