SECOND
SECTION
CASE OF MENTEŞE AND OTHERS v.
(Application no. 36217/97)
FINAL
JUDGMENT
This
version was rectified on
under Rule 81 of the Rules of the Court
In
the case of Menteşe and Others 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 I. Cabral Barreto,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs A. Mularoni,
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. 36217/97) 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 six Turkish nationals, Mr Abdullah Menteşe, Ms Zühra Bozkuş, Ms Hatun Demirhan, Mr Mustafa Demirhan, Ms Ayşe Harman and Mr Süleyman Moçu[1] (“the applicants”), on 12 November 1994.
2. The applicants were
represented by Mr T. Otty, a lawyer attached to the Kurdish Human Rights
Project, a non-governmental organisation based in
3. The application concerns
the death of the first, second, fourth and sixth applicants’ relatives and the
forced eviction and destruction of the family homes and possessions of all of
the applicants. The applicants applied on their own behalf where they alleged
to have suffered destruction of property and on behalf of their deceased
relatives who were killed during the incidents that took place in the Yolçatı village
between 13 and
4. The application was
transmitted to the Court on
5. The application was
allocated to the Third 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 R.
Türmen, the judge elected in respect of
6. On
7. By a decision of
8. The applicants and the
Government each filed observations on the merits (Rule 59 § 1). The parties
replied in writing to each other’s observations.
9. On
THE FACTS
I. THE CIRCUMSTANCES OF THE
CASE
10. The applicants, who were
born in Lice, currently reside in
11. The facts of the case are
in dispute between the parties.
A. Facts
as presented by the applicants
12. On the night of
13. The applicants alleged
that the following took place:
1. Case
of Abdullah Menteşe
14. On
15. When the soldiers entered
the village, they ordered all the villagers to gather near the village mosque.
They asked them whether there were any PKK members in the area and whether they
had been giving them food. The villagers replied that PKK activities were
frequent in the area. Thereafter, the soldiers started to burn the houses in
the village. At that time, the applicant’s son returned to the village and was
taken away by the soldiers together with three other villagers. The applicant,
together with the remaining villagers, was sent away from the village. After
two days, they were allowed to go back to the village. When they came back,
they saw that the village had been burned down. The next day, the applicant went
to the Lice public prosecutor and to the military authorities to inquire into
his son’s whereabouts. However, he received no reply. On
2. Case
of Zühra Bozkuş
16. The applicant and her
family lived in the hamlet of Beğendik in the Yolçatı village. On the night of
17. On
18. The applicant went back
to the village one month later and saw that her house had been burned down.
3. Case
of Hatun Demirhan
19. The applicant and her
children were in the village on the evening of
4. Case
of Mustafa Demirhan
20. The applicant was in the
5. Case
of Ayşe Harman
21. The applicant lived in
the
6. Case
of Süleyman Moçu[2]
22. The applicant and his
family lived in a hamlet of the Yolçatı village. On the night of
B. Facts
as submitted by the Government
23. The Government denied the
allegations submitted by the applicants. They informed the Court that an armed
clash had taken place on 13 and
24. In support of their
submissions, the Government provided the full case file concerning the
investigations into the killings of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan
and Abdulvahap Maço.
25. On
- a bullet entry hole under the right eye and a bullet exit hole measuring 5 x 6 cm. in the occipital area, which had cracked the skull and caused heavy damage to the brain;
- a bullet entry hole on the left side of the chest and an exit hole on the fourth vertebra, measuring 5 x 3 cm, which had caused damage to the spine;
- a bullet entry hole on the lower right side of the abdomen and a bullet exit hole, measuring 2 x 2 cm. on the right side of the thigh;
- a bullet entry hole on the front exterior side of the left arm and a bullet exit hole on the interior side of the left arm;
- a bullet entry hole on the front part of the left arm and a bullet exit hole in the palm of the left hand; and
- scars possibly caused by gunshot wounds on some parts of the body.
No other signs were observed on the
body. As the cause of death was found to be the destruction of the brain by gun
shots, it was decided not to carry out a classical autopsy on the body.
