ECHR on the right to life in Turkey (2005-2007)

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 2005

Ceyhan Demir and Others v. Turkey

(application no. 34491/97).

The Court held unanimously 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 Kadri Demir; there had been a violation of Article 2 on account of the authorities’ failure to carry out an effective investigation into the circumstances in which Kadri Demir had died.

Kadri Demir died in custody while serving a prison sentence. On 24 September 1996, a confrontation between prisoners and prison warders and security forces in Diyarbakır Prison, where Kadri Demir was serving a twelve-and-a-half year prison sentence for being a member of the PKK, resulted in the deaths of ten prisoners.

Following that incident, 19 prisoners were taken to hospital with injuries, but Kadri Demir was transferred with 13 other inmates to Gaziantep Prison. Their transfer was preceded by a medical examination at about 4.30 p.m. They were found to be in good health and it was recorded that their wounds had been tended to and dressed. Kadri Demir was found dead in the van used to transport the prisoners on its arrival at Gaziantep Prison at around half past midnight on 25 September 1996.

An autopsy was carried out the same day. The pathologist found wounds, bruises and grazes to the body, particularly the head, frontal region, shoulder blades, hands and arms, a cerebral oedema, subcutaneous ecchymosis to the chest and broken ribs.

The public prosecutor’s office took statements from the prison warders and gendarmes who had been involved in the events and from the prisoners who had been transferred with the deceased. A number of the prisoners said that they had not been given a medical examination before their transfer. The prisoner who had shared the deceased’s compartment while they were being taken to Gaziantep stated that they had received a beating and that no one had come to their assistance, despite their pleas for help when Kadri Demir lay dying in the van.

In October 1996 a parliamentary sub-committee responsible for human rights was set up to investigate the incident in Diyarbakır Prison. In their report at the end of that month they found that the beatings had continued during the journey to Gaziantep Prison.

Following the parliamentary investigation, criminal proceedings were instituted against the prison staff and the police officers and gendarmes involved in the events. Both sets of proceedings are still pending in the Turkish courts. In July 2001 the gendarmes who escorted the prisoners to Gaziantep Prison were charged with intentional homicide through the infliction of torture and suffering. Those proceedings are still pending in the domestic courts.

The Court noted that it was common ground that at the time Mr Demir was injured the State had authority over him and responsibility for him. As prison warders had been attacked and a number of them injured, then, irrespective of what had sparked off the events, the security forces’ response could be justified under Article 2 provided the use of force had become “absolutely necessary”.

In that connection, the Court noted that the members of the security forces who had taken part in the confrontation had received professional training which in principle would have prepared them for incidents of that type. Special instructions had been issued before their intervention on the type and level of force to be used so as to keep it to a minimum. They had been clearly instructed to avoid blows to the head and only to use weapons other than tear gas grenades, rifle butts and batons as a last resort.

However, a number of prisoners, including Mr Demir, had received injuries to the head, as had been noted by the parliamentary committee doctors and the forensic doctor. Furthermore, there was no evidence to show that Kadri Demir had in fact played an active role in the riots that were quelled by the security forces.

In those circumstances, it had not been established that the use of the force to which Kadri Demir was subjected had been “absolutely necessary” or proportionate to the pursued aim of suppressing an uprising and protecting the life of the warders. However, since there was no medical evidence to show that the fatal blows had been inflicted at that juncture, the Court decided that it had to examine all the circumstances that could have played a role in MrDemir’s death, including the conditions in which he was transferred.

In that connection, the Court observed that Mr Demir was transferred in handcuffs in a confined space without access to medical assistance on a journey that had taken approximately six hours and thirty minutes. In view of the violence of the confrontation at the prison only a proper medical examination could have determined whether he was fit enough to travel with his injuries. The brief medical examination that was carried out in testing physical conditions could not be considered to have been thorough. Furthermore, though aware that Mr Demir had respiratory problems, the prison authorities had failed to take into account his medical history, thus demonstrating the total inadequacy of the medical examination that had been carried out.

Since the Turkish Government had been unable to offer an adequate explanation regarding the origin of the “general physical trauma” that had resulted in Mr Demir’s death at a time when the State had responsibility for him, the Court found that Turkey was responsible for his death. Consequently, it held that there had been a violation of Article 2.

Menteşe and Others v. Turkey

(application no. 36217/97) Violation Article 2

The applicants alleged that their relatives were intentionally killed by the security forces following an operation in the village of Yolçatı, in the Lice District of Diyarbakır (Turkey) on 13 May 1994. They relied on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for family life).

On the basis of the material before it, the European Court of Human Rights was unable to draw a complete picture of the factual circumstances surrounding the deaths of the four men, which remained a matter of speculation and assumption. Considering there was an insufficient factual and evidentiary basis on which to conclude that the men were, beyond reasonable doubt, intentionally or recklessly killed by the security forces, as alleged by the applicants, the Court held, unanimously, that there had been no violation of Article 2, Article 3 or Article 8, concerning the deaths of the applicants’ relatives.

The Court held, unanimously, that there had been a violation of Article 2 and of Article 13 concerning the lack of an effective investigation into the killings.

Gezici v. Turkey

(application no. 34594/97).

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 the applicant’s brother; that there had been a violation of Article 2 of the Convention in that the Turkish authorities had not carried out an effective investigation.

The parties disagree as to the facts. The applicant maintains that his brother was the victim of an extrajudicial killing after being tortured by the security forces while in police custody. According to the Turkish Government, the applicant’s brother was killed in the course of a police operation against a suspected member of the PKK.

On 12 August 1996 the applicant’s brother, Şemsettin Gezici, was arrested by the security forces and taken into police custody. Later that day he was examined by a doctor, who drew up a medical report stating that there were no signs of injuries or blows to his body. In the light of statements by Şemsettin Gezici, a police operation was conducted in his presence on 19 August 1996 at 3 a.m. at the home of a suspected member of the PKK. Shooting broke out, in the course of which the applicant’s brother and the suspect were killed.

Following those events, two reports were drawn up and the public prosecutor visited the scene. An external examination of the applicant’s brother’s body revealed six bullet wounds; the forensic medical examiner concluded that the cause of death was respiratory and circulatory failure resulting from the destruction of the brain and considered that it was unnecessary to carry out a full autopsy.

In November 1996 the applicant lodged a criminal complaint against the officers who had taken part in the police operation and the Dargeçit gendarmerie commander. In January 1998 the public prosecutor ordered ballistic examinations and, over a period lasting until September 2000, took evidence from the police officers involved in the operation and from relatives of the deceased.

Since the applicant’s allegations that his brother had been the victim of an extrajudicial killing had not been corroborated to a decisive extent by any witness statements or other evidence, the Court considered that such a conclusion was based more on speculation and assumption than on reliable inference. The Court reiterated that the authorities were under a duty to protect persons in custody, who were necessarily in a vulnerable position. By bringing the applicant’s brother face to face with the person whom he had denounced and whom they knew to be in possession of a combat weapon, the authorities had created a potentially dangerous situation and had subjected him to an extreme and unjustified risk. The Government had not provided any explanations as to why the applicant’s brother had been present during the visit to the suspect’s home, or any indication as to whether practical steps had been taken to protect him in a way that might reasonably have been expected to alleviate the potential risks he faced.

The Court therefore held that there had been a violation of Article 2 on that account.

Türkoğlu v. Turkey

(application no. 34506/97) No violation of Article 2 (loss of life) Violation of Article 2 (inadequate investigation)

According to the applicant, Talat Türkoğlu, had been arrested and tried on several occasions in the past for political offences. Plain-clothes policemen used to keep him under surveillance. After her husband failed to return home from a trip in April 1996, she filed, over a period of nearly two years, petitions with several administrative and judicial bodies inquiring about her husband’s whereabouts, in vain. The applicant alleged that that the State security forces had abducted her husband, who had met his death at the hands of the State agents.

The Government maintained that the applicant’s claims were wholly unsubstantiated and that there were no indications that her husband had in fact been deprived of his liberty or killed by the Turkish authorities.

The Court noted that the applicant’s allegation that the abduction of her husband had been carried out by the agents of the State was not supported by any cogent evidence. On the basis of the material in its possession, the Court considered that the actual circumstances in which the applicant’s husband disappeared 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 had been, beyond reasonable doubt, killed by or with the connivance of State agents in the circumstances alleged by the applicant. Accordingly, there had been no violation of Article 2 of the Convention on that account.

As regards the applicant’s allegation that the authorities had failed to carry out an effective and adequate investigation into her husband’s disappearance and subsequent death, the Court recalled that there was no proof that Talat Türkoğlu has been killed. However, the procedural obligations inherent in Article 2 also applied to cases where a person had disappeared in circumstances which might be regarded as life-threatening. In this respect, the more time that went by without any news of the person who had disappeared, the greater the likelihood that he or she had died. In the present case, an investigation had indeed been carried out into the disappearance and alleged death of the applicant’s husband. However, there had been important shortcomings in its conduct. In view of those shortcomings, the Court considered that the national authorities had failed to carry out an adequate and effective investigation into the circumstances surrounding the disappearance of the applicant’s husband. There had therefore been a breach of the State’s procedural obligation under Article 2.

Güngör v. Turkey

(application no. 28290/95) Violation of Article 2 (inadequate investigation) No Violation of Article 2 (loss of life)

The applicant, Erol Güngör, is a Turkish national who was born in 1940 and lives in İzmir (Turkey). At the material time he was a member of parliament and lived with his family in an official apartment in the parliamentary quarter of Ankara. In June 1991 his 22-year-old son was found dead in his bed in the apartment, having received multiple stab wounds and a bullet to the head. An autopsy concluded that the immediate cause of death was a stab wound to the right of the chest.

Criminal and parliamentary investigations into his death did not lead to the assailants being identified.

Noting that there was no evidence on which it could be reasonably affirmed that Mustafa Güngör had been in real immediate mortal danger, the Court accordingly found that it was not necessary to examine whether the authorities should have taken specific measures to reduce such a risk and held unanimously that there had been no violation of Article 2 as regards the obligation to protect life.

As to the investigation, the Court noted that certain items of evidence – such as objects that were visible on a video recording made just after the crime was committed – had disappeared and were not among the exhibits in the case file. Moreover, discrepancies between the police officers’ reports and the reports of the experts appointed by the public prosecutor’s office regarding the nature of the objects concerned also went to show that the security forces had not done enough to preserve the evidence. Nor was there any evidence in the file to show that the investigators had taken reasonable steps to follow up lines of inquiry suggested to them by both private and official sources regarding the identity of the killers and the circumstances in which the crime had been committed.

Consequently, the Court held unanimously that there had been a violation of Article 2 as regards the manner in which the investigation was conducted.

Akkum and Others v. Turkey

(application no. 21894/93).

The Court held, unanimously, that there had been a violation of Article 2 (right to life) of the Convention on account of the deaths of the applicants’ three relatives; there had been a violation of Article 2 given the Turkish authorities failure to conduct an effective investigation into the killings.

The applicants are the father, brother and mother of Mehmet Akkum, Mehmet Akan and Derviş Karakoç, who were killed – aged, respectively, 29, 70 and 33 – on 10 November 1992.

It is not in dispute between the parties that a military operation took place on 10 November 1992 in the district of Dicle, near Diyarbakır, and that the bodies of the three men were found after the operation or that Mehmet Akkum’s ears had been severed. Rabia Karakoç claimed that Derviş Karakoç was shot at point-blank range on 10 November 1992 by soldiers, who also killed his horse and dog. Zülfü Akkum and Hüseyin Akan alleged that Mehmet Akkum and Mehmet Akan had last been seen alive on a mountainside with a large number of soldiers and that they had subsequently been killed by members of the security forces. Zülfü Akkum and Hüseyin Akan further alleged that 89 sheep were killed in the operation.

The Turkish Government denied that soldiers were responsible for the killing of Derviş Karakoç and maintained that Mehmet Akkum and Mehmet Akan were killed in crossfire between soldiers and members of the Kurdistan Workers’ Party (PKK) and that it was not possible to establish who had actually shot them.

The European Court of Human Rights regretted the absence of a thorough domestic judicial investigation in the case and that the Turkish Government had withheld key documentary evidence – in particular the operation plan of 8 November 1992 and the “final report/detailed operation report” – which were indispensable for the correct and complete establishment of the facts of the case. The reports from 11 November that had been made available were full of omissions and contradictions and information provided by State agents and relating to the facts of the case was contradictory and, at least as regards statements made by a number of those agents, could not be accepted as truthful.

In the absence of any explanation, let alone a satisfactory one, for such a state of affairs, and bearing in mind its assessment of the written evidence and that of the oral evidence given by the other witnesses, the Court considered that the situation justified the drawing of inferences as to the well-foundedness of Rabia Karakoç’s allegations. The Court therefore found it established that Derviş Karakoç, his horse and his dog were killed by the soldiers in the circumstances alleged by Rabia Karakoç.

As regards the killing of Mehmet Akkum and Mehmet Akan, the Court considered it legitimate to draw a parallel between the situation of detainees, for whose well-being the State was held responsible, and the situation of people found injured or dead in an area within the exclusive control of the State authorities. In both situations, information about the events in question lied wholly, or to a large extent, within the exclusive control of the authorities. The Court found it appropriate, therefore, in cases where the non-disclosure by the Government of crucial documents in their exclusive possession was preventing the Court from establishing the facts, that the Government either argue conclusively why the documents in question could not serve to corroborate the allegations made by the applicants, or provide a satisfactory and convincing explanation of how the events in question occurred, failing which an issue under Article 2 and/or Article 3 would arise.

The Court observed that the Turkish Government had failed to adduce any argument from which it could be deduced that the documents withheld by them contained no information bearing on the applicant’s claims.

Acar and Others v. Turkey

(application nos. 36088/97 and 38417/97).

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 applicants’ relatives and the wounding of two of the applicants; that there had been a violation of Article 2 (inadequate investigation) of the Convention in that the authorities failed to carry out an adequate and effective investigation into those deaths and injuries.

At the time of the events at issue, the applicant lived in Çalpınar, a village in south-east Turkey.

On 20 April 1992, at around 7 a.m., a group of villagers left Çalpınar for the district of Midyat in a minibus and a truck. An armed group of people stopped the villagers one kilometre away from Çalpınar, forcing the villagers to get out of the vehicles and ordering them to line up near the road. They fired at the villagers and fled. According to the applicants, the armed group were village guards.

Gendarmes drew a sketch map of the crime scene and drafted an incident report, which stated that a group of terrorists wearing military uniforms had stopped a minibus and a truck near the hamlet of Kuyubaşı attached to the village of Çalpınar and that they had killed six villagers: Hasan Akay, İsmet Acar, Mehmet Ağırman, Abdülkadir Akan, Süleyman Acar and Mehmet Akan. Nine villagers were wounded: Reşit Acar, Mehmet Emin Acar, Sabri Acar, Ahmet Acar, İbrahim Akan, Yusuf Acar, Erdal Acar, Salih Acar, Süleyman Acar and Semra Akan. The gendarmes found 66 empty 7.62 mm cartridges which had been fired from Kalashnikov rifles. The report concluded that members of the Kurdistan Workers’ Party (PKK) were responsible.

An autopsy report of the same day established that the people killed in the incident had died of bullet wounds. A ballistic report by the Diyarbakır Provincial Criminal Police Laboratory, dated 23 June 1992, found that most of the examined cartridges had been fired from the guns of ten named village guards.

On 8 July 1992 the Midyat public prosecutor filed a bill of indictment against 27 village guards from Kutlubey, accusing them of murder and attempted murder. Following lengthy proceedings, on 20 November 2000 Denizli Assize Court acquitted the village guards. The court concluded, among other things, that it was “highly probable that empty cartridges from the incident of 20 April 1992 were placed at the scene of the crime before or after the villagers were killed by unknown persons”.

The criminal proceedings were reopened against ten of the accused village guards and, on 25 May 2003, they were convicted as charged and sentenced to life imprisonment. On 9 December 2004 the Court of Cassation quashed the decision concerning two of the village guards (against whom proceedings are still pending) and upheld it concerning the other eight.

The Court observed that there was a judicial determination of the facts of the case at domestic level and that no material has been adduced in the course of the Strasbourg proceedings which could call into question the findings of fact of the Denizli Assize Court in their decision of 25 May 2003 and lead the Court to depart from them. Therefore, even if certain facts remained unclear, the Court considered, in the light of all the material produced before it, that there was a sufficient factual and evidentiary basis on which to assess the case, taking as a starting point, as mentioned above, the findings of the domestic court.

It was not disputed that the applicants’ relatives were killed and two applicants were wounded unlawfully and in circumstances falling outside the exceptions set out in the second paragraph of Article 2.

Concerning whether the Turkish Government might be held responsible for the deaths and unlawful wounding, the Court noted that the village guards enjoyed an official position, with duties and responsibilities. They were accountable administratively to the village muhtar and subject to his supervision. Their salaries, aids and indemnities for service were paid by the Ministry of Interior. Occupationally, guards were under the command of the gendarme commander. Resistance to them was punished in the same way as resistance to gendarmes. When carrying out their duties along with military or security forces, the village guards, under the command of those units, had the same powers and responsibilities as those in that unit.

In that context, the Court had already found that there was a risk attached to the use of civilian volunteers in a quasi-police function. It was not apparent what supervision was, or could be exerted over guards who were engaged in duties outside the jurisdiction of the district gendarme commander. Nor, as the village guards operated outside the normal structure of discipline and training applicable to gendarmes and police officers, was it apparent what safeguards there were against wilful or unintentional abuses of position carried out by the village guards either on their own initiative or under the instructions of security officers.

The Court was of the opinion that the failure of the gendarmes to react to the unlawful activities of the village guards in the applicants’ case supported a strong inference of acquiescence in those activities. In those circumstances, the Court found that the State had to bear responsibility for the killing of the applicants’ relatives and the attempt to kill two of the applicants. No justifications for the killings or attempted killings having been provided, the Court concluded, unanimously, that there had been a breach of Article 2.

Süheyla Aydın v. Turkey

(application no. 25660/94).

The Court held, unanimously that there had been a violation of Article 2 (right to life) of the Convention concerning the death of the applicant’s husband; that there had been a violation of Article 2 given the failure to conduct an effective investigation into the circumstances of his death.

Necati Aydın was shot dead in 1994. Mr Aydın had been President of the Health Workers’ Trade Union (Tüm Sağlık Sen) in Turkey. Prior to his death, the applicant claimed that both she and her husband had suffered harassment from the security forces and the police given their trade union activities.

The facts of the case are disputed by the parties.

According to the applicant, on 18 March 1994 – when she was six months pregnant – she and her husband were at a relative’s home in Diyarbakır. At approximately 8.30p.m. police arrived at the house and took into detention all the family members present. The detainees were blindfolded and taken to a rapid response force building (Çevik Kuvvet) for interrogation.

She alleged that: she was made to sit in a corridor prior to interrogation, where she could hear the screams of her husband as he was being tortured; that she later saw him naked and blindfolded, that his body was wet and he was crouched over, shivering; and, that she was ordered to strip naked in front of her husband who was told she would be harmed if he did not cooperate. She was then detained in a police cell for four nights and released on 22 March 1994, without having been brought before a judge. During her time in detention, she was not given access to a lawyer, prosecutor or judge.

According to the Turkish Government, Mr Aydın was not ill-treated in custody.

