FOURTH
SECTION
CASE OF ACAR AND OTHERS v.
(Applications nos. 36088/97 and 38417/97)
JUDGMENT
24 May 2005
FINAL
This judgment will become
final in the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Acar
and Others v.
The European Court of Human Rights (Fourth
Section), sitting as a Chamber composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr R. Maruste,
Mr K. Traja,
Mr J. Šikuta,
judges,
Mr F. Gölcüklü,
ad hoc judge,
and Mr M. O’Boyle,
Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in two
applications (nos. 36088/97 and 38417/97) against the Republic of Turkey lodged
with the European Commission of Human Rights (“the Commission”) under former
Article 25 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by ten Turkish nationals, i.e. (application
no. 36088/97) Mr Osman Acar (born in 1938 and brother of İsmet
Acar), Mr Hüseyin Akan (born in 1950 and son of Mehmet Akan and brother of
Abdülkadir Akan), Mr Mehmet Ali Akan (born in 1978 and son of Mehmet Akan and
brother of Abdülkadir Akan), Mr İbrahim Akan (born in 1933 and muhtar of the Çalpınar village) and
Mrs Elife Akalan (Acar) (born in 1976 and daughter of Mehmet Emin Acar); and
(application no. 38417/97) Mrs Selime Akay (born in 1958 and wife of Hasan
Akay), Mrs Hanıme Ağırman (born in 1960 and wife of Mehmet
Ağırman), Mrs Cihan Akan (born in 1976 and wife of Abdülkadir Akan),
Mr Mehmet Akay (born in 1954 and brother of Hasan Akay) and Mr Reşit Acar
(born in 1949).
2. The applicants, who had
been granted legal aid, were represented by Mr M.N. Terzi, a lawyer
practising in İzmir. The Turkish Government (“the Government”) did not
designate an Agent for the purposes of the proceedings before the Court.
3. The applicants complained
about the alleged killing of the applicants’ relatives by village guards in the
state of emergency region. They relied on Articles 2, 6 and 8 of the
Convention. The applicants in application no. 38417/97 also relied on
Article 13 in conjunction with Article 2 of the Convention.
4. The applications were
transmitted to the Court on
5. The applications were
allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of
Court). Within that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr
Türmen, the judge elected in respect of
6. By a decision of
7. The applicants and the
Government each filed observations on the merits (Rule 59 § 1).
8. On
THE FACTS
I. THE CIRCUMSTANCES OF THE
CASE
9. The facts of the case, as
submitted by the parties, may be summarised as follows.
10. At the time of the events
at issue, the applicants resided in Çalpınar, a village attached to the
district of Midyat in the Mardin province of south-east
11. On
12. The gendarmes drew a
sketch map of the crime scene and drafted an incident report addressed to the
Midyat public prosecutor. It was stated in the report that a group of terrorists
wearing military uniforms stopped a minibus and a truck near the hamlet of
Kuyubaşı attached to the
13. On the same day the Midyat Public Prosecutor and a forensic doctor conducted an autopsy at the scene of the incident. They concluded that the persons killed in the incident had died of bullet wounds. The autopsy report recorded the following injuries:
İsmet Acar: One bullet entry on the right ear, one bullet exit on the upper part of the head, one bullet entry on the right armpit, one bullet exit on the right shoulder, one bullet wound on the abdomen, one bullet entry on the upper abdomen, one bullet exit on the waist, one bullet entry on the right upper abdomen, one bullet exit on the right upper hip, one bullet entry on the right thigh and one bullet exit on the front hip.
Hasan Akay: One bullet entry on the forehead, one bullet exit on the right part of the head, one bullet entry between the 10th and 11th ribs, one bullet exit on the right front ribs, one bullet entry on the inner right elbow, one bullet exit on the outer right elbow, one bullet entry on the left upper 12th rib, one bullet exit on the left part of the chest, one bullet wound on the left shoulder, one bullet entry on the inner left leg and one bullet exit on the outer left leg.
Mehmet Ağırman: One bullet entry on the left shoulder blade, one bullet exit on the right shoulder blade, one bullet entry on the inner right elbow, one bullet exit on the outer left elbow and one bullet wound on the right calf.
Süleyman Acar: One bullet wound on the left temple, one bullet entry on the left shoulder, one bullet exit on the left shoulder blade, one bullet entry on the right part of the right wrist, one bullet exit on the left part of the right wrist and one bullet entry on the left calf.
Mehmet Akan: One bullet entry on the left hip, one bullet exit on the upper left hip, one bullet entry on the waist, one bullet exit on the scrotum, one bullet entry between the 9th and 10th ribs, one bullet exit on the upper right hip and one bullet exit between the 9th and 10th ribs.
Abdülkadir Akan: One bullet entry
on the forehead, one bullet exit on the left temple, one bullet entry between
the 6th and 7th ribs, one bullet exit between the 7th and 8th ribs, one bullet
entry on the right hip, one bullet exit on the abdomen, one bullet entry on the
right upper hip, one bullet exit on the pubis, one bullet entry on the 12th rib
and one bullet exit on the chest.
The estimated time of death was
given in the autopsy report as 5 or 6 hours before the autopsy had been
carried out. The doctor concluded that it was unnecessary to conduct further
autopsies of the bodies.
14. On the same day the
witnesses Süleyman Acar[1],
Yusuf Acar and Salih Acar were questioned by the police officer Hüseyin
Coşar. Moreover the Midyat Public Prosecutor took the statements of the
applicants Mehmet Akay, Hüseyin Akan and five other witnesses.
