SECOND
SECTION
CASE OF KOKU v.
(Application no. 27305/95)
JUDGMENT
31 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 Koku v.
The European Court of Human Rights
(Second Section), sitting as a Chamber composed of:
Mr J.-P. Costa,
President,
Mr A.B. Baka,
Mr K. Jungwiert,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
judges,
Mr F. Gölcüklü,
ad hoc judge,
and Mrs S. Dollé,
Section Registrar,
Having deliberated in private on
Delivers the following judgment, which
was adopted on that date:
PROCEDURE
1. The case originated in an
application (no. 27305/95) against the
2. The applicant was
represented by Dr Anke Stock, a lawyer practising in
3. The applicant alleged, in
particular, that his brother had been taken into police custody and had been
subjected to inhuman and degrading treatment before being killed by agents of
the State. He invoked Articles 2, 3, 5, 6, 13 and 14 of the Convention.
However, in his observations on the merits, the applicant asked the Court to
consider his Article 6 complaints under Article 13 of the Convention.
4. The application was
transmitted to the Court on
5. The application was
allocated to the First 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 Rıza Türmen, the judge elected in respect of
6. By a decision of
7. The applicant, but not the
Government, filed observations on the merits (Rule 59 § 1).
8. On
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant, a Turkish
citizen of Kurdish origin, was born in 1963 and lives in the
A. Introduction
10. The facts of the case,
particularly concerning events which occurred between
11. The facts as presented by
the applicant are set out in Section B below (paragraphs 12-41). The Government’s
submissions concerning the facts are summarised in Section C below (paragraphs 42-58).
The documentary evidence submitted by the applicant and the Government is
summarised in Sections D (paragraphs 59-87) and E (paragraphs 88-93) respectively.
B. The applicant’s submissions on the
facts
12. The
applicant’s brother, Hüseyin Koku, was born in the town of
13. Hüseyin
Koku and his family were active in local politics in Elbistan. Hüseyin became
an active member of the pro-Kurdish Democracy Party (DEP). Following the
closure of DEP by the
14. At
the end of March 1994, or the beginning of April 1994, Hüseyin Koku was
arrested, taken into custody and placed in detention on remand. He was accused
of membership of, and helping and abetting, the Kurdistan Workers’ Party (PKK).
During his time in prison he was kept blindfolded, given electric shocks,
subjected to falaka and to
Palestinian hanging, hosed down with ice cold water, deprived of water and
sleep and beaten with truncheons and iron bars. On
15. As
a prominent local HADEP politician, Hüseyin Koku was the subject of harassment
and intimidation by the police, and, in particular, by the Governor of
Elbistan, Mr Şükrü Görücü. Mr Görücü threatened to kill him and
alleged that he was a traitor to the State and further alleged that HADEP was a
terrorist party. Mr Görücü also told Hüseyin Koku that “he would be removed
quickly”. Hüseyin took this threat seriously and discussed it with other HADEP
party officials. In an article published in the Özgür Ülke newspaper on
16. At
this time, Hüseyin Koku was also regularly followed by plain-clothes police
officers and received anonymous telephone calls and threats. Another brother of
Hüseyin’s and the applicant’s, Ali Koku, who worked closely with Hüseyin for
HADEP, left
17. On
or about 17 October 1994, a number of Kurds from the Cumhuriyet neighbourhood
in Elbistan went to the local HADEP office and informed HADEP officials that
plain-clothes security forces were painting red crosses on houses belonging to
Kurdish families in the neighbourhood and were taking down house numbers and
personal details of everyone in the area. This was of concern to the families
because there had been a massacre of Alevi Kurds in Kahramanmaraş in the
late 1970s, prior to which houses had been marked in a similar way. Hüseyin
Koku made a statement about this to the Özgür
Ülke newspaper.
18. On
the following day, that is on
19. On
20. Another
eye-witness to the abduction was Mr Bulut Yılmaz who was also active
within the HADEP party in Elbistan at this time and who knew Hüseyin well. Mr
Yılmaz recognised one of the plain-clothes police officers as one who had
previously confiscated newspapers from his shop.
21. Later
on
22. On
23. Ali
Koku accompanied Fatma Koku to five or six police stations in Elbistan shortly
after the abduction, but at each station they were told that Hüseyin Koku was
not being detained there.
24. On
25. On
26. Also
on
27. On
28. One
evening on or about
29. Fatma
Koku and other family members went to meet with Şükrü Görücü, but he
provided them with no information about Hüseyin Koku’s whereabouts and instead
he insulted and threatened Fatma.
30. Following
Hüseyin Koku’s abduction, Mustafa Yeter and Hasan Güner were made temporary
leaders of HADEP’s Elbistan branch. They were later arrested and subjected to
torture. Mr Yeter was threatened by the police not to talk about Hüseyin Koku’s
case or to ask further questions about him or highlight the case abroad. He was
told to resign or he would suffer the same fate as others.
31. On
32. On
or about 27 April 1995 Fatma Koku was informed by the police that a body had
been found near the town of Pötürge, in Malatya province, about 150 kilometres
from Elbistan. Fatma and members of the Koku family went to Pötürge to see the
decapitated body of Hüseyin Koku, which had been separated into three or four
pieces. Most of the body was in a state of decomposition.
33. The
Pötürge Prosecutor took statements from the Koku family members present. The
security forces told the relatives that an autopsy would be carried out within
15 days and that the body would be released afterwards.
34. On
35. On
36. According
to the autopsy report drawn up by the Forensic Medicine Directorate on
37. In
July 1995 Fatma Koku was summoned to the police station and was asked about the
petitions she had made in respect of her husband. While at the police station,
she signed a document which she believed confirmed that she had submitted those
petitions.
38. The
Koku family have not been informed by the Prosecutor or any other official
about any investigation being undertaken into her husband’s disappearance and
murder.
39. On
40. The
applicant kept in contact with Mr Mehmet Kaya, another member of HADEP’s
Elbistan branch, throughout this period. Mr Kaya told the applicant in 1996
that HADEP would be making a statement about the abduction and murder of his
brother during the forthcoming annual general meeting of HADEP. Mr Kaya and two
other local HADEP politicians were shot and killed on their way back from that
annual general meeting.
41. The
applicant took up the matter with various international organisations,
including Amnesty International. He sought advice from his MEP, Mr Alf Lomas,
who petitioned the European Parliament concerning Hüseyin Koku’s death. At this
time, while making telephone calls to
C. The Government’s submissions on
the facts
42. The Court notes that the
Government did not submit observations on the merits of the case (see paragraph
7 above). The following submissions are therefore taken from the observations
submitted to the Commission on
43. According
to the Government, the authorities first became aware of the disappearance of
Mr Hüseyin Koku on
44. On
45. Also
on 7 November 1994 the Police Headquarters informed the Deputy Governor that
Hüseyin Koku had not been detained by them on or around 20 October 1994.
