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redpajama_set_name: RedPajamaGithub


text:
Helmut Oberdiek * 18.9.1947 — † 27.4.2016
ECHR on the right to life in Turkey (2002-2004)
From B-Ob8ungen
There are a number of judgements of the European Court for Human Rights (ECHR) concerning the right to life. In some cases the ECHR found a violation of Article 2 of the European Convention of Human Rights (ECoHR), in others the court decided against a violation and in some cases friendly settlements were reached. The information was compiled by using the press releases for the summaries.
1 Decisions in 2002
1.1 Şemse Önen v. Turkey
1.2 Ülkü Ekinci v. Turkey
1.3 Orak v. Turkey
1.4 Orhan v. Turkey
1.5 Sabuktekin v.Turkey
1.6 Haran v. Turkey
1.7 Oral and others v. Turkey
1.8 T.A. v. Turkey
1.9 Toğcu v. Turkey
1.10 Erdoğan v. Turkey
1.11 Sıddık Yaşa v. Turkey
1.12 N.Ö. v. Turkey
1.13 Yakar v. Turkey
1.14 Demir v. Turkey
1.15 Adalı v. Turkey
2.1 Aktaş v. Turkey
2.2 Tahsin Acar v. Turkey
2.3 Macir v. Turkey
2.4 Güler and Others v. Turkey
2.5 Eren and Others v. Turkey
2.6 Hanım Tosun v. Turkey
2.7 Yurtseven and Others v. Turkey
2.8 Yaman v. Turkey
2.9 Oğras and Others v. Turkey
2.10 H.K. and others v. Turkey
2.11 Tepe v. Turkey
3.1 Tekdağ v. Turkey
3.2 İpek v. Turkey
3.3 Nuray Şen v. Turkey (No. 2)
3.4 Ahmet Özkan and Others v. Turkey
3.6 Özalp and Others v. Turkey
3.7 Buldan v. Turkey
3.8 Erkek v. Turkey
3.9 M.K. v. Turkey
3.10 A. and Others v. Turkey
3.11 Ağdaş v. Turkey
3.12 Çelik and Çelik v. Turkey
3.13 İkincisoy v. Turkey
3.14 Mehmet Sirin Yilmaz v. Turkey
3.15 Zengin v. Turkey
3.16 Seyhan v. Turkey
3.17 A.K. and V.K. v. Turkey
Decisions in 2002
Şemse Önen v. Turkey
(application no. 22876/93).
The application concerned the attack on Ms Önen's family home and the killing of her parents and brother Orhan, on 16 March 1993, and the subsequent investigation. The applicant alleged that the killings had been the result of a planned action by village guards from Balpınar, a neighbouring village, while the Government maintained that the PKK had a motive for the killing. Following a fact-finding mission, the European Commission of Human Rights did not find that it had been established to the required standard of proof and beyond reasonable doubt that the applicant's brother, father and mother were killed by agents of the State. However, the Commission found that the domestic investigation and subsequent judicial proceedings disclosed a number of grave deficiencies, in particular, concerning the search of the scene of the crime and the taking of evidence from eyewitnesses. The ECHR found a violation of Article only concerning the lack of an effective investigation into the killings.
Ülkü Ekinci v. Turkey
The Court held by six votes to one, that there had been a violation of Article 2 on account of the failure of the Turkish authorities to conduct an adequate and effective investigation into the circumstances surrounding the death of the applicant's husband; The late husband of the applicant, Yusuf Ekinci, born in Lice (south-east Turkey), was a lawyer and a member of a well-known Turkish family of Kurdish origin. On 24 February 1994, Yusuf Ekinci left Ankara city in a car. On 25 February 1994 his corpse with 11 bullet entries was found alongside the E-90 TEM highway in Gölbaşı on the outskirts of Ankara.
The applicant submits that the killing of her husband was one of about 400 so-called "unknown perpetrator" killings in 1994, as documented by both Amnesty International and the Turkish Human Rights Foundation. The principal victims included prominent Kurdish businessmen and intellectuals.
The Court noted that there was no indication in the case-file that the applicant's husband had been threatened by anyone, or that he had had reason to believe that his life was at risk. Neither were there any eye-witnesses to the killing. The Court was of the opinion that the actual circumstances in which the applicant's husband had died remained a matter of speculation and assumption and that, accordingly, there was an insufficient evidentiary basis on which to conclude that the applicant's husband was, beyond reasonable doubt, killed by or with the connivance of State agents in the circumstances alleged by the applicant.
Orak v. Turkey
(application no. 31889/96)
The Court held that there had been a violation of Article 2 of the European Convention on Human Rights (right to life) on account of the death of the applicant's son.
The applicant, Abdurrahman Orak, is the father of Abdulselam Orak, (A.O.), who was born in 1970 and died on 25 June 1993, aged 23. On 10 June 1993, during an operation launched with the aim of arresting a number of persons suspected of being implicated in the activities of the Kurdistan Workers' Party ("the PKK"), security forces went to the village of Harabengesor in Bitlis province, south-east Turkey (subject to a state of emergency). Early in the morning of 11 June 1993 A.O. and one A.G. were arrested and transferred to the gendarmerie barracks in Bitlis, where they were taken into police custody.
The Government submitted that A.O. and A.G. had tried to escape while they were under surveillance in the corridors of the gendarmerie barracks. On 20 June 1993 A.O. was transferred to Bitlis Hospital and later to Diyarbakır Hospital. He was diagnosed as suffering from "extrarenal uraemia". The doctors who examined him noted that he was unconscious and had injuries all over his body. On 23 June 1993 he died in hospital without coming out of the coma. According to the autopsy report of 23 June 1993, death was caused by a stroke.
On 6 July 1993 the applicant lodged a complaint against the gendarmes in whose custody his son had been placed. On 1 October 1993 a prosecution was brought against the four gendarmes in question for manslaughter. On 25 November 1997 the Bitlis Assize Court acquitted the defendants.
Orhan v. Turkey
The Court held that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the presumed deaths of the applicant's son and two brothers.
The case concerns the destruction of Salih Orhan's village, the detention and disappearance of his two brothers, Selim and Hasan Orhan, and his son, Cezayir Orhan, and the ensuing investigations. The applicant claimed that, on 6 May 1994, a large military convoy gathered the villagers in Deveboyu (also known as Adrok), Çağlayan, in south-east Turkey, giving them one hour to clear their houses. He alleged that the soldiers began burning the houses in the village including his home and those of Hasan and Selim Orhan. He further alleged that, on 7 May 1994, Selim Orhan and other villagers went to Kulp and complained about the incident to the Kulp District Gendarme Commander, who gave the villagers permission to stay in their village in order to harvest crops. According to the applicant, on 24 May 1994 the soldiers came back to the village. Selim, Hasan and Cezayir Orhan were still in Deveboyu and were allegedly forced by the soldiers to accompany them as guides. The three men were, the applicant claimed, last seen alive in Gümüşsuyu hamlet in the custody of the soldiers.
The Court noted that the Orhans were last seen being taken away to an unidentified place of detention by authorities for whom Turkey was responsible. As no information had come to light concerning the whereabouts of the Orhans for almost eight years, the Court was satisfied that they must be presumed dead following an unacknowledged detention by the security forces. It followed that liability for their death was attributable to the Turkish Government. Accordingly, there had been a violation of Article 2 in respect of their deaths.
Sabuktekin v.Turkey
No violation Article 2
Salih Sabuktekin, a local delegate of the Yüregir/Adana organisation and a member of the HADEP political party (the Political Party of the People's Democracy – pro Kurdish), was killed outside his house on 28 September 1994. According to the applicant, her brother-in-law set out in pursuit of the killers but was prevented from doing so by plainclothes police officers who subsequently arrested and detained him, releasing him a short while later. In July 1995, the Adana anti-terrorist brigade arrested and detained a suspect who was a member of the illegal Hizbullah organisation. He and others were charged notably with the premeditated murder of the applicant's husband. They were acquitted by the National Security Court for lack of evidence. The public prosecutor then instructed the head of the anti-terrorist brigade to pursue the investigations into Salih Sabuktekin's death.
As to the allegations that Salih Sabuktekin had been killed by the security forces or at their instigation, the Court noted that the statement by the applicant's brother-in-law was not corroborated by any other evidence and was even contradicted by statements made by other eye witnesses. In the absence of evidence to support the applicant's case, the Court held unanimously that there had been no violation of Article 2 on that point.
Haran v. Turkey
(application no. 25754/94) Striking out
The applicant alleged that his son was unlawfully killed by the Turkish security forces in May 1994, following operations in the area. He alleged a violation of Articles 2, 3, 6 and 14 of the Convention on account of his son's death.
