CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 mars 2000

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text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } f     FIRST SECTION             CASE OF KILI Ç v. TURKEY   (Application no. 22492/93)                     JUDGMENT     STRASBOURG   28 March 2000       In the case of Kılıç v. Turkey, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Mrs   E. Palm , President ,   Mr   J. Casadevall ,   Mr   L. Ferrari Bravo ,   Mr   B. Zupančič ,   Mrs   W. Thomassen ,   Mr   R. Maruste , judges ,   Mr   F. Gölcüklü , ad hoc judge , and Mr M. O'Boyle , Section Registrar , Having deliberated in private on 18 January and 7 March 2000, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 8 March 1999, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no. 22492/93) against the Republic of Turkey lodged with the Commission under former Article 25 by a Turkish national, Mr Cemil Kılıç, on 13 August 1993. The application concerned the applicant's allegations that his brother, Kemal Kılıç, was killed by or with the connivance of State agents and that there was no effective investigation or remedy for his complaints. The applicant relied on Articles 2, 10, 13 and 14 of the Convention. The Commission declared the application admissible on 9 January 1995. In its report of 23 October 1998 (former Article 31 of the Convention), it expressed the opinion that there had been a violation of Articles 2 and 13 (unanimously) and that no separate issues arose under Article 10 (twenty-five votes to three) or Article 14 (unanimously) [1] . 2.     Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998, and in accordance with the provisions of Article 5 § 4 thereof read in conjunction with Rules 100 § 1 and 24 § 6 of the Rules of Court, a panel of the Grand Chamber decided on 31 March 1999 that the case would be examined by a Chamber constituted within one of the Sections of the Court. 3.     In accordance with Rule 52 § 1, the President of the Court, Mr   L.   Wildhaber, assigned the case to the First Section. The Chamber constituted within that Section included ex officio Mr R. Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 26 §   1 (a)), and Mrs E. Palm, President of the Section (Rule 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr   J.   Casadevall, Mr L. Ferrari Bravo, Mr B. Zupančič, Mrs W. Thomassen and Mr R. Maruste (Rule 26 § 1 (b)). 4.     Subsequently Mr Türmen withdrew from sitting in the Chamber (Rule   28). The Turkish Government (“the Government”) accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 5.     On 14 September 1999 the Chamber decided to hold a hearing. 6.     Pursuant to Rule 59 § 3, the President of the Chamber invited the parties to submit memorials on the issues raised in the application. The Registrar received the Government's and the applicant's memorials on 23   and 26 July 1999 respectively. 7.     In accordance with the Chamber's decision, a hearing took place in public in the Human Rights Building, Strasbourg, on 18 January 2000.   There appeared before the Court: (a)     for the Government Mr   Ş. Alpaslan ,   Co-Agent , Ms   Y. K ayaalp , Mr   B. Ç alişkan , Mr   S. Y üksel , Mr   E. Genel , Ms   A. E müler , Mr   N. Güngör , Mr   E. H oçaoğlu , Ms   M. Gülsen ,   Advisers ; (b)     for the applicant Ms   F. Hampson , Ms   R. Y alçindağ , Ms   C. A ydin ,   Counsel.   The Court heard addresses by Ms Hampson, Ms Yalçındağ and Mr   Alpaslan. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     Kemal Kılıç, the applicant's brother, was a journalist working for the newspaper Özgür Gündem in Şanlıurfa. Özgür Gündem was a daily newspaper, with its main office in Istanbul. Its owners described the newspaper as seeking to reflect Turkish Kurdish opinion. It was published between 30 May 1992 and April 1994. By the time it ceased publication, numerous prosecutions had been brought against it on the grounds, inter alia , that it had published the declarations of the PKK (Workers' Party of Kurdistan) and disseminated separatist propaganda. Following a search-and-arrest operation at the Özgür Gündem office in Istanbul on 10 December 1993, charges were brought against, inter alia , the editor, the manager and the owner of the newspaper, alleging that they were members of the PKK and had assisted the PKK and made propaganda in its favour. On 2 December 1994 the Istanbul office, which had been taken over by Özgür Gündem 's successor, the newspaper Özgür Ülke , was blown up by a bomb. 9.     Kemal Kılıç, who was unmarried, lived with his father in the village of Külünçe, outside Şanlıurfa. Besides working as a journalist, he was a member of the Şanlıurfa Human Rights Association. 10.     On 23 December 1992 Kemal Kılıç sent a press release to the governor of Şanlıurfa. This stated that death threats had been made against the United Press Distribution representative carrying out the distribution of Özgür Gündem and against the driver and owner of the taxi used for deliveries. It stated that it was known that persons working for Özgür Gündem had been attacked or killed and that those involved in the sale and distribution of the newspaper had been the victims of arson attacks and assaults. Reference was made to the fact that in other provinces in the south-east security officers were protecting the offices, employees and distributors. Kemal Kılıç requested that measures be taken to protect the safety of people working for the Şanlıurfa office, including himself, another journalist and the newspaper's distributor and driver. 11.     