46. On
47. On
48. On
49. On
26 June 1995 the Chief Public Prosecutor of Elbistan sent to the Ministry of
Justice’s International Law and Foreign Relations Directorate (hereinafter “the
Directorate”) a letter in which reference was made to information sent to the
Ministry previously. This letter informed the Directorate of the discovery of
Hüseyin Koku’s body, together with three keys, on
50. In
view of the contents of the briefcase, it had been established that Hüseyin
Koku was conducting an extramarital affair with a certain C.E., who was a
married woman. Adultery being an offence at the relevant time, C.E.’s husband
had made a complaint to the authorities against Hüseyin Koku which had resulted
in a decision not to prosecute, taken by the Elbistan Prosecutor on
51. The
Chief Public Prosecutor further referred to a statement taken from Ahmet Güzel,
Fatma Koku’s brother, by the Pötürge Prosecutor on
52. The
Chief Public Prosecutor, taking into account the above information, concluded
in his letter to the Directorate that the death of Hüseyin Koku was closely
connected to his extra-marital affair with C.E.
53. According
to the autopsy report of
54. In
a letter of
55. On
56. On
57. A
letter drawn up on
58. In
their additional observations submitted to the Commission on
D. Documentary evidence submitted by
the Government
59. The following information appears from the documents
submitted by the Government.
60. Pursuant to an interim
decision adopted by the Malatya State Security Court (hereinafter “the Malatya
Court”) on 10 May 1994, the applicant’s brother, Hüseyin Koku, was released
from prison pending the outcome of criminal proceedings brought against him on
account of his alleged PKK membership and on suspicion of aiding and abetting
that organisation.
61. On
62. At 1 p.m. on 26 April
1995 Emin Ziya Kekeç, a village guard, informed the commander of the Tepehan
Gendarme Station of his discovery of a dismembered body in a location near
Arguça hamlet of Sinan village, situated within the administrative jurisdiction
of the town of Pötürge. The commander of the Tepehan Gendarme Station, together
with a number of soldiers under his command, went to the location where the
body had been found by Mr Kekeç. They were unable to find any bullets at
the scene.
63. Mr Zeki Polat, the
Prosecutor of the town of
64. A wallet, found in the deceased’s jacket pocket, contained an electricity bill and a piece of scrap paper. Noting that these papers were very wet and risked being torn, a decision was taken to read them at a later stage when they were dry. A key for a door lock, a small, rusty flick-knife and two rusty telephone tokens were also found in the jacket pocket.
65. Dr Kağan Denge and
Dr Naim Özata, who had arrived at the scene together with the Prosecutor,
detailed their findings in a report drawn up during the examination of the
body. According to this report, the body was badly decomposed and body parts
and bones were lying around. The head was missing. Bones had been scattered
around the body, possibly by wild animals. The examination carried out on the
body parts did not reveal any firearm injuries. The internal organs had all
disappeared. The doctors were unable to establish the cause of death and a
decision was therefore taken to send the remains of the body to the Forensic
Medicine Directorate in
66. On
67. On 28 April 1995 Fatma
Koku examined the clothes found on the body and concluded that they belonged to
her husband Hüseyin Koku. The Pötürge Prosecutor then sent the remains of the
body, together with the reports drawn up at the site where it had been found,
to the Forensic Medicine Directorate and asked for the cause of death to be
established.
68. Also on
69. On
70. Later that same day, the
Pötürge Prosecutor and Dr Denge visited the area and examined the bones found
by the soldiers earlier that day. Dr Denge observed that the posterior
part of the skull had a bullet entry, measuring 1 x 1 centimetre. This bullet
had also caused a fracture in the skull. The Prosecutor forwarded the skull
pieces to the Forensic Medicine Directorate in
71. Between 28 and
72. On
73. On
74. On 26 May 1995 the
Pötürge Prosecutor, Zeki Polat, sent a letter to his colleague in the town of
Elbistan, stating that, in his opinion, the affair Hüseyin Koku had being
conducting with C.E. could be connected with his death in October 1994. Mr
Polat asked the Elbistan Prosecutor to take statements from members of C.E.’s
family who lived in the town of
75. The Pötürge Prosecutor
also sent a letter to the Forensic Medicine Directorate on
76. On
77. On
78. On
79. In a letter of
80. On
81. On
82. On
83. The following day Mr
Dalkılıç had been summoned to the gendarme station where he was
questioned about what he and his wife had witnessed the previous day. He had
heard at a later date that the soldiers had gone to the area to look for the
three men but that they were unable to find them.
84. At
85. Also on
86. On
(a) a letter sent to the Elbistan
Prosecutor by the Directorate on
(b) a letter sent by the Elbistan
Prosecutor on
(c) a letter sent by the
Prosecutor’s office at the
(d) a letter sent by the
Directorate on
(e) a reply given on
(f) a letter sent by the Directorate
on
(g) a letter sent by the Elbistan
Prosecutor on
87. On
E. Documentary evidence submitted by
the applicant
88. The following information
appears from the documents submitted by the applicant.
89. On
90. Mrs Koku’s petition was
accepted by the Prosecutor the same day. On the petition the Prosecutor wrote
his instructions according to which “[Hüseyin Koku] should be searched for in
the places where he may be”. It also appears that this petition and the
instructions were forwarded to the Elbistan Police Headquarters the same day.
91. On
92. Mr Bulut Yılmaz sent
three letters to the applicant’s lawyers in which he described his eye-witness
account of the abduction of Hüseyin Koku on
93. The applicant submitted to the Court a chronology
of incidents, listing attacks against representatives of pro-Kurdish political
parties, in particular the People’s Labour Party (HEP), DEP and HADEP, between
1990 and 2001. This chronology lists a large number of attacks against members
of these pro-Kurdish political parties who either died or were left injured as
a result. It also lists armed attacks and bombings, etc. against the premises
of these parties. According to the list, over sixty politicians belonging to
the above mentioned political parties have been murdered between the entry into
the Parliament of HEP in 1990 and the abduction of Hüseyin Koku in October
1994.
II. RELEVANT DOMESTIC LAW AND
PRACTICE
94. The relevant domestic law
and practice are set out in the judgment of Tepe v. Turkey (no.
27244/95, §§115-122,
THE LAW
I. THE GOVERNMENT’S PRELIMINARY
OBJECTION
95. The Government, not
having submitted any observations on the merits (see paragraph 7 above), have
not made any preliminary objections as such. However, the Court recalls
that, in its decision on admissibility of the application of
96. The Court considers it appropriate to address this point in its
examination of the substance of the applicant’s complaint under Article 2 of
the Convention below (paragraphs 147-160).