Mehmet Akay stated as follows:
“This morning at around
Süleyman Acar stated as follows:
“... When we were passing by the Mythike cave,
ten or twenty people came out of it. They were armed and were speaking in
Kurdish. They told us to line up. We did as we were told. They also stopped the
minibus that was following us. I knew two people among the group. One of them
is called Ethem and the other is called Cengiz. They opened fire at us. I was
wounded. They took me to
Salih Acar stated as follows:
“... They had already taken the people out
from the truck. They told us to get out of the minibus. They took five of us
and killed them. When we started to run, they opened fire on us. I was wounded.
It was Ethem and Cengiz who made us line up.”
15. On
16. On
“... A group of twenty five or thirty armed
people stopped our truck. They also stopped the minibus that was following us.
I recognised İsmail (his mother is called Güle), Cengiz and Ethem. I do
not know their surnames. I know them very well because they are our neighbours.
İsmail and Ethem had not covered their faces. Sorry, I made a mistake. It
was Cengiz’s face which was uncovered. İsmail and Ethem had covered their
mouths but not their eyes. They were wearing conical hats like soldiers. They
were also wearing commando uniforms. They were holding Kalashnikov rifles.
Cengiz was also holding a gun. They shouted at us in Turkish and ordered us to
get out of the vehicles one by one. When we gathered near the vehicles they
told us in Kurdish to line up. I told them that they could search us and check
our identity cards. Then I asked them to let us go. I told them that we had a
long way to travel. When they heard this they opened fire. We ran away. Seven
people died. I was wounded in the back. These people ran away towards the
17. On
18. In a ballistic report by
the Diyarbakır Provincial Criminal Police Laboratory, dated
19. On
20. On
21. On
22. On
23. On
24. On 1 September 1992 the
court requested the Nusaybin Gendarmerie Command to hand over the accused
village guards’ weapons so that a ballistic examination of the bullets removed
from the corpses of deceased Sabri Acar and Hasan Akay could be carried out.
Moreover it sent a notice to the Midyat Public Prosecutor to ascertain the
address of the victim Erdal Acar, who possibly still had a bullet in his body,
and to have him medically examined.
25. At a hearing on
26. On
27. At the same hearing the
court heard the non-commissioned officer Ali Kılıç. Mr
Kılıç had been on duty at the Gendarmerie Command in Kutlubey on the
day of the incident. He stated as follows:
“I have been serving at the Kutlubey
Gendarmerie Command for one and a half years. Kutlubey is a big village. I know
the accused village guards. They are from Kutlubey and they support the State.
We perform our duties together. I remember the day [of the incident]. I was
keeping guard at night because we were expecting an attack. ... I was with
three other soldiers and three village guards. The names of the village guards
were Tevfik Akbay, Rahmi Kaçmaz and Halit Aktan. ... The village guards Hasan
Kaçmaz, Nevaf Aydın and Mahmut Başak were together with my colleague,
Arif Güner. The village guards Cengiz Kaçmaz, İsmail Kaçmaz and Tacettin
Sakan were with Sergeant Kazım Demirbaş. The rest of the village
guards were keeping guard near the village. We were on duty until
We had been informed that the villagers would
march towards the
28. On
29. On
30. On
31. On 1 March 1993, at the
first hearing held before the Denizli Assize Court, the court requested to have
all the accused transferred to Denizli prison. It sent letters rogatory to the
32. On
33. On
“I was taken to
34. On
“On the day of the incident, the minibus that
I was in was stopped by a group of armed people. They made us get out of the
vehicles and line up. The person called Ethem gave his gun to Cengiz Kaçmaz.
Cengiz Kaçmaz signalled with the gun to the others and they all fired at us. I
have identified them because Cengiz’s face was only partially covered and Ethem’s
face was completely uncovered. During the incident my brother Abdülkadir and my
father Mehmet died.”
35. On
“On the day of the incident I was keeping
guard with the village guards from
36. Sergeant Kazım
Demirbaş reiterated his colleague’s statement and said that the village
guards Cengiz Kaçmaz, Bedran Göktekin and İsmail Kaçmaz had accompanied
him on the day of the incident.
37. At the hearing held on
38. On
39. On
40. On
41. On
“At the material time I was the public
prosecutor in Midyat. ... The gendarmes and soldiers were at the scene of the incident
when I arrived. I saw 7 or 8 dead bodies lying on the right and the left side
of the road. It seemed that they had been shot at close range. ... I told the
soldiers to collect the empty cartridges. ... While I was carrying out the
autopsies, I realised that the soldiers were not collecting the empty
cartridges. I personally collected the empty cartridges that were near the dead
bodies with the help of my assistant. I drafted a report. More empty cartridges
could have been collected. I collected as many as I could. It seemed that the
cartridges had been fired recently. There was a smell of gunpowder. It was
obvious that they had been fired recently. The base of the cartridges (mermi dip çukurları) had not
oxidised. There were no rifles around, only empty cartridges. ... In my opinion
the empty cartridges had been fired from the weapons that killed the villagers.
... There were traces of newly extinguished fire and human excrement in a cave
near the road. In my opinion this shows that the murderers laid an ambush
before the attack.”
42. On
43. In a report dated
44. On
45. In a ballistic report dated
46. In its report dated
47. In their statements given
before the court on
48. Between 1994 and 1996,
during the seventeen hearings that were held before the Denizli Assize Court, the
court took the statements of witnesses by sending letters rogatory to the
courts where they resided, since most of them had moved to different parts of
Turkey and in some cases their addresses were not known to the court.