By letter dated 30 December 1992, the governor's office replied that Kemal Kılıç's request for protection had been examined. No protection had been assigned to distributors of newspapers in any of the provinces nor had there been any attacks on, or threats to, distributors in the area. His request was refused. 12.     On 11 January 1993 Kemal Kılıç issued a press release stating that attacks against persons involved in the sale and distribution of Özgür Gündem in Şanlıurfa were continuing, despite urgent requests for protective measures. Details were given of an arson attack on a news-stand on 5   January 1993 and on another news-stand on 10 January 1993. The press release criticised the governor for not ensuring the safe distribution of the newspaper and called on him and the police to fulfil their responsibilities. 13.     Following a complaint by the governor, Kemal Kılıç was charged with insulting the governor through the publication and circulation of the press release. He was taken into detention at the Şanlıurfa Security Directorate on 18 January 1993 and released the same day. 14.     At around 5 p.m. on 18 February 1993 Kemal Kılıç left the newspaper office in the centre of Şanlıurfa and walked to the coach station. At about 5.30, he caught the Şanlıurfa to Akçale coach from Kuyubaşı. Before the coach reached the junction of the main road with the road to Külünçe, it was overtaken by a white Renault car, which turned into the village road, turned around and parked, with its headlights off. The car was noticed at about 6.20 p.m. by Ahmet Fidan, a night watchman at a nearby construction site. Kemal Kılıç was the only passenger to leave the coach when it stopped at the junction. He walked up the road towards the village. Ahmet Fidan heard voices arguing and a cry for help, followed by two shots. 15.     The incident was reported to the gendarmes who rapidly arrived on the scene. Kemal Kılıç's body was discovered with two bullet wounds in the head. The applicant and other members of his family came from the village to see what had happened. 16.     Captain Kargılı, the central district gendarmerie commander, took charge of the investigation at the scene. Two cartridges were found and handed over to the public prosecutor when he arrived. The victim's mouth was found to have been covered with four strips of packaging tape and there was a rope around his neck. A piece of paper bearing the letters U and Y, stained with blood, was also discovered. A sketch map of the scene was drawn up. Captain Kargılı took photographs with his own camera and looked, unsuccessfully, for tyre marks. A statement was taken by the gendarmes from Ahmet Fidan, the night watchman, who stated that because of the darkness he had not seen the victim, the assailants or the car. 17.     An examination of the body was carried out by a doctor in the presence of the public prosecutor on 19 February 1993. The report found that two bullets had entered the head and noted the mark of a blow to the right temple, a graze on the right hand, bruising on the back and a semi-circular lesion on the left hand, which resembled a bite mark. It concluded that Kemal Kılıç had died due to destruction of brain tissue and brain haemorrhage. 18.     On 19 February statements were taken by the gendarmes from the driver of the Şanlıurfa coach and his assistant. The gendarmes also took statements between 19 and 23 February from the applicant, his father, three of his brothers and two passengers on the coach. 19.     On 26 February 1993 Captain Kargılı carried out a search, with a warrant, of the house where Kemal Kılıç had lived, removing, inter alia , books, newspaper cuttings, a photograph and two cassettes for further examination. 20.     On 15 March 1993 Captain Kargılı informed the public prosecutor of the search, enclosing several of the items removed from the house and other documents concerning the investigation. 21.     On 12 August 1993 the public prosecutor issued a decision to continue the investigation, which stated that it had not been possible to identify or apprehend the perpetrators of the killing and that the search should continue until the expiry of the twenty-year limitation period. 22.     On 24 December 1993 an armed attack was carried out on the Aydın Ticaret shop in Diyarbakır. The suspected perpetrators were pursued by police and a number of persons were arrested. The police incident report dated 24 December 1993 stated that the suspect Hüseyin Güney had been seen trying to escape by running up the stairs of a block of flats and was apprehended in a breathless, perspiring state. It was understood that he was returning to recover the Czech 9 mm pistol located in front of the building. 23.     A ballistics report dated 27 December 1993 reported that the Czech pistol had been used in fifteen other shooting incidents, including the killing of Kemal Kılıç. In an indictment dated 3 February 1994, also concerning sixteen other defendants, Hüseyin Güney was charged with the offence of membership of the outlawed Hizbullah organisation and carrying out activities with the intention of removing part of the country from the sovereignty of the State and forming a Kurdish State based on Islamic principles. These activities were said to include the attack on Aydın Ticaret and the fifteen incidents in which the Czech pistol had been used. 24.     In the undated interrogation notes taken at the Diyarbakır Security Directorate, Hüseyin Güney was recorded as admitting his membership of the Hizbullah and his participation in the attack on Aydın Ticaret. He denied participation in the killing of Kemal Kılıç and stated that he had been given the Czech pistol by another member of the group. In his statement of 6   January 1994 to the public prosecutor, Hüseyin Güney stated that his confessions to the police had been obtained by torture and denied that he had joined the Hizbullah or that he had attacked Aydın Ticaret. 