ECHR on the right to life in Turkey (2008-2010)

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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.

Decisions in 2008

In 2008 I have tried to organize the press releases of the ECHR on judgements concerning Turkey according to decisions on or against violations. You can find all pages under the category ECHR (and would also have the opportunity to download all pages as a book/file). You could also view decisions on specific provisions in the manner of "Category:Art.X". You can find the categories that were use on the page Special:Categories.

Here you find the cases on Article 2 of the European Convention of Human Rights listed according to judgements detecting a violation or ruling against a violation.

Decisions on violation

Decisions against violation

Decisions in 2009

Yeter v. Turkey

(application no. 33750/03) Violation of Article 2 (life and investigation)

Süleyman Yeter, born in 1962, died on 7 March 1999. Mr Süleyman Yeter was taken into police custody on 5 March 1999 on suspicion of membership of an illegal armed organisation, the Marxist-Leninist Communist Party. Relying on Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment), the applicants alleged that their relative was tortured to death during his police custody and that the authorities failed to carry out an effective investigation into their allegation. The Court held unanimously that there had been a violation of Article 2 both concerning the right to life of the applicants’ relative and the lack of an effective investigation into his death. It further held that it was not necessary to examine separately the merits of the complaint under Article 3.

Beker v. Turkey

(application no. 27866/03).

The Court held unanimously that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights in that the Turkish Government had failed to account for the death of Mustafa Beker, found shot in the head in his army barracks in 2001.

Mustafa Beker, born in 1977, who, an expert corporal in the Tunceli gendarmerie, was found shot in the head in his army barracks dormitory on 8 March 2001. The case concerned the applicants’ allegation that, even though the official military investigation concluded that Mustafa had committed suicide, their relative had either been murdered or had died due to negligence.

Found shot in the head by a non-commissioned officer just before 9.30 a.m. on 8 March 2001, Mustafa, still alive, was taken to the infirmary. He subsequently died on his way to hospital. The autopsy report issued the same day concluded that the cause of death was destruction of the brain following a shot fired at point-blank range, just above the left eyebrow.

An inquiry was immediately launched. The dormitory was inspected and a sketch was drawn. A pistol, found at some distance from the body, was cocked and had fired two shots, apparently having jammed on a third attempt to be fired. It was established that Mustafa had stolen the pistol from an expert sergeant’s locker by smashing its padlock with a stick. Four of Mustafa’s fellow expert sergeants, in the dormitory at the time of the shooting, were questioned; they all stated that they had not seen the shooting. Another expert sergeant, 5metres away at the time, claimed that he had not actually seen Mustafa shoot himself as, in shock, he had covered his face with his hands. On 8 November 2002 the military investigation was closed. It was concluded that Mustafa Beker, unhappy because his mother had opposed his marriage to his girlfriend, had shot himself in the right temple, at close range.

Despite the applicants’ and their lawyer’s numerous requests, the military authorities refused to divulge any information or documents about the investigation. Most recently, in March 2003, the applicants requested the inquiry to be reopened; to date they have not had a reply.

Mustafa Beker was found dead in his army barracks; all eyewitnesses to the incident were members of the armed forces. The inquiry was conducted by the military authorities and the family were not given permission to participate in the investigation. As such, only the military authorities had the means of establishing the cause of death and, if necessary, identifying and punishing those responsible. The death having occurred in an area under the exclusive control of agents of the State, it was therefore up to the Turkish Government to provide a plausible explanation for the incident.

However, the Court had serious misgivings about the investigation into Mustafa’s death, misgivings for which no credible explanation had been given. Firstly, if Mustafa had indeed killed himself, presumably after the second shot fired, how had it been possible for a third attempt to have been made to fire the pistol? Secondly, how had it been possible for Mustafa, right-handed, to shoot himself in the left side of the head and how had the investigating authorities concluded that Mustafa had shot himself in the right side of the head when the post-mortem report had showed – and the Government had agreed – that he had in fact been shot in the left side of the head. Thirdly, why had neither the pistol nor the locker been examined for fingerprints? Fourthly, the Court found it wholly unconvincing that four trained petty officers, present in the same room where two shots had been fired, had not seen the incident or had covered their faces in shock. Moreover, no attempt had been made by the investigating authorities to press the expert sergeants in order to find out the truth.