The case has been struck out in the light of a declaration by the Government and their agreement to pay 80,000 pounds Sterling (GBP) inclusive of costs and expenses to the applicant on an ex gratia basis.
Oral and others v. Turkey
The applicants complained under Article 2 about the alleged extra-judicial killing of their relative İsmail Oral, during a police operation carried out in the Kadıköy district of Istanbul on 19 May 1991. The case has been struck out following a friendly settlement in which 500,000 French francs (FRF) inclusive of costs and expenses is to be paid to the applicant on an ex gratia basis. (The judgment is available only in English.)
T.A. v. Turkey
The complaint concerns the disappearance of Mehmet Salim A., a farmer living in Ambar, a village in the Bismil district of south-east Turkey. His brother was abducted in August 1994 by two unidentified persons - allegedly plain-clothes police officers.
The Turkish Government offered to pay ex gratia 70,000 pounds sterling for any pecuniary and non-pecuniary damage as well as costs. The Government also made a declaration stating that it regretted the actions which had led to the applications, in particular the disappearances in question and the anguish caused to their families.
The applicant asked the Court to reject the Government's initiative, arguing that the terms of the declaration were unsatisfactory. The Court considered that it was no longer justified to continue the examination of the applications. The Court decided, by six votes to one, to strike out the case.
Toğcu v. Turkey
The applicant complained about the disappearance of his son, Önder, the manager of a hotel in Diyarbakır. He alleged that Önder Hüseyin was taken into unacknowledged detention on or about 29 November 1994, and that the Turkish authorities failed to carry out an adequate investigation into alleged police involvement in his son's disappearance.
The Turkish Government offered to pay ex gratia 70,000 pounds sterling for any pecuniary and non-pecuniary damage as well as costs. The Government also made a declaration stating that it regretted the actions which had led to the applications, in particular the disappearances in question and the anguish caused to their families. "It is accepted that unrecorded deprivations of liberty and insufficient investigations into allegations of disappearance, such as in the present case[s], constitute violations of Articles 2, 5 and 13 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures with a view to ensuring that all deprivations of liberty are fully and accurately recorded by the authorities and that effective investigations into alleged disappearances are carried out in accordance with their obligations under the Convention. The Government consider that the supervision by the Committee of Ministers of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will be made in this context. To this end, necessary co-operation in this process will continue to take place..."
Erdoğan v. Turkey
(application no. 26337/95) Friendly settlement
Baki Erdoğan, died in hospital on 22 August 1993 while in police custody in Muğla and after going on hunger strike on 14 August 1993. The autopsy established that there were numerous injuries, bruises and abrasions on his body and that his death had been caused by respiratory failure resulting from lung injuries.
In a judgment of 21 April 1998 the Assize Court convicted the police officers of unintentional homicide, sentenced them to five and a half years' imprisonment and permanently debarred them from the civil service. That judgment was set aside by the Court of Cassation, but the Assize Court decided on 29 June 1999 to maintain the penalties initially imposed. The case was consequently remitted to the Plenary Criminal Court, which definitively quashed the impugned judgment on 28 December 1999.
The case has been struck out following a friendly settlement in which 100,000 euros (EUR) is to be paid to the applicant for the damage sustained and for costs and expenses. Turkey has, moreover, made the following declaration:
"The Government regret the occurrence of individual cases of death resulting from the use of unjustified force and from the failure to protect the lives of detainees as in the circumstances of Mr Baki Erdoğan's death. It is accepted that such acts and failures constituted a violation of Articles 2 and 3 of the Convention and the Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the right to life and the prohibition of ill-treatment – including the obligation to carry out effective investigations as also required by Articles 2 and 13 – are respected in the future."
Sıddık Yaşa v. Turkey
Yezal Yaşa and her son Veysi Yaşa died in controversial circumstances. Following an attack carried out by an armed gang of the PKK on 17 December 1992 in which a village guard working for the State was executed, it was claimed that soldiers accompanied by village guards invaded the village of Tepecik on 19 December 1992 and threw a grenade into the house of the Yaşa family killing the woman and her son.
The Government maintain that violent armed clashes had taken place in Tepecik until 20 December 1992, pitting the armed forces against PKK terrorists and costing eight terrorists and a village guard their lives. Seven villagers suspected of taking part in the PKK's initial attack were arrested in possession of weapons and brought before the courts.
The case has been struck out following a friendly settlement in which 89,000 pounds sterling (142,695.79 euros (EUR)) is to be paid for damage and costs and expenses. The Turkish Government also made the following statement.
"The Government regret the occurrence of individual cases of death resulting from the unjustified and disproportionate use of force, as in the case of Mrs Yezal Yaşa and her son Veysi Yaşa, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions."
N.Ö. v. Turkey
On 21 June 1993 gendarmes searched the home of N.Ö. in the hamlet of Dikmetaş ("Kırkat" in Kurdish) in Ortaşar (Çınar). Her husband, M.S.Ö., was taken away in a jeep by gendarmes who had arrived by helicopter. He was taken to a wooded area outside the village, stripped naked and strung up by his arms using the form of torture known as Palestinian hanging. The gendarmes fastened a rope to his genitals and pulled on it. Electric shocks were administered to his body and he was tortured until 5 p.m. He was then taken to Çınar Gendarmerie Station.
According to the Government, on 21 June 1993 the security forces from Diyarbakır Gendarmerie carried out an operation in Dikmetaş. M.S.Ö. was arrested while trying to flee and had to be forcibly apprehended using a rifle butt. After his arrest he made a statement concerning the discovery of a shelter, a gun and ammunition. On 22 June 1993 M.S.Ö. was taken to the emergency unit of Diyarbakır State Hospital. A medical report dated 22 June 1993 referred to bruising on his body. He was released from the hospital and taken to Diyarbakır Gendarmerie Headquarters, where questioning continued under medical control. His health deteriorated and he had to be transferred back to the hospital. A report drawn up on 5 July 1993 indicated that he could not speak and that he had traces of blood around his mouth. He died the same day. The public prosecutor, on 6 April 1994, issued a decision not to bring charges against the two gendarmes (said to have caused the fatal injuries), as they had since died. The applicant appealed unsuccessfully.
The case has been struck out following a friendly settlement in which 100,000 euros (EUR) is to be paid to the applicant for any pecuniary and non-pecuniary damage, costs and expenses. Turkey has, moreover, made the following declaration:
"The Government regret the occurrence of individual cases of death resulting from the use of force inflicted in contravention of Article 2 of the Convention as in the circumstances of M.S.Ö.'s death notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions."
Yakar v. Turkey
(no. 36189/97) Friendly settlement
Orhan Yakar (now deceased), who was 16 years old at the time of the events in question. On 17 November 1996 the security forces arrested Orhan Yakar (in or around Bingöl) during a search for a Kurdistan Workers' Party (PKK) member. On 18 November 1996 the gendarmes, accompanied by Orhan Yakar, carried out a search to find the body of a terrorist. Orhan, who was walking in front of the gendarmes, stepped on a mine placed by the PKK and died.
In the meantime, the father was told that his son had joined the PKK and that he had surrendered to the security forces in Bingöl where he had been held in custody. Orhan had died after stepping on a mine. The applicant filed unsuccessful petitions requesting that his son's body be handed over to him and that he be given access to all information and documents concerning his son's death.
Bingöl Provincial Administrative Council issued a decision, on 23 August 2000, stating that no prosecution should be brought against the members of the security forces. On 16 October 2000 the applicant filed an objection with Bingöl District Administrative Court. The case is still pending.
The case has been struck out following a friendly settlement in which EUR 40,000 is to be paid for any non-pecuniary and pecuniary damage, costs and expenses. Turkey has, moreover, made the following declaration:
"The Government regret the occurrence of individual cases of death resulting from the failure of the authorities to take the necessary measures to safeguard the lives of individuals as in the circumstances of the death of Orhan Yakar, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions."
Demir v. Turkey
Mahmut Demir is a Turkish national, born in 1961. At the material time he was living with his family in Tepecik. On 17 December 1992 an armed group belonging to the PKK executed a village guard working for the State after ambushing the minibus in which he had been travelling. Soldiers, accompanied by village guards, stormed the village of Tepecik on 19 December 1992. They threw four grenades into the applicant's family home, killing his two nieces and seriously wounding his father.
The case has been struck out following a friendly settlement under which the applicant is to receive GBP 116,000 (EUR 184,140.95) for damage and for costs and expenses. In addition, the Turkish Government has made the following declaration:
"The Government regret the occurrence of individual cases of death, as in the case of Misses Dilek and Dilan Demir, and of grievous injury, as in the case of Mr Yusuf Demir, resulting from the unjustified and disproportionate use of force."
