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SECOND
SECTION
CASE OF GASYAK AND OTHERS v. TURKEY
(Application
no. 27872/03)
JUDGMENT
STRASBOURG
13 October 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Gasyak and Others
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy
Section Registrar,
Having
deliberated in private on 8 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27872/03) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by four Turkish nationals, Mr Sabri Gasyak, Ms
Leyla Gasyak, Mr İsa Akman and Ms Hanım Candoruk (“the
applicants”), on 13 June 2003.
- The
applicants were represented by Mr Tahir Elçi, a lawyer
practising in Diyarbakır. The Turkish Government (“the
Government”) were represented by their Agent.
- The
applicants alleged, in particular, that four of their relatives had
been killed by agents working for or on behalf of the State and that
the authorities had failed to carry out an effective investigation
into the killings.
- On
22 January 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1975, 1974, 1961 and 1972 respectively. They
all live in the town of Cizre.
- In
March 1994 Abdulaziz Gasyak, Süleyman Gasyak, Yahya Akman and
Ömer Candoruk were killed. The applicants were related to these
people as follows: Sabri Gasyak is the brother of Abdulaziz Gasyak;
Leyla Gasyak was the wife of Süleyman Gasyak; İsa Akman is
the father of Yahya Akman and Hanım Candoruk was the wife of
Ömer Candoruk. The application was brought by the applicants on
their own behalf and on behalf of the remaining heirs of the four
deceased men.
A. Introduction
- The
facts of the case, particularly concerning events which took place on
6 March 1994, are disputed by the parties.
- The
facts as presented by the applicants are set out in Section B below
(paragraphs 9-21). The Government's submissions concerning the facts
are summarised in Section C below (paragraph 22).The documentary
evidence submitted by the applicant and the Government is summarised
in Section D (paragraphs 23-50).
B. The applicants' submissions on the facts
- The
applicants' four relatives were working as tradesmen, buying food,
tea and tobacco from the area near the Turkish-Iraqi border and
selling them in the nearby town of Cizre and the surrounding areas.
- On
6 March 1994 the four men were travelling from Cizre to Silopi in a
vehicle which was being driven by Ömer Candoruk. They were
stopped by gendarmes at a checkpoint approximately five to six
kilometres outside the town of Silopi. Two unmarked Renault cars were
parked nearby. At that point, a certain Mr A.M., who lived in Cizre
and who knew the four men, was travelling from Cizre to Silopi in a
minibus and saw the four men arguing with a group of gendarme
officers in plain clothes. Abdulhakim Güven and Adem Yakın,
who used to be PKK
members but who had been working for the gendarmerie since their
arrests, were also with the gendarme officers. MM. Güven and
Yakın were referred to in the area as “confessors”.
The applicants' relatives were then put into vehicles. They were
joined by gendarme officers and the confessors and the cars began
driving in the direction of Cizre.
- Mr
A.M. then saw something being thrown out of one of the vehicles. He
stopped and picked it up and realised that it was Ömer
Candoruk's driving licence. The vehicles then turned off the main
road and started heading towards Holan village. Mr A.M. did not see
the vehicles again.
- According
to the information the applicants subsequently gathered from a number
of villagers living in Holan village, one of their relatives had
jumped out of the moving vehicle and tried to run away, but was shot
by one of the confessors or the gendarme officers. His body was put
in the boot of one of the vehicles.
- The
three surviving men were then taken to the gendarme station in
Bozalan village, which is located approximately seven to eight
kilometres from Cizre. Before sunset they were taken in the same
vehicles to a place nearby and were shot and killed.
- The
killing was witnessed by a certain Mrs E.T. and her female friends
who were working in a nearby field.
- The
following day, 7 March 1994, Mr A.M. told the applicants what he had
seen and gave them Ömer Candoruk's driving licence. The
applicants then contacted the police and the gendarmerie in Silopi,
but were unable to obtain any information from them. The same day Mrs
E.T. told the applicants about the fate of their relatives. The
applicants then contacted the gendarmerie and informed the offices of
the prosecutor and the governor.
- On
8 March 1994 gendarmes found the bodies of the four men covered with
soil and stones. They had all been shot dead and their heads smashed
with stones. An on-site report prepared the same day stated that the
killings had probably been carried out by members of the PKK in a
revenge attack because the deceased had been village guards. However,
the deceased had never agreed to become village guards, contrary to
the advice of the gendarmerie.
- No
other action was taken in the area by the gendarmes. They did not
question the applicants or any of the persons present in the
vicinity.