The investigation carried out had therefore clearly been inadequate and left so many obvious questions unanswered that the Court was unable to accept the conclusion that Mustafa had committed suicide. Indeed, in view of the apparent carelessness with which the investigation had been conducted, the fact that the conclusion reached defied all logic, the unwillingness to reopen the investigation, and the lack of satisfactory explanations provided by the Government, the applicants could be forgiven for thinking that a more sinister explanation, such as murder, was being covered up. Accordingly, the Court concluded that the Turkish Government had failed to account for Mustafa Beker’s death and therefore the State had to take responsibility for the incident, in violation of Article 2.

Horoz v. Turkey

(application no. 1639/03).

The Court held by 5 votes to 2, that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights with regard to the death of the applicant’s son, who had been taking part in a hunger strike while held in pre-trial detention.

Muharrem Horoz, who was born in 1966, was placed in pre-trial detention after being arrested by police on 3 August 1999. The public prosecutor at the Ankara National Security Court sought his conviction for attacking the constitutional order of the State and various terrorist acts committed on behalf of an illegal organisation.

In 2001, while detained in the Kandıra F-type prison, Mr Horoz joined a hunger strike organised in protest against the so-called F-type prisons, which provided for one- to three-person cells instead of dormitories. This strike became a “death fast”, in which only sugared water and vitamins were accepted.

Mr Horoz was hospitalised on several occasions in June and July 2001 after losing consciousness. During the first emergency hospitalisation, he refused any treatment after being resuscitated. In a report of 30 July 2001, the Institute of Forensic Medicine diagnosed a “terminal failure as a result of insufficient nutrition” and recommended that Mr Horoz be released for six months on the ground that his state of health was incompatible with imprisonment.

On 1 August 2001 the Ankara National Security Court dismissed the application for release lodged by Mr Horoz’s lawyer, firstly on the basis that conditional release on health grounds, provided for in the Code of Criminal Procedure, applied to “convicted persons” and not to individuals in “pre-trial detention”, and secondly, on the basis that treatment could be provided in the prison wing of a civilian hospital. Mr Horoz, who was hospitalised in the prison wing of the Kocaeli civilian hospital and been in a coma since 27July 2001, died on 3 August 2001.

Following the allegations made by his lawyer to the effect that the prosecutor and judges involved in this case had acted in an arbitrary manner and caused Mr Horoz’s death, the Minister of Justice opened an investigation. On 31 May 2002 an order was issued stating that there was no case to answer.

The Court noted that Mr Horoz’s death had resulted from his hunger strike, and that his mother had not complained either about her son’s conditions of detention or of an absence of appropriate treatment. Furthermore, while it would have been desirable for Mr Horoz to be released following the report by the Institute of Forensic Medicine, it had no evidence permitting it to criticise the judicial authorities’ assessment of the information in that report. Nor does it find any element enabling it to challenge the conclusion that there was no case to answer in the investigation conducted by the Minister of Justice.

The authorities had amply satisfied their obligation to protect Mr Horoz’s physical integrity, specifically through the administration of appropriate medical treatment; indeed, they could not be criticised for accepting Mr Horoz’s clear refusal to allow any intervention, even though his state of health was life-threatening. Thus, it was impossible for the Court to establish a causal link between the State Security Court’s refusal to release the applicant’s son and the latter’s death. The Court also noted that, since Mr Horoz had been in hospital from 27 July onwards, immediate intervention and treatment would have been possible. Accordingly, it concluded that there had been no violation of Article 2.