49. On
50. In a petition dated
51. On
52. Following the applicants’
allegations concerning pressure and intimidation exerted by the security forces
an investigation was initiated by the domestic authorities. On
“Osman Acar and İsmet Acar are my
brothers. İsmet was killed in the incident that took place in 1992. Osman
Acar has been living in İzmir for 30 years. He rarely comes to the
village. The last time he came to the village was in 1993 on the occasion of
our mother’s funereal. I have not seen him since then. Nobody has threatened me
in connection with my brother’s killing. On several occasions I have been taken
into custody during the operations against the PKK because of my alleged
involvement in the activities of the terrorist organisation. My relatives and I
have not been threatened. The head of the Kutlubey village guards, Cengiz
Kaçmaz, has not threatened us. We are on perfectly reasonable terms. We stay at
his house when we visit the
53. In a petition dated
54. On
55. At the hearing of
56. On
57. Approximately fifty
hearings were held before the
58. On
“The statements which the witnesses and the complainants made when interrogated by the public prosecutor were different from those they later made before the court. In particular, in his statement before the public prosecutor, Salih Acar stated that the accused had covered their faces when they stopped the convoy, whereas in his statement to the court he did not specify whether or not the attackers had covered their faces. Süleyman Acar did not mention in his statement to the public prosecutor that it had been Cengiz and Ethem who had attacked them, whereas he stated before the court that it had been the village guards Ethem and Cengiz who had attacked them. Reşit Acar also stated before the public prosecutor that he did not know who had attacked them because their faces had been covered. However, in his statement before the court he said that Cengiz’s face had been completely uncovered, but that Ethem’s face had been covered. The witnesses Salih Akay, Hüseyin Akan and Selim Acar gave no description of the identity of the attackers in their previous statements. Furthermore, those witnesses did not state whether or not the faces of the attackers had been covered. However, in their statements before the court, they gave a detailed account of the events and identified Ethem and Cengiz as the village guards who had opened fire on them.
The
Even assuming that the accused village guards
Cengiz and Ethem were among the group of people who had attacked the
complainants, there was no reasonable explanation as to why some of the village
guards had covered their faces and some had not.
In their statements the non-commissioned
officers Ali Kılıç, Kazım Demirbaş and Arif Güner had said
that they had kept guard together with the accused village guards from
In the ballistic report by the Forensic
Medicine dated
In their submissions the accused village
guards stated that the empty cartridges found at the scene of the crime had
been placed there by their enemies in order to implicate them in the crime. In
fact, on
59. On
60. On
61. On
62. The criminal proceedings
were reopened before the
63. On
“In view of the autopsy reports, there is no
question as to the cause of death of the six villagers. Instead, the question
to be resolved is whether those who fired on the villagers were the accused
village guards.
It is not possible to rely solely on the witness statements as they are contradictory on several points. However the witness statements given during the preliminary investigation seem to be, in general, objective. Relying on these initial statements it is established that the persons who had fired had their faces covered in order not to be recognised. The court is not convinced by the statements in which certain witnesses claimed to have recognised Ethem and Cengiz. Even assuming that Ethem and Cengiz were among those who had fired, there is no reasonable explanation for the fact that they had not covered their faces when everybody else had done so.
Furthermore, in the court’s opinion, what a
commander would normally do when he had been notified of an incident would be to
go to the scene of the incident as soon as possible. However in the present
case, the fact that the non-commissioned officer Ali Kılıç checked
all twenty seven weapons one by one without taking any action is
incomprehensible. Moreover the court notes that the Midyat Public Prosecutor
maintained that the soldiers were not collecting the empty cartridges to help
him and that he had personally to collect the empty cartridges which were near
the dead bodies. In view of the above, the court concludes that Ali
Kılıç, Kazım Demirbaş and Arif Güner were trying to defend
the accused who were working with them to fight against terrorism and it does
not therefore find their statements reliable.
The court notes that the bullets removed from the bodies of Sabri Acar and Reşit Acar, can no longer be used for comparative tests to determine from which of the weapons they had been fired as the bullets in question have oxidised. Furthermore it is not possible to remove the bullet from İbrahim Akan’s body due to medical complications.
Considering the Midyat Public Prosecutor’s statements where he said that there was a smell of gunpowder, the court comes to the conclusion that the allegation concerning the placing of empty cartridges at the scene of the incident, in order to implicate the village guards in the crime, is not corroborated in any persuasive manner by eyewitnesses or other evidence.
Moreover the fact that three of the sixty-six
cartridges were not fired from the village guards’ weapons cannot be taken as a
proof of their innocence. It is possible that one of the village guards had a
weapon that had not been seized by the authorities after the incident.
In conclusion, relying on the findings of the
ballistic report and the statements of the Midyat Public Prosecutor who had an
impartial position in the present case, the court decides that ten of the accused
village guards are responsible for the wounding and killing of the villagers
whom they considered to be PKK supporters.”
64. This decision was
appealed against ex officio pursuant to domestic law.
However the village guards also filed an appeal against the decision of the
first-instance court.
65. On
66. On
II. RELEVANT
DOMESTIC LAW AND PRACTICE
67. The relevant domestic
legislation and practice is outlined in the Court’s Avşar v. Turkey judgment (no. 25657/94, §§ 261-81, ECHR 2001‑VII
(extracts)).
THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 2 OF THE CONVENTION
68. The applicants alleged
that their relatives’ right to life was violated in that they were deliberately
killed by village guards. The applicants, İbrahim Akan and Reşit Acar
further complained that their right to life was violated as the village guards
attempted to kill them. The applicants in addition claimed that the national
authorities failed to comply with their procedural obligations to carry out an
adequate and effective investigation into the killings and attempted killings. They
relied on Article 2 of the Convention which provides:
“1. Everyone’s right to life shall
be protected by law. No one shall be deprived of his life intentionally save in
the execution of a sentence of a court following his conviction of a crime for
which this penalty is provided by law.”
2. Deprivation of life shall not be
regarded as inflicted in contravention of this article when it results from the
use of force which is no more than absolutely necessary:
(a) in defence of any person from
unlawful violence;
(b) in order to effect a lawful
arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for
the purpose of quelling a riot or insurrection.”