Adalı v. Turkey
(no. 31137/96) Friendly settlements
Decision on three parallel cases: Şaziment Yalçın v. Turkey (no. 31152/96), Soğukpınar v. Turkey (no. 31153/96), Filiyet Şen v. Turkey (no. 31154/96)
The applications related to the death of the sons of Mrs Adalı, Mrs Yalçın and Mr Soğukpınar and the death of Mrs Şen's husband, all four of whom were killed in an attempt by Turkish police to arrest them.
On 7 October 1988 İsmail Hakkı Adalı, Fevzi Yalçın, Kemal Soğukpınar and Refa Şen were shot dead at Tuzla (Istanbul) following an exchange of fire with members of the security forces who had been instructed to arrest them. Under Articles 448, 281 and 463 of the Criminal Code, the Public Prosecutor of Kartal issued proceedings against 16 police officers who had taken part in the operation, accusing them of causing the death of the four men. The applicants joined the proceedings as "intervening parties" on 17 January 1989. They alleged that in using lethal force the police officers had exceeded their powers.
On 6 February 1995 the Assize Court acquitted the police officers on the ground that they had used legitimate force when attempting to arrest the men. The court based its decision on the depositions of the police officers present at the scene, the record of the investigation, an autopsy report and reports by expert witnesses. It further noted that two firearms had been found in the vehicle along with publications concerning the activities of an illegal extreme left-wing organisation. It found that the police officers had shot the suspects in accordance with the provisions of the Law on the Functions and Powers of the Police (Polis vazife ve selahiyet yasası) and dismissed the applicants' allegations that the police officers had opened fire on the suspects from short range and without issuing a warning. In a judgment of 17 October 1995 the Court of Cassation dismissed an appeal by İsmail Hakkı Adalı's mother, Fevzi Yalçın's mother, Kemal Soğukpınar's father and the public prosecutor.
The cases have been struck out following friendly settlements under which Mrs Adalı, Mrs Yalçın and Mr Soğukpınar are each to receive 55,000 pounds sterling (GBP) and Mrs Şen GBP 70,000 for the damage sustained and for costs and expenses. The Turkish Government have, moreover, made the following declarations:
"The Government regret the occurrence of individual cases of death resulting from the use of unjustified force as in the circumstances of (İsmail Hakkı Adalı's Fevzi Yalçın's, Kemal Soğukpınar's and Refa Şen's) death, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions. It is accepted that the use of such force as claimed in the instant case constitutes a violation of Article 2 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the right to life – including the obligation to carry out effective investigations – is respected in the future. It is noted in this connection that new legal and administrative measures have been adopted which have resulted in a reduction in the occurrence of deaths in circumstances similar to those of the instant application as well as more effective investigations. The Government consider that the supervision by the Committee of Ministers of the Council of Europe of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will continue to be made in this context. To this end, necessary co-operation in this process will continue to take place."
Aktaş v. Turkey
The Court held unanimously that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights in respect of the death of the applicant's brother and the deficiencies of the investigation into his death;
The applicant's brother, Yakup Aktaş, a shopkeeper born in 1964, died on 25 November 1990, one week after being taken into custody apparently on suspicion of channelling funds and weapons to the PKK (Workers' Party of Kurdistan). He left a widow and a baby daughter. Two police officers were charged with causing his death by beating him during interrogation in the Mardin interrogation centre. They were acquitted on 11 May 1994. The applicant unsuccessfully appealed against their acquittal.
The Government maintained that Yakup Aktaş had not been questioned further after 23 November 1990 (two days before his death); that he had suddenly fallen ill on 25 November 1990 and had been taken to hospital without delay; that an investigation had been begun immediately; and that the applicant had been able to intervene in the criminal proceedings against the police officers, who were acquitted for lack of sufficient evidence.
The Court reiterated that the obligation on the authorities to account for the treatment of a detainee was particularly stringent where the detainee had died or disappeared. It found that Yakup Aktaş had been deprived of his life in circumstances engaging the responsibility of the State. There was nothing to suggest that this had been necessary for any of the reasons set out in the second paragraph of Article 2 of the Convention. There had therefore been a violation of Article 2 in respect of Yakup Aktaş's death.
Tahsin Acar v. Turkey
The case concerns the disappearance of the applicant's brother, Mehmet Salim Acar, who was a farmer in Ambar, a village in the Bismil district in south-east Turkey. According to the applicant, his brother was abducted on 20 August 1994 by two unidentified persons, allegedly plain-clothes police officers. Mehmet Salim Acar's family lodged a series of petitions and complaints about his disappearance with the authorities in order to find out where and why he was being detained. According to the Government, effective investigations were carried out by the relevant authorities following the abduction and disappearance of the applicant's brother. His name is still on the list of persons being searched for by the gendarme forces in Turkey.
On 27 August 2001 the Turkish Government sent the Court the text of a unilateral declaration expressing regret for the actions that had led to the application and offering to make an ex gratia payment of 70,000 pounds sterling to the applicant for any pecuniary and non-pecuniary damage and for costs. The Government requested the Court to strike the case out of the list under Article 37 of the Convention.
The applicant asked the Court to reject the Government's initiative, arguing that the terms of the declaration were unsatisfactory. In particular, he submitted that the declaration made no admission that there had been any Convention violation in respect of his application or that Mehmet Salim Acar had been abducted by State agents and was to be presumed dead, that it did not contain any undertaking to investigate the circumstances of the case and that the compensation was to be paid ex gratia.
In a judgment of 9 April 2002 a Chamber of the Court decided by six votes to one to strike the case out (see above). On 8 July 2002 the applicant requested that the case be referred to the Grand Chamber under Article 43 of the Convention and Rule 73 of the Rules of Court. On 4 September 2002 the panel of the Grand Chamber accepted that request.
The Court considered that, under certain circumstances, it might be appropriate to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wished the examination of the case to be continued. It would depend on the particular circumstances of the case whether the unilateral declaration offered a sufficient basis for the Court to hold that respect for human rights as defined in the Convention did not require it to continue its examination of the case.
The unilateral declaration made in the present case did not adequately address the applicant's grievances. In the Court's view, where a person had disappeared or had been killed by unknown persons and there was prima facie evidence to support allegations that the domestic investigation had fallen short of what was necessary under the Convention, a unilateral declaration should at the very least contain an admission to that effect, combined with an undertaking by the respondent Government to conduct, under the supervision of the Committee of Ministers, an investigation that fully complied with the requirements of the Convention as defined by the Court in previous cases of a similar nature.
Macir v. Turkey
Hacı Sait Macir, who was a member of a HADEP (People's Democracy Party) committee, witnessed the fatal shooting of two other committee members in front of his cafe in Adana on 3 October 1994. Approximately three months after giving a statement to the police about the killings he himself was shot in front of the same cafe. He died in hospital on 1 January 1995.
The case has been struck out following a friendly settlement in which EUR 70,000 is to be paid for any non-pecuniary and pecuniary damage, costs and expenses. The Government have also made the following declaration:
"The Government regret the occurrence of individual cases of death resulting from the failure to protect the lives of individuals and the failure of the authorities to carry out effective investigations into the circumstances surrounding the death of individuals, as in the case of the applicant's husband, Mr Hacı Sait Macir.
Güler and Others v. Turkey
On 14 September 1994 Ahmet Güler – Zahide Güler's husband and the children's father – was shot and killed by a soldier on Seyithan Hill when taking his animals out to pasture. A criminal investigation was opened by the public prosecutor's office acting on its own motion. After finding that it had no jurisdiction to examine the case, it transferred the investigation file to the Varto Administrative Council. On 15 December 1998 the Varto District Governor informed the applicants' lawyer that it had been decided that it was unnecessary to issue criminal proceedings under the Prosecution of Civil Servants Act.
The applicants had also brought an action in damages in the administrative court, which was dismissed on 22 November 1995 on the ground that the authorities were not liable for the death. That decision was upheld by the Supreme Administrative Court on 2 March 1998.
The case was struck out of the list following a friendly settlement, under the terms of which the applicants were to receive 70,000 euros (EUR) for damage and EUR 5,000 for costs and expenses. The Turkish Government also made the following declaration:
"The Government regret the occurrence of individual cases of death resulting from the use of excessive force as in the circumstances of Ahmet Güler's death."
Eren and Others v. Turkey
The applicants claimed that İlyas Eren was arrested on 11 March 1997 by four plain-clothes policemen at the Kulp bus station in the centre of Diyarbakır. They could not find out from the authorities what had happened to him. According to the security police headquarters' records, İlyas Eren's name did not appear on any arrest report. The investigation into his disappearance is still pending before the Turkish courts.