II. THE COURT’S ASSESSMENT OF
THE EVIDENCE AND ESTABLISHMENT OF THE FACTS
A. Arguments of the parties
1. The
applicant
97. The
applicant submitted that there was reliable eye-witness evidence that Hüseyin
Koku had been abducted from the centre of Elbistan in October 1994 by armed
police officers. In support of his allegation, the applicant referred, inter alia, to the eye-witness accounts provided
by Fatma Koku and Bulut Yılmaz who had seen Hüseyin being taken away by
plain‑clothes police officers in a white Renault (see paragraphs 19 and 92 above) – a make of car which, according
to the applicant, has frequently been identified in the Turkish cases before
the Commission and the Court as having been used by the security forces for
illegal abductions.
98. The
applicant, referring to the chronology of the attacks against pro‑Kurdish
politicians submitted by him (see paragraph 93 above), further argued that
there was overwhelming and compelling evidence that in the mid-1990s acts of
torture and inhuman treatment, disappearances and extra‑judicial killings
were widespread and systematic. His brother, who had been an active local politician,
had also been subjected to ill-treatment during his detention and had been the
victim of continuous harassment and intimidation by State officials, in
particular by the Governor and the Mayor of Elbistan. He had constantly been
followed by plain-clothes police officers.
99. Finally,
the investigation by the authorities into Hüseyin Koku’s abduction was totally
inadequate and was characterised by flat denials that he had been detained.
100. The
applicant submitted that in view of the above factors, there was sufficient
factual and evidentiary material for the Court to conclude beyond reasonable
doubt that his brother had been intentionally killed by the police. Referring
to the Court’s case-law in the applications of Aydın v. Turkey (judgment of 25 September 1997, Reports
of Judgments and Decisions 1997-VI, § 73) and Kaya v. Turkey (judgment of
19 February 1998, Reports 1998-I, § 77), the applicant submitted that this was
a case in which the required evidentiary standard followed from the coexistence
of sufficiently strong, clear and concordant inferences. He finally submitted
that, in case the Court was not satisfied beyond reasonable doubt that Hüseyin
Koku had been killed in custody, there was sufficient evidence to prove on the
balance of probabilities – which he argued was the appropriate test in cases of
deaths in custody – to prove his allegation.
2. The Government
101. The Government did not
submit observations on the merits and did not, therefore, specifically deal
with the applicant’s allegations above. In their observations submitted prior
to the application being declared admissible, the Government did contend,
however, that comprehensive investigations had been carried out by the domestic
authorities into the disappearance of the applicant’s brother. The
disappearance had finally been solved with the discovery of Hüseyin Koku’s
body. The death of Hüseyin Koku had nothing to do with acts of State officials;
it was a simple act of revenge, carried out by the family of C.E.’s husband.
The State security units had not, in any way or for any reason, abducted or
taken into custody the applicant’s brother who, according to the evidence
collected by the authorities, had been killed intentionally probably due to his
extramarital affair with a married woman.
102. According to the
Government, this application and many such similar applications to the
Convention institutions had been made with political aims and for propaganda
purposes.
B. Article 38 § 1 (a) and the consequent
inferences drawn by the Court
103. Before proceeding to
assess the evidence, the Court would stress, as it has done previously, that it
is of the utmost importance for the effective operation of the system of
individual petition, instituted under Article 34 of the Convention, that States
should furnish all necessary facilities to make possible a proper and effective
examination of applications (see Tanrıkulu v. Turkey [GC],
no. 23763/94, § 70, ECHR 1999-IV). It is inherent in proceedings relating
to cases of this nature, where an individual applicant accuses State agents of
violating his rights under the Convention, that in certain instances solely the
respondent Government have access to information capable of corroborating or
refuting these allegations. The failure by a Government to submit such
information which is in their hands without a satisfactory explanation may not
only give rise to the drawing of inferences as to the well-foundedness of the
applicant’s allegations, but may also reflect negatively on the level of
compliance by a respondent State with its obligations under Article 38 § 1 (a)
of the Convention (see Timurtaş v. Turkey, no. 23531/94, §§ 66
and 70, ECHR 2000-VI).
104. The Court notes at the
outset that the Government, in their observations submitted to the Commission
on
(a) the Elbistan Gendarme Headquarters’ reply to the Deputy
Governor of
(b) a letter sent by the Police Headquarters on
(c) the Kahramanmaraş Governor’s report of
(d) a reply given to the Secretary of State for Human
Rights on 10 November 1994 and the latter’s enquiry of 2 November 1994
(see paragraph 47 above);
(e) a letter of 11 November 1994 by the chief of the
Elbistan Police Headquarters (see paragraph 48 above);
(f) the Elbistan Chief Public Prosecutor’s letter of
(g) a letter sent by the Elbistan Prosecutor on
(h) a letter sent by the Elbistan Prosecutor on
(i) the Ministry of Justice’s reply of
(j) a letter drawn up on
105. Furthermore, the Court
has noted with concern a number of matters regarding the Government’s response
to the Commission and the Court’s requests for documents and information.
106. First, the Government,
in response to the Commission’s requests to submit to it all the documents
pertaining to the investigation into the disappearance and the subsequent death
of the applicant’s brother, submitted to the Court certain documents. The Court
observes that some of these documents make reference to a number of other,
potentially important, documents pertaining to the investigation, which have,
however, not been made available to the Convention institutions. These
documents (referred to at paragraph 86 above) include:
(a) a letter sent to the Elbistan Prosecutor by the
Directorate on
(b) a letter sent by the Prosecutor’s office at the
(c) the letter sent by the Directorate on
(d) a reply given on
(e) a letter sent by the Directorate on
107. Secondly, the Government
failed to send to the Convention institutions the photographs taken of the body
during the autopsy (see paragraph 63 above) and also the documents found in
Hüseyin Koku’s jacket pocket (see paragraph 64 above).
108. Finally, on
109. The Court concludes that
the Government have not advanced any explanation for their omissions in
response to the Commission’s and the Court’s requests for relevant documents
and information. Accordingly, it finds that it can draw inferences from the
Government’s conduct in this respect. Furthermore, the Court, referring to the
importance of a respondent Government’s co-operation in Convention proceedings
(see paragraph 103 above), finds that the Government fell short of their
obligations under Article 38 § 1 (a) of the Convention to furnish all necessary
facilities to the Commission and the Court in their task of establishing the
facts.
C. The Court’s evaluation of the
facts
110. In assessing evidence,
the Court has generally applied the standard of proof “beyond reasonable doubt”
(see Ireland v. the United Kingdom, judgment of 18 January 1978, Series
A no. 25, § 161). As the applicant pointed out, such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences or of
similar unrebutted presumptions of fact.