A. Submissions
of the parties
69. The Government made no
submissions on the applicants’ complaints under this head on the ground that
the proceedings were still pending before the domestic courts. They only argued
that the length of the criminal proceedings was due to the difficulty in
contacting the victims who lived in different cities and in having them
medically examined.
70. The applicants maintained
that their relatives were deliberately killed by the Kutlubey village guards.
They alleged that they had been continuously intimidated and pressured by the
guards who were attempting to force them to adopt the village guard system in
the
71. They further submitted
that the investigation into the incident did not fulfil the procedural
obligations under Article 2 of the Convention. As the gendarmes who were at the
scene of the incident had not helped the Midyat Public Prosecutor, he was only
able to collect some, but not all, of the empty cartridges. However, if more
empty cartridges had been collected from the scene of the incident, the
ballistic investigation of these cartridges could have revealed the involvement
of more then ten accused village guards in the incident.
B. The
Court’s assessment
1. General
considerations
72. Article 2, which
safeguards the right to life and sets out the circumstances when deprivation of
life may be justified, ranks as one of the most fundamental provisions in the
Convention, to which no derogation is permitted. Together with Article 3, it
also enshrines one of the basic values of the democratic societies making up
the Council of Europe. The circumstances in which deprivation of life may be
justified must therefore be strictly construed. The object and purpose of the
Convention as an instrument for the protection of individual human beings also
requires that Article 2 be interpreted and applied so as to make its
safeguards practical and effective (see McCann
and Others v. the United Kingdom, judgment of 27 September 1995, Series
A no. 324, pp. 45-46, §§ 146-47, and Avşar,
cited above, § 390)
73. In keeping with the
importance of this provision in a democratic society, the Court must, in making
its assessment, subject deprivations of life to the most careful scrutiny,
particularly where deliberate lethal force is used, taking into consideration
not only the actions of State agents who actually administer the force but also
all the surrounding circumstances.
74. The obligation to protect
the right to life under Article 2 of the Convention, read in conjunction with
the State’s general duty under Article 1 of the Convention to “secure to
everyone within [its] jurisdiction the rights and freedoms defined in [the]
Convention”, also requires by implication that there should be some form of
effective official investigation when individuals have been killed as a result
of the use of force (see, mutatis
mutandis, McCann and Others, cited
above, p. 49, § 161, and Kaya
v. Turkey, judgment of 19 February 1998, Reports of Judgments and Decisions 1998‑I, p. 329, § 105).
The essential purpose of such investigation is to secure the effective
implementation of the domestic laws which protect the right to life and, in
those cases involving state agents or bodies, to ensure their accountability
for deaths occurring under their responsibility. What form of investigation
will achieve those purposes may vary in different circumstances (see Avşar, cited above, § 593)
75. For an investigation into
alleged unlawful killing by state agents to be effective, it may generally be
regarded as necessary for the persons responsible for and carrying out the
investigation to be independent from those implicated in the events (see, for
example, Güleç v. Turkey, judgment of
27 July 1998, Reports 1998‑IV, §§
81-82, and Oğur v. Turkey [GC],
no. 21594/93, §§ 91-92, ECHR 1999‑III). The investigation must also
be effective in the sense that it is capable of leading to a determination of
whether the force used in such cases was or was not justified in the circumstances
(for example, Kaya, cited above, p.
324, § 87) and to the identification and punishment of those responsible (Oğur, cited above, § 88). This
is not an obligation of result, but of means. The authorities must have taken
the reasonable steps available to them to secure the evidence concerning the
incident, including inter alia eye
witness testimony, forensic evidence, and where appropriate, an autopsy which
provides a complete and accurate record of injury and an objective analysis of
clinical findings, including the cause of death (see concerning autopsies, for
example, Salman v. Turkey [GC],
no. 21986/93, § 106, ECHR 2000‑VII; concerning witnesses, for example, Tanrıkulu v. Turkey [GC], no.
23763/94, § 109, ECHR 1999‑IV; concerning forensic evidence, for
example, Gül v. Turkey,
no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation
which undermines its ability to establish the cause of death or the person
responsible will risk falling foul of this standard (see Avşar, cited above, § 594).
76. There must also be a
requirement of promptness and reasonable expedition implicit in this context
(see Yaşa v. Turkey, judgment of
2. Applicability
of Article 2 of the Convention in the case of the applicants İbrahim Akan
and Reşit Acar
77. The Court observes in the present case that the applicants İbrahim Akan and Reşit Acar were wounded during the incident. Thus the force used against these applicants was not, in the event, lethal. While this does not exclude an examination of the complaint under Article 2, the Court has held that it is only in exceptional circumstances that physical ill-treatment by State officials which does not result in death may disclose a violation of that Article, complaints of such ill-treatment falling to be examined in general under Article 3. In this regard, the degree and type of force used and the intention or aim behind the use of force may, among other factors, be relevant in assessing whether in a particular case the State agents’ actions in inflicting injury short of death are such as to bring the facts within the scope of the safeguard afforded by Article 2 of the Convention, having regard to the object and purpose pursued by that Article (İlhan v. Turkey [GC], no. 22277/93, § 76, ECHR 2000‑VII).
78. What the Court must therefore
determine in the present case is whether the force used against the applicants
was potentially lethal and what kind of impact the conduct of the village guards
concerned had not only on their physical integrity but also on the interest
which the right to life is intended to protect (see, mutatis mutandis, Makaratzis v. Greece [GC],
no. 50385/99, § 52, 20 December 2004).
79. It is established that
the two applicants were wounded in the course of a sustained and lethal attack
with firearms which resulted in the death of eight of their fellow villagers.