26. On
- a bullet entry hole above the left eyebrow and a bullet exit hole in the occipital region measuring 6 x 10 cm., as a result of which the skull had been shattered and the brain heavily damaged;
- two adjacent bullet entry holes on the left side of the neck;
- two adjacent bullet exit holes on the right side of the neck, under the chin;
- a bullet entry hole on the left leg and a bullet exit hole in the calf measuring 2 x 8 cm;
- two wounds, one on the back of the right ankle measuring 4 x 2 cm. and another on the front part of the ankle measuring 3 x 4 cm, possibly caused by bullets;
- a fractured tibia; and
- a bullet entry hole on the right calf and a bullet exit hole above the right knee, causing a wound measuring 10 cm., which had damaged tissue and fractured the lower part of the femur.
No other signs were observed on the
body. As the cause of death was found to be the destruction of the brain by gun
shots, it was decided not to carry out a classical autopsy on the body of Abdulvahap
Maço.
27. On
In the report on the body of Yusuf Bozkuş, it was noted that rigor mortis had set in and bruising had appeared on the body. The doctor also found
- a bullet entry hole in the chin, and a bullet exit hole, measuring 10 x 15 cm. which had caused heavy damage to the brain; and
- three bullet entry holes in the left collar bone area, the right collar bone area and the right side of the neck, and three bullet exit holes, two in the shoulder blade area and one under the left underarm.
No other signs were observed on the body.
In the report on the body of Kamil Menteşe, it was noted that rigor mortis had set in and bruising had appeared on the body. The doctor also found
- a bullet entry hole in the neck and a bullet exit hole above the right shoulder blade;
- a bullet entry hole in between the shoulder blades, and a bullet exit hole in the front part of the right underarm, measuring 2 x 3 cm;
- a lateral wound measuring 10 cm. in the femur area which had been caused by a sharp object;
- a wound which had been caused by a sharp object, measuring 8 x 3 cm on the right biceps;
- two further wounds on the right arm, caused by a sharp object;
- a bullet entry hole on the lower interior part of the left knee and a bullet exit hole on the exterior part of the knee, measuring 4 x 5 cm;
- scars due to gun shots on the left leg; and
- the right ear of the deceased was missing for unknown reasons given the one week delay in the autopsy.
As the doctor had found that both Yusuf
Bozkuş and Kamil Menteşe had died from gunshot wounds, he did not deem it
necessary to perform a classical autopsy on the bodies.
28. The Government maintained that investigations were initiated to find the perpetrators of these killings. In this respect, they referred to the correspondence between the Lice public prosecutor and the Lice Gendarmerie Command. Copies of several letters, written by the prosecutor to the gendarme commander, asking the commander to conduct an investigation into the killings of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan and Abdulvahap Maço were submitted to Court. The gendarme commander also sent regular reports to the prosecutor indicating that it had not been possible to locate or identify the perpetrators.
29. On
30. On
31. Subsequently on
II. RELEVANT
DOMESTIC LAW
32. In respect of relevant
domestic legislation, the Court refers to Ergi v. Turkey (judgment of
THE LAW
I. THE
OBJECTION OF THE GOVERNMENT
33. The Government submitted that the applicants could not be considered to have exhausted all domestic remedies available to them as the criminal investigations were still pending before the Lice public prosecutor. Moreover, they alleged that the applicants had not availed themselves of all the remedies available to them under domestic law.
34. The applicants submitted
that they were not required to exhaust domestic remedies since they were
inadequate and ineffective. They contended that, given the length of the
investigation, there was no realistic prospect of their complaints being
remedied.
35. The Court recalls that,
in its decision of
II. ALLEGED
VIOLATION OF ARTICLE 2 OF THE CONVENTION
36. The first, second, fourth
and sixth applicants submitted that their relatives had been killed in May 1994
by the security forces in breach of Article 2 of the Convention.
Furthermore, they complained about the failure of the authorities to
investigate the circumstances surrounding the death of their relatives.