25.     The trial of Hüseyin Güney, with other defendants, was conducted before the Diyarbakır National Security Court no. 3 between February 1994 and 23 March 1999. On 3 March 1994 Hüseyin Güney denied his involvement in any of the incidents. At the hearing on 27 October 1994, the police officers who had arrested him confirmed the incident report of 24   December 1993 without adding anything further. On 17 December 1996 the court issued a request for documents relating to the killing of Kemal Kılıç to be obtained. 26.     In its judgment of 23 March 1999, the court convicted Hüseyin Güney of being a member of a separatist organisation, the Hizbullah. The court noted that he had been found trying to escape in the vicinity of the Czech 9 mm pistol and that, although he later denied it, he had admitted to the police that he was a member of the Hizbullah and that he had participated in the attack on the shop. It noted, however, that pistols belonging to the organisation could have been used by different individuals and that the defendants had stated that the guns had been given to them by other members of the group before the attack. It was found that although Hüseyin Güney had participated in the attack on the shop he could not be held responsible for any other actions. Hüseyin Güney was sentenced to life imprisonment. 27.     Following the court's decision, the Diyarbakır National Security Court chief public prosecutor opened an investigation into the killing of Kemal Kılıç (file no. 1999/1187). By letter dated 20 December 1999, the prosecutor instructed the Şanlıurfa gendarmerie command to report to him every three months concerning any evidence obtained about the Kılıç murder. II.     Material before the convention organs A.     Domestic investigation documents and court proceedings 28.     The contents of the investigation file compiled by the gendarmes and public prosecutor at Şanlıurfa, as well as the minutes from the hearings in the trial of Hüseyin Güney in Diyarbakır National Security Court no. 3 from February 1994 to June 1997, were submitted to the Commission. The Government provided the Court with the judgment of the Diyarbakır National Security Court no. 3 of 23 March 1999. B.     The Susurluk report 29.     The applicant provided the Commission with a copy of the so-called “Susurluk report” [2] , produced at the request of the Prime Minister by Mr   Kutlu   Savaş, Vice-President of the Board of Inspectors within the Prime Minister's Office. After receiving the report in January 1998, the Prime Minister made it available to the public, although eleven pages and certain annexes were withheld. 30.     The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups. 31.     The report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that have been formed as a result, particularly in the drug-trafficking sphere. The passages from the report that concern certain matters affecting radical periodicals distributed in the region are reproduced below. “... In his confession to the Diyarbakır Crime Squad, ... Mr G. ... had stated that Ahmet Demir [ [3] ] [p. 35] would say from time to time that he had planned and procured the murder of Behçet Cantürk [ [4] ] and other partisans from the mafia and the PKK who had been killed in the same way ... The murder of ... Musa Anter [ [5] ] had also been planned and carried out by A. Demir [p. 37]. ... Summary information on the antecedents of Behçet Cantürk, who was of Armenian origin, are set out below [p. 72]. ... As of 1992 he was one of the financiers of the newspaper Özgür Gündem . ... Although it was obvious who Cantürk was and what he did, the State was unable to cope with him. Because legal remedies were inadequate Özgür Gündem was blown up with plastic explosives and when Cantürk started to set up a new undertaking, when he was expected to submit to the State, the Turkish Security Organisation decided that he should be killed and that decision was carried out [p. 73]. ... All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms. ... The sole disagreement we have with what was done relates to the form of the procedure and its results. It has been established that there was regret at the murder of Musa Anter, even among those who approved of all the incidents. It is said that Musa Anter was not involved in any armed action, that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake. (Information about these people is to be found in Appendix   9 [ [6] ] ). Other journalists have also been murdered [p. 74] [ [7] ] .” 32.     The report concludes with numerous recommendations, such as improving co-ordination and communication between the different branches of the security, police and intelligence departments; identifying and dismissing security-force personnel implicated in illegal activities; limiting the use of “confessors” [8] ; reducing the number of village guards; terminating the use of the Special Operations Bureau outside the south-east region and incorporating it into the police outside that area; opening investigations into various incidents; taking steps to suppress gang and drug-smuggling activities; and recommending that the results of the Grand National Assembly Susurluk inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken. C.     The 1993 report of the Parliamentary Investigation Commission (10/90 no. A.01.1.GEC) 33.     