In these circumstances, and in particular the degree and type of force used,
the Court concludes that, the applicants were the victims of conduct which, by
its very nature, put their lives at grave risk, even though, in the event, they
survived. Article 2 of the Convention is thus applicable in the instant case to
the applicants İbrahim Akan and Reşit Acar.
3. Concerning
the killing of the applicants’ relatives and the wounding of İbrahim Akan
and Reşit Acar
80. The Court does not
consider it necessary to verify the facts itself in order to draw a complete
picture of the factual circumstances surrounding the incident. It observes that
there was a judicial determination of the facts of the instant case at domestic
level (paragraph 63 above) 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 (see Klaas v.
Germany, judgment of 22 September 1993, Series A no. 269, pp. 17-18,
§ 30, and Makaratzis, cited above, §
47).
81. Therefore, even if
certain facts remain unclear, the Court considers, in the light of all the
material produced before it, that there is 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.
82. It is 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. On 25 May 2003, following the Court of
Cassation’s decision to quash the decision to acquit the accused, the Denizli
Assize Court, relying on the findings of the ballistic reports and the
statements of the witnesses, convicted ten of the accused village guards and
sentenced them to life imprisonment (paragraph 63 above). The convictions
of eight of the village guards were upheld by the Court of Cassation (paragraph
66 above).
83. The question arises
however whether the Government may be held responsible for the deaths and
unlawful wounding. The Court notes that the village guards enjoy an official
position, with duties and responsibilities. They are accountable
administratively to the village muhtar
and subject to his supervision. Their salaries, aids and indemnities for
service are paid by the Ministry of Interior. Occupationally, guards are under
the command of the gendarme commander. Resistance to them is 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, have the same powers and responsibilities as those entrusted to that unit
(see the description of the role, functions and duties of village guards in the
Avşar judgment, cited above, §§
271-81).
84. In that context, the
Court has already found that there was a risk attached to the use of civilian
volunteers in a quasi-police function. It held in this regard that it is 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, is 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 (see, mutatis
mutandis, Avşar, cited
above, §§ 413-14).
85. In the particular context
of the present case, the Court recalls in addition that, according to the
Midyat Public Prosecutor’s statements, the gendarmes did not help him to
collect the empty cartridges at the site of the incident (paragraph 41 above).
Furthermore the
86. In these circumstances,
the Court finds that the State must 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 concludes that there has accordingly been a breach of Article 2 in this
respect.
4. As
regards the alleged failure to carry out an adequate investigation into the
incident
87. The Court notes that a
preliminary investigation was initiated by the Midyat Public Prosecutor as well
as by the police officer Hüseyin Coşar immediately after the incident
(paragraphs 13, 14 and 16 above). However, despite the seriousness of the
incident and the necessity to gather and record the evidence which would help
to shed light on the facts of the incident, there were a number of omissions.
88. Due to the gendarmes’
failure to assist the Midyat Public Prosecutor to collect the empty cartridges,
only sixty six cartridges were collected from the scene of the incident and
sent for ballistics examination (paragraph 41 above). By relying on the
findings of the ballistics report dated
89. The Court is of the opinion that the above elements disclose a significant defect in the reliability and thoroughness of this part of the investigation. It has therefore examined whether this was remedied by the investigation conducted by the assize courts during the criminal proceedings.
90. The Court recalls that in
the normal course of events, a criminal trial, with an adversarial procedure
before an independent and impartial judge must be regarded as furnishing the
strongest safeguards of an effective procedure for the finding of facts and the
attribution of criminal responsibility (see McKerr v. the United Kingdom, no.
28883/95, § 134, ECHR 2001‑III). Nonetheless, it cannot be excluded,
for example, that defects in an investigation may fundamentally undermine the
ability of a court to determine responsibility for a death (see Salman, cited above, §§ 106-09
concerning inadequate autopsy procedures, and Kılıç v. Turkey,
no. 22492/93, §§ 79-83, ECHR 2000‑III where there was no evidence
presented to the trial court linking the suspect to the killing). However in
the present case, suspects were prosecuted and ten of them were consequently
convicted. Although the proceedings are still pending against two village
guards (paragraph 66 above), it cannot therefore be claimed that the
preliminary investigation proved incapable of identifying and prosecuting the
perpetrators of the killings.
91. Nevertheless the Court
notes important shortcomings in the conduct of the criminal proceedings. In
particular, it considers that once the case was before the criminal court, the
steps taken by the court were half hearted and dilatory. The Court notes the
following in this regard:
(i) The criminal proceedings began
on
(ii) Despite the persistent
requests by both the
(iii) There were six victims each
with a bullet lodged in their bodies. Despite the decisive role of this
evidence for the case, only three of these six bullets were removed. İbrahim
Akan was not operated on as the court was unable to ascertain his address. On
the other hand there is no satisfactory explanation as to the reason for not
removing the bullets found in Salih Acar and Erdal Acar’s bodies.
(iv) The ballistic examination of
the bullets removed from the victims’ bodies was of crucial importance for
establishment of the facts in the present case. However, by the time the
bullets removed from Reşit Acar and Sabri Acar’s bodies reached the
laboratory, they were oxidised as they had not been preserved under adequate
conditions. Thus, the laboratory concluded that these bullets could no longer
be used for comparative tests (paragraph 45 above).
(v) The bullet which was removed
from the deceased Hasan Akay’s body during his autopsy was never sent to the
Forensic Medicine Institute for a ballistic examination (paragraph 22 above).
(vi) On
92. Although the case is still pending in respect of two of the village guards, the Court is not persuaded that, after twelve years and in light of the shortcomings occurring during the preliminary investigation, these proceedings are capable of remedying the defects in the investigation, in particular by clarifying or improving the evidence available.
93. Having regard therefore
to the duration and serious shortcomings of the criminal investigation and
trial proceedings in this case, the Court concludes that there has been a
breach of the State’s procedural obligation under Article 2 of the Convention.