Nafiye Çetin and Others v. Turkey

(application no. 19180/03)

The applicants complained that the authorities had failed to carry out an effective investigation into the death of their 20-year-old son and brother, Harun Çetin, following his detention in police custody in March 1993. The Court considered that their complaint should be examined under the procedural aspect of Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) and held unanimously that there had been a violation of these articles on account of the ineffectiveness of the investigation.

Beyazgül v. Turkey

(application no. 27849/03)

On 19 September 2001 Haşim Beyazgül, who was 21, was killed in the region bordering Iran. Gendarmes on duty in that area, where illegal trafficking of fuel was taking place, came across suspicious individuals. The latter fled in response to warning shots fired by commandant A.K., who then shot in their direction. On the following day gendarmes, alerted by villagers, discovered the body of Haşim, buried under half a metre of earth, by. According to the autopsy report, death had resulted from a gunshot wound and destruction of the central nervous system.

On 23 November 2001 A.K. was charged with homicide committed in excess of his duties, and acquitted of that charge by the Assize Court in a judgment of 11 February 2004 in which the behaviour of A.K. was considered in accordance with the law in force at the relevant time. That judgment was overturned by the Court of Cassation, and on 13 June 2007 the Assize Court reached the same findings as in its judgment of 11 February 2004. The case is currently pending before the Court of Cassation.

The Smuggling (Prevention and Inspection) Act (Law no. 1918), in force at the relevant time, authorised the firing of shots at any individual within the security zones, whether or not they were in possession of a weapon, if they refused to comply with warning shots. The Act did not therefore offer the required level of protection against the real and immediate risk to life that could arise in police operations. The Court concluded unanimously that there had been a violation of Article 2. It also held that no separate issue arose under Article 3 (prohibition of inhuman and degrading treatment).

Seyfettin Acar and Others v. Turkey

(application no. 30742/03)

In April 1992 the applicants, travelling with relatives in south-east Turkey, alleged that they had been stopped by a group of village guards who had opened fire on them injuring two of the applicants and killing two of their relatives. Relying, in particular, on Article2 (right to life), the applicants complained that the Turkish authorities had not done all that was necessary to identify and punish those responsible.

Gasyak and Others v. Turkey

(application no. 27872/03) Violations of Article 2 (life and investigation)

The applicants are the relatives of four persons who were killed in March 1994. The persons killed were working as tradesmen - buying food, tobacco and tea close to the Turkish-Iraqi border and selling those goods in the nearby town of Cizre.

According to the applicants, who based their submissions on information provided by witnesses passing or living near the places of the events, on 6 March 1994 their relatives were stopped by gendarmes at a check-point near the town of Silopi. Two ex-members of the Kurdish Workers’ Party (PKK), who were working at the time as “confessors” for the authorities, were also present. They were then taken into vehicles and driven towards a village called Holan. One of their relatives jumped out of the car and attempted to run away, but was shot by someone from the car which transported him. The three surviving men were taken to the Bozalan police station from where they were further moved to a nearby place and shot dead later that day.

On 8 March gendarmes found the bodies of the four men – shot dead and their heads smashed with stones. An on-site report was prepared which concluded that the killings were most likely carried out by PKK members. No other action was taken in the area by the gendarmes or the Cizre prosecutor who only forwarded the investigation file to the prosecutor of Diyarbakir. In addition, the applicants were warned by representatives of the security forces not to make any complaints.

The Government submitted that a number of investigative steps were taken in order to find the perpetrators of the killings. Two persons, the confessors identified by the applicants - had been put on trial in 2002 but were subsequently acquitted for lack of sufficient evidence.

In their letter of 20 August 2009 the applicants informed the Court that the same two confessors who had accompanied the gendarmes at the time their relatives were killed, 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.