- Furthermore,
no steps were taken by the Cizre prosecutor who, on 5 April
1994, sent the investigation file to the prosecutor at the Diyarbakır
State Security Court who had jurisdiction to continue the
investigation.
- The
investigation carried out by the prosecutor in Diyarbakır was
limited to the sending of occasional letters to the gendarmerie,
asking them to search for the perpetrators. The gendarmerie replied
that they had been unable to find the perpetrators despite their
searches.
- The
number plate of the vehicle in which the applicants' relatives had
been travelling on 6 March 1994 was subsequently changed, and the
vehicle continued to be used by confessors and other plain clothes
officials in Cizre.
- The
authorities unsuccessfully searched for the two confessors, MM. Güven
and Yakın. The requests by the prosecutor to be informed of
their whereabouts were ignored by the gendarmerie for a long time.
Mr Güven was subsequently found and questioned by a police
officer. Although the applicants were able to find Mr Yakın's
address and gave it to the authorities, no steps were taken to
question him. During the eventual trial of the two confessors for
homicide (see paragraphs 36-45 below), neither of them ever appeared
before the Şırnak Assize Court (hereafter “the trial
court”) to give evidence.
C. The Government's submissions on the facts
- The
Government's submissions were based on the documents drawn up by the
national authorities in the course of the investigation, the trial
and the compensation proceedings, which documents are summarised
below.
D. Documentary evidence submitted by the parties
1. Documents pertaining to the criminal investigation
into the killings
- On
8 March 1994 the bodies of the four men were recovered by gendarmes
and identified by villagers who were present in the area at the time.
The gendarmes found five Kalashnikov-type spent bullet cases
around the bodies. It was concluded in an on-site report prepared by
the gendarmes that the four men had probably been killed by members
of the PKK in order to deter other members of their families from
becoming village guards. It was established that the four men had
been killed where they were found.
- The
same day the bodies were examined in situ by a doctor who
concluded that the four men had been killed by gunshot wounds. The
doctor, who observed a large number of bullet entry and exit holes on
the bodies, deemed it unnecessary to conduct a full autopsy; the
cause of death was established and that was sufficient. A bullet
which had entered and exited the body of Abdulaziz Gasyak was secured
for further examination. The Cizre prosecutor was also present at the
time of the doctor's examination.
- Also
that day the Cizre prosecutor decided that his office lacked
jurisdiction to investigate the killings “perpetrated by
members of the illegal organisation” and sent the file to the
Diyarbakır State Security Court prosecutor's office (“the
Diyarbakır prosecutor”).
- The
Diyarbakır prosecutor instructed the gendarmerie on 18 April
1994 to search for the perpetrators of the killings.
- According
to a ballistic examination, the five spent bullet cases had been
fired by two separate weapons.
- On
a number of occasions between 1 September 1995 and 22 March 2002, the
gendarmerie reported to the Diyarbakır prosecutor that they had
been “unable to find the perpetrators of the killings which, in
all likelihood, had been carried out by members of the PKK”. On
16 February 2002 a number of soldiers had visited the place
where the bodies had been found in 1994, but they had been unable to
establish the identities of the perpetrators.
- On
11 July 2002 a lawyer representing the applicants wrote to the
Diyarbakır prosecutor and asked him to investigate the killings.
The lawyer pointed to the fact that none of the relatives of the
deceased men or anyone living in the area where the bodies had been
found had been questioned by the authorities. He also informed the
prosecutor that Mr A.M. and Mrs E.T had witnessed the incidents.
- The
applicants, who were questioned by the Diyarbakır prosecutor on
15 July 2002, stated that after the killing of their relatives they
had been warned by the security forces not to make any complaints.
They also told the prosecutor that no investigating authority had
ever questioned them.
- The
same day Mr A.M. and Mrs E.T were also questioned by the Diyarbakır
prosecutor. They gave the prosecutor their eyewitness accounts of the
events – which are summarised above (see paragraphs 10-11 and
14-15 above) – leading up to the killing of the four men.
- Also
that day the Diyarbakır prosecutor decided that he lacked
jurisdiction to investigate the killings because, although it had
been stated by his opposite number in Cizre in 1994 that the killings
had been carried out by members of the PKK (see paragraph 25 above),
it was now being alleged by the applicants that their relatives had
been killed on account of their refusals to become village guards.
The two confessors and “their accomplices whose identities
could not be determined” were referred to in this document as
the “accused”. The Diyarbakır prosecutor then
forwarded the file to the office of the Cizre prosecutor.
