CEDH · PRESS;GENERAL;ENG — 24 mars 2005

.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 } .s6B505E72 { margin:0pt; padding-left:0pt } .sD711EC90 { margin-left:31.52pt; padding-left:7.48pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .s37CDBE05 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .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   151 24.3.2005   Press release issued by the Registrar   CHAMBER JUDGMENT AKKUM AND OTHERS v. TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Akkum and Others v. Turkey (application no. 21894/93).   The Court held, unanimously, that: Turkey had failed to fulfil its obligation under Article 38 § 1 (a) of the European Convention on Human Rights, to provide the European Court and European Commission of Human Rights with the necessary facilities to enable them to   establish the facts in the case; there had been a violation of Article 2 (right to life) of the Convention on account of the deaths of the applicants’ three relatives; there had been a violation of Article 2 given the Turkish authorities failure to conduct an effective investigation into the killings; there had been a violation of Article 3 (prohibition of degrading treatment) concerning the applicant whose son’s ears were severed post-mortem ; there had been a violation of Article 13 (right to an effective remedy); it was unnecessary to determine whether there had been a practice by the Turkish authorities of infringing Articles 2 and 13; it was unnecessary to determine whether there had been a violation of Article 14 (prohibition of discrimination) or Article 18 (limitation on use of restrictions on rights); there had been a violation of Article 1 of Protocol No. 1 (protection of property) concerning the killing of a horse and dog belonging to the son of one of the applicants; there had been no violation of Article 1 of Protocol No. 1 concerning the killing of the livestock belonging to the local villagers.   Under Article 41 (just satisfaction), the Court awarded Rabia Karakoç 57,300 euros (EUR) for pecuniary damage, to be held by her for the wife and children of her son, Derviş Karakoç. The Court awarded EUR 81,100 for non-pecuniary damage to the three applicants and the heirs of their deceased relatives and EUR 20,000 to the applicants jointly for costs and expenses, less EUR 3,000 granted as legal aid. (The judgment is available only in English.)   1.     Principal facts   The applicants, Zülfü Akkum, Hüseyin Akan and Rabia Karakoç, are all Turkish citizens of Kurdish origin, born in 1944, 1928 and 1930 respectively. They are the father, brother and mother of Mehmet Akkum, Mehmet Akan and Derviş Karakoç, who were killed – aged, respectively, 29, 70 and 33 – on 10 November 1992.   It is not in dispute between the parties that a military operation took place on 10 November 1992 in the district of Dicle, near Diyarbakır, and that the bodies of the three men were found after the operation or that Mehmet Akkum’s ears had been severed.   Rabia Karakoç claimed that Derviş Karakoç was shot at point-blank range on 10 November 1992 by soldiers, who also killed his horse and dog.   Zülfü Akkum and Hüseyin Akan alleged that Mehmet Akkum and Mehmet Akan had last been seen alive on a mountainside with a large number of soldiers and that they had subsequently been killed by members of the security forces. Zülfü Akkum and Hüseyin Akan further alleged that 89 sheep were killed in the operation.   The Turkish Government denied that soldiers were responsible for the killing of Derviş Karakoç and maintained that Mehmet Akkum and Mehmet Akan were killed in crossfire between soldiers and members of the Kurdistan Workers’ Party (PKK) and that it was not possible to establish who had actually shot them.     2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 4 May 1993 and a hearing was held in Strasbourg on 18 October 1994. The application was declared admissible on 5 March 1996.   A delegation from the Commission took oral evidence concerning the case in Ankara in March 1997 and the case was transmitted to the Court on 1 November 1999.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Loukis Loucaides (Cypriot), Peer Lorenzen (Danish), Nina Vajić (Croatian), Snejana Botoucharova (Bulgarian), Anatoli Kovler (Russian), Feyyaz Gölcüklü (Turkish), judges , and also Søren Nielsen , Registrar .             3.     Summary of the judgment   Complaints   The applicants alleged that their relatives were killed unlawfully by the security forces and that the authorities failed to carry out an adequate investigation into the killings. Zülfü Akkum also submitted that his son’s ears were cut off after his death, arguing that the mutilation of a body was offensive to a Muslim, given that he had to bury an incomplete and mutilated body. The applicants further complained that the soldiers also killed a horse, a dog and livestock.   The applicants maintained that there was a practice of conducting inadequate investigations into the killings of individuals in south-east Turkey, where agents of the State were alleged to have been involved, and of failing to prosecute those responsible. The applicants also complained that, because of their Kurdish origin, they and their deceased relatives had been subjected to discrimination.   They relied on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 13 (right to an effective remedy), 14 (prohibition of discrimination), 18 (limitation of use of restrictions on rights) and Article 1 of Protocol No. 1 (protection of property).   Decision of the Court   Establishing the facts   The European Court of Human Rights regretted the absence of a thorough domestic judicial investigation in the case and that the Turkish Government had withheld key documentary evidence – in particular the operation plan of 8   November 1992 and the “final report/detailed operation report” – which were indispensable for the correct and complete establishment of the facts of the case. The reports from 11 November that had been made available were full of omissions and contradictions and information provided by State agents and relating to the facts of the case was contradictory and, at least as regards statements made by a number of those agents, could not be accepted as truthful.   