The Court considered that it could not examine the applicants’ allegations concerning the killings on account of the applicants’ failure to comply with the six-month rule. Nevertheless, the Court examined the effectiveness of the trial conducted after 2002. In doing so the Court observed that, despite the repeated submissions by the applicants and the eyewitnesses that gendarmes had been involved in the abduction and killing of their relatives, no attempt had been made to identify and question the personnel working at the checkpoint or near Bozalan gendarmerie station. The two confessors – who had been the only persons charged with the killings – had never appeared before the trial court, despite one of them having provided misleading information about his whereabouts at the time of the killings. Consequently, it had been impossible to question them directly or for the eyewitnesses to identify them. In light of the shortcomings of the trial, the Court concluded unanimously that the Turkish authorities had failed to carry out a meaningful investigation into the killing of the applicants’ relatives, in violation of Article 2.

Decisions in 2010

Babat and Others v. Turkey

(application no. 44936/04) No violation of Article 2 (extra-judicial killing) Violation of Article 2 (lack of effective investigation)

The applicants alleged that their 25-year old son and brother, Önder Babat, was shot and killed in the street by State agents, probably the victim of an extra-judicial killing, and that the Turkish authorities failed to carry out an effective investigation into his death.

Tuna v. Turkey

(application no. 22339/03) Violation of Article 2 (investigation), Violation of Article 3 (investigation)

Faruk Tuna died in 1980 when he was a student from injuries sustained while he was being held in police custody for putting a poster on display. Relying in particular on Article2 (right to life) and Article3 (prohibition of inhuman or degrading treatment), the applicants complained of the lack of an effective investigation to identify the police officers responsible for Faruk Tuna’s death; prosecution of the offence is now time-barred.

Bektaş and Özalp v. Turkey

(application no. 10036/03) Two violations of Article 2 (life)

Özcan and Others v. Turkey

(application no. 18893/05) Violation of Article 2 (life), Violation of Article 3 (treatment)

Both cases concerned the excessive use of force against the applicants’ close relatives during operations by the police (first case) and the military (second case). The applicants in the first case complained about the killing of Murat Bektaş, aged 32, and Erdinç Arslan, aged 22, their husband and brother, respectively, during a police anti-terrorist raid on 5 October 1999 on the block of flats where the two men were living. The applicants in the second case allege that their close relative, Yılmaz Özcan, aged 42, was severely beaten and then shot in the back of his neck on 24 September 2000 by gendarmes who had come to the family home to arrest him. Relying on Article2 (right to life), all the applicants complained that the use of force against their relatives had not been necessary and that the ensuing investigations into their deaths had been ineffective. In the case of Özcan and Others the applicants further complained about the ill-treatment to which their relative had been subjected before his death, in breach of Article3 (prohibition of inhuman or degrading treatment).

Perisan and Others v. Turkey

(application no. 12336/03)

The applicants are relatives of prisoners who died during a security forces operation at Diyarbakır Prison (Turkey) on 24 September 1996. The remaining 12 applicants, prisoners who were injured during the events, were acting in their own name.

The applicants and the Government presented differing accounts of the events. According to the applicants, following scuffles between two prisoners and the chief warder during a long wait by a group of prisoners to enter the visiting room, police officers and gendarmes armed with truncheons and batons had beaten the offending prisoners and their fellow inmates, in some cases to death. According to the Government a riot had taken place that morning and prisoners armed with a variety of metal objects (taps, radiator pipes, lead piping, etc.) had attacked the warders. The prosecutor attached to the prison informed the Justice Minister, who ordered the deployment of around 200 gendarmes and police officers from the rapid-reaction force. The Government maintained that around 50 officers equipped with truncheons, helmets and riot shields had been sent to confront the prisoners while the remaining officers secured the premises.

The operation left 33 prisoners injured and 27 gendarmes with minor injuries. Eight prisoners died shortly afterwards, having sustained serious injuries including fractured skulls. The forensic medical institute and the prison doctor examined the other injured prisoners on the day of the events. They pronounced the lives of six of them to be in danger in view of the seriousness of their injuries; however, the prisoners in question survived. Convalescence periods of between 10 and 15 days were prescribed for the remaining applicants who had been injured.

