CEDH · PRESS;GENERAL;ENG — 16 novembre 2004

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sF9C0A319 { margin-top:0pt; margin-bottom:0pt; page-break-after:avoid; font-size:12pt } .s595305E7 { font-family:Arial; font-weight:normal; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s1EDF3BA6 { font-family:Arial; font-size:8pt; font-weight:bold; vertical-align:super; color:#0069d6 } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   574 16.11.2004   Press release issued by the Registrar   CHAMBER JUDGMENT ISSA AND OTHERS v. TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Issa and Others v. Turkey (application no. 31821/96).   The Court held unanimously that the applicants’ relatives had not been within the jurisdiction of Turkey within the meaning of Article 1 (obligation to respect human rights) of the European Convention on Human Rights.   (The judgment is available only in English.)     1.     Principal facts   The applicants, Halima Musa Issa, Beebin Ahmad Omer, Safia Shawan Ibrahim, Fatime Darwish Murty Khan, Fahima Salim Muran and Basna Rashid Omer are Iraqi nationals, born in 1950, 1970, 1951, 1939, 1949, and 1947 respectively. The first applicant brought the application on her own behalf and on behalf of her deceased son, Ismail Hassan Sherif. The remaining applicants brought the application on their own behalf and on behalf of their deceased husbands, Ahmad Fatah Hassan, Abdula Teli Hussein, Abdulkadir Izat Khan Hassan, Abdulrahman Mohammad Sherriff and Guli Zekri Guli respectively. The fourth applicant has also brought the application on behalf of her deceased son, Sarabast Abdulkadir Izzat.   The facts of the case are in dispute between the parties.   The applicants’ version of events   According to the applicants, a group of shepherds from the village of Azadi in Sarsang province near the Turkish border left the village on the morning of 2 April 1995 to take their flocks to the hills. They encountered Turkish soldiers who were allegedly carrying out military operations in the area and who immediately abused and assaulted them. The women were told to return to the village and the men were led away.   Subsequently representations were made to the local Turkish commanders with a view to obtaining information about the missing shepherds’ whereabouts and securing their release, but without success.   Following the withdrawal of the Turkish troops from the area, the bodies of the shepherds were found. The bodies had bullet wounds and were severely mutilated. Five bodies were found on 3 April close to where the shepherds had last been seen. The remaining two bodies were found two days later.   The Government’s version of events   The Government confirmed that a Turkish military operation had taken place in northern Iraq between 19 March 1995 and 16   April   1995. The Turkish forces had advanced to Mount Medina. The records of the armed forces did not show the presence of any Turkish soldiers in the area indicated by the applicants, the Azadi village being ten kilometres south of the operation zone. There was no record of a complaint having been made to any of the officers of the units operating in the Mount Medina region.     2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 2   October   1995 and transmitted to the Court on 1 November 1998. It was declared admissible on 30 May 2000.   Judgment was given by a Chamber of 7 judges, composed as follows:   Jean-Paul Costa (French), President , András Baka (Hungarian), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Wilhelmina Thomassen (Netherlands), Mindia Ugrekhelidze (Georgian), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge , and also Lawrence Early , Deputy Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants complained of the alleged unlawful arrest, detention, ill-treatment and subsequent killing of their relatives in the course of a military operation conducted by the Turkish army in northern Iraq in April 1995. They relied on Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment), 5 (right to liberty and security), 8 (right to respect for private and family life), 13 (right to an effective remedy), 14 (prohibition of discrimination) and 18 (limitation on the use of restrictions on rights) of the Convention.   Decision of the Court   Article 1 of the Convention   Notwithstanding the fact that the Government had not explicitly raised the issue of jurisdiction within the meaning of Article 1 of the Convention prior to the admissibility decision, it was a live issue, since it was inextricably linked to the facts underlying the applicants’ allegations. As such it was to be taken to have been implicitly reserved for the merits stage.   It followed from Article 1 of the Convention that Contracting States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”. The established case-law indicated that the concept of “jurisdiction” for the purposes of Article 1 of the Convention had to be considered to reflect the term’s meaning in public international law, according to which a State’s jurisdictional competence was primarily territorial. However, the concept of “jurisdiction” within the meaning of Article   1 of the Convention was not necessarily restricted to the national territory of the Contracting Parties. In exceptional circumstances the acts of Contracting States performed outside their territory or which produced effects there might amount to exercise by them of their jurisdiction within the meaning of Article 1 of the Convention. Thus a State’s responsibility might be engaged where, as a consequence of military action – whether lawful or unlawful – that State in practice exercised effective control of an area situated outside its national territory. Moreover, a State might also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating – whether lawfully or unlawfully - in the latter State. Accountability in such situations stemmed from the fact that Article 1 of the Convention could not be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory.   The Court consequently had to ascertain whether the applicants’ relatives had been under the authority and/or effective control, and therefore within the jurisdiction, of the respondent State as a result of the latter’s extra ‑ territorial acts. In this connection, it was undisputed between the parties that the Turkish armed forces had carried out military operations in northern Iraq over a six-week period between 19 March and 16 April 1995.   However, notwithstanding the large number of troops involved in these military operations, it did not appear that Turkey had exercised effective overall control of the entire area of northern Iraq. The essential question to be examined was therefore whether at the relevant time Turkish troops had conducted operations in the area where the killings took place. The standard of proof employed by the Court in seeking to determine this issue in the light of documentary and other evidence was “beyond reasonable doubt”.   The Court noted among other things that the applicants had not given any particulars as to the identity of the commander or of the regiment involved in the impugned acts. Nor had they given a detailed description of the soldiers’ uniforms. There was moreover no independent eye-witness account of the presence of Turkish soldiers in the area in question or of the detention of the shepherds.   Furthermore, the Court was unable to determine, on the basis of the evidence available to it, whether the deaths were caused by gunfire discharged by Turkish troops. In this connection the Court could not overlook the fact that the area where the applicants’ relatives were killed had been the scene of fierce fighting between PKK militants and KDP peshmergas at the relevant time. Moreover, although news reports and official records confirmed the conduct of cross-border operations and the presence of the Turkish army in northern Iraq at the material time, these materials did not make it possible to conclude with any degree of certainty that Turkish troops went as far as the Azadi village in the Spna area.   Finally, the applicants’ allegations that they had made representations to Turkish army officers could not be found to be substantiated. The applicants had failed to provide any cogent and convincing evidence capable of rebutting the Government’s contention that no such complaint had ever been made to Turkish army officers in northern Iraq.   On the basis of all the material in its possession, the Court considered that it had not been established to the required standard of proof that the Turkish armed forces had conducted operations in the area in question, and, more precisely, in the hills above the village of Azadi where, according to the applicants’ statements, the victims had been at that time. The Court was accordingly not satisfied that the applicants’ relatives had been within the “jurisdiction” of the respondent State for the purposes of Article 1 of the Convention.   That finding made it unnecessary to examine the applicants’ substantive complaints under Articles 2, 3, 5, 8, 13, 14 and 18 of the Convention.       ***   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] This summary by the Registry does not bind the Court.