On 4 April 1994 Mr Aydın was brought before Diyarbakır State Security Court, following a medical examination which found no marks on his body. The duty judge ordered his release that day. However, Mr Aydın never emerged from the front door of the court building where family members and friends were waiting. On 9 April 1994 his body was found in a shallow grave in a field approximately 100 metres from the main Diyarbakır-Silvan road. His hands were tied behind his back and there was a bullet in the back of his head. A report drawn up by the public prosecutor and a doctor found five areas of bruising on Mr Aydın’s body, measuring from 3x3 cm to 6x6cm, which had been caused by blows.

The applicant maintained that the Turkish authorities were responsible for her husband’s death.

The Turkish Government denied responsibility, submitting that Mr Aydın was released from custody on 4 April 1994 and that the autopsy report of 9 April had found that he had been dead for only about 24 hours. An investigation was opened to identify the PKK terrorists responsible, which is still underway. A further investigation, opened into the applicant’s claims that her husband had been tortured, found no evidence to support her allegations.

Given the non-disclosure by the Government of crucial documents in their exclusive possession until the advanced stages of the examination of the application before the European Court, coupled with their failure to identify the police officers who accompanied Mr Aydın to court on 4 April 1994, as well as other crucial witnesses, all of which put obstacles in the way of the Court’s establishment of the facts, it was for the Turkish Government to argue conclusively why the documents and the witnesses in question could not serve to corroborate the allegation made by the applicant. The Government had failed to do so.

More crucially, the Court observed that, at the time of the events in question, it was not the practice, at least not at the Diyarbakır Court, to draw up release documents when a detainee was released by order of a prosecutor or judge. Detainees would simply be escorted to the door of the court building or to a safe location outside the court building and released there. A suspect who was detained in police custody on suspicion of having committed an offence falling within the jurisdiction of the state security courts, was prevented from benefiting from a number of essential safeguards. In particular, such detainees did not have access to their lawyers until they were charged. Moreover, they could be detained for up to a period of 30 days before they had to be brought before a judge. Family members or legal representatives would not be informed of the date and time when suspects were brought before a judge. The Court stressed the importance of effective safeguards for detainees. What was at stake was both the protection of the physical liberty of individuals as well as their personal security in a context which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection.

In the light of the failure of the Government to identify and summon the two police officers who accompanied Mr Aydın, coupled with the absence of a release document, the Court concluded that the Government had failed to prove that he was indeed released from the Diyarbakır Court building on 4 April 1994. The Court therefore found it established that Mr Aydın remained in custody. It followed that the Government was obliged to explain how Mr Aydın was killed while still in the hands of State agents. Given that no such explanation had been put forward by the Government, the Court concluded that they had failed to account for the killing of Mr Aydın.

Having established that the Turkish Government had failed to account for Mr Aydın’s death, who was last seen alive in the hands of State agents and subsequently met with a violent death, the Court held, unanimously, that there had been a violation of Article 2 in respect of the killing of Mr Aydın.

Akdeniz v. Turkey

(application no. 25165/94)

The Court held that there had been the following violations of the European Convention on Human Rights:

• Article 2 (right to life) concerning the presumed death of applicant’s son,
• Article 2 concerning the lack of an effective investigation into her son’s disappearance and presumed death,

The applicant alleged that her son Mehdi Akdeniz was beaten and then taken into the custody of soldiers who came to her village in the Sesveren hamlet of Karaorman village, near Diyarbakır, on 20 February 1994 and burnt down the villagers’ houses. She maintained that nothing had been heard from her son since that time. The Turkish Government maintained that no operation was carried out in the Kulp-Sesveren area on 20 February 1994, that the applicant’s son was not taken into custody or detained and that, between 1992 and 1993, the Sesveren hamlet was attacked by members of the PKK, proscribed as a terrorist organisation under Turkish law.

The European Court of Human Rights found it established that the applicant’s son was detained by gendarme soldiers. The Court was satisfied that Mehdi Akdeniz must be presumed dead following an unacknowledged detention by the security forces. Consequently, Turkey’s responsibility for his death was engaged. Noting that the authorities had not provided any explanation as to what occurred following Mehdi Akdeniz’s detention, and that they did not rely on any ground of justification in respect of any use of lethal force by their agents, it followed that liability for his death was attributable to the Turkish Government. The Court therefore held, unanimously, that there had been a violation of Article 2 in respect of Mehdi Akdeniz.

Çelikbilek v. Turkey

(application no. 27693/95)

The Court held that there had been the following violations of the European Convention on Human Rights:

• Article 2 in that Turkey was liable for the death of applicant’s brother,
• Article 2 concerning the lack of an effective investigation into the murder of the applicant’s brother,

The applicant alleged that his brother Abdulkadir Çelikbilek had been abducted by plain clothes police officers on 14 December 1994 and was subsequently killed by them. The Government denied the involvement of any State agents in the kidnap and subsequent killing of Abdulkadir Çelikbilek and argued that he was killed as a result of a mafia-type vendetta.

The Court found that Abdulkadir Çelikbilek was arrested and detained by agents of the State and that the Government had failed to account for his death.

Kişmir v. Turkey

(application no. 27306/95)

The Court held that there had been the following violations of the European Convention on Human Rights:

• Article 2 in that Turkey was liable for the death of the applicant’s son,
• Article 2 concerning the lack of an effective investigation into the killing of the applicant’s son,

It was not in dispute that the applicant’s son Aydın Kişmir was arrested and placed in detention on 6 October 1994 and that he died while in the custody of the police on 12 October 1994. The applicant also alleged that her son was tortured and killed intentionally while in police custody; the Turkish Government denied that. The Court found that a six cm long injury on Aydın Kişmir’s head, which required stitches, must have been caused while he was in police custody. The Court also found that the Government had not adequately accounted for the death of Aydın Kişmir while in detention and that their responsibility for his death was engaged.

Koku v. Turkey

(application no. 27305/95)

The Court held that there had been the following violations of the European Convention on Human Rights:

• Article 2 in that Turkey failed to protect the life of the applicant’s brother,
• Article 2 concerning the lack of an effective investigation into the death of the applicant’s brother,

The applicant alleged, in particular, that his brother Hüseyin Koku – an active member of the pro-Kurdish Democracy Party (DEP) and its successor the People’s Democracy Party (HADEP) – was abducted from the centre of Elbistan in October 1994 by armed police officers, taken into police custody and subjected to inhuman and degrading treatment before being killed by agents of the State. According to the Government, State security units had not, in any way or for any reason, abducted or taken into custody Hüseyin Koku, who had, they alleged, probably been killed in relation to an extramarital affair with a married woman.

The Court was unable to make a finding as to who might have been responsible for the abduction and subsequent death of Hüseyin Koku. The Court found that Hüseyin Koku, as the chairman of HADEP’s Elbistan branch, belonged to a category of persons who ran a particular risk of falling victim to disappearance and murder. Dozens of politicians working for HADEP and its predecessors were being kidnapped, injured and killed at around the time of Hüseyin Koku’s death. His life was therefore at more real and immediate risk than other persons at that time. It followed, therefore, that the domestic authorities were expected, not to prevent the disappearance of the applicant’s brother (which had already taken place), but to take preventive operational measures to protect his life which was at risk from the criminal acts of other individuals. Concluding that the authorities had failed to take the reasonable measures available to them to prevent a real and immediate risk to the life of Hüseyin Koku from materialising, the Court held, unanimously, that there had been a violation of Article 2.

Toğcu v. Turkey

(application no. 27601/95)

The Court held that there had been the following violations of the European Convention on Human Rights:

• Article 2 concerning the lack of an effective investigation into the disappearance of the applicant’s son,

The applicant claimed that his son Ender Toğcu, who was a hotel and club manager in Diyarbakır unconnected to the PKK or any other similar organisation, disappeared on 29 November 1994 and that he had been taken into custody by security forces or abducted by agents of the State or with their acquiescence. The Government denied any involvement of State agents in Ender Toğcu’s disappearance, submitting that most people who had allegedly disappeared in the south-east had joined the PKK.

The Court was unable to establish what took place on 29 and 30 November 1994 in view of both the contradictory information provided by the applicant and the incomplete investigation file submitted by the Government. The Court was therefore unable to make a finding as to who might have been responsible for the disappearance of Ender Toğcu.

Yasin Ateş v. Turkey

(application no. 30949/96)

The Court held that there had been the following violations of the European Convention on Human Rights:

• Article 2 in that Turkey was liable for the death of the applicant’s son,
• Article 2 concerning the lack of an effective investigation into the killing of the applicant’s son,

The applicant alleged that his son Kadri Ateş was arrested on 13 June 1995 and transferred to Diyarbakır Security Directorate where he was tortured. He subsequently died, having been either executed or used as a decoy. The Government denied that Kadri Ateş had been killed in police custody and maintained that he was shot and killed in crossfire between the PKK and security forces.

The Court concluded that the Government had failed to account for the killing of Kadri Ateş.

Fatma Kaçar v. Turkey

(application no. 35838/97).

The Court held that there had been no violation of Article 2 of the European Convention on Human Rights (right to life) on account of the death of Halis Kaçar; by six votes to one that there had been a violation of Article 2 of the Convention on account of the failure by the Turkish authorities to conduct an effective investigation into the circumstances of his death.

At approximately 7.30 a.m. on 11 March 1994 Halis Kaçar was shot and killed as he left his home. An investigation was launched immediately: evidence was gathered at the scene, a statement taken from a witness and a post-mortem carried out that revealed that Halis Kaçar had died of gunshot wounds to the back. In December 1998 the police arrested a man called İdris Hasar in connection with an operation mounted against the illegal terrorist organisation Hizbullah. He admitted carrying out the killing with one Ubeydullah on the organisation’s orders. Criminal proceedings are pending against him before Diyarbakır Assize Court.

In June 2001 the police arrested another suspect, Hasan Gündüz, who said in a statement that he and a man called Mehmet Emin Güçlü had received orders from Hizbullah through an intermediary known as Saïd to kill Halis Kaçar. Criminal proceedings are currently pending against Hasan Gündüz in Diyarbakır State Security Court.

In a judgment of 17 October 2002, Diyarbakır State Security Court convicted Mehmet Emin Güçlü and sentenced him to life imprisonment for, among other offences, his involvement in the murder of Halis Kaçar. The Court found that the killing had been carried out by Hasan Gündüz on the orders of Saïd, while Mehmet Emin Güçlü had supervised and covered the operation.

The Court said that, in assessing the evidence, it adopted the standard of proof “beyond reasonable doubt” but that, in accordance with its settled case-law, such proof could follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.

In the light of the material before it, the Court considered that the allegation that Halis Kaçar had been killed by or with the complicity of State agents was based more on conjecture and speculation that on reliable evidence. In those circumstances, it had not been established beyond reasonable doubt that Turkey’s responsibility was engaged in the murder of the applicant’s husband. It therefore held that there had been no substantive violation of Article 2.

Şimşek and Others v. Turkey

(application nos. 35072/97 and 37194/97).

The Court held, unanimously, that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the deaths of the applicants’ relatives; a violation of Article2 (right to life) of the Convention concerning the inadequate investigations into their deaths.

The applicants are relatives of people who died following incidents which took place in the Gazi and Ümraniye districts of Istanbul in 1995. The applicants and the Turkish Government have submitted differing accounts of the events which took place.

According to the applicants, on 12 March 1995, a group of unidentified people opened fire from a taxi on five cafés situated in the Gazi neighbourhood killing one person and injuring others. The attackers then killed the taxi driver and fled. Local residents complained about the indifference displayed by police officers after the shooting and a group marched to the local police station. The police set up barricades with panzers and, according to the applicants, attacked the group with their truncheons and the butts of their weapons.

Early the next morning, as a meeting was taking place between community leaders and the authorities, two panzers approached the demonstrators and began firing at them, killing one person and injuring others. Thousands of people from the surrounding neighbourhoods came to take part in the demonstration. Stones and coins were thrown at the police barricades. Later that morning police again fired on the protesters killing more people and injuring others. Some demonstrators were shot running away. The applicants maintained that the police prevented demonstrators from taking the wounded to hospital.

In the afternoon the police attacked a crowd attending the funerals of two people who had died during the previous incidents. Military reinforcements were called to the area and a curfew was imposed. The applicants stated that the group did not protest against the soldiers and that a total of 15 people were killed and 276 injured. On 15 March 1995 in Ümraniye, a large crowd which had gathered came across barricades which had been set up by the police and some demonstrators threw stones. According to the applicants, uniformed and plainclothes police officers began firing at the crowd without warning, killing and injuring more people. No one in the group returned fire. None of the police officers were killed or injured.

According to the Turkish Government, during the incidents at Gazi, the security forces verbally warned the demonstrators and then used pressurised water and batons to disperse the crowd. When this failed to work, they fired warning shots into the air. However, the crowd continued to walk towards the security forces and attacked the panzers with fire bombs. They maintained that during the Gazi riot, 13 people died and 195 people (152 residents, 36 police officers and seven soldiers) were wounded. During the incidents at Ümraniye, armed men in the group started shooting towards the security forces and the crowd. The security forces fired warning shots in the air. They also stated that while the wounded were being taken to hospital, the crowd continued shouting slogans and throwing stones from behind shelters. Seven ballistic reports revealed that none of the bullets that had been recovered from the bodies of the victims matched the weapons of the security forces on duty during the two incidents.

On 11 April 1995 criminal complaints concerning both incidents were filed by relatives of those who had been killed. They alleged that police officers had killed their relatives using disproportionate force and opened fire on the crowds without warning. According to complainants, the police deliberately used firearms against the demonstrators from the Gazi district who belonged to the Alevi sect.

In July 1995 and March 1998 the public prosecutor filed an indictment against 22 police officers who had been on duty during the Gazi demonstrations. Ultimately, one police officer was found guilty of killing three people and sentenced to five years’ imprisonment; another was found guilty of killing one person and given a one year and eight month suspended prison sentence. They were both debarred from public service for three months. An investigation which began in April 1995 concerning the killing of four people is still pending.

The European Court of Human Rights observed that the police officers who were on duty during the Gazi and Ümraniye incidents enjoyed great autonomy of action, and took decisions, while under pressure and in a state of panic, which they would probably not have taken had they had the benefit of proper training and instructions. The Court therefore found that the absence of a clear, centralised command increased the risk of police officers shooting directly at the crowd.

Furthermore, it was the responsibility of the security forces, who had been aware of the tense situation in both districts, to provide the necessary equipment, such as tear gas, plastic bullets, water cannons, to disperse the crowd. In the Court’s view, the lack of such equipment was unacceptable.

In conclusion, the Court considered that, in the circumstances of the applicants’ case, the force used to disperse the demonstrators, which caused the death of 17 people, was more than absolutely necessary and that there had therefore been a violation of Article 2.

Taniş and Others v. Turkey

(application no. 65899/01).

The Court held, unanimously, that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the disappearance of Serdar Tanış and Ebubekir Deniz; a violation of Article 2 concerning the inadequate nature of the investigation into the circumstances surrounding the disappearance of Serdar Tanış and Ebubekir Deniz.

The application concerned the disappearance of Serdar Tanış and Ebubekir Deniz, who were president and secretary respectively of the HADEP party (the People’s Democracy Party - Halkın Demokrasi Partisi) in Silopi. The facts were disputed between the parties.

According to the applicants, Serdar Tanış and Ebubekir Deniz had received death threats from the Silopi gendarmerie command and the Şırnak gendarmerie regiment on account of their political activities. On the day of their disappearance, namely 25 January 2001, individuals in civilian clothing attempted to force Serdar Tanış into a vehicle with a view to taking him to the central gendarmerie headquarters, but he refused. He subsequently received a call on his mobile telephone from the gendarmerie command and went to the gendarmerie station, accompanied by Ebubekir Deniz. The gendarmerie commanding officer, questioned a short time later by relatives concerned at the lack of news from Mr Tanış and Mr Deniz, allegedly informed them that Mr Tanış and Mr Deniz had not gone to the station.

Following the lodging of a complaint by the applicants on 26 January 2001, the Silopi public prosecutor gathered statements from eye-witnesses. After the incident had been described in the press, the Şırnak Regional Governor issued a written statement on 1 February 2001 indicating that the individuals concerned had gone to the gendarmerie station on 25 January but that they had left those premises half an hour later.

Since that day, the applicants have had no further news of Serdar Tanış and Ebubekir Deniz.

For their part, the Turkish Government maintained that Serdar Tanış and Ebubekir Deniz had indeed gone to the gendarmerie station on 25 January 2001 at about 2 pm, in order to see the commanding officer. Since he was not present, they had left the premises at about 2.30 pm, signing the register as they left. The investigation opened against the commanding officer of the Şırnak gendarmerie and gendarmes in connection with the abduction of Mr Tanış and Mr Deniz resulted in a finding on 9 February 2004 that there was no case to answer. The case file was returned to the Diyarbakır prosecutor’s office.

The Turkish authorities claimed to have seized a letter, mentioning the presence of Serdar Tanış and Ebubekir Deniz in a PKK camp in Doloki (Iraq), in the course of a search carried out on 3 March 2001 of a car that had entered the country from northern Iraq.

Based on the statements made to its delegates, the Court found the account by a number of witnesses to the effect that the HADEP’s leaders had been the subject of official harassment to be coherent, credible and convincing. It also found convincing the testimony from members of the families of Mr Tanış and Mr Deniz, and from the presidents of the party, indicating that such harassment had been particularly directed against Mr Tanış and Mr Deniz from the point at which their intention to set up a local branch of the party had become known.

Having regard to the information available to it, the Court was convinced that it was a gendarme who had summoned Serdar Tanış by telephone to the district gendarmerie station. It was clear from the evidence submitted to it that, after having been summoned to the district gendarmerie station and been seen entering the building, neither of the two men had ever been seen or heard from again, whether by their families, friends or colleagues from the HADEP party.

As to the allegation that Mr Tanış and Mr Deniz were in PKK camps in northern Iraq, the Court considered that the letter revealing that information did not provide any basis for concluding that the two men were still alive or that they had been or were still in northern Iraq as was claimed.

Finally, the Court noted that the authorities had failed to offer any credible and substantiated explanation for the fate of Mr Tanış and Mr Deniz following their arrival at the Silopi gendarmerie headquarters. Further, the evidence disclosed serious defects in the reliability, thoroughness and independence of the investigation, although the applicants continued to maintain that their relatives had previously been subjected to intimidation and threats by the commanding officers of the gendarmerie and that they had been afraid for their lives.

In the Court’s opinion, the decisive factor was that Serdar Tanış and Ebubekir Deniz had gone to the gendarmerie command headquarters following a call from a gendarme and had not been seen since. There were sufficient persuasive indications to establish that Mr Tanış and Mr Deniz had been threatened by the commanding officers of the Silopi and Şırnak gendarmeries on account of their political activities within the HADEP, and a credible witness statement had described the attempted abduction of Mr Tanış on the very day that he had disappeared.

No criminal proceedings had been opened to identify those responsible for the disappearance of Mr Tanış and Mr Deniz and the investigation into the conduct of the commanding officer of the Şırnak gendarmerie and the gendarmes had resulted in a finding that there was no case to answer. Although the investigation had not yet been officially closed, there was nothing to suggest that additional and effective measures were still being taken in this respect. In those circumstances, the Court considered that the authorities had failed to implement the hypothetically adequate procedures for investigating the disappearances.