- The
applicants and the two eyewitnesses, Mr A.M. and Mrs E.T, were
questioned by the Cizre prosecutor on various dates in December 2002
and January and May 2003. They repeated their respective complaints
and eyewitness accounts of the events. Mr A.M. also told the
prosecutor that he would be willing to identify the two confessors in
an identity parade.
- On
17 March 2003 Abdulhakim Güven, one of the two confessors
allegedly involved in the killings, was questioned by a police
officer. He denied the accusations against him.
- The
other confessor, Adem Yakın, was questioned by the Cizre
prosecutor on 15 July 2003. He also denied the accusations and stated
that he had been performing his military service at the material
time.
- On
5 August 2003 the Şırnak prosecutor filed an indictment
with the Şırnak Assize Court (“the Şırnak
court”), charging the two confessors with the offence of
multiple homicide.
- In
the course of its first hearing on 7 August 2003 the Şırnak
court sent letters rogatory to the Assize Courts in Diyarbakır
and Batman where the two defendants were living, and asked those
courts to question the defendants.
- On
12 September 2003 the Diyarbakır Assize Court questioned
Abdulhakim Güven who disputed the allegations and stated that at
the time of the killings he had been in prison.
- During
a hearing held on 9 October 2003, Mr A.M. and Mrs E.T repeated their
eyewitness accounts before the Şırnak court. The same day
the Şırnak court issued an arrest warrant for Adem Yakın.
It also ordered that Abdulhakim Güven be photographed with a
view to showing his photographs to the eyewitnesses.
- On
14 November 2003 Adem Yakın was arrested and questioned by the
Batman Assize Court pursuant to the letters rogatory mentioned above.
He denied the accusations and maintained that he had been performing
his military service at the time of the killings. He was released the
same day.
- On
30 March 2004 the lawyer for the applicants sent a letter to the
Şırnak court, requesting permission for his clients to join
the proceedings as interveners. This request was accepted on 12
October 2004.
- During
the subsequent stages of the proceedings it transpired that on 28
February 1994 – that is, some six days before the killings –
Abdulhakim Güven had been released from prison for a period of
ten days with the permission of the Diyarbakır State Security
Court so that he could “help the security forces with their
anti-terrorism operations”. In fact, on various dates in 1994
he had been released from prison to help the security forces.
- The
Şırnak court had to postpone a number of its hearings to
wait for the photographs of Abdulhakim Güven.
- After
having sent a number of reminders, on 27 January 2005 the Şırnak
court was finally provided with the photographs of Abdulhakim Güven
taken on 17 January 2005. During a hearing held on 29 March 2005, the
eyewitness Mr A.M. was shown the photographs but was unable to
identify Abdulhakim Güven. Mr A.M. told the Şırnak
court that he had last seen Mr Güven more than ten years ago and
that at that time Mr Güven had had a long beard; the person in
the photograph did not have a beard.
- At
the same hearing the prosecutor asked the Şırnak court to
acquit the defendants. The Şırnak court accepted that
request and acquitted the defendants for lack of sufficient evidence.
It considered, in particular, that although Mr A.M. had been in a
minibus with a number of other persons, he had been the only person
to witness the alleged abduction of the four men. In any event, the
defendants had been working as informers and helping the security
forces. Such informers were not well regarded by the residents of the
region and, as such, the testimony of Mr A.M. implicating the
confessors in the killings was disregarded. According to the Şırnak
court, the fact that Abdulhakim Güven was not in prison at the
time of the killings did not prove that he had taken part in them. He
had been helping the security forces with their operations and, as
such, it was not logical that he would be involved in a killing. The
Şırnak court also decided to inform the relevant prosecutor
to continue with the search for the perpetrators.
- The
applicants appealed. In their appeal petition they referred to the
obligations under Articles 2 and 13 of the Convention to carry out
effective investigations into incidents of killings, and alleged that
the investigation into the killing of their relatives had been
flawed. They maintained that the eyewitnesses had been consistent
throughout the criminal investigation. The confessor Abdulhakim had
lied to the investigating authorities when he said that he had been
in prison on 6 March 1994 (paragraph 38 above). The Şırnak
court had contented itself with showing the photographs of one of the
defendants to an eyewitness and had not summoned the defendants to
the trial. Furthermore, the investigating authorities had failed to
follow up leads concerning the involvement of the gendarmerie and the
security services and had only prosecuted the two confessors. They
argued that the trial court had also failed to ensure an identity
parade so that the eyewitnesses could have seen and identified the
two confessors.
- On
14 November 2006 the Court of Cassation rejected the appeal and
upheld the two defendants' acquittals.