111. The Court observes that
in support of his allegations the applicant relied, in particular, on the
eye-witness testimony of Fatma Koku (see
paragraph 19 above) and Bulut Yılmaz (see paragraphs 20 and 92 above), both of whom had claimed that
the persons taking Hüseyin Koku away were police officers. The applicant also
relied on the anonymous telephone call received by Hüseyin Koku’s daughter on
112. The Court finds,
however, that the above mentioned factors do not prove to a satisfactory extent
that the persons who kidnapped Hüseyin Koku on
113. Nevertheless, the Court
finds it more appropriate to deal with the consequences of the Government’s
above mentioned failure when examining the applicant’s complaint concerning the
Government’s alleged failure to protect his brother’s right to life (see paragraphs 121-146 below).
114. Similarly, to the extent
that the applicant’s submission concerning the alleged indifference of the
authorities to the family’s allegations of the disappearance indicated a
cover-up of the circumstances surrounding the kidnap and death of Hüseyin Koku, the Court finds that these
aspects of the case can be more appropriately examined in the context of the
Government’s obligation to carry out an effective investigation into the
circumstances of the death of Hüseyin Koku.
115. In the light of the
above, the Court is unable to make a finding as to who might have been
responsible for the abduction and subsequent death of Hüseyin Koku.
116. The Court will now
proceed to examine the applicant’s complaints under the various Articles of the
Convention.
III. ALLEGED VIOLATIONS OF
ARTICLE 2 OF THE CONVENTION
117. Article 2 of the
Convention provides as follows:
“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. Alleged killing of Hüseyin Koku by
State agents
118. The applicant alleged
that his brother had been intentionally killed by agents of the State in
circumstances where none of the exhaustive list of purposes set out in Article
2 § 2 of the Convention applied.
119. According to the
Government, the killing of the applicant’s brother was a simple act of revenge,
carried out by the family of C.E.’s husband.
120. The Court has already
found that it could not be established that the kidnapping and subsequent
killing of Hüseyin Koku were carried out by agents of the State (see paragraph 115
above). It follows, therefore, that there has been no violation of Article 2 of
the Convention on that account.
B. Alleged failure to safeguard the
right to life of Hüseyin Koku
1. The applicant
121. Referring, inter
alia, to the Court’s case-law in the case of L.C.B. v. the United
Kingdom (judgment of 9 June 1998, Reports 1998-III, § 36), the
applicant submitted that Article 2 of the Convention imposed on States a
positive obligation to safeguard the lives of those within their jurisdiction. The
applicant argued that a failure by the authorities to take reasonable steps to
investigate or protect the life of a person whose abduction and enforced
disappearance have been reported to them, violated that obligation to take
positive steps to protect the right to life.
122. The applicant relied on
the test set in the case of Osman v. the United Kingdom
(judgment of 28 October 1998, Reports 1998-VIII, § 116) and
submitted that his brother was clearly a person who was the subject of a real
and immediate risk to his life from the moment of his abduction and
disappearance in October 1994, and that the authorities manifestly omitted to
take reasonable steps to avoid that risk because of their failure to
investigate the disappearance of Hüseyin Koku adequately. The real and
immediate risk to the life of the applicant’s brother in this case arose from
the repeated and continuing incidents of disappearances, extra‑judicial
killings and killings by unknown perpetrators in south-east
2. The Government
123. The Government submitted
that the allegations of the applicant concerning the responsibility of the
State for Hüseyin Koku’s death were baseless. These allegations reflected an
effort by the applicant to benefit from a common crime committed against his
brother, most likely by those who were unhappy about Hüseyin’s extra-marital
affair with C.E.
124. The Government made
extensive references to the threat posed by the terrorist acts carried out by
the PKK against the integrity and indivisibility of the
3. The Court’s evaluation
125. The
Court has not found it established that State agents were responsible for the
disappearance and subsequent death of the applicant’s brother. However,
this does not necessarily exclude the responsibility of the Government for his
death. As the applicant pointed out, the first sentence of Article 2 § 1
enjoins the State not only to refrain from the intentional and unlawful taking
of life, but also to take appropriate steps to safeguard the lives of those
within its jurisdiction (see L.C.B., cited above, § 36).
126. This
involves a primary duty on the State to secure the right to life by putting in
place effective criminal law provisions to deter the commission of offences
against the person backed up by a law enforcement machinery for the prevention,
suppression and punishment of breaches of such provisions. It also extends in
appropriate circumstances to a positive obligation on the authorities to take
preventive operational measures to protect an individual whose life is at risk
from the criminal acts of another individual (see Osman, cited above, at
§ 115).
127. In this connection, the
Court would reiterate that, in the light of the difficulties in policing modern
societies, the unpredictability of human conduct and the operational choices
which must be made in terms of priorities and resources, the scope of the
positive obligation must be interpreted in a way which does not impose an
impossible or disproportionate burden on the authorities. Not every claimed
risk to life therefore can entail for the authorities a Convention requirement
to take operational measures to prevent that risk from materialising (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, § 78, ECHR 2000‑X).
128. The
Court reiterates that, for a positive obligation to arise, it must be
established that the authorities knew or ought to have known at the time of the
existence of a real and immediate risk to the life of an identified individual
or individuals from the criminal acts of a third party and that they failed to
take measures within the scope of their powers which, judged reasonably, might
have been expected to avoid that risk (see Osman, cited above, § 116).
129. As
to whether there was a real and immediate risk to the life of Hüseyin Koku, the
Court observes at the outset that, according to the Government, Hüseyin Koku
had been kidnapped and killed by members of C.E.’s
family who were angry
about an alleged extra-marital the two had been conducting. The Court also
notes that the authorities were aware of the allegations that Hüseyin Koku was
having an affair with C.E. and had unsuccessfully attempted to prosecute Hüseyin
Koku for that (see paragraph 87 above).
130. Noting,
however, that there is no indication whatever of any member of C.E.’s family
having been convicted or prosecuted for the disappearance and the death of
Hüseyin Koku, the Court finds it inappropriate to accord any weight to the
Government’s submissions implicating C.E.’s family in the murder of Hüseyin
Koku. It therefore disregards the unsubstantiated allegations against C.E.’s
family in their entirety.
131. In contrast, the Court
finds 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 a
disappearance and murder. In this connection, the Court would point to the fact
that, as detailed in the chronology submitted by the applicant – the accuracy
of which has not been challenged by the Government –, dozens of politicians
working for HADEP and its predecessors were being kidnapped, injured and killed
at around the time of Hüseyin Koku’s death. Indeed, a number of attacks carried
out against, or killings of, politicians belonging to these political parties have
been examined by the Court (see, inter
alia, Binbay v. Turkey (friendly settlement), no.
24922/94, 21 October 2004; Ekinci v. Turkey, no. 25625/94, 18 July 2000; Nuray Şen (no. 2) v. Turkey, no. 25354/94, 30 March 2004; Sincar v. Turkey (dec.), 10 October
2002, no. 70835/01; Sabuktekin v. Turkey, no. 27243/95, ECHR 2002‑II
(extracts); Macır
v. Turkey, no. 28516/95, 22 April 2004).