37. The Government denied the factual basis of the applicants’ allegations.
38. 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. Arguments
before the Court
1. The
applicants
39. Four of the applicants,
namely Abdullah Menteşe, Zühra Bozkuş, Mustafa Demirhan and Süleyman Moçu[3],
alleged that their relatives had been intentionally killed by the security
forces following an operation in the
40. The four applicants alleged
a failure by the authorities to carry out an effective and adequate
investigation into the killing of their relatives. In this respect, they
referred to the fact that no statements had been taken from them or from the
security forces who had been allegedly involved in the incident. They stated
that, as the domestic investigation was still pending for more than ten years
without any significant progress, the State should be considered to have
breached their obligation to conduct a proper investigation into the death of their
relatives.
2. The
Government
41. The Government disputed
these allegations and denied any involvement of the security forces in the
killing of these people. They stated that the applicants had failed to
substantiate their version of the facts and could not bring any evidence in
support of their allegations. They had therefore failed to prove their
submissions beyond reasonable doubt.
42. In respect of the
domestic investigation, the Government recalled that their obligation under the
Convention was not an obligation of result, but of means. They maintained that a
domestic investigation had in fact been initiated by the public prosecutor
immediately after the killing of the applicants’ relatives, and it was still being
pursued thoroughly. There was no period of inactivity that could be attributed
to the authorities. On
B. The
Court’s assessment
1. As
to the killing of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan and Abdulvahap
Maço
43. In the light of the
importance of the protection afforded by Article 2, the Court must subject
deprivations of life to the most careful scrutiny, taking into consideration
not only the actions of State agents but also all the surrounding circumstances
(see, among other authorities, Orhan v.
44. The Court notes that there are divergent versions as to the circumstances which led to the killing of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan and Abdulvahap Maço. While the applicants maintained that their relatives had been killed by the security forces, the Government denied these allegations.
45. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 161, Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001‑VII, and Ülkü Ekinci v. Turkey, no. 27602/95, §§ 141-42, 16 July 2002).
46. Accordingly, the Court
must reach its decision on the basis of the available evidence submitted by the
parties (see the most recent authority, Çaçan
v. Turkey, no. 33646/96, § 61,
47. The Court notes that the factual circumstances surrounding the death of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan and Abdulvahap Maço are unclear. On the one hand, it is observed that the defects in the domestic investigation hampered the assessment of the exact circumstances surrounding the events (see paragraphs 53-56 below). Accordingly no material evidence, which would have been very valuable in establishing the facts, could be collected during the domestic investigations. Furthermore, the applicants’ version of the facts is not corroborated in a sufficiently persuasive manner by eyewitnesses or other material evidence and lacks precise and sufficient information to determine the exact circumstances of the incident.
48. On the basis of the material
before it, the Court is therefore unable to draw a complete picture of the
factual circumstances surrounding the four deaths. The actual circumstances in
which the four men died remain a matter of speculation and assumption.
Accordingly, the Court considers that there is an insufficient factual and
evidentiary basis on which to conclude that Kamil Menteşe, Yusuf Bozkuş, Reşit
Demirhan and Abdulvahap Maço were, beyond reasonable doubt, intentionally or
recklessly killed by the security forces, as alleged by the applicants.
49. It follows that there had
been no violation of Article 2 of the Convention in this respect.
2. As
to the alleged inadequacy of the investigation
50. The Court recalls that,
according to its case-law, 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 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 v. the United Kingdom,
judgment of 27 September 1995, Series A no. 324, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February
1998, Reports 1998-I, p. 329,
§ 105). The essential purpose of such investigations 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.
However, whatever mode is employed, the authorities must act of their own
motion, once the matter has come to their attention. They cannot leave it to
the initiative of the next of kin either to lodge a formal complaint or to take
responsibility for the conduct of any investigatory procedures (see, for
example, mutatis mutandis, İlhan v.
51. 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 (see, for example, Kaya, cited above, p. 324, § 87) and to the identification and punishment of those responsible (Oğur v. Turkey [GC], no. 21594/93, § 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, forensic evidence, and where appropriate, an autopsy which provides a complete and accurate record of injuries 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.
52. There must also be a
requirement of promptness and reasonable expedition implicit in this context
(see Yaşa v. Turkey, judgment of
53. Turning to the particular
circumstances of the case, the Court notes that separate domestic investigations
were initiated into the deaths of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan
and Abdulvahap Maço. However, there were striking omissions in the conduct of
these investigations.