Having regard to the context in which Serdar Tanış and Ebubekir Deniz had disappeared and the fact that their fate was still unknown four years later, and in the absence of a proper investigation and plausible explanation from the authorities with regard to what had happened, the Court was of the opinion that Turkey was answerable for the disappearance of Serdar Tanış and Ebubekir Deniz. Accordingly, the Court concluded that there had been a violation of Article 2.

Hamiyet Kaplan and Others v. Turkey

(application no. 36749/97).

The Court held unanimously that there had been a violation of Article 2 of the European Convention on Human Rights (right to life) on account of the manner in which the police operation in which the applicants’ relatives had been killed was organised; a violation Article 2 of the Convention on account of the inadequate nature of the investigation carried out by the Turkish authorities into the deaths.

The eight applicants were close relatives of Ömer Bayram and Rıdvan Altun, who were both killed in August 1996 in a police operation that had been mounted against suspected members of the PKK by the anti-terrorist branch of the Adana Security Directorate. The facts of the case were disputed.

According to the applicants, Rıdvan Altun was arrested by security forces at about 2 a.m. on 8 August 1996. At approximately 4.30 a.m. he was taken in handcuffs and with his head covered by a bag to the rear of Ömer Bayram’s house. Ömer Bayram and his partner Hamiyet Kaplan opened the door to the police when told to do so. An exchange of fire followed between the police and a man called Abdurrahman Sarı, who was on the balcony. Mr Sarı and a police officer were killed during the exchange.

The applicants said that one of the police officers then executed Rıdvan Altun with a bullet to the head. The police officers proceeded with the raid, throwing grenades and firing at the house. They killed Ömer Bayram on learning that he was the owner of the property and shot the applicant Hamiyet Kaplan and two of the couple’s daughters who had sought refuge in the kitchen. Hamiyet Kaplan sustained serious injuries while the two girls, aged two and six, died.

The Turkish Government said in their account that following his arrest by the security forces, Rıdvan Altun denounced Hamiyet Kaplan and Ömer Bayram as members of the PKK and said that the organisation held meetings at their home. Rıdvan Altun, Abdurrahman Sarı, Ömer Bayram, two of Hamiyet Kaplan’s children and the police officer who led the operation were killed during the confrontation between the police officers and the people in the house.

Criminal proceedings brought by Hamiyet Kaplan against the police officers who had taken part in the raid ended with the acquittal of the 23 officers on 27January 1997, the Adana State Security Court ruling that they had acted in lawful self-defence. An appeal on points of law by Hamiyet Kaplan against that judgment was dismissed by the Court of Cassation on 29 January 1997.

The Court noted that Rıdvan Altun, Ömer Bayram and two of the latter’s children died during a police raid on suspected members of the PKK, in the course of which a senior police officer was also killed by gunfire from the suspects’ home.

As regards the manner in which the police raid was conducted, the Court found that, in the light of the material before it and the lack of tangible proof, the conclusion that the applicants’ relatives were victims of extrajudicial executions by State agents was based more on hypothesis and speculation than reliable evidence. It held, therefore, that it had not been established beyond all reasonable doubt that Turkey’s responsibility had been engaged by the actions of the police officers involved in the raid.

As regards the organisation of the operation, the Court noted that no distinction had been made between lethal and non-lethal force: the police officers had used only firearms, not tear gas or stun grenades. The uncontrolled violence of the assault on the house had inevitably put the suspects’ lives in great danger. The Court attached little credibility to the Government’s submission that the children and suspects had been killed by the accidental explosion of a grenade. The reality was that the two suspects were killed by gunfire and Hamiyet Kaplan received serious gunshot wounds when everyone was in the kitchen, in other words in the same room as the children.

The Court noted that the system in place in Turkey did not provide any clear recommendations or criteria regarding the use of force in peacetime. It had been more or less inevitable that the police officers would act with considerable autonomy and take unreasonable risks vis-à-vis the occupants of the house, a situation which would probably not have arisen had they received adequate training and instructions. The lack of clear rules could also serve to explain why nearly all the police officers had spontaneously taken part in the raid and used their guns without referring to central command.

In those circumstances, the Court found that the Turkish authorities had not done all that could reasonably be expected of them to afford citizens the level of protection required, particularly in cases involving recourse to potentially lethal force, or to avert the real and present danger to life which police operations involving the pursuit of suspects were, albeit exceptionally, liable to entail.

Consequently, the Court held that there had been a violation of Article 2 of the Convention.

Dündar v. Turkey

(application no. 26972/95) No violation of Article 2 (death of applicant’s son) Violation of Article 2 (inadequate investigation)

It was not disputed between the parties that the applicant’s son Mesut Dündar was brought to Cizre Police Station in July 1992 by police officers who wanted to take him to a psychiatric hospital. He escaped from the police station and was found strangled on 6 September 1992 near the village of Sulak.

The applicant claimed that his son was killed by the security forces and that the authorities failed to carry out an effective investigation into the circumstances of the killing. He also complained that he suffered anguish and distress following the killing of his son and on account of his inability to discover the circumstances in which his son had been killed. He further complained that, as a result of the inadequate criminal investigation into the murder of his son, he had no access to court to bring civil proceedings against the perpetrators, who remained unidentified.

The European Court of Human Rights observed that Mesut Dündar was killed two months after escaping from police custody. It was therefore not for the Turkish Government to account for his death. The applicant had not submitted to the Court any evidence implicating any State agents in the murder of his son. The Court therefore concluded that the actual circumstances in which the applicant’s son died remained a matter of speculation. Accordingly, there was insufficient evidence to conclude that the applicant’s son was killed by, or with the connivance of, State agents. The Court therefore held, unanimously, that there had been no violation of Article 2 concerning the killing of the applicant’s son.

However, the Court identified serious shortcomings in the investigation into the killing. In particular, there was no full autopsy or any meaningful examination of the scene where the body was found. No documents were submitted by the Turkish Government indicating that any steps had been taken by the investigating authorities since 1999 and no statements were taken from any villagers from Sulak, who were potential eye-witnesses. The Court therefore held, unanimously, that there had been a violation of Article2 given the domestic authorities’ failure to carry out any meaningful investigation, let alone an adequate and effective one, into the killing of the applicant’s son.

Özgen and others v. Turkey

(no. 38607/97) No violation of Article 2 (death of the applicants’ relative) Violation of Article 2 (inadequate investigation)

The applicants are the wife and daughters of Fikri Özgen, who disappeared in February 1997, aged 73. The facts are disputed between the parties.

The applicants contended that at about 10 a.m. on 27 February 1997 Fikri Özgen was abducted in the street by four plain-clothes police officers while he had been about 100 metres from his home. The next day Dilsah Özgen informed the Diyarbakır public prosecutor that her husband had been abducted. On 6 March 1997 the applicants lodged a criminal complaint with the prosecutor.

The Turkish Government asserted that Fikri Özgen had never been taken into police custody and that his disappearance was in no way due to acts by the State security forces.

The prosecutor opened an investigation on 13 March 1997 during which evidence was heard from the applicants, information requested from other public prosecutor’s offices in the region, from various police headquarters and the gendarmerie. An order was given to identify the owner of the vehicle whose number plate had been noted down by the applicants on the day of the incident, but it did not help establish the identity of those responsible because it related to a lorry and not a car. During the investigation the prosecutor regularly asked the gendarmerie and the police headquarters to continue making enquiries into the fate of Fikri Özgen. The investigation is still pending before the Diyarbakır Public Prosecutor’s Office.

With regard to the Fikri Özgen’s disappearance, the Court noted that the applicants mainly based their allegations on their own statements which were not specifically corroborated by any other evidence. It also found a number of discrepancies, or even contradictions, in the applicants’ allegations.

In the light of the evidence in its possession the Court considered that the allegation that Fikri Özgen had been abducted and held by State agents was hypothetical and speculative and not based on sufficiently credible evidence. In those circumstances it considered that it was not established “beyond any reasonable doubt” that Turkey’s responsibility had been engaged in the abduction and disappearance of the applicants’ relative.

Regarding the investigations carried out, the Court noted that the prosecutor had not deemed it necessary to identify and hear evidence from persons who could have witnessed the incident, whereas the applicants alleged that it had occurred in front of a restaurant in the street in the presence of witnesses. Nor did the evidence show that efforts had been made during the investigation to verify whether certain teams of police officers or gendarmes had detained Fikri Özgen but omitted to register him in the police custody records.

In those conditions the Court concluded that the Turkish authorities had failed to conduct a sufficient and effective investigation into Fikri Özgen’s disappearance. It accordingly held, unanimously, that there had been a violation of Article 2 in that respect.

H.Y. and Hü. Y. v. Turkey

(application no. 40262/98) No violation of Article 2 (death of applicants’ son) Violation of Article 2 (inadequate investigation)

Mahmut Yıldız died in Diyarbakır Military Hospital, where he had been transferred while in police custody. Mahmut Y. was arrested at 10.45 p.m. on 21 November 1997, following reports that he was a PKK militant. He was initially taken into custody at the security police headquarters and shortly afterwards was transferred to the Siirt gendarmerie station. The following day he was examined twice by a doctor, who found no traces of violence or blows on his body.

According to the report drawn up that day by the gendarmes, at about 6 a.m. on 24 November 1997 Mahmut Y. fell as he was walking around the observation room, banging his head on the floor. He was examined by a doctor and taken by ambulance to Siirt Military Hospital, before being transferred by helicopter to Diyarbakır Military Hospital, where he died at 4 a.m. on 5 December 1997. On the same day an investigation was opened, in the course of which an autopsy was carried out. The autopsy found that Mahmut Y. had died as a result of acute subdural haematoma possibly caused by acute trauma such as a fall. During the investigation various steps were taken: witnesses were questioned and expert medical assessments were carried out in order to determine the circumstances surrounding the death and its causes.

In February 1998 the applicants lodged a complaint against the gendarmes in whose custody their son had been detained, alleging torture. On 9 November 1999 the public prosecutor made an order discontinuing the proceedings on the ground that there was insufficient evidence of the gendarmes’ guilt. The order was revoked in January 2000 by the President of the Batman Assize Court, and in April 2000 the Siirt public prosecutor indicted seven gendarmes who had been responsible for the deceased during his time in custody. On 29 January 2002 the Assize Court acquitted the defendants for lack of evidence. An appeal on points of law by the applicants is currently pending before the Court of Cassation.

The Court noted that, according to the medical reports, the trauma resulting in the applicants’ son’s death had been caused either by a direct impact to the head such as a blow or by a fall, whether accidental or provoked by another person. Admittedly, the fact that the forensic medical experts were unable to reach a conclusion meant that doubts subsisted as to the cause of the trauma. However, the experts had not observed any trace of violence on Mahmut’s body and had pointed out that there was “no medical evidence of trauma to any other parts of the deceased’s head or body”. The Court further noted that eyewitnesses had corroborated the view that he had fallen by accident.

Having regard to the evidence before it, the Court considered that the applicants’ allegations that their son had died after being tortured by the security forces were not based on concrete and verifiable facts and were not corroborated to a decisive extent by any medical findings, witness statements or other evidence. In those circumstances, it considered that such a conclusion was more a matter of speculation, based on suspicions that were admittedly legitimate but were not supported by any tangible evidence. The Court therefore held, by five votes to two, that there had been no violation of Article 2.

The Court observed that a large number of investigative measures had been taken in the present case, that the investigation had been instituted promptly by the authorities, and that they had worked actively on it. However, it considered it regrettable that, owing to the lack of thoroughness with which the investigation had been conducted, it had not been possible to establish with a higher degree of certainty the cause of the cranial trauma that had resulted in Mahmut Y.’s death. Having regard to the circumstances of the case, the Court concluded that the authorities had not conducted an effective investigation into the circumstances surrounding his death and accordingly held unanimously that there had been a violation of Article 2.

Nesibe Haran v. Turkey

(application no. 28299/95) No violation of Article 2 (as regards the death) Violation of Article 2 (as regards the investigation)

On 24 December 1994 İhsan Haran did not come home from work. Three days later a co-villager came to the applicant’s house and told her that an identity check had been carried out at the construction site where her husband worked, that an argument had ensued and that her husband had been taken away by the police. The applicant tried to file a petition with the public prosecutor’s office at the Diyarbakır State Security Court in order to learn of his whereabouts, but was prevented by police officers standing outside. She and other family members tried to see the public prosecutor for about a month without success. She then started visiting several prisons in order to find out whether anyone had seen her husband. She met one person who told her that he had seen İhsan Haran in custody.

The Court considered that the actual circumstances in which İhsan Haran disappeared remained a matter of speculation and assumption and that, accordingly, there was an insufficient evidentiary basis on which to conclude that he was, beyond reasonable doubt, secretly detained and killed by, or with the connivance of, State agents. Accordingly, the Court held, unanimously, there had been no violation of Article 2 on that account.

The Court noted that an investigation into the applicant’s allegations began after the communication of the application to the Turkish Government, i.e. two years after the events. The Court found that there were striking omissions in the conduct of the investigation.

Akdoğdu v. Turkey

(application no. 46747/99).

The Court held 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 and the nature of the investigation into the circumstances of his death; that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention on account of the treatment inflicted on the applicant’s son during his detention in police custody.

Burhanettin Akdoğdu, who was suspected of membership of the illegal organisation Devrimci Sosyalist İşçi Hareketi (Socialist Workers’ Revolutionary Movement), was arrested by the security forces on 10 December 1997. He was initially placed in police custody in Bursa, then transferred on 12 December 1997 to the premises of the anti-terrorism unit at the Ankara Security Directorate, where he was questioned from 8 p.m. until 11.30 p.m.

On the following day, namely 13 December 1997, the body of Burhanettin Akdoğdu was found at 8a.m, hanging from the window bars in his cell on a rope made from the unstitched edge of a blanket. The public prosecutor visited the site of the incident at about 10 a.m. and a preliminary investigation was opened. An autopsy was carried out on the same day. The forensic experts concluded that death had resulted from mechanical asphyxia and that there was nothing to suggest that the deceased had been subjected to violence. At the applicant’s request, a second autopsy was carried out on the day following Burhanettin Akdoğdu’s death. It revealed that his body had sustained various bruises and grazes to the legs, especially around the knees, ankle bones and calves. The applicant lodged a criminal complaint.

Statements were taken from the wardens responsible for the premises for police custody and from fellow detainees. The wardens claimed that Burhanettin Akdoğdu had gone to the toilet at 2 a.m. and 5 a.m., information which was confirmed by certain detainees, and that they had observed that he was alive between 5 a.m. and 8 a.m.

On 1 May 1998 the prosecutor issued an order finding that there was no case to answer. The applicant applied unsuccessfully to have that decision set aside.

The Court noted that the applicant’s allegations to the effect that his son had been intentionally killed by police officers were not supported by concrete and verifiable facts and had not been conclusively corroborated by any witness statement or other evidence. In particular, it noted that the autopsy had revealed that death had resulted from mechanical asphyxia by hanging, and that the statements given by the wardens responsible for monitoring detainees in police custody had been corroborated by other detainees.

With regard to the obligation to monitor the detainee, the Court noted that there was no evidence proving that the routine measures in place to prevent the detainee’s suicide had not been followed or that standard monitoring had not been carried out. In addition, there was no relevant evidence suggesting that the police officers should reasonably have foreseen that Burhanettin Akdoğdu would commit suicide and that they should have ensured the continuous presence of a warden in front of his cell or confiscated his blanket. In those circumstances, the Court concluded unanimously that there had been no violation of Article2.

The Court considered that the detailed preliminary investigation carried out by the judicial authorities in order to establish the wardens’ liability in Burhanettin Akdoğdu’s suicide could be regarded as sufficiently thorough and effective. Accordingly, it found that there had been no violation of Article 2 on this point either.

Article 3

The Court noted that the Turkish Government had provided no explanation for the injuries recorded in the second autopsy report on the applicant’s son, who had been detained for three days prior to his death without access to a lawyer. To a certain extent, those injuries were compatible with claims made by a fellow detainee, who alleged that he had heard that Burhanettin Akdoğdu had been ill-treated during questioning, allegations which had not been challenged by the Government. Consequently, the Court concluded that there had been a violation of Article 3.

Siddik Aslan and Others v. Turkey

(application no. 75307/01) No ruling on the merits

According to the applicants, on 7 September 2001 Ebuzeyt Aslan and Halit Aslan left for Beytüşşebap. Eight days later a relative was informed that the two men had been killed by village guards and soldiers in the village of Yeşilöz in the Dereyatağı area.

The Prosecutor’s office in Beytüşşebap confirmed what had been said by the anonymous caller and stated that the place where the incident had taken place was in a dangerous area and that he could not therefore hand the bodies over to them. The Government denied the latter half of the statement.

On 21 September 2001 the Diyarbakır Branch of the Human Rights Association requested the authorities to investigate the deaths of the two men and for official identifications of the bodies and autopsies to be carried out.

According to the Government, on 12 September 2001, an armed clash between gendarme soldiers and terrorists took place in Dereyatağı which left three terrorists dead. The soldiers left the corpses in the area and covered them with stones to protect them from wild animals. The authorities subsequently visited the site on seven occasions to take photographs of the bodies and carry out autopsies. However, the bodies, allegedly those of Halit Aslan and Ebuzeyt Aslan, could not be found. It was assumed that the bodies had decomposed or been removed.

On 28 February 2005 the Government asked the Court to declare the application inadmissible in the light of new documents which they had submitted. It transpired from the documents that on 20 August 2004, Nihari Aslan, had made a statement at a police station that her husband Halit Aslan had fallen ill and died at their family home on 11 November 2003 and that the family had had him buried. According to her lawyers, Mrs Aslan was poor and needed to make the statement to obtain a death certificate to be able to claim a farming grant which had previously been paid to her late husband. They also added that the applicants had recently admitted that six or seven days after their relatives had been killed they had found the bodies and buried them. They stated that the applicants had been too afraid to divulge this information earlier but that they were now willing to assist the authorities to recover the bodies in order for them to establish their identities and carry out autopsies. The lawyers alleged that the indifference shown by the authorities was an attempt to mislead the Court and that in fact they had tried to cover up the murders.

Having regard to the new information, the Court considered it appropriate to address the Government’s preliminary objection concerning the effectiveness of the criminal investigation.

It appeared from the documents submitted by the Government that the national authorities, particularly the Beytüşşebap Prosecutor, had taken every step within their power to find the bodies given the information they had. Their efforts were, however, seriously hampered by the actions of the applicants, who had buried the bodies. As for the applicants’ fears, the Court observed that the applicants had not been afraid of making serious allegations both to the national authorities and to the Court.

Furthermore it found that the applicants’ allegation that the authorities were trying to mislead the Court to be disingenuous, if not abusive, since the applicants themselves had mislead the Court. The authorities could not have provided any information about the identities of the three dead men when the applicants had already hidden their whereabouts. The Court therefore concluded that they had not remained passive faced with the applicants’ allegations.

As regards the statement made by Nihari Aslan, to the effect that her husband had died on 11 November 2003 – and not in September 2001 as alleged in the application form – the Court found that the most appropriate forum to establish the true facts concerning that death, was before the national authorities.

Belkiza Kaya and Others v. Turkey

(applications nos. 33420/96 and 36206/97) No violation of Article 2 (deaths of applicants’ relatives) Violation of Article 2 (inadequate investigation)

The ten applicants are relatives of Neytullah İlhan, Abdullah İlhan, Halit Kaya, Ahmet Kaya, Ali Nas, Lokman Özdemir, Hamit Yılmaz, Abdulhalim Yılmaz and Beşir Nas, who died while in police custody. The facts were disputed between the parties.