The case has been struck out following a friendly settlement in which EUR25,000 is to be paid for any damage and EUR 5,000 for costs and expenses. The Turkish Government have also made the following declaration:
"The Government regret the occurrence of the incidents which have led to the bringing of the present application, as in the circumstances surrounding the disappearance of İlyas Eren."
Hanım Tosun v. Turkey
On 19 October 1995 the Hanım Tosun's husband was kidnapped by two persons in civilian clothing. Mrs Tosun informed the Avcılar police of her husband's abduction and asked the public prosecutor to keep her informed of his fate. The public prosecutor began a preliminary investigation but, not obtaining any reply from the Avcılar police to his requests for information about the kidnapping, brought criminal proceedings for dereliction of his judicial duties against the police officer responsible for the investigation, which is still pending before the judicial authorities. The applicant asserted that she had had no news of her husband since he was abducted by agents of the State.
The case has been struck out of the Court's list following a friendly settlement under the terms of which the applicant is to receive EUR 40,000 for damage and for costs and expenses. In addition, the Turkish Government made the following declaration:
"The Turkish Government regret the occurrence of the actions which have led to the bringing of the present application, and the circumstances surrounding the disappearance of Fehmi Tosun."
Yurtseven and Others v. Turkey
(application no.31730/96) Friendly settlement
The applicants are close relatives of Şemsettin Yurtseven, Mikdat Özeken and Münür Sarıtaş, who were detained by soldiers on 27 October 1995 during a military operation in the village of Ağaçlı. The applicants have had no news of them since. Criminal proceedings were brought against the person in charge of the military operation, who was accused of having beaten Şemsettin Yurtseven to death before proceeding to execute Mikdat Özeken and Münür Sarıtaş because they had witnessed events. He was acquitted for lack of evidence.
The case has been struck out following a friendly settlement in which the applicants are to receive EUR 160,000. In addition, the Turkish Government have made the following declaration: "The Government regret the occurrence of the actions which have led to the bringing of the present application, in particular the disappearance of the applicants' three relatives."
Yaman v. Turkey
Yunus Yaman, who was born in 1976 died in August 1996 while in pre-trial detention. According to the custody record, he was arrested on 16 June 1996 following an allegation that he was connected with the PKK. He had been found near the village of Kurtköyü (Elazığ), unable to talk or walk. While in custody, he was examined by several doctors who noted that he presented scratches and was suffering from malnutrition and an infectious disease (brucellosis). On 28 June 1996 an order was made for him to be detained pending trial. He was twice transferred to Ankara General Hospital where the doctors diagnosed him as suffering from muscular atrophy, a heart problem, malnutrition and weakness and wasting due to severe chronic illness. On 30 August 1996 he died at Ankara General Hospital from tuberculosis affecting several organs. The proceedings brought in connection with the applicant's complaints against the custody officers and the doctors who treated him were discontinued.
The case has been struck out following a friendly settlement under which the applicant is to receive 60,000 euros for damage and costs and expenses. The Government also made the following declaration.
"The Government regret the occurrence of individual cases of death resulting from the failure to protect the lives of detainees and the failure of the authorities to carry out effective investigations into the circumstances surrounding the death of detainees, as in the case of the applicant's relative, Mr Yunus Yaman."
Oğras and Others v. Turkey
In July 1995 Mr and Mrs Oğraş were taken to the police station with their daughter for questioning about the activities of their son, Serdar Oğraş. The following day Serdar Oğraş was arrested on suspicion of involvement in the murder of two soldiers. He made a confession and offered to take the police officers to the place where he had hidden the dead soldiers' weapons. According to the authorities, on 4 July 1995 Serdar Oğraş took the police officers to his parents' garden where they were attacked by members of the PKK and were forced to fire on Serdar Oğraş as he was attempting to escape, fatally wounding him. The applicants disputed that version of the events. Serdar Oğraş' death became the subject of criminal and administrative investigations, which are still pending.
The case was struck out of the list following a friendly settlement under which the applicants were to receive EUR 66,000 for damage and EUR 10,000 for costs and expenses. The Turkish Government also made the following declaration: : "The Government of the Republic of Turkey regret the occurrence of incidents involving the use of excessive force which have led to individual applications being lodged complaining of loss of life – as in the case of Mr Serdar Oğraş."
H.K. and others v. Turkey
The applicants allege that their father, A.K., was interrogated by the security forces on 3 October 1994 while he was out grazing his cattle. They accused him of providing help and support to members of the PKK and took him to the gendarmerie. His relatives went to the Ataçınar gendarmerie the next day, where they were given A.K.'s personal belongings and informed that he had been transferred to the Tunceli gendarmerie. It turned out, however, that he was not at those premises. A.K. was found on 7 October 1994 unconscious and in a coma at Tunceli State Hospital, where police officers had apparently left him.
He died on 10 October 1994 at Elazığ Hospital, to which he had been transferred. The doctors did not carry out an autopsy, but diagnosed a cerebral infection and found bruises and abrasions on his body and an injury behind his left ear. The applicants lodged a criminal complaint with the Tunceli public prosecutor's office in December 1994, and learnt subsequently that in January 1995 the public prosecutor had ruled that he had no jurisdiction and had forwarded the file to the administrative council of Tunceli province.
According to the Turkish Government, the medical reports drawn up in the present case established that A.K. had died of meningitis. The administrative council to which the file had been forwarded carried out an inquiry which showed that between 1 and 10 October 1994 A.K. had not been detained in the Ataçınar gendarmerie, and that the Tunceli State Hospital had not treated anyone of that name. The administrative council closed the case file on 27 March 1996, considering that the applicants' allegations had not been established.
The case has been struck out following a friendly settlement under which the applicants are to receive 60,000 euros (EUR) for damage and for costs and expenses. The Turkish Government have also made the following declaration:
"The Government regret the occurrence of individual cases of death resulting from the failure to protect the lives of detainees and the failure of the authorities to carry out effective investigations into the circumstances surrounding the death of detainees, as in the case of the applicants' relative."
Tepe v. Turkey
(application no.27244/95) No violation Articles 2 (right to life), 3, 5, 10, 14 and 18
The applicant alleged that in July 1993 his son, Ferhat Tepe, born in 1974, who had been a reporter for the Özgür Gündem newspaper in Bitlis, had been tortured and killed after being abducted by undercover agents of the State or by persons acting under their instructions and that the authorities had failed to carry out an effective and adequate investigation into his death. The Government denied this, maintaining that Ferhat Tepe had been murdered by the PKK (Workers' Party of Kurdistan).
As the parties did not agree on the facts surrounding Ferhat Tepe's death, three delegates from the Court took evidence from 24 witnesses at hearings held in Ankara between 9 and 14 October 2000.
After examining the parties' submissions and the evidence, the Court considered that the circumstances in which Ferhat Tepe had died and the fact that he had been working for a pro-Kurdish newspaper militated in favour of his father's allegations. However, the only other evidence which had supported those allegations had been a hearsay statement by the applicant's then lawyer. The Court could not conclude beyond all reasonable doubt that Ferhat Tepe had been abducted and killed by any State agent or person acting on their behalf and held unanimously that there had been no violation of Article 2 of the Convention in respect of his right to life.
With regard to the procedural aspect of Article 2, however, the Court noted that there had been striking omissions in the conduct of the investigation into Ferhat Tepe's disappearance and death. There had been no proper co-ordination between the police authorities and the various prosecutors, who, moreover, had failed to broaden the investigation or take steps on their own initiative to identify possible witnesses. The Court also found it regrettable that no full forensic autopsy had been carried out by a qualified forensic expert. Accordingly, it considered that there had been a violation of Article 2 on account of the national authorities' failure to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicant's son.
Tekdağ v. Turkey
The Court held that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights as regards the applicant's allegations about the abduction and killing of her husband; that there had been a violation of Article 2 of the Convention on account of the failure to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicant's husband;
Ali Tekdağ, disappeared in Dağkapı on 13 November 1994. The facts of the case are disputed between the parties. The applicant states that she and her husband went shopping in the village of Küçükkadı on 13 November 1994. When they got off the bus in Dağkapı her husband told her that he had to attend to something and asked her to wait for him for a few moments. He returned shortly afterwards, pretending not to recognise her, told her not to come near him and went off into a nearby street. He was being followed by armed men carrying walkie-talkies. Shots were fired and plain-clothes policemen subsequently arrived on the scene and took the applicant's husband away in a white minibus. The Turkish Government contest her version of the events. They assert that a letter from the Diyarbakır public prosecutor to the Ministry of Justice indicates that the applicant's husband was never taken into custody. The Government add that the applicant's daughter was arrested in November 1995 on charges of aiding and abetting the PKK and that the applicant's brother was murdered by the Hizbullah terrorist group.