132. The
Court finds that in the circumstances of the instant case, following his
disappearance, the life of the applicant’s brother was at more real and
immediate risk than other persons at that time. It follows, therefore, that the
action which was expected from the domestic authorities was 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 (Osman, cited above, § 115).
133. As
regards whether the authorities knew or ought to have known of the risk posed
to the life of Hüseyin Koku, the Court notes that, according to the Government,
the authorities had been notified of his disappearance on
134. Finally,
the petition submitted by Fatma Koku to the Prosecutor’s office on 1 November
1994, having been signed on the same day by the Prosecutor (see paragraph 90 above), serves as
another indication that the authorities were aware of the disappearance prior
to 3 November 1994, contrary to what the Government have claimed. In the light
of the foregoing, the Court finds that the domestic authorities with the duty
to investigate were sufficiently aware of the abduction of Hüseyin Koku on
135. This
brings the Court to an examination of the question whether there were in place
effective criminal-law provisions to deter the commission of offences against
the person at risk, and whether the authorities had taken measures within the
scope of their powers which, judged reasonably, might have been expected to
avoid the risk to Hüseyin Koku’s life.
136. Although
the Government have not explicitly dealt with the issue of whether there were
effective criminal law provisions in place, the Court notes from its previous judgments
that there were large numbers of security forces in the south-east region
pursuing the aim of establishing public order at the relevant time. They faced
the difficult task of countering violent armed attacks carried out by the PKK
and other groups. The Court also notes that there was a framework of law in
place with the aim of protecting life. The Turkish Criminal Code prohibited
murder and there were police and gendarmerie forces with the role of preventing
and investigating crime, under the supervision of the judicial branch of public
prosecutors. There were also courts applying the provisions of the criminal law
in trying, convicting and sentencing offenders (Akkoç, cited above, § 86,
and Tepe, cited above, at §§
115-122).
137. As
regards apportioning the duties in a domestic investigation, the Court observes
that, according to Article 153 of the Code of Criminal Procedure, a public
prosecutor who is informed by any means whatsoever of a situation that gives
rise to the suspicion that an offence has been committed is obliged to
investigate the facts in order to decide whether or not there should be a
prosecution. Furthermore, pursuant to Article 151 of the Code of Criminal
Procedure, offences may be reported to local governors with a view to forwarding
them to the relevant judicial authorities. Finally, according to Article 235 of
the Criminal Code, any public official who fails to report to the police or a
public prosecutor’s office an offence of which he has become aware in the
exercise of his duty is liable to imprisonment.
138. As
regards the steps which might have been expected to protect the life of Hüseyin
Koku following his disappearance, the Court is of the opinion that the starting
point for the Elbistan Prosecutor, who was informed by Fatma Koku on 1 November
1994 of the disappearance of her husband, would have been to obtain more
information from her and to question police officers in order to verify the
accuracy of the allegations. Furthermore, an examination of the custody records
of the detention facilities in the area and the questioning of possible
eye-witnesses would also have been obvious avenues of investigation for the
Prosecutor to pursue.
139. No
information has been submitted by the Government to indicate that any steps
were in fact taken by the Elbistan Prosecutor in these crucial early days to
find out who had kidnapped Hüseyin Koku. Neither does it appear that steps were
taken by this Prosecutor upon the information he had been given by Fatma Koku
as to the anonymous telephone call received by her daughter (see paragraph 28 above). Indeed,
according to the Government’s own summary of the activities carried out by the
authorities after 3 November 1994, the first step taken by the Elbistan
Prosecutor had been to send a letter to the Directorate on 26 June 1995,
that is almost seven months after that Prosecutor had been informed of the
disappearance, which letter merely informed the Directorate of the alleged
extra-marital affair conducted by Hüseyin Koku (see paragraph 49 above).
140. As
to the action taken by the Kahramanmaraş Governor following his receipt of
Fatma Koku’s petition of 3 November 1994, the Court observes at the outset that
the Government have not provided the Court with any information indicating that
the Governor, as required by Article 151 of the Code of Criminal Procedure or
by Article 235 of the Criminal Code (see
paragraph 137 above), alerted the local prosecutor of the allegation
that had been brought to his attention.
141. According
to the Government, the investigation carried out by the Governor established
that Hüseyin Koku had not been taken into the custody of either the police (see paragraph 45 above) or the
gendarmerie (see paragraph 44 above).
Furthermore, the people who owned shops on
142. The
Court finds, however, that in the light of the Government’s failure to submit
certain documents to the Convention bodies (see paragraph 104 above), – thereby preventing the Court
from examining them first-hand in order to establish what actual steps were
taken and how – it cannot take cognisance of the alleged contents of these
documents. In any event, the investigation, which was purportedly carried out
by the Kahramanmaraş Governor who was himself responsible for the security
forces whose conduct was in issue, does not comply with the requirement that an
investigation be independent and impartial (see, mutadis mutandis, Akkoç,
cited above, § 88, and the cases cited therein).
143. The
Court concludes that the Elbistan Prosecutor, who had the duty to instigate and
supervise an investigation into the disappearance, remained completely inactive
during these crucial days at a time when many people were being killed in the
south-east region of Turkey. By failing to take any steps, neither the
prosecutor, nor indeed the Turkish authorities in general, did everything
within their power to prevent the murder of the applicant’s brother after the
disappearance.
144. The
Court has previously held that the implementation of the criminal law in
respect of unlawful acts allegedly carried out with the involvement of the
security forces disclosed particular characteristics in the south-east region during
this period (ibid, § 87). One of
these characteristics was the failure of public prosecutors to pursue
complaints by individuals claiming that the security forces were involved in an
unlawful act, for example, by not interviewing or taking statements from
implicated members of the security forces and by accepting at face value the
reports of incidents submitted by members of such forces (ibid, § 89, and the cases cited therein). This same failure occurred
in the present case. In the light of the foregoing, the Court concludes that,
although there were criminal law provisions in place, the defects referred to
above undermined the effectiveness of the protection afforded by the criminal
law in the south-east region during the period relevant to this case.
145. Consequently,
these defects removed the protection which Hüseyin Koku should have
received by law.
146. The
Court concludes that the authorities failed to take the reasonable measures
available to them to prevent a real and immediate risk to the life of Hüseyin
Koku from materialising. There has, accordingly, been a violation of Article 2
of the Convention.
C. Alleged inadequacy of the
investigation
147. The applicant alleged
that there had been a violation of Article 2 of the Convention on account of
the State’s failure to carry out an adequate and effective investigation into
the disappearance and subsequent murder of his brother.
148. The Government submitted
that comprehensive investigations had been conducted into the disappearance and
death of Hüseyin Koku.