The applicants contended that, in January 1996, their relatives were arrested and taken into police custody in Taşkonak gendarmerie station, after their names had been given to gendarmes questioning a person suspected of aiding and abetting the PKK. While the detainees were being transferred to Koçyurdu gendarmerie station on 15 January 1996, the minibus they were travelling in came under fire on the road to Güçlükonak. The gendarmes travelling in a separate escort vehicle returned the fire. The shooting, which lasted around 30 minutes, ended with the minibus being destroyed and its occupants killed. The body of the driver, Beşir Nas, was found a few metres from the minibus, with gunshot wounds. The bodies of the other ten people in the minibus were burnt to ashes.

According to the report on the scene of the incident, 27 cartridges were found around the vehicle. Several marks made by bullets and rockets were found on the vehicle, and three rockets found nearby. The public prosecutor’s office opened an investigation, in the course of which a number of statements were taken.

As to the allegation that the applicants’ relatives had been the victims of an extrajudicial execution, the Court considered, in view of the material before it, that the assertions were not supported by concrete and verifiable facts. They were not corroborated in conclusive fashion by eyewitness statements or other evidence and were based more on hypothesis and speculation than on reliable evidence.

On the issue as to whether Turkey had taken all the necessary steps to protect the lives of the applicants’ relatives, the Court acknowledged the difficult situation in south-east Turkey, where a state of emergency had been in force at the time of the events, and was prepared to accept, in general terms, that the risk of an incident had been higher in that region than in the rest of the country. It was not satisfied that the measures taken by the security forces with regard to the custody arrangements and the arrangements for escorting and transferring the detainees were open to question. Four guards had accompanied the detainees in the minibus, which had been escorted by a gendarmerie vehicle, and the area had been under the control of the military. As the presence of terrorists had been detected only minutes before the incident, the authorities could not be blamed for failing to prevent the departure of the convoy or alter the route. Nor could they be criticised for not having taken additional measures, since the existence of a real and substantial risk had not been sufficiently foreseeable.

The Court therefore held, unanimously, that there had been no violation of Article 2 in that respect.

As to the nature of the investigation into the events, while it was true that some steps had been taken, the Court noted a number of shortcomings. First, it pointed out that it was essential to conduct a full autopsy in judicial cases. Second, the investigations at the scene of the incident had not been conducted with the thoroughness warranted by a case of that nature. Only after being informed of the application by the European Court, furthermore, had the investigating authorities looked into the police custody and the questioning of those who had died in the attack. Finally, with one exception, no statements had been taken from the gendarmes responsible for escorting the minibus until more than six years after the incident.

In those circumstances, the Court considered that the Turkish authorities had not conducted an adequate and effective investigation into the deaths of the applicants’ relatives. It therefore held, unanimously, that there had been a violation of Article 2.

Decisions in 2006

Bişkin v. Turkey

(application no. 45403/99) No violation of Article 2 (death) Violation of Article 2 (investigation)

The applicants alleged that Mehmet Bişkin had been abducted from his home by plain-clothes police officers on the night of 4 January 1996. The officers had allegedly asked him to come with them to the police station in connection with a statement he had given. Later that night, the second applicant, who had called the police, was informed that his brother had not been taken into police custody but that his body had been found in the street with a bullet in the head, behind his right ear.

The resulting investigation included an expert ballistics survey of the scene of the incident and an autopsy on the body of Mehmet Bişkin, which revealed that the victim had died from gunshot wounds resulting in damage to brain tissue and subsequent haemorrhaging. The public prosecutor requested the security police, among other authorities, to conduct an investigation to identify the perpetrators of the homicide and to find out whether the PKK had been involved. In February 1998 the applicants lodged a criminal complaint concerning the death. The investigation into the killing of Mehmet Bişkin, to date, has not revealed the identity of the perpetrators.

In the light of the evidence before it, the Court considered that a finding to the effect that Mehmet Bişkin had been killed by agents of the State or with their connivance would be based more on speculation and assumption than on reliable inference. In those circumstances, it observed that Turkey’s responsibility for the homicide had not been established beyond all reasonable doubt. It accordingly held, unanimously, that there had been no violation of Article 2 on that account.

As regards the investigation into the death, the Court noted that the steps taken had shed no light on the substance of the case. In June and July 2001, five years after the incident in question and several months after the communication of the application to the Turkish Government, the public prosecutor had heard testimony from some of the eye witnesses in the case. The Court found it surprising that the first applicant, who had allegedly witnessed her son’s abduction, had not been questioned until June 2001. Moreover, an external autopsy examination of the body had been carried out by a single pathologist, in breach of the statutory provisions in force at the material time. In addition, the investigation had only been directed against the PKK and no other leads had been followed up. The Court was also surprised to note that, in spite of a request by the public prosecutor to the security police to trace the victim’s car, the police had reported to him that no such enquiries had been made. In those circumstances, the Court held, unanimously, that there had been a violation of Article 2 as regards the investigation into the case.

Mordeniz v. Turkey

(application no. 49160/99) No violation of Article 2 (death) Violation of Article 2 (investigation)

Fahriye and Mahmut Mordeniz, were found dead on 3 December 1996. According to the applicant, on 28 November 1996 at about 9 a.m. plain-clothes police officers arrested his father and told those present that they were taking him to the police station to give a statement. They returned shortly afterwards to collect his mother. The applicant made several requests to the public prosecutor’s office for information as to what had happened to his parents and for an investigation to be opened into their disappearance.

According to the Turkish Government, after reports had been received by the police, the bodies of a man and a woman, subsequently identified in November 1998 as the applicant’s parents, were discovered on 3 December 1996 on the road from Cizre to Silopi with their arms bound by a strip of cloth and their mouths gagged with adhesive tape. An external examination of the bodies, carried out that day, revealed that they had both died of brain damage resulting from bullet wounds.

The public prosecutor asked the security police, among other authorities, to carry out an investigation with a view to identifying the perpetrators of the killing and ascertaining whether the PKK or any other terrorist organisation had been involved. The applicant lodged a criminal complaint in November 1998 in relation to the death of his parents.

The investigation into the death of the applicant’s parents, to date, has not identified those responsible.

In the light of the evidence before it, the Court considered that a finding to the effect that the applicant’s parents had been killed by agents of the State or with their connivance would be based more on speculation and assumption than on reliable inference. In those circumstances, it found that Turkey’s responsibility for the killings had not been established beyond reasonable doubt. It therefore held unanimously that there had been no violation of Article 2 on that account.

As regards the investigation into the deaths, the Court noted in particular that the inquiries made had been directed solely against the PKK or other illegal authorities. Furthermore, as the investigation had been conducted in conjunction with an investigation into a separate offence, it had not been coordinated or centralised and had been incomplete. The Court accordingly held unanimously that there had been a violation of Article 2 as regards the investigation into the case.

Bayrak and Others v. Turkey

(application no. 42771/98) No violation of Article 2 No violation of Article 13

The applicants are close relatives of Abdulkadir Bayrak and Medeni Şimşek, who were both killed in September 1993 in an attack for which no one claimed responsibility.

In the afternoon of 23 September 1993 Abdulkadir Bayrak and Medeni Şimşek were both killed by gunfire while walking along the street in Mardin. In the course of the investigation immediately afterwards, evidence was taken from witnesses and samples collected at the scene of the attack.

Following an operation against Hizbullah in 1995, fresh intelligence was obtained by the authorities concerning the killing of the applicants’ close relatives. Criminal proceedings were brought against the suspected perpetrators in 2002. Three sets of proceedings against suspected leaders and members of Hizbullah are currently pending in Diyarbakır Assize Court.

In the light of the evidence available to it, the Court observed that Turkey’s responsibility in the killing of the applicants’ relatives had not been established beyond all reasonable doubt. Accordingly, it held that there had been no violation of Article 2 on that account.

As to the investigation into the case, the Court observed that the authorities could not be criticised for any lack of diligence.

Aydın Eren and Others v. Turkey

(application no. 57778/00) Violation of Article 13

Orhan Eren and his wife Zozan both died in September 1997. On 26 September 1997, Mr and Mrs Eren’s car was found abandoned in a wooded area next to the Lice-Diyarbakır road. The official report noted that no damage or marks were found on the vehicle and that the search carried out at the site had proved unsuccessful.

An investigation was opened and various witnesses were heard, in particular Aydın Eren. He stated that his relatives had gone through the Mermer Gendarmerie’s checkpoint at about 9.45 a.m. and that their car had been found abandoned further along the road. Two cars parked nearby had been spotted by a driver shortly afterwards; Mr Eren also referred to the hostility shown towards his relatives by a particular family and suggested that his relatives might also have been abducted by terrorists.

The investigation has so far been unable to determine what happened to Mr and Mrs Eren.

Having regard to the evidence before it, the Court considered that it had not been established beyond reasonable doubt that a State employee or an individual acting on behalf of the State authorities had been involved in the disappearance of Mr and Mrs Eren, or that Turkey had failed to comply with its positive obligation to protect the couple against a known threat to their lives. Accordingly, it concluded unanimously that there had been no violation of Article 2 concerning the disappearance of Mr and Mrs Eren.

However, although the authorities responsible for the investigation could not be accused of inactivity, the Court considered that the manner in which the investigation had been conducted could not be regarded as thorough or satisfactory. The investigation by the Lice prosecutor had lasted more than eight years to date, and the exact circumstances in which Mr and Mrs Eren disappeared had still not been clarified. In addition, it did not appear from the case file that statements had been taken from the gendarmes on duty at the checkpoint or, indeed, from those who had gone through the checkpoint immediately after Mr and Mrs Eren, or from the individuals implicated in certain statements. In those circumstances, the Court concluded unanimously that there had been a violation of Article 2 concerning the investigation.

Memiş v. Turkey

(application no. 42953/98) Friendly settlement

Mehmet Memiş, was killed by a gunshot in June 1996, at the age of 16, during a military operation. On the evening of 28 June 1996, alerted to the presence of members of the PKK in the area, soldiers from the gendarmerie station at the Dicle dam were deployed around the village of Selman. Using a heat-seeking camera, three armed terrorists were spotted. The soldiers opened fire and the applicant’s son, who was on the terraced roof of their house, was hit by a bullet, the origin of which is disputed by the parties.

The Eğil prosecutor’s office opened an investigation. On 29 August 1996 the applicant lodged a complaint against the gendarmes whom he considered responsible for his son’s death; he stated that the commandant of the Diyarbakır gendarmerie regiment, among others, had visited him on the day after the incident to express his condolences, implying that his son had been the victim of a military blunder.

On 13 November 1997 the Administrative Council of the Eğil district issued an order finding that there was no case to answer.

The case has been struck out of the list following a friendly settlement under which the applicant is to receive 15,000 pounds sterling, or the equivalent of EUR 21,945.87. Turkey also made the following declaration: “The Government of the Republic of Turkey regret the occurrence of the actions which have led to the bringing of the present application."

Şeker v. Turkey

(application no. 52390/99)

Mehmet Şah Şeker, disappeared in October 1999 on his way home from work. The facts surrounding the disappearance are disputed between the parties.

The applicant maintained that he was told by eye-witnesses that his son had been taken away by plain-clothed police officers in a car on or around 9 October 1999. The applicant’s legal adviser informed the applicant that he had seen his son’s university identity card in a case file brought against members of the Hizbullah before Diyarbakır State Security Court. The applicant tried unsuccessfully to retrieve the document.

The Government submitted that after taking statements from the applicant and his son’s work colleagues, the Security Directorates in Bismil and Diyarbakır concluded that Mehmet Şah Şeker had not been taken into custody.

In February 2002, following a request by the International Law and Foreign Relations Directorate of the Ministry of Justice to carry out an effective investigation, the Bismil and Diyarbakır public prosecutors examined custody records and took statements from the applicant, as well as from those who had been in custody at the Security Directorates in Diyarbakır and Bismil. The investigation is ongoing.

The Court considered that there was insufficient evidence to conclude that the applicant’s son was, beyond reasonable doubt, abducted and subsequently killed by State agents and accordingly found no violation of Article 2 on that account. However it did find that the authorities had failed to carry out an adequate and effective investigation into the disappearance. There had therefore been a violation of Article 2 on that account and also of Article 13, since the applicant had been denied the possibility of obtaining an effective remedy in respect of his complaints.

Perk and Others v. Turkey

(application no. 50739/99) Violation of Article 2 (investigation)

Fuat Perk, Ayten Korkulu and Meral Akpınar, all died in February 1996 during a police operation against the DHKP-C (Revolutionary Party of the Liberation of the People Front, an extreme-left wing armed movement). On 9 February 1996, acting on a tip-off from a member of the DHKP-C, an operation involving 15 police officers was conducted in a building located in Bahçelievler, Istanbul, against terrorists preparing to carry out an attack. The applicants’ relatives, who were in the flat which was stormed by the police, were killed during the operation; according to the report prepared at the end of the operation, the three terrorists had been found dead, sheltering in a room with revolvers in their hands.

On the same day, witness statements were taken and preliminary post-mortems were conducted. A criminal investigation was opened. It emerged from the autopsies carried out a few days later that Fuat Perk’s body had been hit by seven bullets, that of Meral Akpınar by 21 bullets and that of Ayten Korkulu by 13 bullets. According to the expert report, those shots were fired from a distance. It was decided to carry out ballistic tests to ascertain the firing distance, but those tests did not make it possible to establish the exact distance from which the shots had been fired.

The principal public prosecutor brought criminal proceedings, among other things on a charge of murder, against the 15 police officers who had taken part in the operation, and the applicants joined those proceedings as an intervening civil party. On 29 December 1997 Bakırköy Assize Court acquitted the defendants, finding, among other things, that they had acted in legitimate self-defence. The applicants appealed unsuccessfully on points of law.

With regard to the deaths of the individuals concerned, the Court noted in particular that the Turkish authorities had been dealing with dangerous suspects who were planning to commit a terrorist attack; the situation was thus an urgent one, and the authorities had had to act quickly. At the same time, the use of force was the direct result of the suspects’ violent reaction when the storming of the flat began. With regard to the proportionality of the force used, the Court accepted that the intransigence of the suspects, who were shouting slogans and had refused to obey the order to open the door, had persuaded the police officers that they intended to open fire; knowing that the suspects were armed and believing that they planned to carry out a terrorist attack, the police officers could reasonably have considered that it was necessary to attempt to enter the flat and to disarm and arrest the suspects. Equally, they could reasonably have considered it necessary, once in the flat, to continue to shoot until the suspects were no longer able to return fire.

In those circumstances, the Court considered that the use of lethal force, however regrettable, had not exceeded what was “absolutely necessary” “in defence of any person from unlawful violence” and, in particular, “to effect a lawful arrest”. In addition, it had not been established beyond all reasonable doubt that unnecessarily excessive force had been used in this instance. Accordingly, the Court concluded unanimously that there had been no violation of Article 2 with regard to the death of the applicants’ relatives.

Uçar v. Turkey

(application no. 52392/99)

According to the applicant, on 5 October 1999 Cemal Uçar was abducted by four armed men claiming to be policemen. The kidnappers kept him blindfolded, deprived him of food and subjected him to electric shock treatment. He was released by his captors on 2 November 1999. The kidnappers placed a balaclava over his head and told him to lie on the floor and that they would call the police. A few minutes later the police arrived and he was taken into custody for being in possession of a forged identity card which the applicant claimed was planted on him by his kidnappers.

The applicant claimed that his son had been abducted and ill-treated by State agents or people acting with the support, knowledge or acquiescence of the authorities before being handed over to the police.

The Government maintained that the applicant’s son was arrested on 2 November 1999 as he was seen acting suspiciously and found to be carrying a forged identity card. They denied any involvement in the kidnapping.

The applicant’s son was examined by a doctor on the day of his arrest who noted that there were several injuries on various parts of his body. A second medical report drawn up on 11 November noted no injuries. On 11 November 1999 Diyarbakır State Security Court ordered his detention on remand. Cemal Uçar was then transferred to a Diyarbakır E-type prison.

According to Government records, on 24 November 1999 prison officers found Cemal Uçar hanging from a bunk bed by a belt. An onsite inspection was immediately carried out, an autopsy was performed and statements were taken from fellow prisoners and prison officers. The report concluded that the cause of death was mechanical asphyxia resulting from suspension.

The applicant alleged that his son was either killed by the State authorities or by the inmates of the prison ward where he had been incarcerated. The Government maintained that he had committed suicide.

Concerning the applicant’s complaints under Article 2, the Court found that there was insufficient evidence to conclude that Cemal Uçar was, beyond reasonable doubt, killed by State agents or inmates of the prison ward, as alleged by the applicant. Furthermore, it found that the authorities had not failed to fulfil their positive obligation to protect the life of a prisoner. Referring in particular to the results of the two medical reports, the Court found that there was no evidence to suggest that the prison authorities knew that Cemal Uçar posed a risk to his own life and needed closer supervision. In addition, the Court considered that the investigation conducted into the death of applicant son’s death could be described as adequate and effective. The Court therefore found unanimously that there had been no violation of Article 2.

Erdoğan and Others v. Turkey

(application no. 19807/92).

The Court held by six votes to one, that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights in respect of the deaths of five men killed by Turkish security forces; unanimously, that there had been a violation of Article 2 concerning Turkey’s obligation to conduct an effective investigation into the men’s deaths.

The applicants are relatives of İbrahim Erdoğan, Yücel Şimşek, İbrahim Ilcı, Cavit Özkaya and Hasan Eliuygun, suspected members of Dev-Sol (Revolutionary Left) – an extreme left-wing armed movement classified as a terrorist organisation by the Turkish judicial authorities – who were killed by the security forces in İstanbul on 12 July 1991.

According to the Turkish Government, the five men were among ten individuals killed during a police operation, in four different buildings in Istanbul, to apprehend terrorist suspects and bring them to trial. The victims had been under surveillance for some time and the area was sealed off. The police reports suggested that the deceased had opened fire when asked to surrender. The reports also stated that the deceased had been heavily armed, that they had opened fire first and that guns and rifles of various sizes, bombs, hand grenades and material used for producing explosives were found in the buildings. No member of the police force was killed or injured.

The applicants argued that the security forces had planned to kill rather than arrest the deceased individuals, given the lack of evidence of search or arrest warrants and, among other things, the fact that the security forces were not armed with non-lethal weapons such as CS gas or stun-grenades.

Professor Pounder, an independent forensic pathologist, found, among other things, no evidence of an exchange of fire within the main room of the apartment in the building where Ibrahim Erdogan and Yucel Şimşek were killed. Also, having examined the autopsy report relating to Cavit Özkaya, he found that five of the shots fired at the suspect appeared to have been fired from behind, while the only fatal wound to the front side of his body appeared to have been fired when the body was on a firm surface, such as the ground.

Criminal proceedings were subsequently brought against a total of 21 police officers. The courts found that, in three of the locations, the areas had first been sealed off and the deceased given warnings by megaphone. Certain witnesses stated that the deceased had started shooting from the windows and that the security forces had returned fire, while others stated that they could not tell clearly who had fired first. On the basis of that evidence, it was concluded that the police had been fired at first and that they had acted in legitimate self-defence. On 8 February 1995 the domestic courts therefore found no grounds for imposing any punishment on those police officers. On 13 November 1997 the police officers charged with the killing of İbrahim Ilcı and Bilal Karakaya were acquitted on the ground that the deceased had opened fire first and that the police officers had fired back in lawful self-defence.