When submitting their observations in February 1996 the Turkish Government had failed to provide the Court with the full file on the investigation of the case, and it was apparent that during the Court's fact-finding mission, a considerable portion of the file had been withheld before the Court had been able to consult it. The Court had repeatedly requested the authorities to forward all the documents in their possession in order to ensure the file was complete. Documents crucial to the establishment of the facts had been submitted at the last minute.
As regards the assessment of the facts, the Court considered that the applicant's statements about her husband's disappearance were consistent. However, her allegations that her husband had been arrested by plain-clothes policemen and detained by agents of the State were not supported by any evidence or eyewitness accounts and had therefore not been sufficiently proved.
İpek v. Turkey
The Court held unanimously that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights on account of the presumed death of the applicant's two sons. The facts of the case being in dispute between the parties, the Court conducted an investigation and concluded as follows.
On 18 May 1994, a military convoy arrived in the hilly area in the vicinity of Dahlezeri hamlet. Armed soldiers went down to the hamlet on foot. The applicant and the other inhabitants were ordered to leave their homes and were assembled under guard at the school on the outskirts of the hamlet. The soldiers took the identity cards of the adult males, including those of the applicant and his sons İkram and Servet İpek. Soldiers also set the houses in the hamlet on fire, most of which were burned down or badly destroyed. The inhabitants assembled at the school were aware of what was happening, but were prevented from returning to their homes. At some point before noon, the soldiers selected six young men, including İkram and Servet İpek, to help carry equipment, giving assurances that they would be able to return. The soldiers returned the identity documents to the inhabitants, but kept those taken from the selected six.
The inhabitants went back to the hamlet and found that their homes had been destroyed, including the applicant's house, belongings and livestock. Some inhabitants set about salvaging their belongings and extinguishing the flames. At some point in the afternoon of 18 May 1994, the soldiers returned and threatened the inhabitants with violence if they extinguished the fires. The soldiers burned any houses that remained standing. The applicant's sons were later taken to an unidentified military establishment in Lice, from where they were never released.
The applicant's two sons were seen being taken away by soldiers and were last seen in the hands of the security forces in an unidentified military establishment. Although the Court was unable to determine their fate, given the general context of the situation in south-east Turkey in 1994, there were strong grounds for believing that their unacknowledged detention would be life-threatening.
For the above reasons, and taking into account that no information had come to light concerning the whereabouts of the applicant's sons for almost nine-and-a-half years, the Court was satisfied that Servet and İkram İpek must be presumed dead following their unacknowledged detention by the security forces. Finding that liability for their death was attributable to the Turkish Government, the Court held that there had been a violation of Article 2.
Nuray Şen v. Turkey (No. 2)
The Court held unanimously that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights concerning the applicant's allegation that her husband was abducted and killed by State agents or people acting on behalf of the State authorities; there had been a violation of Article 2 (right to life) of the Convention concerning the lack of an effective investigation into his death.
The case concerns the death, in 1994, of Mehmet Şen, who was an active member of the Democratic Party (DEP). An inconclusive investigation was carried out following his death. Ms Şen claimed that her husband was abducted, tortured and killed by members of the security forces and that, prior to his death, he had complained of being followed by possible hit men. She also maintained that the authorities had failed to carry out an effective investigation into his killing.
The Turkish Government denied that Mr Şen had been in the hands of the security forces at the time of his death. They claimed that his murderers had not been identified and that the investigation was still under way. In its assessment of the facts of the case, the European Court of Human Rights concluded that Mr Şen was not tortured before being killed. The Court was unable to make a finding as to who might have been responsible for his abduction and death. The Court recalled that, in 1993 and 1994, as a result of the conflict in south-east Turkey, there were rumours that contra-guerrilla elements were involved in targeting people suspected of supporting the PKK, proscribed as a terrorist organisation under Turkish law. It was undisputed that there were a significant number of killings which included prominent Kurdish figures. The Court therefore considered that the circumstances of Mr Şen's death, his membership of the DEP Party (allegedly subjected to intimidation, threats and criminal attack) and his political ambitions might have given credence to the applicant's allegations.
However, the applicant's allegations had not been proved beyond reasonable doubt. It appeared from the evidence that no eye-witnesses could identify the people who had abducted and killed the applicant's husband. In particular, it had not been established that any State official was involved.
Ahmet Özkan and Others v. Turkey
The Court held unanimously that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights in respect of the security forces' opening of intensive fire on 20 February 1993; there had been both a substantive and procedural violation of Article 2 of the Convention in the case of Mevlüde Ekin as regards the death of Abide Ekin; there had been no violation of Article 2 of the Convention in the case of Fatma Yıldırım in respect of the death of Ali Yıldırım and the wounding of Emine Yıldırım; there had been both a substantive and procedural violation of Article 2 of the Convention in the case of Ayşe Ekinci in relation to the death of İbrahim Ekinci.
The case, which was lodged with the former European Commission of Human Rights by 32 Turkish nationals in April 1993, mainly concerns events which took place in 1993 in the village of Ormaniçi in the Güçlükonak district of the Şırnak province in south-east Turkey. The applicants alleged that, on 20 February 1993, security forces looking for members of the PKK (proscribed as a terrorist organisation under Turkish law) had attacked Ormaniçi, as a result of which two children had died. The applicants further alleged that on the same day the security forces had set fire to houses in Ormaniçi and had taken most of the male villagers into detention. The applicants claimed that these men had been subjected to ill-treatment in detention, resulting in various serious injuries and the death of one villager. According to the Government, security forces had come under fire from the village. No houses had been deliberately burned and nobody had been injured or killed in Ormaniçi on 20 February 1993. Moreover villagers taken into detention had not been ill-treated.
The facts being disputed by the parties, the former European Commission of Human Rights appointed Delegates who took evidence in Ankara from 2 to 4 April 1998 and from 5 to 10 October 1998 from 25 applicants, 8 other villager witnesses and 15officials. The certified transcripts of the oral evidence and the documentary evidence provided by the parties to the Commission were forwarded to the Court, when the case was transmitted to it on 1 November 1999. The main findings of the Court were as follows:
The Court accepted that, in the circumstances of the present case, the security forces' choice to open intensive fire on Ormaniçi in response to shots fired at them from the village had been "absolutely necessary" for the purpose of protecting life. It followed that there had been no violation of Article 2 in this respect. With regard to the death of a six-year old girl (Abide Ekin), who died of injuries received during the security forces' attack, the Court found that, once the security forces had taken control of Ormaniçi and had assembled its entire population in the village square, they had failed to make any attempt to verify whether there had been any civilian casualties, which – given the amount and nature of the ammunition used by the security forces – was a realistic possibility.
Although the girl's mother's assertion that her daughter died as a consequence of the security forces' failure to secure appropriate medical treatment for her and that she might have survived if the security forces had taken the necessary initiatives had remained unsubstantiated by any medical evidence and was largely speculative, the Court was nevertheless of the opinion that the callous disregard displayed by the security forces as to the possible presence of civilian casualties amounted to a breach of the Turkish authorities' obligation to protect life under Article 2 of the Convention in respect of the girl who died.
The Court had found that one of the villagers taken into custody (İbrahim Ekinci) had died in hospital in custody from undetected pneumonia, which he had developed while being held in custody. In all likelihood he had contracted this illness as a result of having been made to walk barefoot through snow and slush to Güçlükonak and of the conditions of his subsequent detention there. He had been taken into custody on 20 February 1993 in apparently good health and without any pre-existing injuries or active respiratory illnesses. Although he had been medically examined in custody and adequate measures had been taken to provide orthopaedic medical treatment for the frostbite on his feet by transferring him to hospital in custody, there was a direct causal link between, on the one hand, his treatment by the security forces on 20 February 1993 and the conditions of his subsequent detention in Güçlükonak and, on the other, his death due to undetected pneumonia. The Turkish authorities must therefore be regarded as liable for the cause of his death.It followed that there has been a violation of Article 2 of the Convention in respect of the death of İbrahim Ekinci.
The Court held unanimously that there had been no substantive violation of Article 2 (right to life) of the European Convention on Human Rights; there had been a procedural violation of Article 2 of the Convention. The case concerns the disappearance of the applicant's brother, Mehmet Salim Acar, in circumstances which are in dispute between the parties. Mehmet Salim Acar, born in 1963, was a farmer in Ambar, a village in the Bismil district in south-east Turkey.