149. The Court reiterates
that 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”, 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, McCann and Others v. the United Kingdom, judgment of 27 September
1995, Series A no. 324, p. 49, § 161, and Kaya,
cited above, § 105). In that connection, the Court points out that
this obligation is not confined to cases where it is apparent that the killing
was caused by an agent of the State (see Salman v. Turkey [GC] no. 21986/93, § 105, ECHR
2000-VII).
150. The investigation must
also be effective in the sense that it is capable of leading to the
identification and punishment of those responsible (see Oğur v. Turkey
[GC], no. 21954/93, § 88, ECHR 1999-III). 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 (see Tanrıkulu, cited above, § 109).
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.
151. There is also a
requirement of promptness and reasonable expedition implicit in this context
(see Yaşa v. Turkey, judgment of
152. Turning to the
particular circumstances of the case, the Court has already examined whether
the national authorities – and in particular the Prosecutor of Elbistan, where
Hüseyin Koku was abducted – took measures within the scope of their powers to
avoid the risk to his life. In this context it concluded that the authorities
had failed to conduct an investigation into Hüseyin Koku’s disappearance (see paragraphs 143-146
above). In the Court’s opinion, that failure undermined the
possibilities for the authorities in the town of Pötürge – in whose
jurisdiction the body was found – to identify the perpetrator(s) of the
killing. In any event, and for the reasons set out below (paragraphs 153-159),
the investigation carried out by the authorities in Pötürge into the death was
also defective.
153. The Court observes at
the outset that the report drawn up by the Forensic Medicine Directorate does
not contain any information as to when Hüseyin Koku was killed; indeed, it does
not appear from that report that any attempt was made by the Forensic Medicine
Directorate to establish the time of death (see paragraph 78 above). In this connection, the Court would
stress that it has not been provided with any information as to why the Pötürge
Prosecutor Zeki Polat referred to the date of Hüseyin Koku’s death as “October
1994” in his letter of
154. In the Court’s opinion,
the Forensic Medicine Directorate’s failure to establish the time of death and
the investigating prosecutors’ failure to question or follow this matter up is
an indication that the investigating authorities were from the outset not
committed to according due diligence and seriousness to their inquiry.
155. As regards the subsequent steps taken by the investigating authorities, the Court observes that these steps predominantly related to Hüseyin Koku’s alleged adulterous relationship with C.E.
156. No steps appear to have
been taken by the Prosecutor to identify and question the persons whom Mr
Dalkılıç said he had seen, together with a dead person, in an area
very close to where Hüseyin Koku’s body was found. Notwithstanding the
information provided by Mr Dalkılıç to the effect that the two
persons had been wearing clothing similar to military uniforms (see paragraph 82 above) or commando uniforms
and berets (see paragraph 85 above), no member of the military was
questioned by the prosecutors. Similarly, the Court has not been provided with
information as to the accuracy or veracity of Mr Dalkılıç’s statement
that he had heard that soldiers had gone to the area to look for the three men
but that they had been unable to find them (see paragraph 83 above).
157. The Court reiterates
that for an investigation into a death to be regarded as effective within the
meaning of the case-law of the Court, it is imperative that the next-of-kin of
the victim be involved in the procedure to the extent necessary to safeguard
their legitimate interests (McKerr,
cited above, § 148). There is no information in the case file to indicate
that the wife and other close relatives of Hüseyin Koku, who took an active
role in that they had promptly informed the authorities of the disappearance (see paragraphs 22, 23, 25 and 27 above) and
of all subsequent developments (see
paragraph 28, 29, 31 and 34 above), were provided with information about
the investigation into the death of Hüseyin Koku.
158. As regards the steps
purportedly taken by the authorities between
159. Finally, due to the
Government’s failure to respond to the Court’s request of
160. In the light of the
above, and having particular regard to the Government’s failure to inform the
Court of the outcome of the investigation (see paragraph 108 above), the Court
rejects the Government’s preliminary objection based on exhaustion of domestic
remedies (see paragraphs 95-96 above),
and concludes that the authorities have failed to carry out an effective
investigation into the death of the applicant’s brother, as required by Article
2 of the Convention.
161. The Court finds,
therefore, that there has been a violation of Article 2 of the Convention
under its procedural limb.
IV. ALLEGED VIOLATIONS OF
ARTICLE 3 OF THE CONVENTION
162. The applicant submitted
that there had been a separate violation of Article 3 of the Convention for
each of the following reasons:
(a) the abduction and disappearance of his brother,
coupled with the State’s failure to carry out any form of adequate and
effective investigation into the disappearance, undermined, and were
inconsistent with, the protection against torture and inhuman or degrading
treatment under Article 3 of the Convention;
(b) there was sufficient evidence to establish that
Hüseyin Koku was tortured whilst in the custody of the security forces, for the
second time, following his detention on
(c) the applicant himself had suffered anguish and
distress in the face of the authorities’ complacency in relation to his brother’s
disappearance.
163. Article 3 of the
Convention provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
164. In support of his last
argument, the applicant submitted to the Court a report drawn up by Dr Tricia
Bohn on
165. The Government have not
specifically dealt with the complaints under this Article.
166. The Court deems it more
appropriate to examine the first limb of the applicant’s complaint under
Article 13 of the Convention (see paragraphs 177-183 below).
167. As regards the second
limb of the complaint under Article 3, the Court refers to its finding above
that it has not been established that any State agent was implicated in the
killing of the applicant’s brother (see
paragraph 115 above). There is thus no factual basis on which to
conclude that there has been a violation of this provision as alleged by the
applicant.
168. Concerning the applicant’s
final complaint, the Court has previously found that distress and anguish
caused to applicants as a result of the disappearance of their close relatives
and their inability to find out what had happened to those relatives, coupled
with the manner in which their complaints were dealt with by the authorities,
constituted inhuman and degrading treatment contrary to Article 3 of the
Convention (see, inter alia, Timurtaş, cited above, § 98,
and İpek v. Turkey, no. 25760/94, § 183,
ECHR 2004 (extracts)). In reaching its
conclusions, the prolonged and continuing periods of uncertainty and
apprehension suffered by the applicants were determinant factors for the Court
(see Timurtaş, cited above, § 98; İpek, cited
above, § 183; Orhan v. Turkey, no. 25656/94, § 360, 18 June
2002).