In the absence of any explanation, let alone a satisfactory one, for such a state of affairs, and bearing in mind its assessment of the written evidence and that of the oral evidence given by the other witnesses, the Court considered that the situation justified the drawing of inferences as to the well-foundedness of Rabia Karakoç’s allegations. The Court therefore found it established that Derviş Karakoç, his horse and his dog were killed by the soldiers in the circumstances alleged by Rabia Karakoç.   As regards the killing of Mehmet Akkum and Mehmet Akan, the Court considered it legitimate to draw a parallel between the situation of detainees, for whose well-being the State was held responsible, and the situation of people found injured or dead in an area within the exclusive control of the State authorities. In both situations, information about the events in question lied wholly, or to a large extent, within the exclusive control of the authorities. The Court found it appropriate, therefore, in cases where the non-disclosure by the Government of crucial documents in their exclusive possession was preventing the Court from establishing the facts, that the Government either argue conclusively why the documents in question could not serve to corroborate the allegations made by the applicants, or provide a satisfactory and convincing explanation of how the events in question occurred, failing which an issue under Article 2 and/or Article 3 would arise.   The Court observed that the Turkish Government had failed to adduce any argument from which it could be deduced that the documents withheld by them contained no information bearing on the applicant’s claims.   The Court also concluded that no meaningful investigation had been conducted at domestic level capable, firstly, of establishing the true facts surrounding the killings of Mehmet Akkum and Mehmet Akan and the mutilation of Mehmet Akkum’s body, and, secondly, of leading to the identification and punishment of those responsible. The Turkish Government had therefore failed to account for the killing of Mehmet Akkum and Mehmet Akan or for the mutilation of Mehmet Akkum’s body.   Article 38 The Court stressed that it was of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications. It was inherent in proceedings relating to cases where an individual applicant accused State agents of violating his rights under the Convention, that, in certain instances, solely the respondent Government had access to information capable of corroborating or refuting those allegations. A failure on a Government’s part to submit such information which was in their hands without a satisfactory explanation might not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but might also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a).   The Court noted that the Turkish Government had failed to submit at any point a copy of, among other key documents, a “final report/detailed operation report” or the Sancak-1 Operation Plan, drafted on 8   November 1992. Neither had they provided an explanation for their failure to do so.   The Court therefore found that Turkey had fallen short of its obligation under Article 38   § 1 (a) to furnish all necessary facilities to the Commission and to the Court in their task of establishing the facts.   Article 2 Having established that Derviş Karakoç was killed by soldiers on 10 November 1992 and that the Turkish Government had failed to account for the killing of Mehmet Akkum and Mehmet Akan, the Court found that there had been a violation of Article 2 concerning the killing of all three men.   Having regard to those findings of violations of Article 2, the Court did not consider it   necessary to reach any separate finding concerning the alleged lack of care in the planning and control of the operation.   The Court also concluded that the domestic authorities had failed to carry out an adequate and effective investigation into the killings of the applicants’ three relatives, in a further violation of Article 2.   Article 3 The Court had no doubts that the anguish caused to Mr Akkum as a result of the mutilation of the body of his son amounted to degrading treatment contrary to Article 3. There had, therefore, been a violation of Article 3 in relation to Zülfü Akkum.   Article 13 The Court reiterated that no criminal investigation could be considered to have been conducted in accordance with Article 13. The applicants had therefore been denied an effective remedy in respect of the deaths of their relatives and the mutilation of the body of Mehmet Akkum, and had thereby been denied access to any other available remedies at their disposal, including a claim for compensation.     Consequently, there had been a violation of Article 13.   Having regard to its findings under Articles 2 and 13, the Court did not find it necessary to determine whether the failings identified in the case were part of a practice adopted by the Turkish authorities.   Article 14 Noting its findings of a violation of Articles 2 and 13, the Court did not consider it necessary also to consider those complaints in conjunction with Article 14.   Article 18 Having regard to its above findings, the Court did not consider it necessary to examine the complaint raised under Article 18 separately.   Article 1 of Protocol No. 1 The Court reiterated that it had already found it established that the soldiers killed the dog and the horse belonging to Derviş Karakoç. Considering that the killing of the horse and the dog constituted an unjustified interference with Mr Karakoç’s right to the peaceful enjoyment of his possessions, the Court concluded that there had been a violation of Article 1 of Protocol No. 1.   Regarding the killing of the livestock, the Court observed that Mehmet Akkum and Mehmet Akan were shepherding the animals owned by the villagers from Kurşunlu, which were found dead in the operation area. However, the Court observed that no evidence was submitted by the applicants concerning the number of killed animals belonging to them and the Court had been unable to establish the circumstances in which they were killed. In those circumstances, the Court did not find it established that there had been a violation 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.