The applicant provided this 1993 report into extra-judicial or “unknown perpetrator” killings by a Parliamentary Investigation Commission of the Turkish Grand National Assembly. The report referred to 908 unsolved killings, of which nine involved journalists. It commented on the public lack of confidence in the authorities in south-east Turkey on and referred to information that the Hizbullah had a camp in the Batman region where they received political and military training and assistance from the security forces. It concluded that there was a lack of accountability in the region and that some groups with official roles might be implicated in the killings. D.     Evidence given before the Commission's delegates 34.     A delegation from the Commission heard evidence from four witnesses: the applicant, Captain Cengiz Kargılı, the gendarme in charge of the investigation into the killing of Kemal Kılıç, Mr Cafer Tüfekçi, public prosecutor at the Diyarbakır National Security Court who had initiated the proceedings against Hüseyin Güney, and Mr Mustafa Çetin Yağlı, public prosecutor at the Diyarbakır National Security Court who had acted in the trial against Hüseyin Güney. 35.     Three other witnesses did not appear. Ahmet Fidan, the night watchman, could not be traced. Mr Hüseyin Fidanboy, the Şanlıurfa public prosecutor, was due to attend but his flight to Ankara was cancelled due to snow. Mr   Ziyaeddin Akbulut, the governor of Şanlıurfa at the material time, was asked to attend the hearings on 4 February and 4 July 1997 but did not appear. After the first hearing, the Agent of the Government provided the explanation that Mr Akbulut had been taking his annual leave. Regarding the second hearing, the Agent submitted a letter from Mr   Akbulut which stated that he could not remember being petitioned by Kemal Kılıç, that the allegations made were false and that he could not attend due to his annual leave. III.     RELEVANT DOMESTIC LAW AND PRACTICE 36.     The principles and procedures relating to liability for acts against the law may be summarised as follows. A.     Criminal prosecutions 37.     Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article   152). By 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. 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 (Article 153 of the Code of Criminal Procedure). 38.     In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey. 39.     If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court. 40.     By virtue of Article 4, paragraph (i), of Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 39 above) also applies to members of the security forces who come under the governor's authority. 41.     If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person's life by disobeying an order (Article   89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 37 above) or with the offender's superior. B.     Civil and administrative liability arising out of criminal offences 42.     Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 43.     Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities are subject to judicial review ... ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 44.     Article 8 of Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 43 above), provides: “No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 45.     Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles   41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article   50 of the Code of Obligations). THE LAW I.     The court's assessment of the facts 46.     The Court observes in the present case that the facts as established in the proceedings before the Commission are no longer substantially in dispute between the parties. 47.     Before the Commission, the applicant argued that the facts supported a finding that his brother had been killed either by undercover agents of the State or by members of the Hizbullah, acting under express or implied instructions and to whom the State gave support, including training and equipment. This assertion was denied by the Government. 48.     After a Commission delegation had heard evidence in Ankara and Strasbourg (see paragraphs 20 and 24 of the Commission's report of 23   October 1998), the Commission concluded that it was unable to determine who had killed Kemal Kılıç. There was insufficient evidence to establish beyond reasonable doubt that State agents or persons acting on their behalf had carried out the murder. It also found that there was no direct evidence linking the suspect Hüseyin Güney to that incident (see the Commission's report cited above, §§ 187-89 and 201-03). In their memorials and pleadings before the Court, the applicant and the Government accepted the Commission's conclusions. 49.     The Court reiterates its settled case-law that under the Convention system prior to 1 November 1998 the establishment and verification of the facts was primarily a matter for the Commission (former Articles 28 § 1 and 31). While the Court is not bound by the Commission's findings of fact and remains free to make its own assessment in the light of all the material before it, it is only in exceptional circumstances that it will exercise its powers in this area (see, among other authorities, Tanrıkulu v. Turkey [GC], no. 23763/94, § 67, ECHR 1999-IV). 50.     Having regard to the parties' submissions and the detailed consideration given by the Commission in its task of assessing the evidence before it, the Court finds no elements which might require it to exercise its own powers to verify the facts. It accordingly accepts the facts as established by the Commission. 51.     