Various investigations were opened into the events. The Diyarbakır public prosecutor’s office commenced an investigation and, as early as 26 September 1996, heard evidence from warders and prisoners who had been present. On 8 October 1996 a human rights sub-committee of the National Assembly also launched an inquiry and took evidence from, among others, the public prosecutor, the prosecutor attached to the prison, the prison governor and his deputies and the chief warder (all of whom had been removed from office in the meantime), and also from doctors and prisoners.

In November 1996 criminal proceedings were instituted against 24 prisoners for rioting and assaulting persons exercising public authority. However, the offences of which they were accused were covered by an amnesty law of 22 December 2001 and the proceedings were suspended. Meanwhile, in December 1996, criminal proceedings were started against various members of the prison staff and against 65 gendarmes and police officers. On 27February 2006 the Assize Court acquitted three of the accused, declared the prosecution of seven others time-barred and found 62 gendarmes and police officers guilty of causing death by the use of excessive and unnecessary force. It sentenced each of them to 18years’ imprisonment, reduced to five years on account of extenuating circumstances and good conduct, and to a three-year ban on holding public office. The case was referred to the Court of Cassation, which quashed the judgment on 15 May 2007 on account of a number of irregularities. The case is currently pending again before the Assize Court.

The Court examined first of all whether Turkey was responsible for a breach of the right to life in respect of the eight prisoners who died. It noted that it was not in dispute that on 27 September 1996 clashes had taken place in Diyarbakır Prison between approximately 30prisoners and the security forces. It therefore considered that the authorities’ intervention could be regarded as being aimed at quelling a “riot or insurrection” within the meaning of Article 2. At first glance there was nothing to indicate that the security forces, who had used truncheons among other implements, had employed methods prohibited by Turkish law in the course of the operation. The Court nevertheless had to ascertain whether the use of force had been compatible with the State’s obligation to protect the lives of persons under its responsibility such as prisoners. Although the security forces had been ordered not to strike prisoners on the head and had received the relevant training, a fact stressed by the authorities, the Court could not overlook the seriousness of the outcome of the operation. Eight individuals who had been entirely under the authority and responsibility of the State had died from multiple injuries and fractures, in particular of the skull and ribs, inflicted by truncheons and other blunt instruments. The Government’s contention that the force used had been in response to an attack by prisoners armed with dangerous implements (taps, radiator pipes, lead piping, etc.) was undermined by the fact that the injuries sustained by the gendarmes had been localised and minor. In any event, there was no verifiable evidence in the file to indicate that the deceased and the applicants, or at least some of them, had played an active part in the “riot” or had attacked the police officers and soldiers. In the Court’s view the present case demonstrated above all the absence of a system of adequate and effective safeguards against arbitrariness and abuse of force. It further considered that the force used against the prisoners, which had led to the deaths of eight of them, had not been “absolutely necessary” within the meaning of Article 2. There had therefore been a breach of that Article in respect of the prisoners who died.

As to the six applicants who had sustained life-threatening injuries, the Court considered – in view of the prognosis and the aforementioned considerations regarding the use of force in this case – that they too had been the victims of violence placing their lives in danger, notwithstanding the fact that they had ultimately survived. Accordingly, there had been a violation of Article 2 in respect of these applicants also.