The Court found that the investigation which led up to the institution of criminal proceedings against the police officers concerned was marked by very serious deficiencies (see below under “investigation”). It had therefore to treat the findings of the domestic courts with some caution. The Court was also hampered by the absence of any contemporaneous documents recording the planning of the operations and the briefings given to the officers involved. Nevertheless, on the material available to it, the Court did not find it sufficiently established that within İstanbul Police there had been a conspiracy to kill the suspects or that the police officers entering the apartments had been instructed by superior officers to kill the suspects, irrespective of the existence of any justification for the use of lethal force.

The Court noted that the Dev-Sol group had committed numerous crimes, including the assassination of many police officers, army officers or public prosecutors. That, coupled with the fact that the deceased had been followed by the police for months as Dev-Sol members, contributed to their being perceived as a dangerous threat in the eyes of the police. The Court accepted that police chiefs, while planning the operation, could reasonably assume that the suspected Dev-Sol members would be armed and likely to use their arms if confronted. It was also true that the authorities operated on the basis of limited information as to the actual weapons kept by the suspects on each of the premises. Consequently, the Court found that the police could reasonably have considered that there would be a need to resort to the use of their weapons in order to arrest the suspects or neutralise the threat posed by them. That said, serious questions nevertheless arose as to the organisation of the operation.The Turkish Government referred to the legal rules under which the police officers had acted. However, they did not explain how the rules concerning the use of force were implemented in practice and what controls were in place to ensure that they were respected. It appeared that the system in place did not give law-enforcement officials clear guidelines and criteria governing the use of force when carrying out arrests of dangerous suspects in peacetime. Thus, it was almost unavoidable that the authorities responsible for planning the arrest of the suspects enjoyed an excessively wide autonomy of action and took unconsidered initiatives.

In the applicants’ case it was not clear whether, in applying those rules, police chiefs instructed the police officers executing the operation to identify themselves as such and to give a clear warning of their intent to use firearms with sufficient time for the warnings to be observed. Furthermore, the police authorities appeared to have made no distinction between non-lethal and lethal methods while planning the operation. The Court had been provided with no evidence that clear instructions were issued by superiors as to how to capture and detain the suspects alive or as to how to negotiate a peaceful surrender, which must have increased the risk to the lives of any who might have been willing to surrender. In fact, the police officers who entered the apartments appeared to have been provided only with guns and grenades and were not issued with non-lethal weapons. As a result, even though the suspects were surrounded and had taken no hostages whom they might have harmed, the storming of the premises, as planned and executed by the police authorities, could only be achieved in a manner which put the suspects’ lives in jeopardy. Those failures by the authorities amounted to a lack of appropriate care in the control and organisation of the arrest operation.

The manner in which the operations were actually carried out at the four locations also gave rise to concern. The precise course of events at the scene of the operations was unclear. There was conflicting evidence as to whether warnings were given to the suspects and as to whether the initial firing came from outside or inside the premises. Moreover, the lack of contemporaneous forensic and other evidence made it difficult to arrive at a clear assessment as to the manner in which the suspects lost their lives. It remained a striking feature of the case that, although all the alleged members of Dev-Sol were shot dead, none of the police officers was either killed or injured, despite the intensity of the exchange of fire which was alleged to have occurred in at least three of the locations. Further, the Court attached particular weight to Professor Pounder’s findings, which provided strong evidence that, in at least two of the locations, the suspects were not shot and killed in self defence during an exchange of fire, as suggested by the police reports. While such findings might perhaps have been refuted or explained by cogent evidence of a forensic or other nature, such evidence was not made available to the Court.

In sum, the Court found that in the planning and manner of execution of the operations there was a failure on the part of the national authorities to protect the right to life of the applicants’ relatives and that it had not been shown that the killing of the applicants’ relatives constituted a use of force which was no more than absolutely necessary. The applicants had therefore been the victims of a violation of Article 2.

Halit Çelebi v. Turkey

(application no. 54182/00) Violation of Article 13

Hayrullah Çelebi, was shot dead in November 1995 during a shoot-out with the security forces in Istanbul. He was 26 years old. The facts are in dispute between the parties. The applicant claimed that his son had been the victim of an extra-judicial killing.

The Turkish Government maintained that, after being tipped off by a presumed member of the PKK (Workers’ Party of Kurdistan), the security forces had attempted to arrest Hayrullah Çelebi and Biral Akbalık on 16 November 1995. When the police officers had ordered them to surrender, the men had opened fire and run off ignoring orders to stop. A shoot-out had ensued during which the applicant’s son was injured. He had died while being taken to hospital. Mr Akbalık, who had given himself up to the police, confirmed that version of events before retracting his earlier statement during the criminal proceedings against him.

An inquest was opened immediately. In the course of the inquest an incident report was drawn up and a search carried out at the scene of the incident, which resulted in Hayrullah Çelebi’s weapon being found and 21 bullet shells. The autopsy showed that the victim had been hit by two bullets in the back and had died of internal haemorrhaging. In addition, an opinion had been obtained from a ballistics expert in respect of the weapons belonging to the police officers and the deceased and the bullet shells found at the scene and statements taken from the police officers who taken part in the operation, Birol Akbalık and the applicant and his wife.

In March 1996 proceedings for murder were instituted against the six police officers who had taken part in the events in question. The applicant joined the proceedings as a civil party and sought, among other things, a further inquiry. The Assize Court dismissed his claims and, in a judgment of 27 November 1998, acquitted the police officers on the ground that they had acted in self-defence. That judgment was upheld by the Court of Cassation.

The Court noted that the applicant’s allegations that his son had been the victim of an extra-judicial execution were not based on sufficiently concrete and verifiable facts: they were not conclusively corroborated by any witness statement, apart from that of Birol Akbalık, or any other evidence. In those conditions, the conclusion that the applicant’s son had been the victim of extra-judicial execution was hypothetical and speculative rather than based on sound evidence. Accordingly, the Court found that Hayrullah Çelebi had been killed during a shoot-out with the security forces. The fact that fingerprints had not been taken from the victim’s weapon and the existence of powder on his hands had not been verified did not in itself undermine that conclusion.

Consequently, the Court concluded, unanimously, that there had not been a violation of Article 2 regarding the death of Hayrullah Çelebi.

Yaşaroğlu v. Turkey

(application no. 45900/99) No violation of Article 2

Erkan Yaşaroğlu, was accidentally killed in August 1990 by a police officer who was trying to arrest him. At 11 a.m. on 11 August 1990 the police went to Mr Yaşaroğlu’s home. He was suspected of burglary of his employer’s shop. After initially denying that he was the person the police were looking for, he tried to escape. According to the police report, despite verbal warnings and four warning shots that were fired by the two police officers who gave chase, he continued to run away. After some two kilometres, as the men were crossing a field, one of the officers tripped over causing his gun to discharge fatally wounding Mr Yaşaroğlu, who was approximately 30 metres away.

A criminal investigation was launched immediately. Statements were taken, an autopsy was performed on the body and ballistic experts were instructed to determine the number of shots that had been fired, the range at which they had been fired, and the probability of their having being fired accidentally. At the end of the investigation, the police officer concerned was charged with voluntary homicide and detained pending trial.

On 24 May 1995 the Assize Court found that the police officer had no case to answer, as the forensic report did not exclude the possibility that the weapon had discharged when he fell to the ground, there was no evidence to refute that defence and, in particular, that he had been acting in the course of his duties as a police officer. On 30 October 1997 the administrative court ordered the Ministry of the Interior to pay the applicant compensation for the death of her husband at the hands of a police officer.

It noted that there was no evidence to suggest “beyond all reasonable doubt” that the applicant’s husband had been intentionally killed or that his death had taken place in circumstances that were liable to engage Turkey’s responsibility. It therefore held unanimously that there had been no violation of Article 2 on account of Mr Yaşaroğlu’s death.

Cennet Ayhan and Mehmet Salih Ayhan v. Turkey

(application no. 41964/98)

Dr Mehmet Emin Ayhan was shot dead by unknown assailants. Dr Ayhan lived in Mardin, a province heavily populated by Turkish citizens of Kurdish origin which was subject to emergency rule at the relevant time. He was also an outspoken advocate “for the recognition of the Kurdish identity and for the democratic rights and liberties of the Kurdish society” and had recently had a dispute with the Head of the Silvan Security Department.

On 10 June 1992 around 9.30 p.m., as Dr Ayhan was returning home with his wife he was approached by a man who had been sitting with two other men in a coffee house on the ground floor of their apartment building. The other two men suddenly took out rifles hidden under their raincoats and shot out the street lights. The third man, who was a few metres away, fired a handgun and shot Dr Ayhan through the neck. He died on the spot. The men then got into a car and drove away.

Members of the security forces arrived and officers from the Anti-Terror Department drew up a report at the scene of the incident. According to one of their reports, although there were many people present at the scene of the killing no one was able to testify as to what had happened. Dr Ayhan’s wife was unable to identify the perpetrators. An autopsy was later performed and forensic and ballistics reports were drawn up.

The ballistics examination established that the weapon used had belonged to a member of the Hizbullah. According to statements given by three members of that organisation (which were later retracted as having been obtained under duress) Dr Ayan had been killed by one of their associates, K.A., who was subsequently arrested. The criminal proceedings against him are still pending. He denies all charges.

The Court considered that the material in the case file did not enable it to conclude to the required standard of proof that Dr Ayhan was killed by or with the connivance of any State agent or person acting on behalf of the State authorities in the circumstances alleged by the applicants. It followed that there had been no violation of Article 2 on that account.

The Court noted there were serious shortcomings from the outset investigation into Dr Ayhan’s death. In particular it noted that the sketch made at the scene of the crime lacked precision and detail; customers in the café were not interviewed and no attempt was made to trace the getaway car. The Court considered that the authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the killing and held unanimously that there had been a violation of both Articles 2 and 13 in that respect.

Kavak v. Turkey

(application no. 53489/99) No violation of Article 3 (inhuman treatment)

Cemal Kavak, an employee at the Diyarbakır court for tax disputes, was found dead in April 1996. At about 11 p.m. on 24 April 1996, Cemal Kavak left the café Hevsel, where he had spent time with friends. The last recorded sighting of him was when he got off a bus at the Kuruçeşme bus stop. On 26 April 1996 his body was found in bushes near the village of Yuvacık, at the side of the Diyarbakır-Bismil road.

An investigation was opened immediately: the Çınar prosecutor and his gendarmes arrived on the scene with a forensic expert. The latter examined the corpse briefly; noting traces of strangling, the doctor concluded that death had been caused by asphyxia and decided that it was not necessary to carry out an autopsy. Various investigatory measures were taken, including the gathering of evidence from witnesses, and the prosecutor asked the gendarmes to provide details of the make and registration number of those cars which had crossed the traffic checkpoint on the day the corpse was found and on the previous day.

In May 1997 the Çınar prosecutor issued a decision of non-jurisdiction in favour of the Diyarbakır prosecutor, on the ground that the death could have been a murder committed by the PKK terrorist organisation. In June 1997, however, the Diyarbakır prosecutor also declared that he did not have jurisdiction, since the case file contained no evidence to the effect that the murder had been committed by the PKK or by another terrorist organisation, and returned the case file to the Çınar prosecutor. In July 1997 the Çınar prosecutor ordered the gendarmes to pursue their investigation into this killing until the limitation period on the crime had expired, namely in April 2016. He also asked to be informed in writing every three months of the progress of the investigation.

Having regard to the evidence available to it, the Court noted that the allegations that the applicants’ son had been executed by “paramilitary forces” was based on hypothesis and speculation. Nor had there been any real and immediate threat to the life of the applicants’ son. Accordingly, the Court concluded, unanimously, that there had been no violation of Article 2 with regard to Cemal Kavak’s death.

As to the investigation carried out into the latter’s death, the Court noted several shortcomings in its conduct. Firstly, the Court was struck by the fact that, although the prosecutor had asked the gendarmes to supply lists of traffic checked at the control point, at no point did he ask for those from the evening on which the applicants’ son failed to return home. Further, it seemed that no analysis had been carried out of the data obtained, even if these concerned the days following the disappearance rather than the night of the disappearance itself. Another key shortcoming was the absence of a full autopsy.

These elements were sufficient to enable the Court to conclude that the investigation conducted in this case, which had entered its tenth year without significant progress, had not been effective. Accordingly, the Court concluded unanimously that there had been a violation of Article 2 on account of the absence of an effective investigation into the death of Cemal Kavak.

İhsan Bilgin v. Turkey

(application no. 40073/98).

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 the applicant’s father; that there had been a violation of Article 2 of the Convention on account of the failure to conduct an effective inquiry into the death of the applicant’s father.

In August 1994 Mehmet Mihdi Bilgin, then aged 52, was killed by village guards. According to the applicant, his family had moved into the centre of Batman after the destruction of their house and the hamlet where they used to live (Dutveren, in Batman province) by the security forces in 1992. His father had not been able to get used to his new environment and had got into the habit of wandering along the roads and in the surrounding villages.

On 27 August 1994, at about 11 p.m., Mihdi Bilgin was shot down by village guards in the area between the villages of Beşiri and Beşpınar. According to the incident report drawn up that evening, the guards in the Beşpınar guard post (mevzî) opened fire on a person who died after being taken to hospital in Batman. In all, 17 spent cartridges were found on the spot.

An investigation was immediately opened by the Beşiri public prosecutor. On the day after the incident the doctor who examined the body noted that Mr Bilgin had been hit by two bullets which had damaged his liver, punctured his intestines and pancreas and left bullet wounds in his left arm and both ankles; he concluded that the cause of death had undoubtedly been the bleeding caused by the destruction of the deceased’s liver, pancreas and intestines, and that it was not necessary to carry out a full autopsy.

In April 1995 three of the village guards were questioned as witnesses. They explained that they had thought they were dealing with a terrorist, especially as on the day before the incident they had been informed of the threat of an attack by a group of PKK terrorists. Accordingly, after calling on the suspect to stop, they had opened fire on him, shooting to kill. They had later discovered that what they thought was a rifle was in fact only a stick. Other guards stationed at observation posts further from the incident were also questioned during the investigation and confirmed that they had also opened fire on the suspect.

In June 1995 ten village guards were charged with intentional homicide and committed for trial in the Assize Court. It transpired during the proceedings that among other irregularities some guards had picked up cartridge cases from the scene of the shooting and mixed them with other spent cartridges. As a result, six gendarmes and the commander of the village guards were prosecuted for submitting a false incident report, concealing evidence, abusing their office and obstructing the criminal investigation.

In September 1997 the Assize Court stayed the proceedings against the village guards on the ground that they had committed an offence in the performance of their duties and should therefore be tried under the law governing the prosecution of civil servants. In August 1998 the Beşiri administrative council decided that the guards had no case to answer. In addition, in October 1998, the six gendarmes and the commander of the village guards were acquitted of obstructing the course of justice, for lack of evidence.

The Court noted, among other things, that apart from the two bullets which struck the victim and the one allegedly fired into the air, 14 bullets had been fired in a panic reflex. While this had doubtless been a very human reaction, there had been none of the precaution in the use of firearms that could legitimately be expected from those responsible for law enforcement in a democratic society, even when they were engaged in the immobilisation of dangerous terrorists. The guards’ conduct remained unjustifiable, even in the kind of context sometimes called “the heat of battle”, given that there had been no shots in their direction or any other comparable threat from the suspect. In all probability their use of lethal force had been based on nothing more than fear, a shadow and suppositions.

Secondly, the Court observed that it was difficult to imagine how the victim could have run a distance of nearly 75 metres after being hit in both ankles. It was also surprising that the guards had been able to aim at and hit with a single bullet both ankles of a running man, a moving target some 80 metres away, when they had been unable to tell the difference at ten metres between a man wandering around and a dangerous militant, or between a stick and a rifle.

That being the case, the Court held that there had been a violation of Article 2 on account of the death of the applicant’s father.

Halit Dinç and Others v. Turkey

(application no. 32597/96).

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 the applicants’ relative; a violation of Article 2 (right to life) of the Convention on account of the lack of an effective investigation into his death

Rıdvan Dinç died in 1994. On the evening of 15 May 1994 Rıdvan Dinç, Staff Sergeant of the Kırıkhan fifth border company, and Sergeant A.A. kept watch on the border between Turkey and Syria with a view to arresting a band of smugglers. As he suspected Rıdvan Dinç of conniving with the smugglers, Sergeant A.A. had asked some other soldiers to accompany him so that he would not be alone in the event of an attack by the smugglers and could catch his superior red-handed.

A.A. therefore took up position in a different place from the one indicated by Rıdvan Dinç. When the smugglers started coming over the border Sergeant A.A. and the three other soldiers opened fire. During the shoot-out Rıdvan Dinç and a smuggler were killed.

The next day, on 16 May 1994, a criminal investigation was opened into the circumstances of Rıdvan Dinç’s death. In the course of that investigation evidence was heard from the soldiers implicated in the shooting and an autopsy was performed on the body of the deceased. 60 cartridges were found at the scene. Sergeant A.A. was charged with causing the death of his superior. After being convicted of fatally assaulting his superior, he was initially sentenced to five years’ imprisonment and subsequently acquitted by Adana Military Court on 25 December 2001. The criminal proceedings are currently pending before the Turkish military courts.

The applicants sued the Ministry of Defence for damages. On 8 May 1996 the Supreme Military Administrative Court dismissed their claim on the ground that at the material time Rıdvan Dinç, who had collaborated with the smugglers, had been committing an offence and, accordingly, had not been acting as a State official. Consequently, the authorities could not be held responsible for his death.

The Court noted that the regiment commander had given the soldiers orders to open fire without warning while on border watch duty during the night. Those orders, which had been deemed reasonable by a bench of the Court of Cassation, afforded no guarantee that death would not be inflicted arbitrarily. They formed a legal framework that fell far short of the level of protection “by the law” of the right to life required by the Convention in democratic societies in Europe.

The Court also noted that the soldiers had used their firearms without any regard for the right to life and that there was no evidence in the case to suggest that the smugglers in question had been armed. In those circumstances the Court held that, with regard to the positive obligation to put in place an adequate legal framework, the Turkish military authorities had not done all that could reasonably be expected of them to protect people from the use of potentially lethal force and to avoid the risk to life engendered by military operations in the border zone. Furthermore, manifestly excessive force had been used in the present case. Accordingly, the Court held that there had been a violation of Article 2 on account of the death of the applicants’ relative.

Sultan Karabulut v. Turkey

(application no. 45784/99) Violation of Article 13

Özgür Kemal Karabulut died in 1997. The parties disagreed as to the facts of the case. The applicant submitted that her son had been killed by gendarmes on 20 October 1997 while looking for a mechanic after the car in which he had been travelling with a friend had broken down on the Taşova industrial estate (Amasya).

The Turkish Government maintained, however, that Mr Karabulut had been in a vehicle whose occupants were suspected of having assisted an illegal organisation, the TKP/ML TIKKO (Turkish Workers and Peasants’ Liberation Army). When confronted with a police blockade, the suspects had abandoned the car and fled on foot. T.G. had been arrested immediately but Mr Karabulut had opened fire on the police officers and had been shot dead while attempting to throw a hand grenade at the gendarmes.