According to the applicant, Mehmet Salim Acar was abducted on 20 August 1994, while working in a field in Ambar, by two unidentified people, allegedly plain-clothes police officers. His family lodged a series of petitions and complaints about his disappearance with the authorities in order to find out where and why Mehmet Salim Acar was being detained. In July 1995 the applicant provided the Bismil public prosecutor with the names of two gendarmes, İzzet Cural and Ahmet Babayiğit, and a village guard, Harun Aca, whom he suspected of being responsible for his brother's abduction. The public prosecutor declined jurisdiction (görevsizlik kararı) and referred the investigation that had been opened to the Diyarbakır Administrative Council for further proceedings under the Prosecution of Civil Servants Act (Memurin Muhakematı Kanunu). In January 1997 the Administrative Council decided not to prosecute the officials in question, on the ground that there was insufficient evidence. The Supreme Administrative Court (Danıştay) upheld that decision on 14 January 2000.
Furthermore, in February 2000 Mehmet Salim Acar's mother, wife and sister maintained that they had seen him in a news broadcast on the NTV television channel, during which a newsreader had announced that a man of that name had been arrested. They informed the prosecuting authorities, but in spite of their request, the Diyarbakır public prosecutor decided not to open an investigation (tapiksizlik kararı) into the matter.
According to the Government, effective investigations were carried out by the relevant authorities following the abduction and disappearance of the applicant's brother. His name is still on the list of persons being searched for by the gendarme forces in Turkey.
The Court noted that the alleged involvement of gendarmerie officers in the disappearance of Mehmet Salim Acar was not only contradicted by the repeated and consistent statements of the two eyewitnesses but was also not corroborated by any other evidence. Having regard to the information in its possession, the Court considered that the allegation that the applicant's brother had been abducted and detained by agents of the State was based on hypothesis and speculation rather than on reliable evidence. In those circumstances, the Court concluded that it had not been established beyond reasonable doubt that the Turkish Government's responsibility had been engaged in the abduction and disappearance of Mehmet Salim Acar.
Özalp and Others v. Turkey
The Court held unanimously that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights concerning Cavit Özalp's death; there had been a violation of Article 2 of the Convention concerning the failure to conduct an effective investigation into the death of Cavit Özalp.
On 24 August 1995 Cavit Özalp was taken into custody by gendarmes from Bismil Gendarme District Command on suspicion of being a member of the PKK (proscribed as a terrorist organisation) and of aiding and abetting the PKK. The same day, Hacı Özalp stated that he saw his father, Cavit Özalp, but was not allowed to speak to him.
The Turkish Government claimed that Cavit Özalp informed the gendarmes that PKK terrorists were occasionally staying in his house and that he was providing them with food and military equipment, such as weapons, clothes and medicine. He allegedly also stated that he had dug a shelter with the terrorists, on the slopes of a hill near the Pamuk River in the Sarıhüseyin hamlet attached to the Serçeler village, to hide equipment.
According to the Government, on 26 August 1995 at 4 a.m., gendarmes conducting a search to locate the shelter were guided by Cavit Özalp to a shelter near the Şedat road in the village of Kamberli. The soldiers asked Cavit Özalp to open the shelter, while protecting themselves at a safe distance. As Cavit Özalp opened the cover, there was an explosion, which killed him. The soldiers allegedly found weapons, medical equipment and clothes in the shelter. On 14 November 1995 Bismil public prosecutor accused the non-commissioned officer in charge of the search of causing Cavit Özalp's death through negligence. Not having the jurisdiction to bring proceedings against the non-commissioned officer, however, he transferred the case file to Bismil District Administrative Council.
On 5 February 1996 the applicants' representatives filed a petition with the public prosecutor attached to Diyarbakır State Security Court, requesting a copy of the arrest and autopsy reports as well as the public prosecutor's decision of non-prosecution. The public prosecutor refused to provide the documents. On 28 February 1996 the district administrative council issued a decision stating that no prosecution should be brought against the members of the security forces, who had performed their duty with diligence.
The Court noted that the authorities were certainly in a position to evaluate the risks inherent in visiting the alleged site of the shelter in question, at the relevant time. Being aware of the risk of explosion when Cavit Özalp opened the door of the shelter, the gendarmes had protected themselves. In the absence of any indication of other steps taken to protect Cavit Özalp's life, it could reasonably be inferred that the authorities had failed to take preventative measures to protect his life. The Court therefore considered that there had been a violation of Article 2 concerning Cavit Özalp's death.
Buldan v. Turkey
The Court held, unanimously, that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights concerning the death of the applicant's brother; a violation of Article 2 concerning the lack of an adequate and effective investigation into his death.
On 3 June 1994 at about 4.30 a.m. while the applicant's brother, Savaş Buldan, was leaving the casino at the Çınar Hotel in the Yeşilyurt area of Istanbul, together with his two friends, they were approached by seven or eight people with walkie-talkies, firearms and bullet-proof vests who introduced themselves as police officers. The three men were then forced into three cars.
At about 9 p.m. that day, a man contacted the Yığılca gendarmerie station within the district of Bolu, some 270 kilometres from where the three men had been abducted, informing them that he had seen three bodies in an area near the river where he had gone to fish. The preliminary investigation of the bodies revealed that the three men had been shot at point-blank range. On 4 June 1994 the applicant identified the bodies of his brother and his two friends. An investigation was undertaken and murder charges brought against Savaş Buldan's suspected killer, who was acquitted for lack of evidence on 18 November 1999.
The Court noted that the Susurluk Report, which stated that it had been a State strategy to kill wealthy Kurdish people who supported the PKK (proscribed as a terrorist organisation under Turkish law), had referred to the killing of Savaş Buldan. In addition, Hanefi Avcı, former head of Istanbul and Diyarbakır Police Intelligence, had maintained that that the kidnapping and assassination of Savaş Buldan had been carried out by a special team made up of State officials and civilians.
The Court recalled that the Susurluk Report could not be relied on to establish to the required standard of proof that State officials were implicated in any particular incident. Notwithstanding the fact that the name of the applicant's brother was mentioned in the report, the actual circumstances in which he had died remained a matter of speculation and assumption. Accordingly, there was insufficient evidence on which to conclude that the applicant's brother was, beyond reasonable doubt, killed by or with the connivance of State agents in the circumstances alleged by the applicant. There had, therefore, been no violation of Article 2.
Erkek v. Turkey
(no. 28637/95) Violation of Article 2
Namık Erkek, was arrested in December 1992 and taken into police custody on suspicion of being a member of the PKK (Workers' Party of Kurdistan) – proscribed as a terrorist organisation under Turkish law – and extorting money from shopkeepers. He allegedly escaped shortly after his arrest, after leading the security forces to a place where it was said that a presumed accomplice might be found. Disciplinary proceedings were instituted against 11 police officers for negligence in the performance of their duties, but no measures were taken against them. In addition, the applicant lodged a complaint against the police officers in whose custody his brother had been placed, alleging that he had been tortured to death. In view of the findings of the administrative inquiry conducted in respect of the officers and statements by presumed members of the PKK that Namık Erkek was involved in the armed struggle in the province of Muş, the public prosecutor discontinued the proceedings.
The applicant alleged that his brother had died after being tortured by the security forces while in their custody. As regards the disappearance of Namık Erkek, the Court noted that the applicant's allegations were not based on concrete and verifiable facts and were not decisively corroborated by any witness statements or other evidence. Since there was no evidence that the applicant's brother had died after being tortured by the police, the Court held unanimously that there had been no violation of Article 2 on that account.
M.K. v. Turkey
(no. 29298/95) No violation of Article 2
M.K.'s brother's house was searched on 31 July 1994 in connection with an investigation into PKK activities. A warrant was issued in August 1994 for his brother's arrest on a charge of membership of an illegal organisation and he was declared liable to trial in absentia. His body was found in Beykoz (Istanbul) in March 1995. The gendarmerie made inquiries at the scene and the public prosecutor's office ordered an investigation.
As regards the death of his brother, the Court noted that the applicant's allegations were not based on verifiable concrete evidence or conclusively backed up by witness statements or other proof. Moreover, in a statement to the public prosecutor, the applicant had said that he had no idea why his brother had been killed or of the circumstances in which he had met his death and did not have any suspects in mind. Since there was no evidence enabling it to conclude beyond all reasonable doubt that the applicant's brother had been killed by the security forces or with their connivance, the Court held unanimously that there had been no violation of Article 2 on that account.
A. and Others v. Turkey
The Court held unanimously that there has been no violation of Article 2 of the European Convention on Human Rights (right to life) on account of the death of C.A.; there has been a violation of Article 2 on account of the lack of an effective investigation into the circumstances surrounding C.A.'s death.