In addition to the difficulties inevitably arising from a fact-finding exercise of this nature, the Commission found that it was hindered in its task of establishing the facts by the failure of Mr Ziyaeddin Akbulut, the governor of Şanlıurfa at the material time, to appear to give evidence. The Government were requested to obtain the attendance of Mr Akbulut on two occasions. The Commission considered that the evidence of Mr Akbulut was of importance in shedding light on what steps were taken by the authorities in regard to the claims that Kemal Kılıç and others working for Özgür Gündem in Şanlıurfa were at risk and concerning the information which was available to the authorities (see paragraph 182 of the Commission's report cited above). 52.     The Court would observe that it is of the utmost importance for the effective operation of the system of individual petition instituted under former Article 25 of the Convention (now Article 34), not only that applicants or potential applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities, but also that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see former Article 28 § 1 (a) of the Convention, which concerned the fact-finding responsibility of the Commission, now replaced by Article 38 of the Convention as regards the Court's procedures). 53.     The Court notes the lack of any satisfactory or convincing explanation by the Government as to the non-attendance of an important witness, who was a State official, at the hearings before the Commission's delegates (see paragraph 35 above). Consequently, it confirms the finding reached by the Commission in its report that in this case the Government fell short of their obligations under former Article 8 § 1 (a) of the Convention to furnish all necessary facilities to the Commission in its task of establishing the facts. II.     Alleged violations of article 2 of the convention 54.     The applicant alleged that the State was responsible for the death of his brother Kemal Kılıç through the lack of protection and for the failure to provide an effective investigation into his death. He invoked Article 2 of the Convention, which provides: “1.     Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.     Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a)     in defence of any person from unlawful violence; (b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c)     in action lawfully taken for the purpose of quelling a riot or insurrection.” 55.     The Government disputed those allegations. The Commission expressed the opinion that on the facts of the case, which disclosed a lack of effective guarantees against unlawful conduct by State agents, the State, through their failure to take investigative measures or otherwise respond to the concerns of Kemal Kılıç about the pattern of attacks on persons connected with Özgür Gündem and through the defects in the investigative and judicial procedures carried out after his death, did not comply with their positive obligation to protect Kemal Kılıç's right to life. A.     Submissions of those who appeared before the Court 1.     The applicant 56.     The applicant submitted, agreeing with the Commission's report and citing the Court's judgment in the Osman case (Osman v. the United Kingdom judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII) that the authorities had failed to ensure the effective implementation and enforcement of law in the south-east region in or about 1993. He referred to the Susurluk report as strongly supporting the allegations that unlawful attacks were being carried out with the support and knowledge of the authorities. He relied on the defects in investigations into unlawful killings found by the Convention organs as showing that public prosecutors were unlikely to carry out effective inquiries into allegations against the security forces. He also pointed to the way in which the jurisdiction to investigate complaints against the security forces was transferred from the public prosecutors to administrative councils, which were not independent, and to the use of National Security Courts, which were also lacking in independence due to the presence of a military judge, to deal with alleged terrorist crime. 57.     These elements together disclosed a lack of accountability on the part of the security forces or those acting under their control or with their acquiescence which was, in the view of the applicant and the Commission, incompatible with the rule of law. In the particular circumstances of this case where Kemal Kılıç, as a journalist for Özgür Gündem , was at risk of being targeted, the authorities, in failing to take adequate measures following his request for protection, had failed to protect his life as required by law. 58.     The applicant, again relying on the Commission's report, further argued that the investigation into Kemal Kılıç's death was fundamentally flawed. After the initial investigative measures at the scene, the authorities took few steps to find the perpetrators. They failed to broaden the investigation to discover if the killing was related to Kemal Kılıç's employment as a journalist by Özgür Gündem even though the gendarmerie captain in charge of the investigation was aware of the difficulties experienced by journalists at this time, and by Kemal Kılıç in particular. Although a suspect, Hüseyin Güney, was accused among other things of killing Kemal Kılıç, the applicant pointed out that there was no evidence at his trial linking him to the murder. Nonetheless the trial, which was still pending at the date of the Commission's report in October 1998, had had the practical effect of closing the investigation into the killing, despite its lack of relevance to that event. 