16
İLHAN v. TURKEY JUDGMENT
62. As regards a civil action for redress for damage sustained through
illegal acts or patently unlawful conduct on the part of State agents (see
paragraph 44 above), the Court notes that a plaintiff in such an action must,
in addition to establishing a causal link between the tort and the damage he
or she has sustained, identify the person believed to have committed the
tort. In the instant case, the public prosecutor took no steps to identify who
was present when Abdüllatif İlhan was apprehended or when his injuries
were incurred. None of the documents provided by the gendarmes enabled
such persons to be identified. The identity of the perpetrators or possible
witnesses was therefore unknown to the applicant. Furthermore, the public
prosecutor had taken no steps to find any evidence confirming or
contradicting the account given by the gendarmes as to the allegedly
accidental nature of the injuries. In this situation, it is not apparent that there
was any basis on which Abdüllatif İlhan could have pursued a civil claim
with any reasonable prospect of success.
63. With regard to the criminal-law remedies (see paragraphs 36-40
above), the Court notes that the Mardin public prosecutor had been
informed that Abdüllatif İlhan had suffered serious injuries when he was
apprehended by the gendarmes at his village. He was accordingly under the
duty, imposed by Article 153 of the Code of Criminal Procedure, to
investigate whether an offence had been committed. The Court is satisfied
in these circumstances that the matter was sufficiently drawn to the attention
of the relevant domestic authority. Given that Abdüllatif İlhan's
circumstances would have caused him to feel vulnerable, powerless and
apprehensive of the representatives of the State, he could legitimately have
expected that the necessary investigation would have been conducted
without a specific, formal complaint from himself or his family. The public
prosecutor chose, however, not to inquire into the circumstances in which
those injuries were caused.
64. Consequently, the Court also dismisses the Government's
preliminary objections as regards civil- and criminal-law remedies.
III. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION
65. The applicant alleged that his brother, Abdüllatif İlhan, was
unlawfully subjected to a life-threatening attack by gendarmes and that the
authorities failed to carry out an adequate and effective investigation into
the attack. He argued that there had been a breach of Article 2 of the
Convention, which provides:
“1. Everyone's right to life shall be protected by law. No one shall be deprived of
his life intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.