- In
their letter of 20 August 2009 the applicants informed the Court that
the same two confessors (that is, Mr Abdulhakim Güven and Mr
Adem Yakın), a high-ranking army official and three intelligence
officers working for the gendarmerie had been indicted in July 2009
and put on trial for the killing of their four relatives as well as
the killing of a number of other persons at around the same time.
2. Documents pertaining to the compensation proceedings
- On 25 July 2005 the second to fourth applicants,
together with a number of other heirs of their deceased relatives,
submitted petitions to the Şırnak Governor's office and
claimed compensation under the provisions of the Law on Compensation
of the Losses resulting from Terrorism and the Measures Taken against
Terrorism (Law no. 5233 of 27 July 2004). In their petitions the
three applicants repeated their allegations of State involvement in
the killings.
- On
10 July 2006 the Şırnak Governor's office partially
accepted the compensation claims made by the three applicants in
respect of the killings of their relatives “by members of the
PKK”. The second applicant Leyla Gasyak was awarded
approximately 2,500 euros (EUR) in respect of the killing of her
husband Süleyman Gasyak. The third applicant İsa Akman was
awarded approximately EUR 5,000 in respect of the killing of his son
Yahya Akman. The fourth applicant Hanım Candoruk was awarded
approximately EUR 2,500 in respect of the killing of her husband Ömer
Candoruk. Other heirs of these three deceased men were also awarded
various sums of money.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 13 OF THE
CONVENTION
- The
applicants complained that their four relatives had been killed by
agents of the respondent State in violation of Article 2 of the
Convention. Relying on Article 13 of the Convention they further
complained that they had not had an effective remedy in respect of
the killing of their relatives because the investigation had been
flawed.
- The
Government denied any State involvement in the killings and
maintained that the investigation had been effective.
- The
Court considers it appropriate to examine both complaints solely from
the standpoint of Article 2 of the Convention, which reads as
follows:
“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.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. Admissibility
1. Six months
- The Government argued that the applicants had failed
to comply with the six-month rule laid down in Article 35 § 1 of
the Convention. Referring in particular to the decision in the case
of Bayram and Yıldırım v. Turkey (no.
38587/97, ECHR 2002-III), the Government submitted that the
applicants, who claim that the investigation was ineffective, should
have introduced their application within a reasonable time after the
bodies of their relatives had been found in April 1994. Nevertheless,
they had failed to do so and waited nine years before lodging their
application.
- The applicants submitted that as soon as they had been
informed about the apprehension of their relatives at the gendarmerie
check point they had informed the prosecutor and the governor who, in
turn, had told them that their relatives were not in custody. They
had subsequently been threatened by members of the security forces
not to make any complaints.
- Furthermore, they had made official complaints to a
number of authorities as soon as life in the region had begun to
return to normal following the lifting of the emergency rule in
November 2002.
- The Court notes that it was held in the case of Bayram
and Yıldırım referred to by the Government and in
a number of other similar cases that, if no domestic remedies are
available or if they are judged to be ineffective, the six-month
time-limit in principle runs from the date of the act complained of.
Special considerations could apply in exceptional cases where an
applicant first pursues a domestic remedy and only at a later stage
becomes aware, or should have become aware, of the circumstances
which make that remedy ineffective. In that situation, the six-month
period might be calculated from the time when the applicant becomes
aware, or should have become aware, of these circumstances (see Bulut
and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002 and
the cases cited therein).
- Turning
to the circumstances of the present case, the applicants' relatives
were killed in 1994 and an investigation was started the same year.
Nevertheless, there is no information in the file to suggest that the
applicants made any attempts to take part in the investigation or to
obtain information about its progress until they applied to the
prosecutor on 11 July 2002. Even assuming that the investigation
was not being carried out in an efficient manner, the Court finds
that the applicants must be considered to have been aware of the
ineffectiveness of the criminal investigation long before they
petitioned the public prosecutor on 11 July 2002.
- The
Court concludes, therefore, that the applicants' complaints
concerning the killing of their relatives and the alleged
ineffectiveness of the investigation into the killings conducted
during the period up to 11 July 2002 have been introduced out of time
and are inadmissible under Article 35 §§ 1 and 4 of the
Convention.
- The
Court considers, however, that in some cases information purportedly
casting new light on the circumstances of a killing may come into the
public domain at a later stage. The issue then arises as to whether,
and in what form, the procedural obligation to investigate is
revived. To that end, the Court considered in its judgment in the
case of Brecknell v. the United Kingdom (no. 32457/04,
§ 71, 27 November 2007) that, where there is a plausible or
credible allegation, the discovery of any new piece of evidence or
item of information relevant to the identification and eventual
prosecution or punishment of the perpetrator of an unlawful killing,
would require the authorities to take further investigative measures.