The public prosecutor went to the scene of the incident straight away. An investigation was subsequently opened, in the course of which reports and sketches concerning the incident were produced by the gendarmes, photographs were taken and objects relating to the death were seized. An examination of the body revealed that the applicant’s son had received two bullets in the region of the left armpit and two others in the left leg. The doctor concluded that the death had resulted from the destruction of the left lung by a bullet that had caused cardiac and respiratory failure and considered that a full autopsy was unnecessary.

A criminal complaint lodged by the applicant in February 1998 resulted in a decision that the gendarmes in question had no case to answer.

Having regard to the evidence in its possession, the Court observed that it had not been established beyond all reasonable doubt that the security forces had intentionally killed the applicant’s son as she had asserted. As to whether the gendarmes had had the means to arrest him instead of killing him, the Court considered it reasonable to believe that they had thought it necessary to shoot in order to render the suspect physically incapable of using the grenade. It considered it desirable, however, that neutralising techniques, for example, should be widely available with a view to gradually limiting the use of methods that could cause death.

The Court considered that the use of lethal force in the present case had been absolutely necessary to defend any person from violence. In addition, it had not been established beyond all reasonable doubt that unnecessarily excessive force had been used. Accordingly, the Court concluded unanimously that there had been no violation of Article 2 with regard to Mr Karabulut’s death.

As regards the investigation into the applicant’s son’s death, the Court noted that numerous investigative steps had been taken promptly. However, certain important measures had not been taken, such as obtaining statements from the gendarmes or looking for traces of powder on the deceased’s hands or fingerprints on the grenade. Accordingly, the Court held unanimously that there had been a violation of Article 2 as regards the nature of the investigation carried out in the case.

Kamer Demir and Others v. Turkey

(application no. 41335/98).

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 the applicants’ relative; a violation of Article 2 on account of the lack of an investigation into the death of the applicants’ relative.

Azimet Demir died on 30 July 1997 in the village of Karşılar in Tunceli province, which was then under the state of emergency decreed in south-east Turkey because of serious clashes between security forces and members of the PKK. On 30 July 1997, at around 11 p.m., troops from Geyiksuyu gendarmerie command fired mortar shells in the direction of Karşılar village, located some 15 km from their base. Around twenty dwellings, including those of the applicants, were damaged by the shells. Mrs Azimet Demir was fatally wounded close to her house while attempting to take shelter in a neighbour’s cellar. Several other villagers were wounded.

The following day an investigation was launched under the authority of the public prosecutor, in the course of which official reports were drawn up on the damage caused, photographs were taken, witness statements were gathered and an autopsy was performed on the dead woman’s body. The autopsy revealed multiple injuries and established the cause of death as an abdominal wound caused by “a high-velocity firearm”.

The investigation was subsequently referred to Tunceli Administrative Council in accordance with the Prosecution of Civil Servants Act. On 15 January 1998 the administrative council issued an order discontinuing the proceedings against 27 gendarmes who had been on duty at the Geyiksuyu base. According to the administrative council, the gendarmes in question had shelled the Istıran region, where a former military base was located, in an attempt to ward off a terrorist attack from that direction which posed a threat to the village of Geyiksuyu; there was insufficient evidence to conclude that they had intentionally targeted the village of Karşılar. The Supreme Administrative Court upheld the order discontinuing the proceedings, which had been automatically submitted to it for consideration.

The Court acknowledged that the situation in south-east Turkey at the relevant time had required Turkey to take exceptional measures in order to regain control of the region and put an end to acts of violence. Such measures might undoubtedly involve the deployment of artillery units. The Court’s task was to ascertain whether the use of force had been justified in the applicant’s case. However, it had little information at its disposal in that regard, as the Turkish Government had not provided it with any information on the steps taken to assess and prevent possible harm to civilians.

It was clear, in the Court’s view, that the gendarmes, in contemplating the deployment of troops equipped with heavy weaponry in a populated area, had had a duty also to weigh up the risks inherent in such a course of action. However, there was no indication that such considerations had played a significant part in the preparation of the operation. As it was unable to find that the necessary precautions had been taken, in preparing and carrying out the operation, to protect the lives of civilians, the Court held that there had been a violation of Article 2 with regard to Turkey’s obligation to protect the life of the applicants’ relative.

Diril v. Turkey

(application no. 68188/01).

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 disappearance of the applicants’ relative; a violation of Article 2 on account of the lack of an effective investigation into the disappearance of the applicants’ relative.

Zeki Diril and his cousin were arrested by gendarmes in May 1994. The applicants have had no news of Zeki since. Zeki Diril and his cousin İlyas Diril were allegedly arrested on 13 May 1994 at about 4 p.m. during an identity check. They were transferred to Uludere gendarmerie station, where Zeki was taken into police custody and İlyas was released on account of his young age. Two reports were drawn up on the subject and signed by the Uludere gendarmerie commander.

Following a petition by the missing persons’ relatives, the authorities opened an inquiry. To that end, they obtained statements from relatives of the applicants and from other people named by them. The public prosecutor asked the gendarmerie units concerned to produce the custody records concerning the missing persons and, having noted certain contradictions, sought additional information on the matter. In view of the reluctance and/or failure of the gendarmes to produce the necessary documents and explanations, the public prosecutor was unable to shed light on the circumstances in which the applicants’ relative had been held in police custody.

On 27 July 2000 the Ministry of Justice stated that Zeki and İlyas had been arrested in connection with an identity check; İlyas had been released the same day on account of his young age and Zeki had been released after checks had been carried out, although there was no mention of this in the records. Since the failure to draw up a report on the subject was not attributable to the gendarmerie commander in question, there was no reason to prosecute him.

It appeared from the evidence in the file that Zeki had been arrested by gendarmes from Uzungeçit and transferred on 14 May 1994 to Uludere gendarmerie station. Although the Government had maintained that Zeki had been released after being detained in police custody, they had not submitted any evidence to substantiate their account. The only evidence to that effect was the statement given by the Uludere gendarmerie commander some six years after the events. More than 12 years had passed without any information emerging as to Zeki’s whereabouts and fate after his transfer to Uludere gendarmerie station. The Court therefore considered that there was sufficient evidence to conclude beyond reasonable doubt that the applicants’ relative had not been released after his time in police custody.

More than 12 years had passed since Zeki had been arrested by the security forces for allegedly providing support and assistance to the PKK. In the general context of the situation in south-east Turkey at the material time, it could by no means be ruled out that the detention of such a person might be life-threatening. The Court referred in that connection to its previous findings that defects undermining the effectiveness of criminal-law protection in the south-east region during the period in question had permitted or fostered a lack of accountability of members of the security forces for their actions.

In those circumstances, the Court considered that Zeki had to be presumed to have died following his detention. Since no explanation had been provided as to what had occurred after his detention, it considered that responsibility for his death was attributable to Turkey and held that there had been a violation of Article 2.

Selim Yıldırım and Others v. Turkey

(application no. 56154/00) Violation of Article 13

Adnan Yıldırım who was killed on 3 June 1994. On 3 June 1994 at about 4.30 a.m. while Adnan Yıldırım was leaving the casino at the Çınar Hotel in the Yeşilyurt area of Istanbul with two friends, seven or eight people wearing bullet-proof vests and carrying firearms approached them. They introduced themselves as police officers and forced the three men into three cars.

The applicants were informed of the incident on the same day. They immediately contacted the Bakırköy public prosecutor and the Yeşilköy police headquarters to find out more about the kidnapping. They were informed that the three persons had not been taken into custody.

On the same day at about 9 p.m. Yığılca gendarmerie station was informed of the sighting of three bodies. At about 9.15 p.m. the gendarmerie arrived at the scene. No documents or other property were found on the bodies which might establish their identities. The corpses were taken to the Health Centre in Yığılca for further examination.

On 4 June 1994 a post mortem examination of Adnan Yıldırım’s body was carried out by two doctors in the presence of the Yığılca public prosecutor. The investigation revealed that he had been shot at close range and died of a cerebral haemorrhage. An investigation was undertaken and murder charges brought against Mr Yildirim’s suspected killer, who was acquitted for lack of evidence on 18 November 1999.

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. The Court stated that the actual circumstances in which Mr Yildirim had died remained a matter of speculation and assumption. Accordingly, there was insufficient evidence on which to conclude that he was, beyond reasonable doubt, killed by or with the connivance of State agents in the circumstances alleged by the applicants. The Court held unanimously that there had been no violation of Article 2.

The Court noted striking omissions in the conduct of the investigation into the kidnapping and subsequent death of the applicants’ relative. In particular it noted that the authorities did not make any serious attempt to investigate the possible involvement of State agents in the killing; a link between the killing of Mr Yildirim and the special team mentioned in the Susurluk Report was ignored; and that there was no real co-ordination between the different public prosecutors dealing with the case.

Considering that the national authorities had failed to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicants’ relative, the Court concluded unanimously that there has been a violation of Article 2.

Kaya and Others v. Turkey

(application no. 4451/02) Violation of Article 13

Hakkı Kaya has been missing since 16 November 1996. On 16 November 1996 at about 3 p.m. Hakkı Kaya and two friends were walking in the city centre in Diyarbakır. A car approached them and three men dressed in civilian clothes and carrying walkie-talkies introduced themselves as police officers and carried out an identity check. They then forced Mr Kaya into the vehicle, stating that he had to go to the police station to make a statement.

On 28 November 1996 Efendi Kaya requested the authorities to carry out an investigation into his father’s disappearance. Hakkı Kaya’s brother contacted the authorities to request information about their relative’s whereabouts. They were informed that Hakkı Kaya was not in police custody. On 11 March 2004 the Ülkede Özgür Gündem newspaper published an interview with Mr Abdulkadir Aygan, a former member of the PKK and allegedly a member of JITEM (the Gendarme Intelligence Service), who stated that Hakkı Kaya had been killed by JITEM and described where the body had been buried. The applicants submitted a copy of the newspaper article to the Public Prosecutor for further investigation. The Public Prosecutor however was unable to locate Mr Aygan.

The Court considered that there was insufficient evidence to conclude that Hakkı Kaya was, beyond reasonable doubt, abducted and killed by State agents, as alleged by the applicants. Accordingly, the Court held unanimously that there had been no violation of Article 2 in respect of the disappearance of the applicants’ relative.

The Court noted that almost ten years had elapsed since the start of the investigation into Hakkı Kaya’s disappearance and no tangible results had been produced. Furthermore, the Court found that there were important shortcomings in the conduct of that investigation.

Huylu v. Turkey

(application no. 52955/99).

The Court held by six votes to one 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 the applicant’s son; that there had been a violation of Article 2 on account of the lack of an effective investigation into the death of the applicant’s son.

In August 1998 Engin Huylu, aged 22, was sentenced to 18 years and 20 days’ imprisonment for belonging to an illegal armed organisation, the extreme left-wing group DHKP/C. The applicant submitted that since March 1998 Engin had been suffering from severe headaches that had been diagnosed as migraines by the doctor at Çankırı Prison. He had been taken several times to Çankırı Public Hospital, accompanied by gendarmes who, according to the applicant, had subjected him to physical and psychological violence. By the end of 1998, the applicant claimed, his son had become incapable of eating, reading, performing manual tasks, playing sport or taking part in the walks prescribed by the regulations.

On 26 January 1999 Engin was transferred to Çankırı Hospital but was sent back to prison without having been able to see a doctor. On the following day he was taken to Çankırı Hospital’s neurology department, where he was given painkillers. He asked to be transferred to Ankara Hospital but his request was refused. The applicant maintained that from February 1999 his son had been unable to get out of bed without assistance from other prisoners because of his severe headaches; he had been unable to stand up, let alone walk unaided, and had suffered from trembling, appetite loss, vomiting and blackouts.

On 5 February 1999 at 11 p.m. Engin was rushed unconscious to Çankırı Public Hospital. At about 1 a.m. he was taken back to prison after being prescribed painkillers. On 6 February 1999 at 2.40 a.m. the emergency doctor at Çankırı Public Hospital, believing that Engin might have a brain tumour, asked for him to be transferred to the neurology department at Ankara Hospital. Engin was taken away in an armoured vehicle at 4 a.m. and died at Ankara Hospital at 6.50 a.m.

At the request of the prosecuting authorities, an autopsy was conducted on the day of Engin’s death; the report concluded that he had died from respiratory and circulatory failure. A supplementary autopsy report referred to bronchopneumonia. The public prosecutor’s office interviewed several of Engin’s fellow prisoners, who confirmed that he had suffered from severe headaches causing vomiting and trembling, that he had had balance problems and difficulty eating, and that his symptoms had appeared increasingly often as time had gone on.

In April 1999 the applicant lodged a complaint against the staff of Çankırı Prison, the gendarmes on duty at the time of the events and the doctors from Çankırı Hospital. After questioning the emergency doctor and the neurologist who had examined Engin, the public prosecutor’s office instituted criminal proceedings against them for reckless and negligent homicide. In February 2001 Çankırı Criminal Court stayed the proceedings for five years. Following the complaint against the prison staff, evidence was taken from, among others, the prison doctor and nurse and the governor and his deputy. Criminal proceedings were brought against four individuals; however, in April 2001 Çankırı Criminal Court stayed the proceedings for five years.

The Court noted that the prison and medical authorities could not have been unaware of Engin’s health problems. It observed in that connection that the Recommendation of the Committee of Ministers of the Council of Europe concerning the ethical and organisational aspects of health care in prison stated, among other things, that prisoners requiring special medical treatment should be transferred to specialist institutions or civil hospitals where the treatment could not be provided in prison.

The Court noted that Engin had been transferred to Çankırı Hospital, where, despite the deterioration of his health, he had been unable to see a doctor. Furthermore, the fact that he had not been given a thorough examination by specialists and that his fellow prisoners had had to compensate for his lack of treatment showed that his health had not been monitored satisfactorily.

Engin had been given no medicine other than analgesics and had not had a thorough medical examination despite the rapid decline in his health, which should have alerted the doctors and prison authorities to the seriousness of his condition. In view of the clear deterioration of his health, Engin should have been transferred much earlier to a hospital with sufficient medical resources and specialist doctors, such as Ankara Hospital, so that his illness could have been diagnosed and he could have been given appropriate treatment or assistance from more competent people.

Furthermore, without wishing to speculate on whether the fact that Engin had not been taken to hospital in an ambulance might have contributed to his death, the Court observed that that fact was, to say the least, revealing as to the manner in which the prison and medical authorities had responded to the deterioration of his health.

In those circumstances, the Court considered that the Turkish authorities had not displayed the necessary diligence in reacting to Engin’s condition and had not taken steps to diagnose his illness and prescribe appropriate treatment. The Court therefore held that there had been a violation of Article 2 on account of the applicant’s son’s death.

Yazıcı v. Turkey

(application no. 48884/99)

Ramazan Yazıcı was a minibus driver on the Diyarbakır-Silvan route. He went missing on 22 November 1996. His body was found several days later.

Shortly after Ramazan’s disappearance, the applicant asked the public prosecutor’s office to obtain information as to his brother’s fate, alleging that he had been arrested by plain-clothes police officers who had made him get into an unmarked car. On the morning of 3 December 1996 a shepherd found Ramazan’s body by the İdil-Midyat road, between the villages of Sarıköy and Mağara in the İdil district, in Şırnak province. An investigation was opened immediately, in the course of which evidence was taken from the applicant, his other brother and witnesses. A medical examination of the body revealed that a cavity had formed as a result of the entry of a bullet under the deceased’s left ear and that his mouth had been gagged with adhesive tape and his hands bound behind his back with a strip of fabric. As the cause of death was obvious, it was not thought necessary to carry out a full autopsy.

In January 1999 the İdil public prosecutor’s office declined jurisdiction on account of the similarities between Ramazan’s murder and two other killings that were being investigated by the Diyarbakır public prosecutor’s office. Furthermore, other victims whose bodies had been found along the Adıyaman-Hilvan and Şanlıurfa-Adıyaman roads in December 1996 had been abducted in similar circumstances. In March 1999 the Diyarbakır public prosecutor’s office likewise declined jurisdiction on the ground that Ramazan’s murder had been committed by unknown persons belonging to a criminal gang and that such offences fell within the jurisdiction of the State Security Court. It therefore forwarded the file on the investigation to the public prosecutor at the Diyarbakır State Security Court.

The investigation into Ramazan’s death is still open and his killers have yet to be identified.

In the light of the evidence before it, the Court considered that a conclusion that Ramazan had been murdered by or with the complicity of agents of the State would be based more on hypothesis and speculation than on reliable evidence. Seeing that it had not been established beyond reasonable doubt that Turkey’s responsibility had been engaged in the killing of the applicant’s brother, the Court held unanimously that there had been no violation of Article 2 as regards Ramazan’s death.

However, although the investigation into Ramazan’s death might at first sight appear to have complied with the requirements of the Convention, the Court considered that it could not be regarded as exhaustive or satisfactory, particularly as the authorities had attempted to pursue only one line of inquiry: that of a murder committed by unknown persons belonging to a criminal gang. Both the applicant and the other witnesses who had given evidence during the investigation had emphasised, among other things, that plain-clothes police officers might have been involved. The Court therefore held unanimously that there had been a violation of Article 2 as regards the ineffectiveness of the investigation into Ramazan’s death.

Paşa and Erkan Erol v. Turkey

(application no. 51358/99).

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 Erkan Erol, who was wounded by an anti-personnel mine while grazing his sheep.

In March 1995 Paşa Erol, at that time the village mayor, was informed that anti-personnel mines had been laid along one side of the premises of the Akdemir gendarmerie command in the district of Pertek (Tunceli). The zone in question was cordoned off with “barbed wire at waist level” and warning signs were placed at 20-metre intervals. Over the following days, local people were informed orally that the area, which they used for grazing, had been mined.

On 11 May 1995 Erkan, then aged nine, was grazing his sheep. They strayed into the mined area and Erkan, together with other children aged between seven and 13, followed the animals across the barbed-wire fence. Erkan tried to pick up a piece of metal, which turned out to be a mine, and he was wounded by the ensuing explosion. He was taken by military helicopter to Elazığ civil hospital, where he had his left leg amputated at the knee. A rescue operation was organised using a military helicopter to evacuate the other children, some of whom had been slightly injured in the explosion.

In April 1996 Paşa Erol brought administrative proceedings against the Ministry of the Interior, seeking compensation on account of the dearth of safety measures around the military zone. Malatya administrative court dismissed his application on the ground that, according to the evidence before it, safety measures had in fact been taken around the mined area, which had been marked out by “signs and warning notices”, and the local people had been informed. The court did not find the State to have been at fault, since Erkan had crossed into a prohibited area and was himself responsible for the accident, whilst his father had been negligent. The Supreme Administrative Court upheld that judgment on 24 November 1998.

The Turkish Government argued that Paşa Erol had also been responsible for ensuring that the inhabitants of the village were informed, as he was their mayor at the time. They also criticised him for neglecting his parental responsibility by leaving his nine-year-old son alone without supervision. The Court was of the opinion that, in view of the nature of mayoral duties and the responsibilities he had assumed, Paşa Erol had been under an obligation to warn the gendarmerie that existing safety measures were inadequate and that additional measures should be taken. Moreover, he had himself behaved irresponsibly by entering the mined area prior to the incident.

Under those circumstances the Court allowed the Turkish Government’s preliminary objection concerning Paşa Erol’s administrative and parental responsibility in his son’s accident and concluded that he could not claim to be the victim, within the meaning of Article 34 of the Convention, of a violation of Article 2.