With regard to the six other applicants who had been injured, the Court examined the issue from the standpoint of Article 3, as their lives had not been in danger. It reiterated that where an individual was deprived of his or her liberty, the use of physical force not rendered absolutely necessary by his or her conduct amounted in principle to a breach of the prohibition of inhuman or degrading treatment, which was absolute even in the most difficult circumstances. It was not in dispute that the six applicants concerned had been seriously injured (as demonstrated by the periods of convalescence prescribed) while they had been under the authority and responsibility of the State. It was equally clear that they had suffered physical pain and a deep sense of anxiety in the face of indiscriminate lethal violence of such intensity that they could not have been sure whether they would survive. The treatment to which they had been subjected was therefore sufficiently severe to fall within the scope of Article 3. As the Government had provided no justification for the suffering thus inflicted on the six applicants concerned, or proved that their allegations were false, the Court could not but find a violation of Article 3 in this regard. Lastly, with regard to the 34 applicants related to the prisoners who died, the Court could not discern the existence of a sufficient number of special factors giving their suffering a dimension and character distinct from the emotional distress inevitably caused to relatives of a victim of a serious human rights violation. There were therefore no grounds for finding a separate violation of Article 3.

Fadime and Turan Karabulut v. Turkey

(application no. 23872/04) Violation of Article 2 (right to life)

The applicants, Fadime Karabulut and Turan Karabulut, are Turkish nationals who were born in 1963 and 1950 respectively and live in Sivas (Turkey). Relying in particular on Article2 (right to life), the applicants complained that their 14-year-old daughter had been killed by a group of soldiers on 29 July 1998, who shot her when she was hitchhiking with her sister to Sivas.

Wolf-Sorg v. Turkey

(application no. 6458/03) No violation of Article 2 (right to life), Violation of Article 2 (investigation)

The applicant, Lieselotte Wolf-Sorg, is a Turkish national who was born in 1936 and lives in Escuintla (Guatemala). The case concerned the death of her daughter, Andrea Wolf, a German national, allegedly in 1998 during an armed clash between the army and members of the PKK (the Kurdistan Workers’ Party, an illegal organisation). Relying in particular on Article2 (right to life), the applicant complained about the conditions in which her daughter had died and the inadequate investigation carried out by the authorities, submitting, for example, that her daughter’s grave had not been identified.

Dink v. Turkey

(applications no. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09)

Fırat Dink, who was known under the pen name of Hrant Dink was born in 1954 and was assassinated on 19 January 2007.

On 19 January 2007 Fırat Dink was killed by three bullets to the head. The suspected perpetrator was arrested in Samsun (Turkey). In April 2007 the Istanbul public prosecutor’s office instituted criminal proceedings against 18 accused. The proceedings are still pending.

In February 2007 investigators from the Ministry of the Interior and the gendarmerie opened an investigation in order to ascertain whether the Trabzon gendarmerie had been negligent or had failed in their duty to prevent the killing, given that an informant claimed to have warned two non-commissioned officers (NCOs) of the gendarmerie about the intended crime. The gendarmes denied having been informed about the preparations for the killing. The Trabzon provincial governor’s office authorised the institution of criminal proceedings against the two NCOs but not against their superior officers. The NCOs eventually admitted that an informant had warned them of a possible killing; they claimed to have passed on all the details to their superior officers, who had been responsible for acting on the information received. The NCOs further stated that they had been ordered by their superior officers during the investigation to deny having received the information. The proceedings in question are still in progress.

The Istanbul public prosecutor’s office also requested the Trabzon public prosecutor to start proceedings against the police authorities in Trabzon, on the ground that one of the accused, who was an informant of the Trabzon police, had also provided the latter with information on the preparations for the killing. The Trabzon police authorities had made no attempt to thwart these plans but had confined themselves to officially informing the Istanbul police of the likelihood of an assassination attempt. The Istanbul public prosecutor added that one of the Trabzon police chiefs had openly voiced extreme nationalist views and supported the accused. On 10 January 2008 the Trabzon prosecuting authorities decided to take no further action against the Trabzon police, noting in particular that the accusations made by the Istanbul public prosecutor had been based on a statement by one of the accused which had later been retracted. The prosecuting authorities were persuaded by the argument that the Trabzon police had not judged the information received to be credible. Finally, they stressed that the police chief suspected of supporting the defendants’ actions had denied the accusations against him. An objection lodged by the applicants against the decision to take no further action was dismissed.