The steps which would be reasonable to take will vary considerably
according to the facts of the situation. The lapse of time will,
inevitably, be an obstacle as regards, for example, the location of
witnesses and the ability of witnesses to recall events reliably.
Such an investigation may in some cases, reasonably, be restricted to
verifying the credibility of the source, or of the purported new
evidence
- The
Court will therefore examine whether the information provided by the
applicants in the present case to the domestic authorities on 11 July
2002, suggesting the involvement of agents of the State and the two
confessors in the killing of their relatives, amounted to the kind of
new evidence alluded to in the preceding paragraph. In this
connection the Court observes that a new investigation was started
into these allegations by the authorities who thus discovered new
leads and information about the killing. Subsequently, the trial of
the two confessors began before the Şırnak Court. The
applicants joined the proceedings as interveners and appealed against
the judgment acquitting the two suspects (see paragraph 45 above).
Furthermore, it is to be noted that, in the proceedings before the
Court, the applicants not only challenge the effectiveness of the
investigation carried out between March 1994 and July 2002, but also
the effectiveness of the investigation and trial conducted after July
2002.
- By
contrast, in the above-mentioned Bayram and Yıldırım
and Bulut and Yavuz cases, the search for the perpetrators had
been ongoing for a long time without any active steps being taken by
the authorities or the applicants, and without any evidence being
brought to the authorities' attention.
- In
light of the foregoing, the Court considers that the information
submitted to the authorities by the applicants in July 2002 led to
significant new developments and, as such, the procedural obligation
to investigate the killing of the applicants' relatives was revived
after that date (see also, mutatis mutandis, Hüsna
Kara and Others v. Turkey (dec.), no. 37446/97, 3 December
2002; Kavak v. Turkey, no. 53489/99, §§ 84-90,
6 July 2006).
- The
Court deems it important to reiterate at this juncture that there is
little ground to be overly prescriptive as regards the possibility of
an obligation to investigate unlawful killings arising many years
after the events, since the public interest in obtaining the
prosecution and conviction of perpetrators is firmly recognised,
particularly in the context of war crimes and crimes against humanity
(Brecknell, cited above, § 69).
- It
follows that the Government's objection to the admissibility of the
complaint under Article 2 of the Convention, in so far as it concerns
the effectiveness of the investigation and the trial carried out
after July 2002, must be dismissed.
2. Victim status
- Referring
to the decisions of inadmissibility in the cases of İçyer
v. Turkey (no. 18888/02, 12 January 2006) and Uca v.
Turkey (no. 3743/06, 29 April 2008), the Government argued
that the applicants could no longer claim to be victims within the
meaning of Article 34 of the Convention because they had applied for
and received compensation for the deaths of their relatives.
- The
Court reiterates at the outset that a decision or measure favourable
to an applicant is not in principle sufficient to deprive that
individual of his or her status as a “victim” unless the
national authorities have acknowledged, either expressly or in
substance, and then afforded redress for the breach of the Convention
(see Nikolova and Velichkova v. Bulgaria, no. 7888/03,
§ 49, 20 December 2007 and the case cited therein).
- Moreover,
in cases concerning deprivations of life, Contracting States have an
obligation under Article 2 of the Convention to conduct an effective
investigation capable of leading to the identification and punishment
of those responsible. The Court considers that that obligation would
be rendered illusory if, in respect of complaints under Article 2 of
the Convention, an applicant's victim status were to be remedied by
merely awarding damages (see, mutatis mutandis, Yaşa
v. Turkey, judgment of 2 September 1998, Reports of
Judgments and Decisions 1998-VI, § 74; see also, more
recently Nikolova and Velichkova, cited above, § 55 and
the cases cited therein). Confining the authorities' reaction to
incidents of deprivations of life to the mere payment of compensation
would also make it possible in some cases for agents of the State to
abuse the rights of those within their control with virtual impunity,
and the general legal prohibitions on killing, despite their
fundamental importance, would be ineffective in practice (Leonidis
v. Greece, no. 43326/05, §
46, 8 January 2009).
- It
is on account of the above-mentioned requirement under Article 2 of
the Convention, to carry out effective investigations into incidents
of deprivations of life, that the Court has held in a number of cases
against Turkey concerning such issues that the applicants did not
have to exhaust the non-fault based administrative remedy because it
was not capable of leading to the identification and punishment of
those responsible. It could not therefore be regarded as an effective
remedy within the meaning of Article 35 § 1 of the Convention
(see, mutatis mutandis, Tanrıkulu v. Turkey [GC],
no. 23763/94, § 79, ECHR 1999-IV).