Erkan, for his part, had complained of a violation of his right to life, since he had had his leg amputated following the explosion of an anti-personnel mine, which had almost cost him his life. The Court noted that the anti-personnel mines had been laid to protect the gendarmerie near the village. Because of the danger they represented, in particular for young children, the use of anti-personnel mines had been widely condemned by international opinion and had ultimately been prohibited under the Ottawa Convention, which Turkey had in fact signed in 2003.

The Court further noted that the mined area had been the village pastureland where the villagers had regularly gone to feed their animals. Having regard to the specific situation of the land, the safety measures had been of particular importance and it had been the authorities’ duty, failing the provision of other means of protection by the regional gendarmerie, to take any necessary measures to prevent innocent civilians from entering the area. But it had been cordoned off by only two rows of barbed wire, which were too far apart to ensure effective protection.

Moreover, even though the local people had been told about the mines, the children could not really have been expected, in the natural environment and given the way of life in a very rural community where they were actively involved in day-to-day tasks, such as grazing animals, to have behaved in the same way as responsible adults when faced with such dangers.

In conclusion, the Court found it incomprehensible that a grazing area should have been mined and simply surrounded by two rows of barbed wire that were relatively far apart and clearly insufficient to prevent children crossing over. It thus concluded that Turkey had not taken all the necessary measures to ensure protection from the risk of death or injury. Accordingly, there had been a violation of Article 2 in respect of Erkan Erol.

Decisions in 2007

Yüksel Erdoğan and Others v. Turkey

(application no. 57049/00) Violation of Article 2 (investigation)

The application concerns the killing of three of their relatives resulting from an armed clash on 28 September 1994 in a café with police officers from the Anti-Terror Branch of the Istanbul Security Directorate, following a tip-off received from an anonymous caller.

Taking into account the lack of diligence shown by the representatives of the applicants Ramazan Erdoğan and Raşidiye Erdoğan and, in the absence of a serious indication that the applicants wished to lodge or pursue the application, the Court, unanimously, decided to strike the case out of the list insofar as it was brought on behalf of Ramazan Erdoğan and Raşidiye Erdoğan in respect of the killing of Fuat Erdoğan. The Court declared the application admissible insofar as it was brought by the other seven applicants.

The Court found that it had not been sufficiently proved that there was a premeditated plan to kill the applicants’ relatives but that it had been established that the police officers had ordered the deceased to surrender, had given the necessary warnings before shooting and only started shooting, at long range, after being fired at. The Court also accepted that the police officers had believed that it was necessary to continue firing until the suspects stopped firing back. Given the emergency nature of situation - police officers confronted with armed suspects in a public place - the Court considered that the use of lethal force, however regrettable, had not exceeded what was “absolutely necessary” for the purposes of self-defence and carrying out a lawful arrest. The Court therefore held, by six votes to one, that there had been no violation of Article 2 as regards the death of İsmet Erdoğan and Elmas Yalçın, However, the Court did find that the criminal investigation had serious shortcomings, such as the failure to establish whether the deceased had ever handled the firearms found at the scene of the incident and the absence of photographs taken at the scene of the incident or of sketches to give an idea of each police officer’s position in the café at the time of the shootings. Furthermore, the Court observed that only six witnesses had made statements in the course of proceedings before Istanbul Assize Court, three of whom were police officers who had participated in the police operation in question and one of whom was the owner of the café who had not been present at the time of the incident. With regard to those shortcomings and the duration of the trial proceedings, the Court held unanimously that there had been a breach of the State’s procedural obligation under Article 2.

Salgın v. Turkey

(application no. 46748/99)

İsa Salgın died in 1997, aged 25, while performing military service. In June 1997 İsa Salgın travelled to the Akçay training barracks in İskenderun in order to carry out his military service. He was found dead in front of his guard post on 22 November 1997.

A criminal investigation was immediately opened, then an administrative investigation. As part of the investigations, witness statements were taken from other soldiers, who said that İsa had been noted for his irritable and even aggressive behaviour but had calmed down after the birth of his son. During a manoeuvre on 10 November, he had panicked, thinking that he had seen terrorists, and had emptied his magazine into the air. At about 5 p.m. on the day of his death, the other guards on duty heard a shot and saw a tracer bullet heading into the air. On searching for the source of the shot, they found İsa, on his knees, his chest facing towards the ground and resting on his G3 rifle.

The autopsy on the deceased’s body found a bullet entry wound, measuring 4 x 3 cm, above the left nipple and surrounded by a burn mark, and three bullet exit wounds in the dorsal region. According to the forensic doctors, these had been caused by a burst of close-range shots; the three bullets had followed an oblique path and destroyed the upper section of the heart, the main veins, the lower left section of the lungs and one vertebra. On 26 May 1998 the military prosecutor concluded that İsa had committed suicide and that it was not necessary to bring proceedings in this connection. The applicant appealed unsuccessfully against this decision.

Having regard to the evidence before it, the Court considered that any allegation that İsa Salgın had been murdered would be purely speculative. Seeing no reason to contest the finding established by the Turkish authorities, to the effect that the applicant’s son had committed suicide, the Court concluded unanimously that there had not been a violation of Article 2 with regard to the death of the applicant’s son. Furthermore, like the Turkish authorities, the Court accepted that a form of unpredictable psychological depression had caused İsa to commit suicide, since, during his lifetime, he had apparently displayed no behaviour traits suggesting a real and immediate likelihood that he would end his life. No blame could therefore be attached to Turkey for failing to meet its obligation to protect the applicant’s son from himself.

In addition, the Court was of the opinion that the exact circumstances of İsa’s death had not been duly assessed and determined. It also noted that the applicant had in effect been excluded from the investigation. In those circumstances, the Court considered that the investigation carried out in this case, taken as a whole, had not been “effective”. It therefore concluded unanimously that there had been a procedural violation of Article 2.

Çardakçı and Others v. Turkey

(application no. 39224/98) Friendly settlement

The applicants relied on Articles 2 (right to life), 8 (right to respect for private and family life), Article 1 of Protocol No. 1 (protection of property) and Article 13 (right to an effective remedy) on account of the death of Sabri Çardakçı and the burning of their home. The Court decided to strike the case out of its list following a friendly settlement, under the terms of which the applicants are to receive EUR 20,000.

Akpınar and Altun v. Turkey

(application no. 56760/00).

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 killing of Seyit Külekçi and Doğan Altun; a violation of Article 2 of the Convention in respect of Turkey’s failure to conduct an effective investigation into the circumstances of the incident which led to the death of Seyit Külekçi and Doğan Altun.

The application concerns the killing of Seyit Külekçi and Doğan Altun, the alleged mutilation of their corpses by the security forces and the alleged absence of an effective investigation into the applicants’ claims. On 14 April 1999 Seyit Külekçi and Doğan Altun were killed by the security forces in the course of an armed clash which occurred in the Yeşilalan village of Turhal, in Tokat. According to the scene of incident report, security forces set up an ambush in Yeşilalan in order to capture members of the TKP-ML/TIKKO (the Communist Party of Turkey/Marxist-Leninist/ Turkish Workers and Peasants’ Liberation Army). Following the incident, officers from the Turhal gendarmerie command took the corpses to the Turhal gendarmerie command’s yard. The bodies had been identified as those of Seyit Külekçi and Doğan Altun.

On 15 April 1999 post mortem examinations were carried out on the deceased. According to the report which was drafted, Doğan Altun had received nine bullets to his head, shoulders, chest and legs and half of his left ear had been cut off. Seyit Külekçi had received eight bullets to his head, shoulders, arms, chest, abdomen and lumbar region. Both of his ears had been cut off.

At the applicants’ request an investigation was opened into allegations that their relatives had been tortured before death or that their corpses had been mutilated by the security forces. In October 2000 certain Gendarmerie officers were charged with “insulting” the corpses. In January 2001 Turhal Criminal Court of First Instance suspended the criminal proceedings on the basis that they would be re-activated if the defendants committed further intentional offences within five years. No appeal was filed against that decision.

Given the unclear circumstances of the case, the Court was unable to establish “beyond reasonable doubt” that Seyit Külekçi and Doğan Altun had been deprived of their lives by the security forces as a result of a use of force which was more than absolutely necessary, within the meaning of Article 2 § 2. It therefore concluded that there had been no violation of Article 2 concerning the killing of the two men.

As regards compliance with the procedural obligation under Article 2, in considering the admissibility of the application the Court had found that the authorities had failed to conduct an independent and impartial official investigation into the circumstances surrounding the death of the applicants’ relatives. Furthermore, the Court’s inability to establish a complete picture of the circumstances of the case was due to the lack of an effective investigation. There had therefore been a violation of Article 2 concerning the lack of an effective investigation.

Üçak and Others v. Turkey

(applications nos 75527/01 and 11837/02)

A.İ Dağlı disappeared on 14 April 1995. On that date the Silvan district gendarmerie command and the infantry battalion of the internal security forces had conducted an operation against the PKK, an illegal organisation, in five villages belonging to the district of Silvan, including the village of Eşme.

The Court observed in particular that the criminal investigations conducted in the present case by the public prosecutor’s offices in Diyarbakır and Silvan had been closed without the circumstances surrounding the disappearance of A.İ Dağlı having been established. The district governor had based his decision to bring the proceedings to an end on the report of the person in charge of the operation in question, which stated that A.İ Dağlı had taken flight during the operation and that it had not been possible to arrest him. The Silvan public prosecutor’s office had therefore discharged the officers in question without hearing evidence from the gendarmes involved in the operation. Accordingly, the Court considered that the investigations into the circumstances surrounding the disappearance of A.İ Dağlı had not been conducted in a thorough or effective manner by independent bodies. It therefore held, unanimously, that there had been a violation of Article 2.

Kamil Uzun v. Turkey

(application no. 37410/97) Violation of Article 2 (investigation)

At the material time the parents of Kamil Uzun were living in the Hasköy neighbourhood, 5 km from the centre of Yayladere, in Bingöl district, situated in the region where a state of emergency had been declared and where serious clashes between security forces and members of the PKK (Kurdistan Workers’ Party) were rife. On 16 September 1994, at around midnight, a mortar shell landed on the house of a neighbour of the applicant’s parents. Shrapnel from the shell was projected towards the house next door and struck the applicant’s mother on the head and neck. She died from her injuries within half an hour.

The applicant’s father lodged a criminal complaint that very morning. Gendarmes arrived at the scene, drew a sketch of the premises and assessed the damage to buildings. Witnesses subsequently stated, among other things, that they had taken away pieces of mortar shell. The victim’s body was exhumed for an autopsy in June 1996.

In November 1996 two gendarmes were charged with abuse of authority, in particular for having failed to transmit the victims’ complaints to the public prosecutor’s office, for having precipitated the interment before an autopsy could be performed and for having caused the disappearance of pieces of shrapnel collected by the gendarmes. In 1999 they were found guilty of misusing their authority and perverting the course of justice but there was a stay on the execution of their sentence.

The investigation into the death of Mrs Uzun is still pending to date and has not been successful in identifying the person or people responsible for the death.

The Court considered that the origin and context of the mortar fire gave rise to legitimate doubts. However, those doubts could not in themselves justify the existence of a presumption that Mrs Uzun had been the victim of intentional fire or of a blunder attributable to the local gendarmerie. The Court thus found that, despite its concerns, the material before it did not allow it to conclude, beyond all reasonable doubt, that the applicant’s mother had been killed by members of the armed forces.

Moreover, the Court observed in particular that throughout the initial stage of the investigation there had been a complete overlap between those presumed to be responsible for the incident and those investigating, all of them being attached to the local gendarmerie and in particular that of Yayladere. The conduct of the investigating gendarmes had ultimately had the effect of removing the preliminary investigation from public and judicial scrutiny and, furthermore, of preventing those really responsible from being identified and called to account.

The Turkish Government had provided no concrete information on the status of the investigation, which, more than 12 years after the event, did not seem to have made any credible progress or to have produced any tangible results, thus confirming the atmosphere of impunity and insecurity that had prevailed at the time in the region.

In those circumstances the Court found unanimously that there had been a violation of Article 2 as regards the investigation carried out into the death of the applicant’s mother and held that it was not necessary to examine his other complaints.

Anık and Others v. Turkey

(application no. 63758/00).

The Court held unanimously that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the killing by soldiers of the applicants’ relatives; and a violation of Article 2 concerning the failure to conduct an effective investigation into the circumstances of their deaths.

The applicants are all relatives of Ahmet Anık and Abdulkerim Sanrı, who were killed by members of the security forces on 19 August 1999. Ahmet Anık and Abdulkerim Sanrı had been living in Balveren and were employed by the State as provisional village guards. Their duties included providing guidance to the armed forces about a particular area near their village where there was intense PKK activity.

According to a post-incident report, at 11 p.m. on 18 August 1999 soldiers spotted two men (later identified as Ahmet Anık and Abdulkerim Sanrı), who were in an area under military surveillance without authorisation. By 1.15 a.m. on 19 August the two men had been surrounded by soldiers. Two groups of soldiers fired a number of 120 mm mortars in their direction and ordered them to surrender. The men started running away and, when they failed to stop, the soldiers fired directly at them. The time by then was 1.30 a.m., according to the report. The report’s authors – the military officers in charge of the operation – considered that the two men were trying to help PKK members enter northern Iraq or plant land mines in the area.

According to the on-site report prepared by soldiers on 19 August 1999, the two men had been shot in the head and chest.

An investigation into the killings was opened and, on 26 August 1999, the prosecutor concerned decided that he lacked jurisdiction to investigate the killings. He considered that the two men had been mistaken for terrorists and killed accordingly; the killings had been carried out in the performance of military duties and, as such, had to be investigated by a military prosecutor. The case was subsequently assigned to a military prosecutor and the offences qualified as “causing death by negligence and carelessness”.

On 8 October 1999 the applicants’ lawyer asked the military prosecutor for information about the investigation and asked to be contacted if his presence was required. On 16 November 1999 two of the applicants (the fathers of the deceased) also asked for leave to intervene in the proceedings, to no avail. On 2 June 2000 the military prosecutor decided not to prosecute the defendants. He concluded that the soldiers had “shown more than necessary sensitivity in apprehending the two persons alive, but had been unable to do so because of the two person’s refusal to surrender”. Furthermore, “following the two person’s refusal to surrender, killing them had become a duty for the soldiers”.

During the investigation, numerous witness statements were taken which provided inconsistent accounts of what had happened. It was clear however that at least two hand grenades had been thrown at the two men following the gunfire. On 23 June 2000 the applicants lodged an objection against the decision not to prosecute, which was rejected on 30 June 2000 by Diyarbakır Military Court, on the ground that the decision not to prosecute was compatible with the legislation in force and applicable procedures and that there was no need to widen the scope of the investigation. The Court observed that it was not in dispute between the parties that the applicants’ two relatives were killed by members of Turkey’s security forces using guns and at least two hand grenades.

It was noteworthy that the offence of which the soldiers were suspected was qualified by the prosecutors as “causing death by negligence and carelessness”. Given that the soldiers had all stated that they had opened fire directly on the two men before throwing at least two hand grenades at them, the Court found it incomprehensible that the soldiers’ actions could ever have been qualified as “negligent” or “careless”. It had to be foreseeable for any person – let alone trained army officers – that shooting at a person at a distance of 40 metres with high velocity machine guns and then throwing a number of hand grenades at them would be lethal.

Indeed, notwithstanding that qualification of the offence, neither the military experts appointed by the military prosecutor, nor the military prosecutor himself, examined how and why exactly the soldiers had been “negligent” or “careless”. Experts were satisfied that the men were killed on the assumption that they were terrorists and the military prosecutor considered that the men’s refusal to surrender was sufficient to justify their killing. Furthermore, no attempt was made to establish that the soldiers who took part in the operation had followed any guidelines regulating the use of firearms.

As regards the question of whether the domestic authorities had examined if the force used by the soldiers was no more than absolutely necessary, the Court observed that the alleged refusal of the applicants’ relatives to surrender was sufficient for the military prosecutor to reach the conclusion that “killing them had become a duty for the soldiers”. The Court would stress that such a conclusion, which was upheld by Diyarbakır Military Court, could not in any way be reconciled with the Convention requirement of “absolute necessity”.

The Court further observed that the military prosecutor did not deal with the inconsistencies in the witness statements.

The Court concluded that there were serious failings by the domestic authorities, which rendered the investigation insufficient and inadequate to establish, firstly, whether the soldiers had used their firearms lawfully and, secondly, whether the use of lethal force had been absolutely necessary.

The Court observed that the operation in question had not been planned in advance but was carried out following the sighting of two suspicious persons in an area frequently used by terrorists. Nevertheless, the soldiers had adequate time (over two hours) and resources to give thought to possible ways of apprehending the two men alive, using non-lethal methods. It could not be said that the decision to open fire was taken, or that the execution of that decision by the soldiers had been carried out, in the heat of the moment. It followed that a higher standard of care for the protection of the right to life should have been displayed by the soldiers.

In conclusion, the Court was not persuaded that the killing of the two men constituted a use of force which was no more than absolutely necessary. There had, therefore, been a violation of Article 2 on account of the killing by the soldiers of the applicant’s two relatives.

Bakan v. Turkey

(application no. 50939/99) Violation of Article 6 § 1 (fairness)

In 1995 Mehmet Şerif Bakan was killed by a stray bullet fired by the security forces while he was working on a private house. According to the subsequent inquiry, the bullet which hit Mr Bakan had been fired by a gendarme attempting to arrest a fugitive member of the PKK (the Workers’ Party of Kurdistan, an illegal organisation). In April 2000 the Diyarbakır Assize Court found the gendarme concerned guilty of manslaughter and sentenced him to two years’ imprisonment and a fine. It commuted the prison sentence to a fine and stayed execution of sentence. On the basis of the evidence before it, the Assize Court held that the victim had been hit by a ricochet when a warning shot was fired. In October 2001, after the Court of Cassation had remitted the case, the Assize Court acquitted the gendarme.

Mrs Bakan, acting in her own right and on her children’s behalf, brought administrative proceedings. The administrative court refused her application for legal aid on the ground that at that stage of the proceedings, in the light of the evidence submitted to it, the action was ill-founded. It then asked Mrs Bakan to pay within 30 days court fees amounting to about EUR170. In November 1998 the court ruled Mrs Bakan’s application not duly lodged on account of her failure to pay the court fees.

The Court saw no reason to question the findings of the Diyarbakır Assize Court. It also considered that the authorities could not be accused of failing to discharge the positive obligation to take sufficient precautions to protect Mehmet Bakan’s life and found that they had carried out an investigation satisfying the requirements of Article 2. It accordingly held unanimously that there had been no violation of Article 2.

The Court went on to observe that the amount the applicant had been required to pay in court fees represented a considerable sum for the applicants, who no longer had any source of income following the death of their relative. It noted in particular that the refusal of the request for legal aid had totally deprived the applicants of the possibility of taking their case to court. In the light of those considerations, and in particular of the fact that the restriction came at the initial stage of the proceedings, the Court found that the State had not discharged its obligation to regulate the right of access to a court in a manner compatible with the requirements of Article 6 § 1. It therefore held unanimously that there had been a violation of Article 6 § 1.

Ekrem v. Turkey

(application no. 75632/01) Violation of Article 2 (investigation)

Süleyman Ekrem was a minibus driver working in the Tunceli area. In the evening of 29 November 1999 he was allegedly taken away from his home at gunpoint by members of the illegal organisation the PKK (Workers’ Party of Kurdistan) who wanted to make use of his vehicle. During the evening Mr Ekrem was killed in a firefight which broke out when the security forces attempted to arrest the PKK members near the village of Pirinçli, in the province of Pertek (Tunceli region).

