Case Watch: European Court Insists on Stringent Investigation of Enforced Disappearance

Earlier this year, the European Court of Human Right (ECHR) issued a ruling in what has been a long series of cases dealing complaints against Turkey's security forces over alleged abuses against members of its Kurdish minority in the south-east of the country in the early 1990s. The ruling in Sayğı v Turkey, delivered on January 15, found a violation of the Article 2 of the European Convention on Human Rights—the right to life— in the Turkish state's failure to conduct an effective investigation into an enforced disappearance in 1994.

Why is this case noteworthy? There have been several similar cases involving such disappearances before the court. At first glance, there seems to be little new in what the court has to say in Sayğı v Turkey on the need for proper investigations. However, by refining its standards on the duty of states to investigate, the court may have taken steps that will ensure greater consistency in its case-law on disappearances.

But this was not always the case. Some 20 years ago, in Kurt v. Turkey, the first case of this kind to reach Strasbourg, the court was quite far away from the standards it routinely applies today. In that case, the applicant claimed that the Turkish authorities failed to account for the fate of her son, whom she had last seen surrounded by the security forces in his village in south-east Turkey in 1993. Although she claimed a violation of Article 2 (the right to life), the court examined the authorities’ behavior from the standpoint of Article 5 (which protects against illegal detention). It found that the victim’s unacknowledged detention and the authorities’ failure to conduct a prompt and effective investigation into the arguable claim that he had not been seen since being taken into custody was a negation of the guarantees of Article 5, not a violation of Article 2.

However, in the subsequent two decades the court’s approach shifted and today it considers the duty to investigate disappearances as an essential aspect of Article 2, as demonstrated in the Sayğı case.

Mustafa Sayğı was detained by soldiers while riding home on his motorbike in south-east Turkey in 1994, possibly on suspicion of beign a supporter of the outlawed separatist Kurdish Workers Party (PKK). Subsequent efforts by his family to locate him were rebuffed by the local security forces and he was never heard from again.  

Eleven years later, Sayğı’s mother-in-law presented the case to the local prosecutor, who launched a detailed investigation. Citing civilian eyewitness testimonies and information obtained from soldiers, the prosecutor concluded that Sayğı had indeed been unlawfully detained at a temporary military base. However, due to the statute of limitations under Turkish law, the soldiers involved could not be charged. The prosecutor also concluded that there was insufficient evidence to prove Sayğı had been killed, and the case was closed.

Then, four more years later, a second investigation was launched into Sayğı’s fate, after new evidence was unearthed near the place where Sayğı had been detained. The new evidence included pieces of bone and fabrics, as well as a small axe and the remains of a Russian-made red motorbike, like the one he had been riding when he had been detained by the military.

While the family said it recognized the artifacts as belonging to Sayğı, a subsequent forensic report subsequently stated that the bones presented by the authorities for examination to the forensic lab were not human. But the testing process also revealed that the soil around these bone samples did not match with the soil from the site. This led to the family to suggest that animal bone fragments had been swapped for the original human remains. Nevertheless, the investigation was again closed.

In 2010, the victim’s wife filed an application with the ECHR over the shortcomings of the 2009 investigation. Although the case was brought under Articles 6 and 13 (right to an effective remedy) of the Convention, the court decided to consider it from the standpoint of the violation of Article 2, the right to life.

States are under a duty to carry out effective investigations in cases like these, as the European Court has been very clear to point out. Under this duty, they must conduct an investigation that is capable of leading to the objective establishment of the facts and to the identification and punishment of the perpetrators. To achieve this, states must take the necessary steps to secure the evidence concerning the incident, including eyewitness testimonies, forensic evidence, etc. Investigations must be independent, i.e. carried out by persons who are fully independent from those implicated in the events. Furthermore, states must act promptly with the involvement of the relatives of the victim. Where new information comes to light, this duty to investigate revives.

The Turkish authorities did indeed open an investigation into the discovery of the motorbike, but this investigation failed to comply with the effectiveness standard set by the court, particularly in three specific aspects. First, although the 2005 investigation concluded that Sayğı had last been seen in military custody, the 2009 investigation failed to interview any of the soldiers involved, or any civilian witnesses. Secondly, it failed to draw any conclusions from the discovery of the buried red motorbike near the location where Sayğı disappeared. And thirdly, it disregarded the applicant’s reasonable doubts about the integrity of evidence raised by the forensic testing. In the court’s opinion these deficiencies together were so serious that they undermined the investigation’s ability to establish the cause of death or the person responsible for it and therefore the investigation was ineffective for the purposes of Article 2.

In summary, Sayğı follows an evolved stream of jurisprudence on states’ duty to investigate enforced disappearances, and is a strong demonstration of the court’s crystallized standards in this area.