The applicants are the parents and brothers of C.A., who was found hanged in his cell shortly after he was arrested in a police operation against the PKK (the Workers' Party of Kurdistan, which is a banned terrorist organisation under Turkish law). The facts of the case are disputed. The applicants maintain that C.A. died as a result of torture in police custody. They alleged that he was arrested on 10 August 1994 and was seen by a witness two days later in the Diyarbakır courthouse.
According to the custody record, C.A. was arrested and taken into police custody with one of his brothers on 22 August 1994 following an identity check. The Turkish Government say that he was found dead the following afternoon, having hanged himself from the bars of his cell window with the aid of a bedcover and his shirt. On 8 March 1995 the public prosecutor brought proceedings against the police officers who had questioned C.A. under Article 245 of the Criminal Code, which makes it an offence to use force or ill-treatment when executing a warrant. A.A. joined the proceedings as an "intervening party".
In a judgment of 9 April 1996, the Diyarbakır Criminal Court acquitted the police officers concerned, for lack of evidence. Relying on statements by police officers, it found that there were already traces of injury to C.A.'s face when he was arrested and had been driven to suicide by anxiety and pessimism. That judgment was upheld by the Court of Cassation.
The evidence before the Court did not support the applicants' allegations that C.A. had died as a result of torture at the hands of the security forces. As regards the authorities' duty to protect the life of detained persons by supervising them and preventing suicide, the Court noted that there was no evidence before it to show that the standard measures for preventing suicide and supervising prisoners had not been taken. Furthermore, the Court was not convinced that the measures taken to supervise C.A. could be criticised under Article 2, as his state of mind appeared to be "normal". The means C.A. had used to kill himself, namely a rope made by knotting the border of his bedcover to his shirt tails, would not have been easily foreseeable. There was nothing in the case file to show that the police officers could reasonably have foreseen that C.A. would commit suicide and that they should have posted an officer on round-the-clock watch. Consequently, the Court found that there had been no violation of Article 2 on that account.
Ağdaş v. Turkey
The case concerned the death of İrfan Ağdaş on 13 May 1996. The circumstances surrounding his death are disputed by the parties.
According to the applicant, three police officers who were patrolling the Alibeyköy neighbourhood in an unmarked car, spotted İrfan carrying a left-wing newspaper – Zafer Yolunda Kurtuluş (Salvation in the Path of Glory) – and followed him. When İrfan started to run, two of the police officers got out of the car and opened fire, shooting İrfan. He fell to the ground, where the police officers kicked him. A woman ran to help İrfan, but was pushed aside by the police officers who put İrfan in the car. One of the police officers sat on him as they drove away. After an hour or so they left İrfan's body near Eyüp SSK Hospital.
The Turkish Government claimed that police officers approached İrfan Ağdaş to carry out an identity control and a body search. İrfan attempted to run away and opened fire at the police officers. The police officers called to him to surrender and fired warning shots. During the exchange of fire, İrfan was wounded. He died after his transfer to hospital by the police officers.
A criminal investigation was opened into İrfan Ağdaş' death on 14 May 1996 and, on 3 April 1997, the three police officers involved were charged with "intentional homicide". On 2 April 2001 Eyüp Assize Court concluded that İrfan Ağdaş had died in an armed clash and acquitted the police officers on the ground that they had acted in self defence. The decision was upheld on appeal.
The European Court of Human Rights had serious doubts as to how the shooting took place. It considered that this was largely due to the manner in which the investigation at the scene of the incident, the post-mortem examination and the investigation by the criminal court had been conducted. Finding an insufficient factual and evidentiary basis on which to conclude that the applicant's brother was deprived of his life by the police officers as a result of the use of force which was more than absolutely necessary, the Court held, by six votes to one, that there had been no violation of Article 2 concerning İrfan Ağdaş' death.
However, given the lack of a prompt and adequate investigation into the circumstances surrounding his killing, the Court held, unanimously, that there had been a violation of Article 2 concerning the investigation into İrfan Ağdaş' death.
Çelik and Çelik v. Turkey
On 5 November 1996 security forces carried out a search for members of the PKK – proscribed as a terrorist organisation under Turkish law – in the applicant's village (Malatya province). At around 11 p.m. the security forces surrounded the applicants' house and asked them to come out. The applicants and their sons Bülent (born in 1974) and Turabi (born in 1977) came out and showed the security forces the direction in which PKK members who had been in the house had fled. A clash broke out and the security forces fired a rocket which killed Bülent.
Following Bülent's death, the first applicant asked the Doğanşehir public prosecutor to start criminal proceedings against the responsible members of the security forces. On 31 July 1997 the Doğanşehir District Administrative Council issued a decision stating that no prosecution should be brought, as the applicants' son had died in the course of a confrontation between PKK members and the security forces.
The case has been struck out following a friendly settlement in which 60,000EUR is to be paid for any non-pecuniary or pecuniary damage, costs and expenses. The Turkish Government also made the following statement: "The Government regret the occurrence of individual cases of death resulting from the failure of the authorities to take the necessary measures to safeguard the lives of individuals.
İkincisoy v. Turkey
The Court held unanimously that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights on account of the death of Mehmet Şah İkincisoy; a violation of Article 2 (right to life) on account of the lack of an effective investigation into the circumstances of Mehmet Şah İkincisoy's death.
The application concerned the circumstances surrounding the death of Mehmet Şah İkincisoy. The facts were in dispute between the parties. The applicants claim that at about 1 a.m. on the night of 22 November 1993 plain-clothes police officers arrived at Abdülrezzak İkincisoy's apartment and asked him where his son was. They then went to his uncle's apartment where they found him. While the police officers had started questioning the people present in the apartment gun shots were fired killing one police officer and another person present on the premises.
The applicants, Mehmet Şah İkincisoy and other members of their family were arrested and taken to Çarşı Police Station before being transferred to the Rapid Intervention Headquarters. Some of them claim to have seen Mehmet Şah İkincisoy at the police station and to have heard his cries at the Rapid Intervention Headquarters. After spending several days in police custody, the applicants were released. On 6 December 1993 Abdulrezzak İkincisoy asked Diyarbakır State Security Court Public Prosecutor for news of his son. He was informed that his son had died in a clash with the police on 25 November 1993 and that his body had been buried. Despite his requests, he was not allowed to have his son's grave opened or an autopsy conducted. After applying to the European Commission of Human Rights Abdulrezzak İkincisoy was summoned to the Diyarbakır public prosecutor's office, questioned about his application to the Commission and, he alleged, forced to sign a statement expressing his wish to withdraw his application.
The Turkish Government submitted that they had been informed by a suspect that Mehmet Şah İkincisoy was aiding and abetting the PKK (Workers' Party of Kurdistan – proscribed as a terrorist organisation under Turkish law). The security forces went to his father's apartment and then to his uncle's. While searching the apartment they found four men sleeping in one of the rooms. As they questioned them, one of the men opened fire killing one of the police officers and injuring another. Mehmet Şah İkincisoy allegedly then escaped.
According to the Turkish authorities, on 23 November 1993 the police received an anonymous telephone call informing them that two armed men had been seen hiding in a hut near the Ongözlü Bridge. When the officers arrived, an armed clash broke out which lasted approximately 20 minutes following which two people were killed. It could subsequently be seen from photographs of the bodies that one of them was Mehmet Şah İkincisoy. Furthermore, according to the ballistic examination reports, the guns that were found in the hut matched those used during the shoot-out in Abdulkadir İkincisoy's apartment the previous day.
In the light of the evidence submitted to it, the Court found it established that on 22 November 1993 a team of police officers from the Anti-Terrorism Branch of the Diyarbakır Security Directorate had undertaken searches in order to find Mehmet Şah İkincisoy. They had gone to his father's and then to his uncle's apartment, where a shoot-out had occurred. Mehmet Şah İkincisoy had been arrested the same day and shot dead the following day while under the control of the authorities.
The Court drew very strong inferences from total lack of any evidence indicating that Mehmet Şah İkincisoy had been taken into custody. It reiterated that, having regard to the general context of the situation in south-east Turkey at the time, an unacknowledged detention could be life-threatening. Furthermore, the autopsy examination, which had critical importance in determining the causes of the death, had been defective in fundamental aspects. In that connection the Court was struck by the authorities' refusal to deliver Mehmet Şah İkincisoy's body to his family, who had intended to request a detailed autopsy.
Consequently, it could not be established beyond reasonable doubt that Mehmet Şah İkincisoy had died during a clash with police officers. The authorities had, moreover, failed to establish the real circumstances surrounding his death. Accordingly, the Court concluded that Mehmet Şah İkincisoy had died in circumstances engaging Turkey's responsibility without there being anything to suggest that this had been made necessary. There had therefore been a violation of Article 2.
