Togcu v. Turkey

Key Judgment

Legal Relevance

Keywords: Duty to Investigate | Burden of Proof | Deprivation of Liberty | Evidence | State/Non-State Agents | Effective Remedy

Themes: Characteristics of the Crime | Related Crimes

The Court was unable to make a finding as to who was responsible for the victim's disappearance, due to the contradictory versions of events put forward by the applicant which made it impossible to shift the burden of proof onto the State. The Court stated that, although there was no proof that the victim has been killed, the disappearance and unacknowledged detention of a person suspected by the authorities of PKK involvement could be considered life-threatening in the context of south-east Turkey in 1993, finding that the authorities had failed to carry out an effective investigation into the victim's disappearance. The Court further held that, although the inadequacy of the investigation into the disappearance of the victim may have caused his family feelings of anguish and mental suffering, it was not established that there were special factors which would justify a finding of inhuman treatment in relation to the victim's relatives. The Court was unable to find a violation of the victim's right to liberty and security since it did not establish who might have been responsible for his disappearance.

Judgment Date

August 31, 2005



Judicial Body

European Court of Human Rights

Articles violated

Article 2 (procedural) [ECHR], Article 13 [ECHR], Article 38(1)(a) [ECHR]

Articles not violated / not dealt with

Article 2 (substantive) [ECHR], Article 3 [ECHR], Article 5 [ECHR], Article 14 [ECHR], Article 18 [ECHR], Article 34 [ECHR]

Facts of the Case

In November 1994, Mr. Ender Toğcu, a Turkish national of Kurdish origin, went to the hospital to visit a family member and never returned. Some time before, his cousin was taken into custody and was released after he made a statement to the effect that he and Mr. Toğcu were partners in an alleged crime. On the day of the disappearance, a number of plain-clothed police officers came to Mr. Toğcu's house on account of his suspected involvement with the PKK. They informed Mr. Toğcu's father that his son was in the hands of the police and that they would hand over his body in three days. The next day, Mr. Toğcu's brother was apprehended by police in a café and taken to an official detention centre where he was detained for hours, during which time he was interrogated and tortured. Despite having been told by the police officers that Mr. Toğcu had “gone to the mountains”, his brother could hear his screams. The police officers then left Mr. Toğcu's brother in a dump, believing that he was dead. After his release, Mr. Toğcu's brother made a number of inquiries about his brother. On an unspecified date, Mr. Toğcu's brother and father were apprehended, detained for six days and accused of helping Mr. Toğcu. They were both released without having been brought before a court. On another occasion, Mr. Toğcu's brother was approached by police officers who asked him for money in exchange for which his brother would not be killed but released.

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