169. In support of his
complaint of a violation of Article 3 of the Convention in respect of himself
in the present case, the applicant referred to the Court’s case-law in the
cases of Kurt v. Turkey (judgment
of
170. To the extent that the
Court may be prepared to regard the period which elapsed between the abduction
of Hüseyin Koku on 20 October 1994 and the discovery of his body on 26 April
1995 as sufficient for the purposes of its examination of the complaint under
this Article, the question arises as to which family members of a disappeared
person can claim to be a victim of treatment contrary to Article 3 of the
Convention. This will depend, as the Court has already made clear in its
judgment in Çakıcı judgment (cited above, § 98), on the
existence of special factors which give the suffering of the applicant a
dimension and character distinct from the emotional distress which may be
regarded as inevitably caused to relatives of a victim of a serious human rights
violation. Relevant elements will include the proximity of the family tie – in
that context, a certain weight will attach to the parent-child bond –, the
particular circumstances of the relationship, the extent to which the family
member witnessed the events in question, the involvement of the family member
in the attempts to obtain information about the disappeared person, and the way
in which the authorities responded to those enquiries. The Court would further
emphasise that the essence of such a violation does not so much lie in the fact
of the “disappearance” of the family member but rather concerns the authorities’
reactions and attitudes to the situation when it is brought to their attention.
It is especially in respect of the latter that a relative may claim directly to
be a victim of the authorities’ conduct.
171. In the present case, the
applicant, like the applicant in Çakıcı, was the brother of
the disappeared person. He was not present when his brother was abducted, as he
was living in the
172. Accordingly, there has
been no breach of Article 3 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE
5 OF THE CONVENTION
173. Invoking Article 5 of the Convention, the applicant alleged that his brother had been detained in complete disregard of the safeguards contained in paragraphs one to five of this provision, which guarantees the right to liberty and security.
174. Beyond denying that the
applicant’s brother had been detained by the police, the Government have not
specifically dealt with this complaint.
175. The Court recalls its
finding above that it has not been established that any State agent was
implicated in the abduction of the applicant’s brother (see paragraph 115 above). There is thus no factual basis to
substantiate the applicant’s allegation.
176. Consequently, the Court
finds no violation of Article 5 of the Convention in respect of the applicant’s
brother.
VI. ALLEGED VIOLATION OF ARTICLE
13 OF THE CONVENTION
177. The applicant submitted
that he and his family had taken every reasonable step possible in order to
ensure that the abduction, detention and murder of his brother was properly and
thoroughly investigated by the national authorities. However, the response of
the various authorities to their complaints and petitions had been utterly
inadequate. The necessary remedies either did not exist or they were, in
practice, useless. Article 13 of the Convention provides as follows:
“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.”
178. The Government contended
that the disappearance and death of the applicant’s brother had been adequately
investigated.
179. The Court reiterates
that Article 13 of the Convention guarantees the availability at the national
level of a remedy to enforce the substance of the Convention rights and
freedoms in whatever form they might happen to be secured in the domestic legal
order. The effect of Article 13 is thus to require the provision of a domestic
remedy to deal with the substance of an “arguable complaint” under the
Convention and to grant appropriate relief, although Contracting States are
afforded some discretion as to the manner in which they conform to their
Convention obligations under this provision. The scope of the obligation under
Article 13 varies depending on the nature of the applicant’s complaint under
the Convention. Nevertheless, the remedy required by Article 13 must be
“effective” in practice as well as in law Thus its exercise must not be unjustifiably
hindered by the acts or omissions of the authorities of the respondent State
(see Aksoy v. Turkey, judgment of 18
December 1996, Reports 1996-VI, p. 2286,
§ 95; Aydın, cited above,
§ 103; Kaya, cited above, § 106).
180. Given the fundamental
importance of the right to the 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 death, including effective access for the
complainant to the investigation procedure (see Kaya, cited above, § 107).
181. On the basis of the
evidence adduced in the present case, the Court has not found it proved beyond
reasonable doubt that agents of the State carried out the abduction or murder
of the applicant’s brother. As it has held in previous cases, however, that
does not preclude the complaint in relation to Article 2 of the Convention from
being an “arguable” one for the purposes of Article 13 (see Akkoç, cited
above, § 104 and the cases cited therein). In this connection, the Court
observes that it is not in dispute that the applicant’s brother was the victim
of an abduction and an unlawful killing, and the applicant may therefore be
considered to have an “arguable claim”.
182. The authorities thus had
an obligation to carry out an effective investigation into the circumstances of
these crimes. For the reasons set out above (see paragraphs 152-160), no
effective criminal investigation can be considered to have been conducted in
accordance with Article 13, the requirements of which may be broader than the
obligation to investigate imposed by Article 2 (see Kaya, cited above, § 107). The Court finds, therefore, that
the applicant was denied an effective remedy in respect of the abduction and
the subsequent death of his brother, and was thereby denied access to any other
available remedies at his disposal, including a claim for compensation.
183. Consequently, there has
been a violation of Article 13 of the Convention.
VII. ALLEGED VIOLATION OF
ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLES 2, 3, 5, 6 AND 13
184. The applicant argued
that the circumstances of this case disclosed a violation of Article 14 of the
Convention in conjunction with Articles 2, 3, 5, 6 and 13. He submitted that
there was sufficient evidence to establish that his brother’s abduction and
murder had been carried out as a direct result of his lawful political views
and his activities on behalf of HADEP and, more widely, the Kurdish minority in
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property,
birth or other status.”
185. The Government have not
specifically dealt with this complaint.
186. The Court observes its
findings of violations of Articles 2 and 13 of the Convention and does not
consider that it is necessary to examine separately the applicant’s complaints under
Article 14 of the Convention.
VIII. APPLICATION OF ARTICLE 41
OF THE CONVENTION
187. 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
188. The applicant submitted
that his brother had been born in 1958 and was 36 years old at the time of his
abduction. He was married and had six children, aged at that time between 6 and 15 years.
189. At the time of his death
Hüseyin Koku had been working as a welder and pipe fitter. He had worked for a
number of international companies in
190. The applicant further
submitted that, as a result of his brother’s abduction and murder, he had been
unable to work because of depression since 1995. In support of his submission
the applicant referred to the report drawn up by Dr Tricia Bohn (see paragraph 164 above). The applicant
claimed that prior to 1995 he had been an experienced welder, earning an
average weekly salary of 294.70 pounds sterling (GBP). Having regard to
actuarial tables, the applicant claimed the sum of GBP 266,644.56 in respect of
his estimated loss of earnings.
191. The Government objected
to the amount claimed by the applicant and argued that there was no causal
connection between his claim for loss of earnings and the death of his brother,
which in any event was not attributable to the authorities.
192. As regards the applicant’s
claim for the loss of his earnings, the Court’s case law has established that
there must be a clear causal connection between the damage claimed by the
applicant and the violation of the Convention and that this may, in appropriate
cases, include compensation in respect of loss of earnings (see, among 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 Çakıcı, cited above, § 127).
193. However, the Court does
not find sufficient causal connection between the matters found to constitute
violations of the Convention – the failure to safeguard the right to life of
the applicant’s brother and the absence of an effective investigation – and the
pecuniary damage alleged by the applicant. It therefore rejects the applicant’s
claims for his own alleged loss of earnings.