54. In this respect the Court notes that the first on-site inspection at the crime scene was made in 2001, almost seven years after the incident (see paragraph 31 above). Accordingly no material evidence, which would have been very valuable in establishing the facts, could be collected from the scene of the incident. Furthermore, the doctor at the Lice Health Clinic confined himself to performing external examinations of the bodies to establish the cause of death. Although descriptions of the bullet entry and exit holes on the bodies were given, in his reports he failed to establish the estimated time of the respective deaths, and indicate the approximate distance between the victims and the person(s) who had fired. Finally, the doctor did not provide any explanation about the different types of wounds which were observed on the body of Kamil Menteşe (see paragraph 27 above). Furthermore, it appears from the case file that the bullets which had been recovered from the bodies were not sent for ballistic examinations. Such an examination could have been useful to identify the type of gun or guns used during the incident.
55. The Court further notes
that the investigations, which have been pending for more than ten years now,
do not appear to have produced any tangible results. Even though the Government
argue that the case is still pending before the public prosecutor, they have
not provided any material to show whether any progress has been made.
56. Against this background,
the Court concludes that the domestic authorities did not conduct a prompt and adequate
investigation into the circumstances surrounding the killing of Kamil Menteşe, Yusuf
Bozkuş, Reşit Demirhan and Abdulvahap Maço. It finds that the authorities
concerned disregarded their essential responsibilities in this respect. It
takes into account, as indicated in previous judgments (see, for instance, Kaya, cited above, § 91, Yaşa, cited above, § 104, and Ergi, cited above, § 85), the fact that
loss of life was a tragic and frequent occurrence in the context of the
security situation in south-east Turkey in the 1990s, which may have hampered
the search for evidence. Nonetheless, such circumstances cannot have the effect
of relieving the authorities of the obligation imposed by Article 2 to
carry out an effective investigation.
57. In these circumstances
the Court is not persuaded that the criminal-law remedies supposedly available
to the applicants would have been capable of altering to any significant extent
the course of the investigations that were undertaken. Thus, the applicants
must be regarded as having complied with the requirement to exhaust the
relevant criminal-law remedies.
58. The Court accordingly
dismisses the criminal limb of the Government’s objection based on
non-exhaustion of domestic remedies (see paragraphs 33-35 above) and holds
that there has been a violation of the procedural aspect of Article 2 of the
Convention in respect of the first, second, fourth and sixth applicants.
III. ALLEGED
VIOLATIONS OF ARTICLES 3 AND 8 OF THE CONVENTION IN RESPECT OF KILLINGS
59. The first, second, fourth and sixth applicants alleged breaches of Articles 3 and 8 of the Convention in relation to the killing of their relatives. They maintained that they had suffered emotional pain as a result of the events and due to the unclear circumstances surrounding the death of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan and Abdulvahap Maço. These provisions read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8
“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.”
60. The Government denied the allegations.
61. The Court recalls its
finding above (see paragraphs 47-49 above) that it has not been established
that any State agent was implicated, directly or indirectly, in the killing of
the applicants’ relatives. There is thus no factual basis on which to conclude
that there have been violations of these other provisions as alleged by the
applicants.
62. Accordingly, the Court
finds no violation of Articles 3 and 8 of the Convention in respect of the
killing of the applicants’ relatives.
IV. ALLEGED
VIOLATION OF ARTICLE 5 OF THE CONVENTION
63. The applicants alleged
that they were compelled to abandon their home and village in breach of the
right to liberty and of security of their person. They invoked Article 5 § 1 of
the Convention, which reads:
“Everyone has the
right to liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure prescribed
by law.”
64. The Government did not
address this aspect of the case.
65. The Court recalls that
the primary concern of Article 5 § 1 of the Convention is the protection from
arbitrary deprivation of liberty by the State.
66. In the present case, the
applicants were never arrested or detained, or otherwise deprived of their
liberty. The applicants’ insecure personal circumstances arising from the loss
of their home do not fall within the notion of security of person as envisaged
in Article 5 § 1 of the Convention (see Cyprus
v. Turkey [GC], no. 25781/94, § 228, ECHR 2001 IV; Çaçan, cited above, §§ 69-70).