94. It consequently holds that there has been a violation of Article 2 in this respect.
II. ALLEGED
VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION
95. The applicants complained
of the excessive length of the proceedings before the national courts which was
in violation of Article 6 of the Convention that provides as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal...”
96. Moreover the applicants
in application no. 38417/97 complained that there exists in
“Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been committed by
persons acting in an official capacity.”
97. The applicants maintained
that Article 6, which guarantees the right of everyone to a fair trial within a
reasonable time, extended to the applicants who had exercised their right to intervene
in the proceedings. They complained that the trial into killing of their
relatives that had lasted already over twelve years was still pending before
the Court of Cassation and that this could not be justified either by the
complexity of the case or by their conduct.
98. The Government considered
that their response had to be limited by the constraints of the ongoing
criminal proceedings in the case. However, they pointed out that the case was
particularly complex. They submitted that the very serious nature of the facts
had justified handling the proceedings in a special way, which had contributed
to their prolongation. The Government observed that the proceedings were not
concluded rapidly owing to the difficulties in contacting the accused, as well
as the complainants, who were living in different cities. Furthermore, it had
been deemed necessary to transfer the case to a different court out of concern
for the “proper administration of justice”.
99. The Court observes that
the applicants’ grievance under Article 6 § 1 of the Convention is
inextricably bound up with their more general complaint concerning the manner
in which the investigating authorities treated the death of the applicants’
relatives and the repercussions which this had on access to effective remedies
which would serve to redress the grievances they had as a result of the
incident. It is accordingly appropriate to examine the applicants’ Article 6
complaint in relation to the more general obligation on Contracting States
under Article 13 of the Convention. Given the fundamental importance of the
right to protection of life, Article 13 requires, in addition to the
payment of compensation where appropriate, a thorough and effective investigation
capable of leading to the identification and punishment of those responsible
for the deprivation of life and including effective access for the complainant
to the investigation procedure (see Kaya,
cited above, pp. 330-31, § 107).
100. On the basis of the
evidence adduced in the present case, the Court has found that the Government
are responsible under Article 2 of the Convention for the death of the
applicants’ relatives and the attempt to kill two applicants.
101. The Court observes that although soon after the incident a preliminary investigation was carried out under the authority of the public prosecutor, there were a number of shortcomings in the criminal proceedings. The Court particularly points out that almost twelve years after the incident the criminal proceedings had not been concluded, despite the fact that some of the accused village guards had been identified by the witnesses. For the reasons set out above (paragraphs 87 to 94 above) no effective criminal investigation can be considered to have been conducted which could satisfy Article 13, the requirements of which are broader than the obligation to investigate imposed by Article 2 (see Kaya, cited above, pp. 330-31, § 107).
102. The Court finds
therefore that in the present case the applicants have been denied an effective
remedy in respect of their complaints under Article 2 of the Convention
and thereby access to any other available remedies at their disposal, including
a claim for compensation.
103. Consequently, there has
been a violation of Article 13 of the Convention.
III. ALLEGED
VIOLATION OF ARTICLE 8 OF THE CONVENTION
104. The applicants
complained that their right to respect for their private and family life was
violated as they had been compelled to leave their village following alleged
pressure from the security forces. They rely on Article 8 of the Convention,
which provides as follows:
“1. Everyone has the right to
respect for his private and family life, his home and his correspondence.
2. There shall be no interference
by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health
or morals, or for the protection of the rights and freedoms of others.”
105. Referring to the
statement of one of the applicant’s relatives (paragraph 52 above) the
Government argued that the applicants had not been intimidated by the security
forces or the village guards and that they had not been compelled to leave
their village.
106. The Court has examined
the applicants’ allegations in the light of the evidence submitted to it, but
considers that it does not have a sufficient factual basis on which to reach a
conclusion that there has been a violation of Article 8 of the Convention.
IV. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
107. Article
41 of the Convention provides:
“If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary
damage
108. The applicant Selime
Akay, the wife of the deceased Hasan Akay, claimed damages on her behalf and on
behalf of her seven children, who were aged between 1 and 12 years at the time
of the incident. She maintained that they were dependent on Hasan Akay as
husband and father. He was supporting his family by working as a farmer and a
truck driver. Having regard to the legal minimum wage, the applicable interest
rate and the exchange rate into US dollars (USD) the applicant Selime Akay
claimed the sum of USD 31,409. Furthermore in respect of the deprivation of
property and their expenditure on alternative accommodation in another city,
the applicant requested USD 15,785.
109. The applicant
Hanıme Ağırman, the wife of the deceased Mehmet
Ağırman, claimed damages on her behalf and on behalf of her six
children, who were aged between 1 and 11 years old at the time of the incident.
She submitted that her deceased husband was supporting his family by working as
a farmer and a minibus driver. Having regard to the legal minimum wage, the
applicable interest rate and the exchange rate into US dollars, Hanıme
Ağırman claimed the sum of USD 31,041. Moreover, in respect of the deprivation
of property and expenditure on alternative accommodation in another city, the
applicant requested USD 11,285.
110. The applicant Osman
Acar, the brother of the deceased İsmet Acar claimed damages on his
behalf, on behalf of İsmet Acar’s wife and his six children, aged between
1 to 11 years at the time of the incident.
The applicant maintained that although he
was living in
111. The applicant Cihan
Akan, the wife of the deceased Abdülkadir Akan, claimed damages on her behalf
and on behalf of her four children, who were aged between 1 and 5 years at the
time of the incident. She submitted that his deceased husband was supporting
his family by working as a farmer. Having regard to the applicable exchange
rate into US dollars and the legal minimum wage, Cihan Akan claimed the sum of
USD 30,605. In respect of the deprivation of property and expenditure on
alternative accommodation in another city, the applicant requested USD 15,785.