- In
the present case the Şırnak Governor's office awarded
compensation to three of the four applicants for the killing of their
relatives “by members of the PKK”. There is no
information or documents in the Court's possession to show that any
kind of investigation had been carried out by the office of the
Governor – or by any authority on behalf of that Governor –
with a view to identifying the perpetrators of the killings before
awarding compensation to the three applicants. Indeed, no information
or documents were submitted by the Government to suggest that the
compensation procedure in question would meet the requirements of an
effective investigation under Article 2 of the Convention and thereby
an effective remedy for the purposes of that provision.
- In
the light of the foregoing and having particular regard to the
Court's established case-law referred to above (see paragraphs 67-69
above), the Court considers that the compensation procedure of
which three of the four applicants made use cannot be regarded as an
effective remedy for the purposes of Article 2 of the Convention as
it did not afford them adequate redress. It follows that the
Government's objection to the applicants' victim status must also be
dismissed.
- The
Court notes that the applicants' complaint concerning the
effectiveness of the investigation and the trial conducted after July
2002 is not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
- The
applicants submitted that the national authorities had failed to
carry out an adequate and effective investigation into the killings
of their relatives. They also alleged that the authorities would have
investigated the killings and identified those responsible had it not
been for the involvement of the gendarmerie and the security services
in the killings.
- The
Government maintained that the investigation had been effective. In
the opinion of the Government, the Şırnak court's failure
to locate and question the personnel working at the checkpoint on the
day of the abduction of the applicants' relatives had been due to the
applicants' failure to inform the authorities in a timely fashion. As
regards the Şırnak court's failure to question the
contradictory information provided by Abdulhakim Güven about his
whereabouts at the time of the incident (see paragraphs 38 and 42
above), the Government stated that Abdulkadir Güven had been
released from prison on a number of occasions to help the security
forces and, as such, it was normal that some eight years after the
events he could not remember the exact dates of his releases. In any
event, even when he had been released from prison, he was not allowed
to move freely and remained under the control of the security forces.
- The
Court reiterates that the obligation to protect the right to life
under Article 2 of the Convention, read in conjunction with the
State's general duty under Article 1 of the Convention to “secure
to everyone within [its] jurisdiction the rights and freedoms defined
in [the] Convention”, requires by implication that there should
be some form of effective official investigation when individuals
have been killed as a result of the use of force (see, mutatis
mutandis, McCann v. the United Kingdom, no.
19009/04, § 161, 13 May 2008; Kaya v. Turkey,
judgment of 19 February 1998, Reports, 1998-I, §
105). In that connection, the Court points out that this obligation
is not confined to cases where it is apparent that the killing was
caused by an agent of the State (see Salman v. Turkey ([GC],
no. 21986/93, § 105, ECHR 2000-VII).
- The
investigation must be effective in the sense that it is capable of
leading to the identification and punishment of those responsible
(see Oğur v. Turkey [GC], no. 21954/93, § 88,
ECHR 1999-III). This is not an obligation of result, but of means.
The authorities must have taken the reasonable steps available to
them to secure the evidence concerning the incident, including, inter
alia, eyewitness testimony (see Tanrıkulu, cited
above, § 109). Any deficiency in the investigation which
undermines its ability to identify the person responsible will risk
falling foul of this standard.
- Turning
to the facts of the present case, the Court observes at the outset
that, despite the applicants' and the eyewitnesses' repeated
submissions as to the alleged involvement of gendarmes in the
abduction and subsequent killing of the four relatives, there is no
information in the file to suggest that attempts were made to
identify and question the personnel working at the checkpoint or the
personnel at the nearby Bozalan gendarmerie station. Indeed, the
national authorities' failure to give serious thought to the
possibility of security force involvement in the killing is apparent
from the trial court's conclusion (see paragraph 45 above) –
which was also adopted by the Government (see paragraph 74 above) –
that, as one of the defendants had been helping the security forces
with their operations at the time, it was not logical that he would
be involved in any killings.
- The
Court observes that the two confessors – who were the only
persons charged with the killings – never appeared before the
trial court. The Court notes that, according to Turkish law,
defendants who are not detained on remand during the course of
criminal proceedings against them have the right not to attend the
trial court hearings. As happened in the present case, pursuant to
letters rogatory issued by trial courts, such defendants' statements
are taken by criminal courts located in the areas where they live.