67. In the light of the
foregoing, the Court concludes that there has been no violation of Article 5 §
1 of the Convention.
V. ALLEGED
VIOLATIONS OF ARTICLES 3 AND 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No.
1 AS REGARDS VILLAGE DESTRUCTION
68. The applicants alleged a breached of Article 3 of the Convention on account of their forced expulsion from their village. They had mentally suffered as a result of the actions of the members of security forces, who had burned their family houses. Under Article 8 of the Convention, they complained about the destruction of their property. Furthermore, under Article 1 of Protocol No. 1, they maintained that the destruction of their houses and their forced eviction from the village had violated their right to the peaceful enjoyment of their possessions. The provisions of Articles 3 and 8 of the Convention are set out above at paragraph 59, and Article 1 of Protocol No. 1 provides, insofar as relevant, as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however,
in any way impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the general
interest ...”
69. The Government denied the factual basis of the applicants’ allegations.
70. The Court notes that it
is confronted with a dispute over the exact nature of the alleged events. In
this regard, it considers that it must reach its decision on the basis of the
evidence submitted by the parties (see Pardo
v. France, judgment of 20 September 1993, Series A no. 261-B,
p. 31, § 28).
71. The Court observes that the Government denied any involvement in the destruction of the applicants’ property. In this respect, they submitted that no military operation had been conducted in the applicant’s village on or around 13 May 1994. In the Court’s opinion, the documents produced by the applicants do not provide sufficient prima facie evidence of their version of events. The Court has not been provided with statements from other villagers who had also been in the Yolçatı village at the time of the incident. Furthermore, it appears that no complaint have been lodged with the domestic authorities at any stage of the proceedings by the applicants concerning the alleged destruction of their property.
72. The Court considers that it is in no better position, more than ten years after the event, to resolve the inconsistencies in the accounts, in particular as to how the applicants’ houses were destroyed and by whom. There is no sufficient, consistent or reliable evidence to establish to the necessary degree of proof that the security forces damaged the applicants’ home and property as alleged.
73. Consequently, the
complaints as to State responsibility for damage to the applicants’ homes and
property have not been substantiated and no findings of a violation of the above
provisions can be made.
VI. ALLEGED
VIOLATION OF ARTICLE 6 OF THE CONVENTION
74. The applicants further
complained that there was no effective investigation into the death of Kamil
Menteşe, Yusuf Bozkuş, Reşit Demirhan and Abdulvahap Maço, or into their forced
eviction and destruction of their family homes and possessions. In this
respect, they alleged that they were denied access to a court, in violation of
Article 6 § 1 of the Convention, which in relevant part, provides as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by [a] tribunal
...”
75. The Court observes that
the essence of the applicants’ complaint under Article 6 § 1 of the Convention
concerns the domestic authorities failure to mount an effective criminal
investigation into the aforementioned deaths and the destruction of property.
In the Court’s view, it is therefore more appropriate to examine the applicants’
Article 6 complaints in relation to the more general obligation on Contracting
States under Article 13 of the Convention to provide an effective remedy in
respect of violations of the Convention (see, amongst other authorities, Kaya, cited above, p. 329, § 105,
and Aksoy v. Turkey, judgment of 18
December 1996, Reports 1996‑VI,
p. 2286, § 93).
76. It accordingly does not
find it necessary to determine whether there has been a violation of Article 6
§ 1 of the Convention.
VII. ALLEGED
VIOLATION OF ARTICLE 13 OF THE CONVENTION
77. The applicants alleged that there had been no effective remedies in respect of their Convention grievances. They maintained that they were denied the right of access to court, as their allegations were never examined seriously by the domestic authorities.
78. The Government contended that there had been no shortcomings in the domestic investigation.
79. The Court’s case-law
establishes 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, in particular its exercise
must not be unjustifiably hindered by the acts or omissions of the authorities
of the respondent State (see Aksoy, cited
above, p. 2286, § 95, Aydın v. Turkey,
judgment of 25 September 1997, Reports
1997-VI, pp. 1895-96, § 103, Kaya, cited
above, pp. 329-30, § 106, Dulaş v. Turkey, no. 25801/94, § 65,
30 January 2001, and Yöyler v. Turkey, no. 26973/95, § 87, 24 July 2003).
80. 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).
