Kücük and Others v. Turkey (63353/00)
| Date | 20081014 |
|---|---|
| Article | 2 |
| Decision | violation |
Violation of Article 2 (life and investigation)
Kücük and Others v. Turkey (no. 63353/00)
The 12 applicants are Turkish nationals. The first applicant is the widow and the other applicants are the children of Yusuf Küçük, who died on 4 June 1998. At the relevant time the applicants lived in the village of Ovacik in Tunceli province, which was under a state of emergency decreed at the time in south-east Turkey because of serious clashes between security forces and members of the illegal armed organisation PKK (the Kurdistan Workers’ Party).
At 11.45 one night, when Yusuf Küçük was out with three other villagers looking for lost sheep, he was killed by a shell fired from a tank by a gendarmerie unit lying in ambush outside the village. The prosecuting authorities opened an investigation into the incident the next day. The public prosecutor subsequently relinquished jurisdiction and transmitted the case to the administrative committee of Tunceli province. The province in turn transmitted it to the Gendarmerie post in Tunceli with a request for them to carry out an internal inquiry. A report was drawn up on the strength of which the Tunceli province administrative committee decided to close the case and discontinue the proceedings.
The applicants relied in particular on Article 2 (the right to life).
The Court reiterated that the situation in the south-east of Turkey at the time obliged the State to take exceptional steps to regain control of the region and put a stop to the violence. The Court noted that the villagers had been warned, both orally and in writing, that they were forbidden to leave their homes after sunset, and considered that Yusuf Küçük could not have been unaware of the risk he was taking when he left the village. The Court nevertheless considered that when the gendarmes deployed troops armed with heavy artillery in a zone where civilians lived, it was their duty also to consider the risks of error inevitably inherent in such a deployment of force. There was no evidence, however, that such considerations had played any significant part in the preparation and supervision of the firing. Lastly, it had not been demonstrated that there had been any real need for a tank to fire a shell. Consideration should have been given to the use of less life-threatening means, even assuming that terrorists might have been present. Accordingly, the Court was unable to say that the operation had been prepared and carried out with the necessary precautions to avoid the accidental killing of civilians. That being so, it found by six votes to one that there had been a violation of Article 2.
Also, reiterating that it had found in several cases that inquiries conducted by provincial administrative committees gave rise to serious doubts in so far as they were not independent of the executive, the Court found unanimously that there had been another violation of Article 2 because of the lack of an effective investigation into the circumstances of Yusuf Küçük’s death. It awarded the applicants EUR 50,000 in respect of pecuniary and non-pecuniary damage. (The judgment is available only in French.)