Mehmet Sirin Yilmaz v. Turkey
The applicant is the widower of the deceased Sariye Yılmaz. He introduced the application on his own behalf and on behalf of his family and deceased spouse. At the time of the events at issue the applicant was living in the village of Bayırlı (Karıncak) in the Lice district of south-east Turkey.
The applicant claimed that, at the beginning of October 1996, soldiers warned Bayırlı villagers that, if they failed to evacuate the village by 15 October, their houses would be burned down. On 7 October 1996 an armed clash broke out between members of the PKK (Workers' Party of Kurdistan), proscribed as a terrorist organisation under Turkish law and the security forces stationed near the village. When the clash was over, soldiers fired artillery shells towards the village. An artillery shell landed six to seven metres from the applicant's house and a piece of shrapnel struck his wife in the abdomen. She died on the way to the local health clinic.
The Turkish Government claimed that, on 7 October 1996 a group of terrorists attacked the security forces which were stationed near Bayırlı. At around 4.30 a.m. terrorists tried to escape through the village, firing randomly at the houses and wounding the applicant's wife.
The Court found that there was an insufficient factual and evidentiary basis on which to conclude that the applicant's wife was, beyond reasonable doubt, intentionally or recklessly killed by the security forces. It therefore held, by five votes to two, that there had been no violation of Article 2 concerning the applicant's allegation that his wife was killed in circumstances engaging the responsibility of agents of the State. The Court held, unanimously, however, that there had been a violation of Article2 on account of the failure of the Turkish authorities to conduct an adequate and effective investigation into the circumstances surrounding the death of the applicant's wife.
Zengin v. Turkey
The Court held unanimously that there had been no violation of Article 2 of the European Convention on Human Rights (right to life) as regards the death of the applicant's husband; that there had been a violation of Article 2 of the Convention as regards the nature of the investigation into the circumstances of his death.
The applicant was living with her husband, Izettin Zengin, in the village of Narlıca, in the district of Kulp (Diyarbakır). On 28 November 1998 security forces prepared an ambush at the entrance to the village of Narlıca, in the expectation that members of the PKK would come there to obtain supplies. In the course of an exchange of fire which then took place the applicant's husband was mortally wounded. The public prosecutor of the region in which emergency powers were in force is then said to have declared that a "terrorist" had died as a result of the clash. An incident report drawn up on the following day stated that Mr Zengin had been killed by fire from "terrorists" and that his body had been found near his home. On the same day the public prosecutor went to the morgue to make an external examination of the deceased's corpse, after which a burial permit was issued. The examination revealed that Mr Zengin's death had been caused by bullets which had passed through his heart and lungs. In the course of a preliminary investigation witness evidence was taken from a number of people who had taken part in the operation and a reconstruction of events was staged. At the end of this investigation the public prosecutor's office concluded that shots fired by "terrorists" had probably caused Mr Zengin's death since his house was in their field of vision. In May 2000, in a complaint to the Kulp public prosecutor, the applicant's representative applied for measures to be taken to protect her life. Mrs Zengin asserted that she had been the victim of attempts by the authorities to intimidate her after she had lodged her application with the European Court of Human Rights and that she had been compelled to leave her village on account of the threats against her.
The Court noted that Mr Zengin had died of bullet wounds sustained during an armed clash, and that it had not subsequently been determined who had fired the fatal shots. In the light of the material in its possession and in the absence of tangible evidence, it considered that a finding that he had been killed by gunfire from agents of the State would be based on hypothesis and speculation rather than reliable evidence. It had not been established beyond a reasonable doubt that the responsibility of the respondent State was engaged for the killing of the applicant's husband. Consequently, the Court held unanimously that there had been no violation of Article 2 as regards the death of Mr Zengin.
Seyhan v. Turkey
(application no. 33384/96) No violation of Article 2 (loss of life) Violation of Article 2 (inadequate investigation)
Süleyman Seyhan, disappeared on 30 October 1995 and his body was found on 6 March 1996. The facts are disputed. The applicant maintained that on the morning of 30 October 1995 his father and one of his sisters were made to board a military vehicle by a soldier and a village guard. They, and a number of other people, were taken to a place where they were tortured. His sister was subsequently released, but the applicant and his family received no further news of Süleyman Seyhan.
An investigation was launched and a statement taken from Mrs Seyhan. She said that three village guards, whose names she supplied, had been present on the morning her husband disappeared. The public prosecutor took statements from the guards and from gendarmes identified by a third party.
On 6 March 1996 Süleyman Seyhan's decomposing and decapitated body was found under stones at the bottom of a well in the village of Korucu. An autopsy was performed, but no cause of death was determined, owing to the advanced state of decomposition. However, the pathologist was able to say that Mr Seyhan had been killed. The circumstances surrounding his death have yet to be established.
The Turkish Government denied that the authorities were in any way implicated in Süleyman Seyhan's disappearance and death.
With regard to the death, the European Court of Human Rights noted that the applicant had written a number of letters to the investigating authorities seeking information about his father, but had not disclosed to them, prior to lodging his application, certain evidence, such as statements by witnesses, which he had produced a Court. It also noted a number of inconsistencies between the statements furnished by the applicant and the evidence in the case file, particularly with regard to the alleged arrest of the sister.
Having regard to the material before it, the Court found that it had not been established beyond all reasonable doubt that the Turkish Government's responsibility had been engaged in the kidnapping, disappearance and death of Süleyman Seyhan. It accordingly held unanimously that there had been no violation of Article 2 on account of his death. As to the investigation into the circumstances of the death, the Court noted that although at first sight the initial inquiries appeared to comply with the requirements of Article 2, the conduct of the investigation thereafter, once the authorities had been informed of the suspicions concerning the village guards, could not be considered to have been exhaustive or satisfactory. The public prosecutor had failed to organise a face-to-face meeting between the village guards and the applicant's mother, who had identified them, and relied on their statements without seeking to establish the precise sequence of events on the day in question. Nor was there any evidence that they had sought to check the truth of the guards' statements or made any attempt to interview possible witnesses. In those circumstances, the Court found that the Turkish authorities had not conducted an adequate and effective investigation into the disappearance and death of the applicant's father and held unanimously that there had been a violation of Article 2 on that account.
A.K. and V.K. v. Turkey
(application no. 38418/97) No violation Article 2 (loss of life) Violation Article 2 (inadequate investigation)
On 20 November 1994, B.K. was arrested on suspicion of aiding and abetting the PKK and held at Varto Security Headquarters. On 22 November an order was made authorising B.K.'s continued detention for a further seven days and a doctor certified that he had examined him and found no traces of assault on his body.
On the morning of 28 November 1994, B.K. was found dead in his cell, hanging from the heating pipes by the cord of his tracksuit. The public prosecutor was informed and started an investigation. He attended the scene and carried out a detailed external examination of the body with a doctor from which it appeared that the cause of death was asphyxia by hanging.
Considering that the cause of death had been established beyond doubt, the public prosecutor decided that to dispense with a formal autopsy. However, in 1995 he made an order for the body to be exhumed for various tests to be performed. A report drawn up in March 1996 by a specialist from the Institute of Forensic Medicine indicated that the examinations necessary to determine the cause of death were not carried out as there had been no formal autopsy and the judicial process was incomplete. The report also concluded that the superficial traumatic changes to the body were consistent with hanging and that there was no conclusive medical proof that the deceased had been forcibly hanged by third parties or killed prior to being hanged.
In May 1996 Mrs A.K lodged a criminal complaint against the police officers who had been on duty while her son was in custody. The public prosecutor decided to take no further action either on the investigation he had started himself or on Mrs A.K's complaint.
With regard to B.K.'s death, the Court found that, in the circumstances of the case, a finding that he had died as a result of torture by the security forces would be based more on conjecture than on reliable evidence. There was no evidence before it to support such a finding. Furthermore, any deprivation of physical liberty was, by its very nature, apt to prove a psychological ordeal for prisoners and consequently entailed a risk of suicide. The criminal justice system implemented measures to avoid such risks to prisoners' lives. The Court was not persuaded that the measures taken by the police officers to search and keep watch over B.K. could be impugned under Article 2, as his mental state had appeared normal. It had been difficult to foresee that he would kill himself in that way and statements from prisoners in adjoining cells suggested that the suicide had taken place in total silence. Consequently, the Court held that there had been no violation of Article 2 on account of B.K.'s death.
The other pages in this series are:
You can download a package of files with press releases of all judgements of the European Court of Human Rights on Turkey between 2002 and 2010 (one file for every year) and a corresponding table listing the judgements according to decisions on violation, no violation and omissions. Thus, cases on violations of other provisions of the European Convention of Human Rights can easily be identified. The compressed file ECHR on Article 2 of the Convention is 2.7MB big.
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