The investigation by the Istanbul public prosecutor’s office confirmed that on 17 February 2006 the Trabzon police had officially informed the Istanbul police of the likelihood that Fırat Dink would be assassinated and had identified the suspects. The Istanbul police had not acted upon this information. Following the conclusions of three investigations into this failure to act, the management board of the Istanbul provincial governor’s office decided to bring criminal proceedings for negligence against certain members of the Istanbul police authorities. However, the Istanbul Regional Administrative Court of Appeal set aside the corresponding orders on the ground that the investigation had been inadequate.

Finally, following a complaint by the applicants, a criminal investigation was opened concerning members of the Samsun police and gendarmerie on charges of defending the crime. While the suspected perpetrator was in police custody the persons concerned had had their photograph taken with the suspect, who was seen holding a Turkish flag: on the wall behind them were the words “Our country is sacred – its future cannot be left to chance”. In June 2007 the Samsun public prosecutor’s office decided to discontinue the proceedings against the officers in question, taking the view that defending a crime was only an offence if it was done in public. However, disciplinary action was taken against the officers.

The Court took the view that the Turkish security forces could reasonably be considered to have been aware of the intense hostility towards Fırat Dink in nationalist circles. The investigations carried out by the Istanbul public prosecutor’s office and the Interior Ministry investigators had highlighted the fact that the police in both Trabzon and Istanbul, and the Trabzon gendarmerie, had been informed of the likelihood of an assassination attempt and even of the identity of the suspected instigators. In view of the circumstances, the threat of an assassination could be said to have been real and imminent.

The Court next considered whether the authorities had done everything that could reasonably have been expected of them to prevent Fırat Dink’s assassination. None of the three authorities informed of the planned assassination and its imminent realisation had taken action to prevent it. Admittedly, as stressed by the Turkish Government, Fırat Dink had not requested police protection. However, he could not possibly have known about the plan to assassinate him. It had been for the Turkish authorities, who were informed of the plan, to take action to safeguard Fırat Dink’s life. There had therefore been a violation of Article 2 (in its “substantive aspect”).

Ölmez and Others v. Turkey

(application no. 22746/03)

The European Court of Human Rights held, unanimously, that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights.

The case concerned the death of a shepherd who was shot by Turkish gendarmes near the Turkish-Iraqi border at a time of ongoing war in Iraq. According to the official version, he had been taken for a smuggler who was endangering territorial security and had been called on to surrender before the fatal shots were fired.

Hacı Ölmez died in the circumstances set out below. At the relevant time the land surrounding their village was used for grazing and the villagers moved across it frequently, despite the fact that it was a military zone. The area was closely monitored by the gendarmerie in order to prevent terrorists or smugglers crossing the border, a problem which had become very frequent in that part of Turkey as a result of the ongoing war in Iraq.

According to the applicants, their relative Hacı Ölmez had been constantly harassed by the local military authorities, who believed that he was a PKK sympathiser. As a result, he had been removed from his duties as village guard and had become a shepherd. On 8 April 2003 Hacı and his nephew Mevlüt Ölmez took their cattle to grazing land 500 metres from the village. About 5.30 p.m. they left the herd near the village and retraced their steps in order to look for some lost goats.

According to the official version, a gendarmerie sergeant, S.D., using powerful binoculars from about 1000-1300 metres, picked out their silhouettes near the border, carrying bags and moving in a suspect manner towards the village. The gendarmes set up an ambush. When they were about 250-300 metres from the men, they shouted “Stop! Gendarmes!”, at which Hacı and Mevlüt allegedly turned round and began to run towards Iraq. In spite of instructions to stop and warning shots, they kept going. S.D. ordered the gendarmes to fire in the direction in which the men were running, on a curved trajectory. 65 gunshots were fired, one of which killed Hacı Ölmez.