112. The applicant Elife Akalan (Acar), the daughter of the deceased Mehmet Emin Acar, claimed damages on her behalf and on behalf of her mother and brothers, who were aged between 1 and 12 years, at the time of the incident. She submitted that her deceased father was supporting his family by working as a farmer and a truck driver. Having regard to the applicable interest rate and exchange rate into US dollars and the legal minimum wage, Elife Akalan claimed the sum of USD 26,301. Furthermore, in respect of the deprivation of property and expenditure on alternative accommodation in another city, the applicant requested USD 15,785.
113. The applicant Mehmet Ali
Akan, who was aged 11 at the time of the incident, is the son of the deceased
Mehmet Akan. He claimed damages on his behalf and on behalf of his father’s
heirs. He submitted that his deceased father was supporting his family by
working as a farmer. Considering that he was the only one in the family who was
a minor at the time of the incident and therefore dependent on his father, he
claimed damages for his loss of potential financial support. Having regard to
the legal minimum wage, the applicable interest rate and the exchange rate into
US dollars he claimed the sum of USD 295 on behalf of himself and the rest of
his deceased father’s heirs. Furthermore in respect of their losses in respect
of deprivation of property and expenditure on alternative accommodation in
another city, the applicant requested USD 15,785.
114. The applicant Hüseyin
Akan who is also the son of the deceased Mehmet Akan, survived the incident
without sustaining any injuries. In respect of his expenses of settling in a
different city, the applicant requested USD 3,000.
115. The applicant İbrahim
Akan, was injured during the incident and he still has a bullet in his body.
Having regard to his medical expenses, the applicant claimed the sum of USD 3,000.
Moreover, in respect of the deprivation of property and his expenditure on
alternative accommodation in another city, the applicant requested USD 15,785.
116. The applicant Reşit
Acar, who lost one of his legs due to the injury that he sustained during the
incident, has a 35% reduction in his working capacity. Having regard to his
medical expenses and his disability to work, the applicant claimed the sum of USD
24,893. Moreover, in respect of his expenditure on alternative accommodation in
another city, the applicant requested USD 15,785.
117. The applicant Mehmet
Akay, who is the brother of deceased Hasan Akay, was slightly injured during
the incident. In respect of his expenditure on alternative accommodation in
another city the applicant requested USD 3,000.
118. The Government contended that the applicants had failed to submit any evidence in support of their claims. They maintained that the claims were exaggerated.
119. The Court recalls that
there must be a causal connection between the damage alleged by the applicants
and violation of the Convention found and that this may, if appropriate, include
compensation in respect of loss of earnings (see, amongst other authorities, Barberà, Messegué and Jabardo v. Spain (Article 50), judgment of 13
June 1994, Series A no. 285‑C, pp. 57‑58, §§ 16-20, and Salman, cited above, § 137).
120. The Court has held (paragraph 86 above) that the authorities were responsible under Article 2 of the Convention for the death of the applicants’ relatives and for the injuries to two of the applicants. It considers that there is a direct causal link between the violation of Article 2 and the loss of potential financial support which the victims had been providing to their widows and children. The Court recognises that if they were still alive they would have had the possibility of contributing to their family’s livelihood.
121. In view of the documents
submitted by the applicants in support of their claims and having regard to
equitable considerations, the Court awards the applicants the following amounts
in respect of pecuniary damage:
(a) 24,000
euros (EUR) to Selime Akay and her seven children;
(b) EUR 23,500
to Hanıme Ağırman and her six children;
(c) EUR 18,000
to be held by Osman Acar for İsmet Acar’s widow and his six children;
(d) EUR 23,000
to Cihan Akan and her four children;
(e) EUR 23,000
to Elife Akalan (Acar) and her eight children;
(f) EUR 200
to Mehmet Ali Akan;
(g) EUR 19,000
to Reşit Acar.
122. The Court further notes
that although it is established that the applicant İbrahim Akan was
injured during the incident, as his medical expenses are not substantiated, it
decides not to award him any compensation for his pecuniary damages.
123. As to the applicants’
claim in respect of the deprivation of their property and expenditure on
alternative accommodation in another city, the Court recalls that it has found
an insufficient factual basis to support a finding of a violation of the
Convention on this ground (paragraph 106 above). Accordingly it rejects
the applicants’ claims in this regard.
B. Non-pecuniary
damage
124. The applicant Selime
Akay claimed non-pecuniary damages of USD 100,000 for herself as the wife of
Hasan Akay and for their seven children.
The applicant Hanıme Ağırman claimed non-pecuniary damages of USD 100,000 for herself as the wife of Mehmet Ağırman and for their six children.
The applicant Osman Acar claimed non-pecuniary damages of USD 110,000 for himself as the brother of İsmet Acar and for the deceased’s wife and six children.
The applicant Cihan Akan claimed
non-pecuniary damages of USD 110,000 for herself as the wife of Abdülkadir
Akan and for their four children.
The applicant Elife Akalan (Acar) claimed
non-pecuniary damages of USD 100,000 for herself as the daughter of Mehmet
Emin Acar and for her mother and seven brothers.
The applicant Mehmet Ali Akan claimed non-pecuniary
damages of USD 100,000 for himself as the son of Mehmet Akan and for his
mother and six brothers.
The applicant Hüseyin Akan claimed non-pecuniary
damages of USD 10,000 for himself.
The applicant İbrahim Akan claimed the
sum of USD 30,000 by way of compensation for non-pecuniary damage, having
regard to the suffering he endured because of the injuries he sustained during
the incident.
The applicant Reşit Acar claimed the sum
of USD 50,000 by way of compensation for non-pecuniary damage, having regard to
the suffering he endured because of the injuries he sustained during the
incident and the resultant loss of his leg.
