Cesim Yıldırım and Others v. Turkey (29109/03)

Date	20080617
Article	2
Decision	no viol.

CHAMBER JUDGMENT CESİM YILDIRIM AND OTHERS v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Cesim Yıldırım and Others v. Turkey (application no. 29109/03).

The Court held unanimously that there had been

· no violation of Article 2 of the European Convention on Human Rights (right to life) in respect of İzettin Yıldırım;

· a violation of Article 2 of the Convention on account of the Turkish authorities’ failure to conduct an effective investigation into the circumstances of İzettin Yıldırım’s disappearance.

Under Article 41 of the Convention (just satisfaction), the Court awarded each applicant 12,000 euros (EUR) in respect of non-pecuniary damage and jointly EUR 6,000 for costs and expenses. (The judgment is available only in French.)

1. Principal facts

The seven applicants, Cesim Yıldırım, Ali Yıldırım, Osman Yıldırım, Emin Yıldırım, Şemsettin Yıldırım, Cevahir Bayraktar and Zezo Yıldırım, are Turkish nationals who were born in 1954, 1945, 1952, 1953, 1949, 1948 and 1920 respectively and live in Van (Turkey). They are the brothers, sister and mother of İzzettin Yıldırım, who was president of the cultural and educational foundation Zehra Eğitim ve Kültür Vakfı (“the Zehra foundation”). He was of Kurdish origin and was known for his educational activities within the foundation.

The case concerned the investigation into the disappearance of İzzettin Yıldırım and his murder after undergoing torture, and the related criminal proceedings.

On 30 December 1999 the representative of İzzettin Yıldırım lodged a complaint with the Istanbul prosecution service, informing them that Mr Yıldırım had been missing since the previous day.

On 31 December 1999 an NGO named Mazlum-der (Organisation of human rights and solidarity with oppressed persons) and the Zehra foundation held a press conference to draw attention to a series of disappearance cases that had occurred in Istanbul in recent months. A list of missing persons, which also included the names of two of Mr Yıldırım’s friends, Mehmet Kanlıbıçak and Mehmet Şehit Avcı, was published.

During an operation conducted against the illegal organisation Hizbullah (Party of God) the police discovered an audio cassette recorded by Hizbullah militants during the torture inflicted on Mr İzzettin Yıldırım. About ten days later, on, 28 January 2000, Mr Yıldırım’s body was discovered in the garden of a house rented by Hizbullah militants, together with other bodies, including those of his two friends.

The Istanbul prosecution service opened a preliminary investigation. The media published descriptions of the barbaric acts inflicted on the victims. An autopsy revealed that İzzettin Yıldırım had probably been killed by having his throat cut after undergoing torture.

On 8 June 2000 11 persons were accused of being Hizbullah members and of organising criminal activities with a view to changing the constitutional order and installing a system based on the principles of sharia (Islamic law). However, the murder of İzzettin Yıldırım did not appear among the charges. His case was included in the proceedings only after 31 March 2006. The proceedings are still pending.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 19 August 2003.

Judgment was given by a Chamber of seven judges, composed as follows:

Josep Casadevall (Andorran), President,
Elisabet Fura-Sandström (Swedish),
Corneliu Bîrsan (Romanian),
Boštjan M. Zupančič (Slovenian),
Egbert Myjer (Dutch),
Luis López Guerra (Spanish),
Işıl Karakaş (Turkish), judges,

and also Santiago Quesada, Section Registrar.

3. Summary of the judgment2

Complaints

The applicants complained that İzzettin Yıldırım had been the victim of an extrajudicial execution, contrary to Article 2, and that the State was responsible for his death on account of the authorities’ failure to discharge their obligation to protect his life and to conduct an effective investigation into his killing. They relied, in particular, on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment) and 13 (right to an effective remedy).

Article 2

Alleged failure to discharge the obligation to protect life

There was no direct evidence of links between members of the Turkish Hizbullah organisation and agents of the State or individuals acting on the State’s behalf. Moreover, there was no evidence that İzzettin Yıldırım’s life had been in danger before he died.

The Court considered that it had not been proved beyond a reasonable doubt that the responsibility of the respondent State was engaged by Mr Yıldırım’s murder. There had accordingly been no violation of Article 2 on that account.

The criminal investigation

The Court was struck by the shortcomings of the preliminary investigation and the failure to provide information to the victim’s family and his lawyer. In particular, following the complaint lodged by Mr Yıldırım’s lawyer concerning his disappearance, neither the members of his family nor the administrative staff of the Zehra foundation, nor even his lawyer, were questioned. Mr Yıldırım’s co-tenant was not interviewed until more than two months after the lawyer’s complaint. In addition, the autopsy report was not produced until five months after the autopsy and no copy was provided to the applicants until much later.

The Court noted that the Government had not put forward any explanation regarding the shortcomings of the preliminary investigation. Nor had they explained why Mr Yıldırım’s murder was not included in the charges against the defendants in the indictment of 8 June 2000.

The Court emphasised that the file on the preliminary investigation into Mr Yıldırım’s disappearance had finally been added to the main file against the defendants on 31 March 2006, that is to say after notice of the application was given to the respondent Government.

The Court held that the investigations conducted by the national authorities into the circumstances surrounding the murder and the belatedly instituted criminal proceedings had not been effective, contrary to Article 2.

Articles 3, 5, 6, 8 and 13

The Court considered that it was not necessary to rule separately on the complaints under these provisions.