2.     The Government 59.     The Government rejected the Commission's approach as general and imprecise. They argued strongly that the Susurluk report had no evidential or probative value and could not be taken into account in assessing the situation in south-east Turkey. The report was prepared for the sole purpose of providing information to the Prime Minister's Office and making certain suggestions. Its authors emphasised that the veracity and accuracy of the report were to be evaluated by that Office. Speculation and discussion about the matters raised in the report were rife and all based on the assumption that its contents were true. The State, however, could only be held liable on the basis of facts that had been proved beyond reasonable doubt. 60.     As regards the applicant's and the Commission's assertions that Kemal Kılıç had been at risk from unlawful violence, the Government pointed out that the State had been dealing with a high level of terrorist violence since 1984 which reached its peak between 1993 and 1994, causing the death of more than 30,000 Turkish citizens. The situation in the south-east was exploited by many armed terrorist groups, including the PKK and the Hizbullah, who were involved in a struggle for power in that region in 1993/94. While the security forces did their utmost to establish law and order, they faced immense obstacles and, as in other parts of the world, terrorist attacks and killings could not be prevented. Indeed, in the climate of widespread intimidation and violence, no one in society could have felt safe at that time. All journalists could be said to have been at risk, for example, not only Kemal Kılıç. 61.     As regards the investigation into the death of Kemal Kılıç, the Government asserted that this was carried out with utmost precision and professionalism. All necessary steps were taken promptly and efficiently, including an investigation at the scene, an autopsy, a ballistics examination and the taking of statements from witnesses. The investigation continued even after Hüseyin Güney was put on trial as it was known that there were three others involved in the murder. Further, once the Diyarbakır National Security Court found that it had not been established that Hüseyin Güney had committed the killing, an investigation was opened in the National Security Court which will continue until the end of the relevant prescription period. B.     The Court's assessment Alleged failure to protect the right to life (a)     Alleged failure to take protective measures 62.     The Court recalls that 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 the L.C.B. v. the United Kingdom judgment of 9 June 1998, Reports 1998-III, p. 1403, § 36). 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 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 or individuals whose life is at risk from the criminal acts of another individual (see the Osman judgment cited above, p. 3159, § 115). 63.     Bearing in mind 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 positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. 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 the Osman judgment cited above, pp. 3159-60, § 116). 64.     In the present case, it has not been established beyond reasonable doubt that any State agent or person acting on behalf of the State authorities was involved in the killing of Kemal Kılıç (see paragraphs 48 and 50 above). The question to be determined is whether the authorities failed to comply with their positive obligation to protect him from a known risk to his life. 65.     The Court notes that Kemal Kılıç made a request for protection to the governor of Şanlıurfa on 23 December 1992, just under two months before he was shot dead by unknown gunmen. His petition shows that he considered himself and others to be at risk because they worked for Özgür Gündem. He claimed that distributors and sellers of the newspaper had been threatened and attacked in Şanlıurfa and in other towns in the south-east region. In his press release of 11 January 1993, he detailed specific attacks on two news-stands in Şanlıurfa. 66.     The Government have claimed that Kemal Kılıç was not more at risk than any other person or journalist in the south-east, referring to the tragic number of victims to the conflict in that region. The Court has previously found, however, that in early 1993 the authorities were aware that those involved in the publication and distribution of Özgür Gündem feared that they were falling victim to a concerted campaign tolerated, if not approved, by State officials (see the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2440, § 106). It is undisputed that a significant number of serious incidents occurred involving killings of journalists, attacks on newspaper kiosks and distributors of the newspaper (see the Yaşa judgment cited above, p. 2440, § 106, and the case of Ersöz and Others v. Turkey pending before the Court, application no. 23144/93, Commission's report of 29 October 1998, §§ 28-62 and 141-42, unpublished). The Court is satisfied that Kemal Kılıç, as a journalist for Özgür Gündem , was at this time at particular risk of falling victim to an unlawful attack. Moreover, this risk could in the circumstances be regarded as real and immediate. 67.     The authorities were aware of this risk. The governor of Şanlıurfa had been petitioned by Kemal Kılıç who had requested protective measures. In Diyarbakır, the police were in consultation with the Özgür Gündem office there about protective measures. 68.     F