Nevertheless, the Court considers that, in the circumstances of the
present case, the trial court's failure to ensure the attendance of
the two defendants was not compatible with the requirements of an
effective investigation. That failure not only prevented the trial
court from questioning the defendants directly in the presence of the
applicants' lawyer, but also prevented the eyewitnesses from
identifying them. In this connection the Court observes that the key
eyewitness to the events informed the prosecutor that he would be
willing to identify the two confessors in an identity parade (see
paragraph 33 above). For their part, the applicants drew the Court of
Cassation's attention to the trial court's failure to ensure such a
procedure (see paragraph 46 above). Nevertheless, as pointed out by
the applicants in their appeal petition, the Şırnak court
contented itself with showing photographs of one of the defendants to
that eyewitness. In this connection the Court cannot but note that
even obtaining those photographs took the trial court more than a
year and required many reminders (see paragraphs 39 and 43-44 above).
- Moreover,
the Court finds it wholly unsatisfactory that, even the misleading
information provided by one of the defendants about his whereabouts
at the time of the killings (see paragraph 38 above) did not spur the
trial court into questioning him directly or even indirectly with the
assistance of another court by a letter rogatory.
- In
light of the shortcomings identified in the foregoing examination,
the Court concludes that the national authorities failed to carry out
any meaningful investigation into the killing of the applicants'
relatives as required by Article 2 of the Convention.
- The
Court finds, therefore, that there has been a violation of Article 2
of the Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained that the indifference displayed by the
authorities to their allegations amounted to inhuman treatment within
the meaning of Article 3 of the Convention, which provides as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government did not deal with this complaint in their observations.
- The
Court considers that the question whether the authorities' failure to
conduct an effective investigation amounted to treatment contrary to
Article 3 of the Convention in respect of the applicants is a
separate complaint from the one brought under Article 2 of the
Convention which relates to procedural requirements and not to
ill-treatment as understood by Article 3 of the Convention (see
Tahsin Acar v. Turkey [GC], no. 26307/95, § 237, 8
April 2004).
- Although
the inadequacy of the investigation into the killing of their
relatives will obviously have caused the applicants feelings of
anguish and mental suffering, the Court considers that it has not
been established that there were special factors which would justify
finding a separate violation of Article 3 of the Convention in
relation to the applicants (ibid, at § 239, and the cases
cited therein; see also Dündar v. Turkey, no. 26972/95, §
91, 20 September 2005; Çelikbilek v. Turkey, no.
27693/95, §§ 98-99, 31 May 2005 and the case cited
therein).
- It
therefore concludes that this complaint is manifestly ill-founded and
must be rejected pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
first applicant Sabri Gasyak claimed 100,000 euros (EUR) in respect
of pecuniary and EUR 200,000 in respect of non-pecuniary damage.
- Each
of the remaining three applicants claimed EUR 92,000 in respect of
pecuniary and EUR 200,000 in respect of non-pecuniary damage. In
formulating their claims for pecuniary damage these three applicants
have taken into account the sums of compensation received by them and
their relatives from the office of the Governor (see paragraphs 49-50
above).
- The
Government argued that the applicants had failed to submit any
evidence in support of their claims and that the sums requested by
them were not justified in the circumstances of the case.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, having regard to similar cases (see Nesibe Haran v.
Turkey, no. 28299/95, § 107, 6 October 2005; see also
Dündar, cited above, § 109), and deciding on an
equitable basis, it awards each applicant EUR 10,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 6,400 for the costs and expenses incurred
before the domestic courts and for those incurred before the Court.
In support of their claims the applicants submitted a schedule of the
hours spent by their lawyer on the case.
- The
Government contested the claim.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award to the applicants, jointly, the sum
of EUR 4,000 covering costs and expenses under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint under Article
2 of the Convention relating to the effectiveness of the
investigation into the killing conducted after July 2002 admissible,
and by a majority, the remaining complaints inadmissible;
- Holds unanimously that there has been a
violation of Article 2 of the Convention in its procedural aspect on
account of the failure of the authorities of the respondent State to
conduct an effective investigation;
- Holds unanimously
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR
10,000 (ten thousand euros) to each of the four applicants plus any
tax that may be chargeable, in respect of non-pecuniary damage,
(ii) EUR
4,000 (four thousand euros), to the four applicants jointly, plus any
tax chargeable to the applicants, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicants' claim for just satisfaction.
Done in English, and notified in writing on 13 October, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint concurring opinion of
Judges Sajó, Tsotsoria and Karakaş is annexed to this
judgment.
F.T.
F.E.P.
JOINT CONCURRING OPINION
OF JUDGES SAJÓ,
TSOTSORIA AND KARAKAŞ
We
voted with the majority in declaring admissible the complaint under
Article 2 of the Convention relating to the effectiveness of the
investigation conducted after July 2002 into the killing. However, we
consider that all the complaints under Article 2 should also have
been declared admissible.
