CEDH · PRESS;GENERAL;ENG — 28 octobre 2004

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TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Zengin v. Turkey (application no. 46928/99).   The Court held unanimously: that there had been no violation of Article 2 of the European Convention on Human Rights (right to life) as regards the death of the applicant’s husband; that there had been a violation of Article 2 of the Convention as regards the nature of the investigation into the circumstances of his death; that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment); that there had been a violation of Article 13   (the right to an effective remedy); and that there had been no violation of Article 34 (right of individual petition).   Under Article 41 of the Convention (just satisfaction), the Court awarded the applicant 12,000 euros (EUR) for non-pecuniary damage and EUR 3,000 for costs and expenses, less EUR 630 received from the Council of Europe in legal aid.   (The judgment is available only in French.)   1.     Principal facts   The applicant, Güli Zengin, is a Turkish national who was born in 1949 and lives in Diyarbakır. At the material time she was living with her husband, Izettin Zengin, in the village of Narlıca, in the district of Kulp (Diyarbakır).   On 28 November 1998 security forces prepared an ambush at the entrance to the village of Narlıca, in the expectation that members of the PKK would come there to obtain supplies. In the course of an exchange of fire which then took place the applicant’s husband was mortally wounded. The public prosecutor of the region in which emergency powers were in force is then said to have declared that a “terrorist” had died as a result of the clash.   An incident report drawn up on the following day stated that Mr Zengin had been killed by fire from “terrorists” and that his body had been found near his home. On the same day the public prosecutor went to the morgue to make an external examination of the deceased’s corpse, after which a burial permit was issued. The examination revealed that Mr Zengin’s death had been caused by bullets which had passed through his heart and lungs.   In the course of a preliminary investigation witness evidence was taken from a number of people who had taken part in the operation and a reconstruction of events was staged. At the end of this investigation the public prosecutor’s office concluded that shots fired by “terrorists” had probably caused Mr Zengin’s death since his house was in their field of vision.   In May 2000, in a complaint to the Kulp public prosecutor, the applicant’s representative applied for measures to be taken to protect her life. Mrs Zengin asserted that she had been the victim of attempts by the authorities to intimidate her after she had lodged her application with the European Court of Human Rights and that she had been compelled to leave her village on account of the threats against her.   2.     Procedure and composition of the Court   The application was lodged on 9 January 1999 and declared partly admissible on 12   December 2002.   Judgment was given by a Chamber of 7 judges, composed as follows:   Georg Ress (German), President , Lucius Caflisch (Swiss), [2] Riza Türmen (Turkish), Boštjan Zupančič (Slovenian), Hanne Sophie Greve (Norwegian), Kristaq Traja (Albanian), Alvina Gyulumyan (Armenian), judges , and also Vincent Berger , Section Registrar .   3.     Summary of the judgment [3]   Complaints   The applicant submitted that her husband had been killed by the security forces and complained that there had been no appropriate and effective investigation into the circumstances of the killing. She further alleged that the declarations of the authorities to the effect that her husband had been a “terrorist” and that his death was to be classified simply as a lawful killing constituted inhuman and degrading treatment in her regard. Lastly, she complained of intimidation by the Turkish authorities after she had lodged her application with the Court. She relied on Articles 2, 3, 6 (right to a fair hearing), 13 and 34 of the Convention. Decision of the Court   Article 2 of the Convention   The death of the applicant’s husband The Court noted that Mr Zengin had died of bullet wounds sustained during an armed clash, and that it had not subsequently been determined who had fired the fatal shots. In the light of the material in its possession and in the absence of tangible evidence, it considered that a finding that he had been killed by gunfire from agents of the State would be based on hypothesis and speculation rather than reliable evidence. It had not been established beyond a reasonable doubt that the responsibility of the respondent State was engaged for the killing of the applicant’s husband. Consequently, the Court held unanimously that there had been no violation of Article 2 as regards the death of Mr Zengin.   The nature of the investigation The Court noted that the authorities had immediately opened an investigation. However, they had not ordered a ballistics report, a vital measure which might have made it possible to determine the source of the bullets which killed Mr Zengin. Moreover, they had not carried out an autopsy and had not taken evidence from the applicant, members of her family or other residents of the village. Furthermore, the Court noted that the finding by the public prosecutor’s office that bullets fired by the terrorists had caused Mr Zengin’s death was based only on verbal statements from people who had taken part in the operation. The Court accordingly considered that although the authorities had opened a criminal investigation following Mr Zengin’s death they had not elucidated the circumstances in which he had died. It therefore held unanimously that there had been a violation of Article 2 of the Convention as regards the nature of the investigation.   Article 3 of the Convention   The Court noted that the material produced by the applicant did not support this allegation in such a way as to enable it to conclude that the minimum level of severity capable of constituting inhuman or degrading treatment for the purposes of the Convention had been reached. It therefore held unanimously that there had been no violation of Article 3.   Articles 13 and 6 of the Convention   The Turkish State could not be considered to have conducted an effective criminal investigation, as required by Article 13, whose requirements went further than the obligation to hold an investigation derived from Article 2. The Court therefore likewise held unanimously that there had been a violation of Article 13.   Article 34 of the Convention   Having regard to the evidence submitted to it, the Court considered that the applicant had not suffered indirect and wrongful pressure intended to induce her to make statements about her application to the Court and capable of hindering the free exercise of the right of individual petition. It accordingly held unanimously that there had been no violation of the Convention in that respect.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] Judge elected in respect of Liechtenstein. [3] This summary by the Registry does not bind the Court.