An investigation was immediately opened. It began with an incident report, a sketch-plan of the incident scene, a full post mortem, which revealed that the victim had been hit by several bullets, and interviews with the witnesses. The prosecuting authorities refused to bring proceedings against the gendarmes, citing the decision of the Tunceli provincial governor, who considered that they had acted in self-defence. The refusal to prosecute was set aside by the Erzincan Assize Court because it had not been established that Mr Ekrem had used a firearm. In May 2001, on an appeal by the Principal Public Prosecutor, acting at the request of the Minister of Justice, the Court of Cassation quashed the Assize Court’s judgment, with the result that the proceedings were discontinued.

The Court held by six votes to one that there had been no substantive violation of Article 2 as regards the death of Süleyman Ekrem, given that it had not been established that the use of lethal force had gone beyond what was “absolutely necessary” to defend any person from violence or, in particular, to effect a lawful arrest; nor had it been established beyond a reasonable doubt that needlessly excessive force had been used.

The Court held unanimously that there had been a procedural violation of Article 2 as regards Turkey’s obligation to conduct an effective investigation into Mr Ekrem’s death, noting in that connection a number of shortcomings attributable to the respondent State.

Canan v. Turkey

(application no. 39436/98).

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 applicant’s father’s death; a violation of Article 2 on account of the lack of an effective investigation.

Abdullah Canan, at the relevant time a well-known businessman in Yüksekova (Turkey), died at the age of 43. On 27 October and 23 November 1995 two military operations were carried out by members of the Mountain and Commando Battalion (Dağ Komando Tabur Komutanlığı) in the villages of Ağaçlı and Karlı, attached to the Yüksekova district. Three people were reported missing after the first military operation.

Abdullah Canan and seven members of his family lodged a criminal complaint against the battalion commander, Mehmet Emin Yurdakul, alleging that their homes and household effects had been deliberately damaged during the second military operation. According to the applicant, his father had subsequently been put under pressure to withdraw his complaint.

The applicant submitted that on 17 January 1996, in the course of an inspection on the road between Yüksekova and Van, Abdullah Canan had been arrested by soldiers attached to the headquarters of the battalion led by Mehmet Emin Yurdakul. His father had then been driven away in a military vehicle and taken into custody at the battalion headquarters. The applicant and his relatives sought information about Abdullah Canan from the authorities, but their requests were allegedly not dealt with. In the end, they lodged a criminal complaint.

Abdullah Canan’s body, bound and gagged, was found beside the Esendere road on 21 February 1996. The autopsy performed that day revealed that there were seven bullet entry holes on the body: on the forehead, the scalp, the right shoulder blade, the chin, the throat and the chest. It was concluded that the shots had been fired at very close range and the marks on the fingers and wrists showed that the deceased had been bound by the wrists for some time.

On 12 November 1999 the Assize Court acquitted the three accused, referring to two other lines of inquiry that were to be explored in order to clarify the circumstances of the killing, namely terrorism and intertribal conflict. The court ordered a separate investigation in respect of Mehmet Emin Yurdakul for abuse of authority and restriction of personal freedom. The case was discontinued in May 2001 as prosecution of the offences had become time-barred.

The Court observed that certain witness statements supported the applicant’s assertion that his father had been arrested and taken into custody by members of the security forces, although a large number of witnesses who had been present at the site where Abdullah Canan had allegedly been arrested had stated that they had not seen anything, and the soldiers on duty had categorically denied that he had been arrested and taken into custody.

The Court observed, in particular, that certain pieces of witness evidence had been excluded by the Turkish courts and that the courts had ignored statements indicating not only that Mr Canan had been present at the battalion barracks, but also that he had been “injured, with his head bandaged”.

In the circumstances of the case, the Court had regard to the limited scope of the proceedings in the Turkish courts and the conduct of the authorities, who, by uncritically accepting the security forces’ denials, had made clear their intention not to examine the allegations against the officers concerned. The lack of any plausible explanation by the authorities as to the circumstances leading to the violent death of Mr Canan led the Court to conclude that Turkey bore responsibility for the death. It therefore found a violation of Articles 2 and 3 on that account.

Feyzi Yıldırım v. Turkey

(application no. 40074/98) Violation of Article 2

Mr Emin Yıldırım died on 7 February 1996 of complications following a brain haemorrhage. On 7 January 1996, after shots had been fired at a gendarmerie post in the province of Diyarbakır (Turkey), two non-commissioned officers stationed there went out on patrol under the orders of a Captain Akgün. They went to the draper’s shop of Mr Emin Yıldırım where words were exchanged with the shopkeeper and three of his customers. There is vehement disagreement between the parties concerning the allegation that Captain Akgün administered a violent beating to Mr Emin Yıldırım, then aged 67, but it is not in dispute that he upbraided him. On 3 February of that year Mr Emin Yıldırım was taken into hospital in a coma and died four days later. According to the forensic medical officer, an injury suffered about a month before could have been the cause of death. On 9 February 1996 the applicant and his mother lodged a formal complaint against Captain Akgün. On 14 June 1999 the assize court held that the charge of unintentional homicide could not be made out but sentenced him to the minimum penalty of three months’ imprisonment for inflicting ill-treatment in the performance of his official duties. That sentence was later reduced to two months and fifteen days and commuted to a fine of approximately EUR 0.68, suspended.

The Court accepted that it could not be established from the evidence in the case that the applicant’s father had died as a result of blows inflicted by Captain Akgün. It observed however that the obligation to protect the right to life under Article 2 required by implication that there should be some form of effective official investigation when individuals had been killed in suspicious circumstances. But there was nothing in the case to indicate that any measure had been taken to ensure a balance between the interests of Captain Akgün and those of the witnesses for the prosecution, to whose testimony no importance was attached. On the other hand, the Turkish courts had showed clemency to Mr Akgün on account of his “good conduct” during the trial. The Court considered that the Turkish criminal justice system had proved to be far from rigorous. It accordingly held by six votes to one that there had been a violation of Article 2.

Kurnaz and Others v. Turkey

(application no. 36672/97).

The Court held unanimously that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights; a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention concerning the applicant’s injuries in prison.

Mehmet Kurnaz was born in 1956 and lived in Antalya (Turkey). He died in December 1997 and his parents, brother and sister decided to continue the proceedings before the Court on his behalf. He had a number of serious medical conditions and, in 1994, was diagnosed with chronic renal insufficiency.

Mr Kurnaz was a member of the United Socialist Party (Birleşik Sosyalist Partisi) and, between 1973 and 1982, he was held in police custody a number of times. On 1 September 1995 Mr Kurnaz was arrested again and remanded in custody on charges of being a member of an illegal organisation.

On 21 September a riot broke out in Buca Prison during which Mr Kurnaz received a serious blow to his head. He was hospitalised the same day, and a medical report, noting bruising, swelling and a cut of 4cm, confirmed that he had a serious head injury.

The parties disagreed as to what had happened during the prison riot. The applicants claimed that Mr Kurnaz was deliberately attacked by prison officers and gendarmes during which he was hit on the head with a metal handle. The Government claimed that detainees awaiting trial in a dormitory cell refused to be counted by prison officers and then piled up metal cupboards behind their dormitory door. Gendarmes were brought in to forcibly enter the dormitory. The prisoners broke windows, burned beds and used metal handles from cupboards to attack the prison officers and gendarmes. The latter used tear gas and pressurised water to quell the riot. The Government alleged that Mr Kurnaz actively took part in the riot. 15 gendarmes and 40 prisoners were injured. Three detainees subsequently died.

On 12 October 1995 it was decided that the prison officers would not be prosecuted because it had been proved, in particular, that only the gendarmes had broken into the dormitory and used force. The case concerning the gendarmes was transferred to İzmir Governor’s Office.

That decision and the transfer of the case against the gendarmes were then used in August 1996 to justify the public prosecutor’s decision not to investigate Mr Kurnaz’s complaint about his ill-treatment and the extensive injuries he had sustained at Buca Prison.

Mr Kurnaz was released pending trial on 25 October 1995 and was ultimately acquitted of being a member of an illegal organisation a year later. The criminal proceedings against him and the other prisoners for rioting were suspended on 25 December 2000. In the meantime and following a series of hospitalisations and medical treatment, Mr Kurnaz died on 22 December 1997 of renal insufficiency.

The Court observed that there was no doubt that the serious blow to Mehmet Kurnaz’s head on 21 September 1995 contributed to a general deterioration in his health.

However, the Court noted that Mr Kurnaz was ill, notably from chronic renal insufficiency, prior to his detention in Buca Prison. There was no convincing evidence in the case file to support the applicants’ allegations that Mr Kurnaz’s poor health had been caused from alleged ill treatment during his previous periods in detention. There was no indication either that he had been denied adequate medical assistance during his detention. Furthermore, the Court could not ignore the fact that he died two years after the incident in Buca Prison, following lengthy treatment.

The Court therefore concluded that there was insufficient evidence to prove “beyond reasonable doubt” that Turkey was responsible for Mr Kurnaz’s death. Accordingly, there had been no violation of Article 2.

Article 3 The Court noted that the Government had not denied that Mr Kurnaz’s injuries, confirmed in a medical report of 21 September 1995, had resulted from the authorities having used force. Those injuries had led to severe pain and suffering and had had lasting consequences on his health. The Court recognised the potential for violence in a prison setting and accepted that firm intervention by security forces was required if, for example, rioting was sporadic, widespread or included hostage-taking.

However, in the applicants’ case the incident had at all times been confined to one dormitory cell. There had also been some warning about impending difficulties when the detainees had refused to be counted. Indeed, the situation only degenerated after the gendarmes forcibly entered the dormitory. Mr Kurnaz had not therefore been injured during a random and widespread insurrection giving rise to unexpected developments. The Court therefore considered that it was up to the Government to demonstrate convincingly that the use of force had not been excessive.

The Government had merely stated that force had had to be used against the detainees without providing any explanation or documentation. Furthermore, there was no proof in the case file that the prison authorities had seriously attempted to restore order or that the operation had been properly organised or monitored so as to minimise the risk of serious bodily harm to the detainees. The Court therefore concluded that the force used against the applicant on 21 September 1995 at Buca Prison had been excessive and that Turkey was responsible for his injuries.

Teren Aksakal v. Turkey (no. 51967/99) Violation of Article 3 (investigation) In October 1980 Cengiz Aksakal was taken into custody and questioned in Artvin province on suspicion of belonging to the illegal organisation Dev-Yol. He was admitted to hospital on 3 November 1980, after being taken ill, and died on 12 November 1980. An autopsy report revealed multiple wounds, bruises and grazes to his body. The applicant brought criminal proceedings in January 1981. In a judgment delivered on 30 December 1997, which became final on 30 January 2003, the domestic courts sentenced two officers from Artvin gendarmerie to two years and one month’s imprisonment, finding that they had been complicit in acts of torture inflicted on Mr Aksakal. They concluded that Mr Aksakal had died as a result of his “existing illness” and following torture inflicted by civilians who had taken part in his questioning and whose identity could not be established. The judgment was never executed and the two officers continued to serve in the army throughout the proceedings and until their retirement.

The Court decided that, with regard to Turkey’s substantive negative obligation to refrain from torture and intentional killing, it could only hold that it had no jurisdiction (ratione temporis), as the events leading to Mr Aksakal’s death and complained of by his widow had occurred before 28 January 1987, the date on which Turkey had recognised the right of individual petition. However, the Court declared admissible the applicant’s complaints concerning the effectiveness and efficiency of the investigations into her allegations.

Given the shortcomings in the proceedings, the failure to meet the requirements of promptness and reasonable diligence and, lastly, the fact that the perpetrators of the violations complained of had effectively enjoyed impunity, the Court considered that the criminal proceedings had been far from rigorous and were not capable of acting as an effective deterrent to acts such as those in question. In the specific circumstances of the case, the Court therefore concluded that the outcome of the proceedings in question had not offered appropriate redress for the breach of the values enshrined in Articles 2 and 3. Accordingly, the Court held by five votes to two that there had been a violation of Articles 2 and 3.

Dölek v. Turkey

(application no. 39541/98)

Mustafa Hacı Dölek died in 1995. On 24 June 1995 the security forces visited the applicant’s home in the province of Kahramanmaraş (Turkey), in order to conduct a search. The investigation found that the applicant took a long time to open the door of the house, and that her husband attempted to grab a weapon belonging to a law-enforcement officer and was hit by bullets during the skirmish. At first sight, Mustafa Hacı Dölek appeared to have been hit by two bullets in the legs. The officers transported him to hospital, but he died from his wounds before arriving. The doctor decided that it was not necessary to carry out an ordinary post-mortem examination, since death had occurred as a result of blood loss.

The applicant filed a complaint in June 1995, challenging the record of the examination of the corpse and alleging that her husband had also been struck by a bullet in the chest. She also alleged that the police officers had threatened to kill her in order to dissuade her from speaking, and had struck her; she requested the exhumation of her husband’s corpse and a full classical autopsy. An autopsy was carried out in July 1995, and concluded that Mustafa Hacı Dölek’s death had been due to injuries and complications in the liver and left lung, caused by a bullet which had struck the right side of his thorax.

As a result, in May 1998 the Ankara assize court convicted a police officer of manslaughter and sentenced him to eight years’ imprisonment, which was subsequently reduced a suspended sentence of one year, one month and ten days, in view of the defendant’s good conduct.

The Court considered that it had not been provided with any conclusive evidence that Mustafa Hacı Dölek had been killed intentionally. It noted that the use of force had been a direct result of the latter’s reaction and noted that the Turkish courts had themselves concluded that the use of force had been disproportionate and had convicted the officer in question of having exceeded his legal powers. Accordingly, the Court concluded unanimously that there had been no violation of Article 2.

The Court also concluded, by five votes to two, that there had been no violation of Article 2 concerning the investigations conducted into the circumstances in which the applicant’s husband had been killed.

Sara Kaya and Others v. Turkey

(application no. 47544/99) Violation of Article 2 (investigation)

Mr Şefik Kaya's body was found on 13 September 1998. On 5 July 1998 Şefik Kaya left his home in order to water agricultural land situated in the hamlet of Manisor (near Lice, Diyarbakır, Turkey), and did not return. Applicant Sara Kaya informed the gendarmerie of her husband's disappearance on 9 July 1998. On 13 September 1998 applicant Hatice Kaya was informed that her father’s corpse was lying beside the Manisor road. The source of this information, a man named Şevket, said that “everyone is talking about it”. Accompanied by gendarmes, Hatice Kaya then went to the location mentioned and identified her father’s remains, consisting solely of bones, from his shoes and other clothing. The site report drawn up on the same day noted that spent cartridges from a Kalashnikov rifle were found near the body. The investigation into Şefik Kaya’s death is still pending before the Lice prosecution service, with no developments since 2002.

The Court noted that, contrary to the applicants’ allegations, the evidence before it did not indicate that their relative had been killed by agents of the State. It emphasised that the applicants had not raised those allegations with the Turkish authorities at any stage and that there was no documentary evidence to support the version of events submitted to the Court. The Court therefore concluded unanimously that there had been no violation of Article 2.

With regard to the investigation, however, the Court noted that, with the exception of the relatives’ statements, the case file contained no information on any searches carried out by the Turkish authorities between the date of Şefik Kaya’s disappearance and the discovery of his corpse. The Court was particularly puzzled by the lack of vigilance on the part of the authorities, who seemed to have been the last to be informed of the place where the corpse was to be found. It also noted that there had been no progress in the investigation between December 1999 and December 2001. The Court therefore concluded, by six votes to one, that there had been a violation of Article 2 because the investigations conducted by the national authorities into the circumstances of Şefik Kaya’s death could not be considered effective.

Amaç and Okkan v. Turkey

(applications nos. 54719/00 and 54176/00)

On 15 July 1997 a mine made from a cooking gas cylinder exploded on a road in the village of Aygün, killing a number of the applicants’ relatives. No one has ever been charged in connection with the explosion.

The Court observed that the allegation that the authorities had laid a mine on the road was based on speculation rather than on reliable evidence. It also noted that conditions in the area had not been such as to call for mine-clearing operations by the authorities or for particular precautions to be taken. In the circumstances, the Court concluded that the Turkish State had not been responsible for the death of the applicants’ relatives. It added that the investigation had not been devoid of effect and that the authorities could not be said to have taken no action with regard to the circumstances in which the applicants’ relatives had been killed. It therefore held unanimously that there had been no violation of Article 2.

Gülşenoğlu v. Turkey

(application no. 16275/02)

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

Vedathan Gülşenoğlu, was a 19-year-old university student at the relevant time. On 22 March 1994 Vedathan Gülşenoğlu took part in a demonstration in Istanbul during which he allegedly threw Molotov cocktails at a bank. He was arrested, along with another person, by three traffic police officers, who had been on duty in the neighbourhood.

He was taken to a police station. A few minutes later a shot was heard. It transpired that Vedathan Gülşenoğlu had been shot in the back of his head by A.B., one of the traffic police officers who had arrested him. He was taken to the Taksim hospital, where he died.

On 3 June 1994 A.B. was charged with homicide. Seven years later, in June 2001 he was convicted by the Beyoğlu Assize Court and sentenced to 20 years' imprisonment. However, on 2 October 2002 the Court of Cassation quashed the judgment of the first-instance court on procedural grounds. On 9 October 2003 Beyoğlu Assize Court once again convicted A.B. of homicide and sentenced him to 20 years' imprisonment, following rectification of the procedural defects. On 21 October 2004 the Court of Cassation quashed the judgment of 9 October 2003. The case was subsequently remitted to Beyoğlu Assize Court. The criminal proceedings against A.B. are apparently still pending before the assize court.

There was no dispute between the parties that Vedathan Gülşenoğlu had been shot and killed by A.B., the traffic police officer who had arrested him during a demonstration. The Court observed that A.B. had been accused of homicide and had been convicted as charged and sentenced to 20 years' imprisonment twice by the first-instance court. Those judgments had been subsequently quashed by the Court of Cassation on grounds of procedural shortcomings and defects in the investigation. The Court recognised that the proceedings were still pending before Beyoğlu Assize Court.

However, having regard to the length of the proceedings, the investigation in question could not be considered prompt and effective for the purposes of the Convention. Furthermore, there had been important shortcomings in the conduct of the traffic police officer who had chased and arrested the applicant's brother. It was striking that the traffic police officer in question had not searched or handcuffed Vedathan Gülşenoğlu when he had apprehended him. It would also appear irregular that it had been a traffic police officer who had stayed with Vedathan Gülşenoğlu in the interrogation room at the police station. No explanation has been forthcoming from the Government on that point. In the Court's opinion, the use of lethal force in the case before it fell squarely within the ambit of Article 2, which required any such action to pursue one of the purposes set out in the second paragraph and to be absolutely necessary to that end. As the Court of Cassation had stated in its decision dated 21 October 2004, a number of key factual issues still remained to be determined in this case, in particular whether or not Vedathan Gülşenoğlu had been in possession of a gun as had been alleged. In the absence of any findings in that regard, the Government had failed to provide any convincing explanation for the events.

The Court concluded that, in the particular circumstances of the case, the authorities had failed in their obligations, in violation of Article 2.

Further information

The other pages in this series are:

• ECHR on the right to life in Turkey (2002-2004)
• ECHR on the right to life in Turkey (2008-2010)

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.