According to Mevlüt’s version, the gendarmes fired without warning, which was what caused them to start running, and, on approaching the body, sergeant S.D. allegedly exclaimed, “So it was our Hacı!”

According to the official version, Mevlüt explained that Hacı and he had been engaged in smuggling; in fact, no smuggled goods were found in their possession.

An investigation was opened. The fatal bullet was not recovered, which made it impossible to identify the weapon from which it had been fired. 50 cartons of cigarettes were found hidden 750 metres from the site of Hacı’s death and 190 metres from the border, but at some distance from the spot at which Hacı and Mevlüt had alleged crossed from Iraq into Turkey. Mevlüt denied having any link to those cartons. A parliamentary investigation committee was set up and concluded that there had been irregularities in the gendarmes’ actions. The applicants filed a complaint against the gendarmes. A finding that there was no case to answer was initially delivered by the Prosecutor of Uludere on 1 December 2003. That was overturned on 19 January 2004 by the Siirt Assize Court. The case was reopened and transferred to the Şırnak prosecutor’s office, which referred sergeant S.D. and 17 gendarmes to the Şırnak Assize Court on a charge of homicide. The court held that, at a time when war was being waged in Iraq, the gendarmes could sincerely have believed that the deceased man and Mevlüt were smugglers and were likely to pose a threat to national security. They also held, in particular, that the gendarmes had complied with all the instructions and rules governing the use of firearms, but that the deceased man and Mevlüt had acted in an irresponsible manner by disregarding the warning shots, followed by at least one order to surrender. The applicants challenged the gendarmes’ acquittal before the Court of Cassation, where the proceedings are still pending.

In 2003 Mevlüt Ölmez was found guilty of illegally crossing the border between Iraq and Turkey and of passive resistance to the security forces. In 2004 he was acquitted on a charge of trafficking smuggled goods.

The Court noted firstly that both the official version of the facts and the criminal proceedings against the gendarmes had been centred from the outset on the premise that the latter had acted on the basis of a sincere conviction that they were in the presence of smugglers who were likely to endanger Turkey’s territorial security.

However, several factors cast serious doubt on that premise. Firstly, the cartons of cigarettes were found at a clear distance from the route by which Hacı and Mevlüt had allegedly crossed from Iraq into Turkey. It was also unclear why they would have abandoned their goods when they did not yet know that they were being observed by the gendarmes. In addition, at the distance (250-300 metres) at which the gendarmes found themselves before intervening, equipped with powerful binoculars, they would have had no problems seeing what was going on. The Court further noted that all the smuggling charges had eventually been lifted. There was therefore uncertainty as to what had really happened once sergeant S.D. had spotted Hacı and Mevlüt, especially since, while alive, Hacı had had serious grounds for believing that the local military authorities held a grudge against him.

Those elements, while they cast doubt on the official version, were not, however, sufficient to presume that the gendarmes knowingly assassinated the shepherd. Consequently, the Court was prepared to accept, like the Turkish authorities, that the use of potentially lethal force was likely to have been based on an “honest and valid belief” at the time of the events; it was not a priori excluded that such use of force could have been justifiable under the Convention (even where that belief subsequently proved to be incorrect). However, it was not necessary for the Court to examine this issue in detail, since respect for a more general principle was in any event in doubt: that concerning Hacı Ölmez’s right to have his life “protected by law”.

The Court reiterated that, under Turkish law as in force at the relevant time (Law no. 1918, taken together with Law no. 2803), in a security zone such as that which surrounded the village of Andaç, the security forces had been given carte blanche to open fire immediately on an individual on the basis of a criterion as vague as "the specific circumstances of each situation". Admittedly, the legislation had been significantly improved in 2003 and 2007 (Laws nos. 4926 and 5607), but that was after the shooting of Hacı Ölmez. Accordingly, the Court concluded unanimously that Hacı Ölmez’s right to life had not been protected by law, in violation of Article 2.

Further information

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.