81. The Court observes that
the applicants complain about two different aspects of the ineffectiveness of
the domestic investigations: firstly in relation to the killing of their
relatives and secondly in relation to the alleged burning of their property. It
is therefore appropriate to examine the Article 13 complaint in two parts.
A. With
regard to the killing of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan and Abdulvahap
Maço
82. The first, second, fourth
and sixth applicant complained that they had no effective remedy in respect of
their complaints. In this respect, they submitted that the lack of a proper
investigation deprived them of an effective remedy in relation to their
complaint regarding the killing of their relatives.
83. The Government argued
that there had been no shortcomings in the investigations carried out by the
authorities.
84. 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, or were otherwise implicated in, the killing of the applicant’s brother (see paragraphs 47-49 above). As it has held in previous cases, however, that does not preclude the complaint in relation to Article 2 from being an “arguable” one for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52, Kaya, cited above, pp. 330-31, § 107, and Yaşa, cited above, p. 2442, § 113). In this connection, the Court observes that it is not in dispute that the first, second, fourth and sixth applicants’ relatives were the victims of an unlawful killing and these applicants may therefore be considered to have an “arguable claim” that there has been a breach of Article 2 of the Convention.
85. The authorities thus had
an obligation to carry out an effective investigation into the circumstances of
the killing of the applicants’ relatives. However, no investigation was
performed (see paragraphs 53-58 above) which could have satisfied the
requirements of Article 13, which requirements are broader than the obligation
to investigate imposed by Article 2 (see Kaya, cited above, pp. 330-31, § 107). The Court finds therefore
that the first, second, fourth and sixth applicants have been denied an
effective remedy in respect of the death of their relatives and thereby access
to other remedies such as a claim for compensation.
86. Consequently, there has
been a violation of Article 13 of the Convention, taken in conjunction with
Article 2, in respect of the first, second, fourth and sixth applicants.
B. With
regard to the destruction of the applicants’ property
87. The Court recalls that, on the basis of the evidence adduced in the present case, it has not found it proved beyond reasonable doubt that the applicants’ home and possessions were destroyed by the security forces as alleged (see paragraphs 68-73 above).
88. According to the Court’s
case-law, Article 13 applies only where an individual has an “arguable claim”
to be the victim of a violation of a Convention right (see Boyle and Rice, cited above, § 52, and Matyar
v. Turkey, no. 23423/94, § 154,
VIII. ALLEGED
VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLES 2, 3, 6,
8 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
89. The applicants maintained
that, because of their Kurdish origin, they had been subjected to
discrimination in breach of Article 14 of the Convention, in conjunction with
Articles 2, 3, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1.
Article 14 provides:
“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.”
90. The Court has examined
the applicants’ allegation in the light of the evidence submitted to it, but
considers it unsubstantiated. There has therefore been no violation of Article
14 of the Convention.
IX. ALLEGED
VIOLATION OF ARTICLE 18 OF THE CONVENTION
91. The applicants alleged
that the interference or restrictions complained of have been imposed for
purposes incompatible with the Convention. They invoked Article 18 of the
Convention, which reads:
“The restrictions permitted under [the]
Convention to the said rights and freedoms shall not be applied for any purpose
other than those for which they have been prescribed.”
92. The Court has also examined
this allegation in the light of the evidence submitted to it, and finds that it
is unsubstantiated. Accordingly, no violation of this provision has been
established.
X. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
93. 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
94. Under the heading of pecuniary damage, the first, fourth and sixth applicants sought compensation for the school expenses of the children of their deceased relatives. In this respect, they submitted that Kamil Menteşe had four children, Mustafa Demirhan five and Süleyman Moçu[4] one. Accordingly, the first applicant requested 12,000,000,000 Turkish Liras (TRL), equivalent to 6,316 Euros (EUR), the fourth applicant TRL 30,000,000,000 (equivalent to EUR 15,822) and the sixth applicant TRL 6,000,000,000 (equivalent to EUR 3,164).