194. As regards the applicant’s
claim for the loss of earnings of his deceased brother, the Court observes that
he has failed to submit to the Court an itemised claim detailing that loss.
However, the fact remains that Hüseyin Koku had been providing his family with
a living and this has not been disputed by the Government. Having regard to the
family situation of the deceased, Hüseyin Koku, his age and his professional
activities which provided his wife and six children with a living, the Court
finds it established that there was a direct causal link between the violation
of Article 2 and the loss suffered by Hüseyin Koku’s family of the financial
support provided by him.
195. In
the light of the foregoing the Court, deciding on an equitable basis, awards EUR
60,000 in respect of pecuniary damage to the widow and six children of Hüseyin
Koku, which amount is to be paid into the bank account in Turkey of Hüseyin
Koku’s widow and six children (see, mutatis mutandis, Buldan v. Turkey, no. 28298/95, § 116, 20 April 2004).
B. Non-pecuniary damage
196. The applicant invited
the Court to take into account the severity of the violations of the Convention
in this case and asked the Court to award him the sum of GBP 50,000 for the
widow and six children of Hüseyin Koku and the sum of GBP 10,000 for
himself by way of non-pecuniary damages on account of the distress caused to
them by the disappearance and subsequent death of his brother.
197. The Government submitted
that the applicant had failed to substantiate his allegations concerning the
merits of the case and that for that reason they should not be liable to pay
any compensation to the applicant by way of non-pecuniary damage.
198. The Court recalls the
violations of Articles 2 and 13 of the Convention which it has found.
Consequently, and having regard to the awards made in comparable cases, the
Court, on an equitable basis, awards EUR 20,000 in respect of non-pecuniary
damage, to be paid into the bank account of the widow and six children of
Hüseyin Koku. It also awards the applicant the sum of EUR 3,500 for
non-pecuniary damage sustained by him in his personal capacity, which amount is
to be paid into the applicant’s bank account in the
C. Costs and expenses
199. The applicant claimed a
total of GBP 14,935.66 for the fees and costs incurred in bringing the
application. His claim comprised:
(a) GBP 10,141.66 for the fees of
his lawyers working for the Kurdish Human Rights Project (KHRP) in the
(b) GBP 2,500 for Kerim
Yıldız, the director of the KHRP;
(c) GBP 470 for administrative
costs, such as telephone, postage, photocopying and stationary, incurred by the
United Kingdom-based lawyers; and
(d) GBP 1,824 for translation
costs incurred by the
200. In support of his claims
for the fees of his lawyers the applicant submitted a detailed schedule of
costs.
201. The Government submitted
that only expenses which have been actually incurred could be reimbursed, and
that the applicant and her representatives should have documented all their
costs and expenses, but failed to do so. The Government also invited the Court
not to award an excessive sum.
202. The Court, observing the
applicant’s failure to provide any explanation for his claim for the sum of GBP
2,500 in respect of the director of the KHRP, cannot make any award in this
respect.
203. As regards the remainder
of the claim for costs and expenses, making its own assessment based on the
information available, the Court awards the applicant 15,000 euros (EUR) in
respect of costs and expenses – exclusive of any value-added tax that may be
chargeable – the net award to be paid in pounds sterling into his
representatives’ bank account in the United Kingdom, to be identified by the
applicant.
D. Default interest
204. 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
1. Dismisses unanimously the Government’s preliminary objection;
2. Holds unanimously that the respondent State has failed to fulfil
its obligation under Article 38 of the Convention to furnish all necessary
facilities to the Court in its task of establishing the facts;
3. Holds unanimously that there has been no violation of Article 2 of
the Convention in respect of alleged abduction and killing of the applicant’s
brother;
4. Holds unanimously that the respondent State failed to protect the
life of the applicant’s brother in violation of Article 2 of the Convention;
5. Holds unanimously that there has been a violation of Article 2 of
the Convention on account of the failure of the authorities of the respondent
State to conduct an effective investigation into the circumstances of the death
of the applicant’s brother;
6. Holds unanimously that there has been no violation of Article 3 of
the Convention;
7. Holds unanimously that there has been no violation of Article 5 of
the Convention;
8. Holds unanimously that there has been a violation of Article 13 of
the Convention;
9. Holds by six votes to one that it is unnecessary to examine
separately the applicant’s complaint under Article 14 of the Convention;
10. Holds unanimously
(a) that the respondent State is
to pay to the widow and six children of Hüseyin Koku, within three months from
the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, EUR 60,000 (sixty thousand
euros) and any tax that may be chargeable on this amount, in respect of
pecuniary damage; this sum is to be converted into new Turkish liras at the rate
applicable at the date of settlement and be paid into the bank account of
Hüseyin Koku’s widow and six children;
(b) that the respondent State is
to pay to the widow and six children of Hüseyin Koku, within the same three
month period, EUR 20,000 (twenty thousand euros) and any tax that may be
chargeable on this amount, in respect of non-pecuniary damage; this sum is to
be converted into new Turkish liras at the rate applicable at the date of
settlement and be paid into the bank account of Hüseyin Koku’s widow and six children;
(c) that the respondent State is
to pay to the applicant, within three months from the date on which the
judgment becomes final according to Article 44 § 2 of the
Convention, EUR 3,500 (three thousand five hundred euros) and any tax that may
be chargeable on this amount, in respect of non-pecuniary damage; this sum is
to be converted into pounds sterling at the rate applicable at the date of
settlement and be paid into the bank account of the applicant;
(d) that the respondent State is
to pay the applicant, within the same three month period, into the bank account,
to be identified by him, of his representatives in the United Kingdom, EUR
15,000 (fifteen thousand euros) in respect of costs and expenses, together with
any value-added tax that may be chargeable, to be converted into pounds
sterling at the rate applicable at the date of settlement;
(e) 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;
11. Dismisses unanimously the remainder of the applicant’s claim for
just satisfaction.
Done in English, and notified in writing
on
S. Dollé J.-P.
Costa
Registrar President
In accordance with Article 45 § 2 of the
Convention and Rule 74 § 2 of the Rules of Court, the following partly dissenting
opinion of Mrs Mularoni is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE MULARONI
Unlike the majority, I believe that it is
necessary for the Court to examine separately the applicant’s complaint under
Article 14 of the Convention.
After examining tens and tens of similar
applications, all lodged, without exception, by Turkish citizens of Kurdish
origin, and very often concluding that there was a violation of Articles 2 and
3 of the Convention, the Court should, to my mind, at least consider that there
could be a serious problem under Article 14 of the Convention as well.
This does not mean, of course, that in the
end the Court will invariably find that there has been a violation of Article
14. However, I cannot agree with the majority approach, which to me is
tantamount to considering that the prohibition on discrimination in this type
of case is not an important issue.