In
fact, the Court is of the opinion that the application that was
submitted on 13 June 2003 regarding killings that occurred in March
1994 is admissible because new information that casts new light on
the circumstances of the killing came into the public domain at a
later stage (see paragraph 60 of the judgment). In this case the
Court finds that the information submitted to the authorities by the
applicants in July 2002 led to significant new developments. The
Court therefore limits itself to a review of the investigations
carried out after July 2002 and finds a violation of Article 2 of the
Convention under its procedural limb. We agree with that position:
the investigations carried out after July 2002 did not satisfy the
requirements of Article 2 of the Convention.
It
seems to us that in 1994 the applicants were already aware of the
crucial facts that were sufficient to substantiate their claims that
the killings had occurred and that they provided enough information
for an intense and thorough investigation such as is required in a
case where four people were killed by Kalashnikov-type gunshots.
Between 1994 and 2002 the gendarmerie were unable to find the
perpetrators and attributed the killings “in all likelihood”
to the PKK (see paragraph 28).
The
Government submitted that the applicants, who claimed that the
investigation was ineffective, should have lodged their application
within a reasonable time after the bodies of their relatives had been
found in April 1994. However, they had waited nine years. The Court
noted that it had held in the case of Bayram and Yıldırım
v. Turkey ((dec.), no. 38587/97, ECHR 2002-III), referred to
by the Government, and in a number of other similar cases that, if no
domestic remedies were available or if they were judged to be
ineffective, the six-month time-limit in principle ran from the date
of the act complained of. However, in the decision cited the Court
found that the applicants had failed to satisfy an additional
requirement too: they had “failed to substantiate the
existence of specific circumstances which might have prevented them
from observing the time-limit laid down in Article 35 § 1”
(emphasis added).
The
Court's decision in Bayram and Yıldırım does
not exempt it from considering the extent to which an applicant was
hindered from submitting an application.
In a number of its judgments the Court has had regard to the
situation which existed in south-east Turkey during the time of
emergency rule, which was characterised by violent confrontations
between members of the PKK and the
security forces, and considered that “in such a situation it
must be recognised that there may be obstacles to the proper
functioning of the system of the administration of justice. In
particular, the difficulties in securing probative evidence for the
purposes of domestic legal proceedings, inherent in such a troubled
situation, may make the pursuit of judicial remedies futile”
(see, inter alia, Akdivar and Others v. Turkey,
16 September 1996, § 70, Reports of Judgments and
Decisions 1996 IV). Nevertheless, the considerations
entertained by the Court in such cases concerned the effectiveness of
judicial remedies in south-east Turkey at that time and related only
to the Court's examination of the applicants' compliance with the
rule of exhaustion of domestic remedies. Thus, in a number of cases
the Court concluded that there existed special circumstances,
dispensing the applicants from the obligation to use certain domestic
remedies (ibid., § 75).
Although
the existence of such specific circumstances absolved the applicants
from having recourse to domestic remedies, the Court has not yet
exempted applicants from complying with the six-month rule.
Even
assuming that the applicants were aware of the ineffectiveness of the
investigation, the specific circumstances arising from the
emergency rule might conceivably have prevented them from making use
of a national or international remedy. It is not only in regard to
the exhaustion rule that admissibility criteria have to be applied
with “due allowance for the fact that [they are] being applied
in the context of machinery for the protection of human rights, [and
therefore] with some degree of flexibility and without excessive
formalism” (see Akdivar and Others, cited above, §
69).
The
applicants claimed that after reporting the killings they had been
threatened by members of the security forces not to make any
complaints and that they had made complaints as soon as life in the
region had begun to return to normal. The circumstances of the
killings and the existence of the state of emergency substantiate
their claim. The Court has previously placed reliance on “the
vulnerable position of the applicant villagers and the reality that
in South East Turkey complaints against the authorities might
well give rise to a legitimate fear of reprisals” (ibid., §
105). In comparable cases such fears have been voiced a number of
times by applicants and the Court has found that during emergency
rule people were actually killed for not being willing to join the
village guards (see, for example, Acar and Others v. Turkey
(nos. 36088/97 and 38417/97, 24 May 2005). The Government failed to
provide information to rebut the presumption that these fears were
substantiated and not imaginary.
It
follows that the application should have been found to have been
submitted within the six–month time-limit and therefore
admissible as to the killings that occurred in March 1994. The
investigations and related trials are still going on and their length
(15 years) constitutes per se a violation of Article 2 under
its procedural limb.