95. The Government contested
the applicants’ claims.
96. The Court does not find
any casual connection between the matter found to constitute a violation of the
Convention – the absence of an effective investigation – and the pecuniary
damage alleged by these applicants. In accordance with the principles in its
case-law, it rejects the entirety of the claims under this heading (see Buldan v. Turkey, no. 28298/95, § 113,
B. Non-pecuniary
damage
97. The first, second, fourth
and sixth applicants each claimed the sum of EUR 60,000 for the mental
suffering they experienced due to their relatives’ death.
98. The Government submitted
that the claims were excessive.
99. Having
regard to its finding of a violation of Articles 2 and 13 of the Convention,
the Court observes that the authorities’ failure to investigate effectively the
death of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan and Abdulvahap Maço must
have caused considerable anguish and distress to the first, second, fourth and
sixth applicants. Accordingly, deciding on an equitable basis, it awards the
sum of EUR 15,000, free of any tax that may be chargeable, in respect of non-pecuniary
damage to each of the first, second, fourth and sixth applicants, which amount
is to be converted into Turkish liras at the rate applicable at the date of
payment and to be paid into these applicants’ bank account in Turkey.
C. Costs
and expenses
100. The applicants claimed a
total of 12,604 pounds sterling (GBP), equivalent to EUR 18,019.81, for fees
and costs incurred in bringing their case before the Convention institutions.
101. The Government
maintained that the claim was excessive and unsubstantiated.
102. The Court, deciding on an equitable basis and having regard to the details of the claims submitted, awards the first, second, fourth and sixth applicants the global sum of EUR 10,000 in respect of fees and expenses, exclusive of any value-added tax that may be chargeable, such sum to be converted into pounds sterling and paid into the applicants’ representatives’ bank account in the United Kingdom as set out in their just satisfaction claims.
D. Default
interest
103. 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. Dismisses the Government’s preliminary objection;
2. Holds that there has been no violation of Article 2 of the
Convention as regards the first, second, fourth and sixth applicants’
allegation that their relatives were killed in circumstances engaging the
responsibility of agents of the respondent State;
3. Holds 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 adequate and effective investigation into the circumstances
surrounding the death of the first, second, fourth and sixth applicants’
relatives;
4. Holds that there has been no violation of Articles 3 and 8 of the Convention in respect of killing of the first, second, fourth and sixth applicants’ relatives;
5. Holds that there has been no violation of Article 5 § 1 of the Convention;
6. Holds that it is not
necessary to consider the applicants’ complaints under Article 6 § 1 of the
Convention;
7. Holds that there has been
no violation of Articles 3 and 8 of the Convention and Article 1 of Protocol
No. 1 in respect of the alleged destruction of the applicants’ property;
8. Holds that there has been a violation of Article 13 of the Convention in
respect of the first, second, fourth and sixth applicants’ complaints
concerning the death of their relatives;
9. Holds that there has been no violation of Article 13 of the
Convention in respect of the applicants’ complaints concerning the destruction
of their property;
10. Holds that there has been no violation of Article 14 of the
Convention;
11. Holds that there has been no violation of Article 18 of the
Convention;
12. Holds
(a) that the respondent State is
to pay, within three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention, the following amounts:
(i) EUR 15,000 (fifteen thousand euros)
in respect of non-pecuniary damage to each of the first, second, fourth and
sixth applicants, free
of any tax that may be chargeable, such sum to be converted into Turkish liras
at the rate applicable at the date of payment and to be paid into these applicants’
bank account in Turkey;
(ii) EUR 10,000 (ten thousand euros)
in respect of costs and expenses globally to the first, second, fourth and
sixth applicants, exclusive of any value-added tax that may be chargeable, such
sum to be converted into pounds sterling and paid into the applicants’
representatives’ bank account in the United Kingdom as set out in their just
satisfaction claims;
(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.
13. Dismisses the remainder of the applicants’ claim for just
satisfaction.
Done in
English, and notified in writing on
S. Dollé J.-P.
Costa
Registrar President
[1] Rectified on
[2] Rectified
on
[3] Rectified
on
[4] Rectified
on