The applicant Mehmet Akay claimed
non-pecuniary damages of USD 10,000 for himself.
125. The Government contended
that the amounts claimed were excessive.
126. The Court recalls that
it has found that the authorities were responsible for the incident which
resulted in the wounding of some of the applicants and the killing of their
relatives. In addition to violations of Article 2 in that respect, it has
also found that the authorities failed to provide an effective investigation and
remedy in respect of these matters in breach of the procedural obligation under
Article 2 and in breach of Article 13 of the Convention. In these
circumstances and having regard to the awards made in comparable cases, the
Court awards on an equitable basis the sum of EUR 30,000 for non-pecuniary
damage to each of the following five applicants: Selime Akay, Hanıme
Ağırman, Cihan Akan, Elife Akalan and Mehmet Ali Akan.
The Court also awards on an equitable basis
the sum of EUR 26,000 for non-pecuniary damage to be held by the applicant
Osman Acar for İsmet Acar’s widow and children. It recalls that the
applicant Osman Acar, living in
Having regard to all the circumstances of the
present case, the Court accepts that the applicants Reşit Acar,
İbrahim Akan and Mehmet Akay have suffered non-pecuniary damage which
cannot be compensated solely by the findings of violations. Making its
assessment on an equitable basis, the Court awards Reşit Acar EUR 20,000, İbrahim
Akan EUR 10,000 and Mehmet Akay EUR 5,000. As to the claim of Hüseyin
Akan, the Court observes that the applicant is the son of Mehmet Akan, in
respect of whose death an award for non-pecuniary damage has already been made
to Mehmet Ali Akan, who claimed on behalf of his mother and his six brothers,
including Hüseyin Akan. Accordingly, no additional award is made to Hüseyin
Akan under this head.
B. Costs
and expenses
127. The applicants claimed a
total of USD 9,800 for fees and costs in the preparation and presentation of
their case before the Convention institutions. This included costs incurred by
their representatives (USD 9,000 for approximately 90 hours’ legal work)
and expenses such as telephone calls, postage, photocopying, stationery,
transportation and expert’s fee (USD 800).
128. The Government submitted
that the claims were excessive and unsubstantiated. They argued that no receipt
or any other document had been produced by the applicants to prove their
claims.
129. The Court will make an award in respect of costs and expenses in so far as these were actually and necessarily incurred and were reasonable as to quantum (Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). Making its own estimate based on the information available, the Court considers that the claims made in respect of administrative costs and expenses may be regarded as having been necessarily incurred and reasonable in their amounts.
130. In the light of the
foregoing, the Court awards the sum of EUR 7,400, less the sum of EUR 762
(formerly equivalent to 5,000 French Francs) received in way of legal aid
from the Council of Europe.
C. Default
interest
131. The Court considers it
appropriate that the default interest should be based on the marginal lending
rate of the European Central Bank, to which should be added three percentage
points.
FOR THESE
REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 2 of the
Convention in respect of the death of the applicants’ relatives and the
wounding of İbrahim Akan and Reşit Acar;
2. Holds that there has been a violation of Article 2 of the
Convention in that the authorities failed to carry out an adequate and
effective investigation into the said deaths and wounding;
3. Holds
that it is not necessary to consider the applicants’ complaint under Article 6
§ 1 of the Convention;
4. Holds that there has been a violation of Article 13 of the
Convention;
5. Holds that there has been no violation of Article 8 of the
Convention;
6. Holds
(a) that the respondent State is
to pay the applicants, within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the Convention, the following
amounts to be converted into Turkish liras at the rate applicable at the date
of settlement and paid to the applicants’ bank account in Turkey:
– in
respect of damages,
(i) to Selime Akay EUR 24,000 (twenty-four thousand euros) in respect of pecuniary damage and EUR 30,000 (thirty thousand euros) for non-pecuniary damage;
(ii) to Hanıme Ağırman EUR 23,500 (twenty-three thousand five hundred euros) in respect of pecuniary damage and EUR 30,000 (thirty thousand euros) for non-pecuniary damage;
(iii) to Osman Acar EUR 18,000 (eighteen thousand euros) in respect of pecuniary damage, and for non-pecuniary damage EUR 26,000 (twenty six thousand euros) to be held for the heirs of İsmet Acar as well as EUR 4,000 (four thousand euros) for himself;
(iv) to Cihan Akan EUR 23,000
(twenty-three thousand euros) in respect of pecuniary damage and EUR 30,000
(thirty thousand euros) for non-pecuniary damage;
(v) to Elife Akalan (Acar) EUR
23,000 (twenty-three thousand euros) in respect of pecuniary damage and EUR
30,000 (thirty thousand euros) for non-pecuniary damage;
(vi) to Mehmet Ali Akan EUR 200 (two hundred euros) in respect of pecuniary damage and EUR 30,000 (thirty thousand euros) for non-pecuniary damage;
(vii) to İbrahim Akan EUR 10,000 (ten thousand euros) for non-pecuniary damage;
(viii) to Reşit Acar EUR 19,000 (nineteen thousand euros) in respect of pecuniary damage and EUR 20,000 (twenty thousand euros) for non-pecuniary damage;
(ix) to Mehmet Akay EUR 5,000
(five thousand euros) in respect of non-pecuniary damage;
– in
respect of cost and expenses,
EUR 7,400 (seven thousand four hundred
euros) minus EUR 762 (seven hundred sixty-two euros) paid by the Council
of Europe by way of legal aid, to all applicants jointly;
– plus any tax that may be
chargeable on the above amounts;
(b) that from the expiry of the
above-mentioned three months until settlement simple interest shall be payable
on the above amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicants’ claim for just
satisfaction.
Done in
English, and notified in writing on
Michael O’Boyle Nicolas
Bratza
Registrar President