CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 5 juin 2007

.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 } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .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 } EUROPEAN COURT OF HUMAN RIGHTS   377 5.6.2007   Press release issued by the Registrar   CHAMBER JUDGMENT ANIK AND OTHERS v. TURKEY   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Anık and Others v. Turkey (application no. 63758/00).   The Court held unanimously that there had been: a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the killing by soldiers of the applicants’ relatives; and, a violation of Article 2 concerning the failure to conduct an effective investigation into the circumstances of their deaths.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants a total of 142,000 euros (EUR) for pecuniary and non-pecuniary damage and EUR 5,000 for costs and expenses. (The judgment is available only in English.)   1.     Principal facts   The 12 applicants, Mahmut Anık, Medina Anık, Meryem Anık, Susin Anık, Ebubekir Anık, Ömer Anık, Cemal Anık, Halim Anık, Osman Sanrı (since deceased), Fatım Sanrı, Ömer Sanrı and Ramazan Sanrı, are Turkish nationals who were born in 1954, 1969, 1987, 1988, 1990, 1993, 1996, 1998, 1940, 1940, 1972 and 1975 respectively. At the time of the events in question, they lived in the village of Balveren, in Şırnak, south-east Turkey.   The applicants are all relatives of Ahmet Anık and Abdulkerim Sanrı, who were killed by members of the security forces on 19   August 1999.   Ahmet Anık and Abdulkerim Sanrı had been living in Balveren and were employed by the State as provisional village guards. Their duties included providing guidance to the armed forces about a particular area near their village where there was intense PKK [2] activity.   According to a post-incident report, at 11 p.m. on 18 August 1999 soldiers spotted two men (later identified as Ahmet Anık and Abdulkerim Sanrı), who were in an area under military surveillance without authorisation. By 1.15 a.m. on 19 August the two men had been surrounded by soldiers. Two groups of soldiers fired a number of 120 mm mortars in their direction and ordered them to surrender. The men started running away and, when they failed to stop, the soldiers fired directly at them. The time by then was 1.30 a.m., according to the report. The report’s authors – the military officers in charge of the operation – considered that the two men were trying to help PKK members enter northern Iraq or plant land mines in the area.   According to the on-site report prepared by soldiers on 19 August 1999, the two men had been shot in the head and chest.   An investigation into the killings was opened and, on 26 August 1999, the prosecutor concerned decided that he lacked jurisdiction to investigate the killings. He considered that the two men had been mistaken for terrorists and killed accordingly; the killings had been carried out in the performance of military duties and, as such, had to be investigated by a military prosecutor. The case was subsequently assigned to a military prosecutor and the offences qualified as “causing death by negligence and carelessness”.   On 8 October 1999 the applicants’ lawyer asked the military prosecutor for information about the investigation and asked to be contacted if his presence was required. On 16 November 1999 two of the applicants (the fathers of the deceased) also asked for leave to intervene in the proceedings, to no avail.   On 2 June 2000 the military prosecutor decided not to prosecute the defendants. He concluded that the soldiers had “shown more than necessary sensitivity in apprehending the two persons alive, but had been unable to do so because of the two person’s refusal to surrender”. Furthermore, “following the two person’s refusal to surrender, killing them had become a duty for the soldiers”.   During the investigation, numerous witness statements were taken which provided inconsistent accounts of what had happened. It was clear however that at least two hand grenades had been thrown at the two men following the gunfire.     On 23 June 2000 the applicants lodged an objection against the decision not to prosecute, which was rejected on 30 June 2000 by Diyarbakır Military Court, on the ground that the decision not to prosecute was compatible with the legislation in force and applicable procedures and that there was no need to widen the scope of the investigation.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 2 June 2000.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgian), President , András Baka (Hungarian), Ireneu Cabral Barreto (Portuguese), Riza Türmen (Turkish), Mindia Ugrekhelidze (Georgian), Antonella Mularoni (San Marinese), Danutė Jočienė (Lithuanian), judges ,   and also Sally Dollé , Section Registrar .   3.     Summary of the judgment [3]   Complaints   The applicants complained about the killing of their relatives and the lack of an effective investigation into the killings. The applicants relied on Articles 2, 3 (prohibition of inhuman or degrading treatment), 8 (right to respect for private and family life) and 13 (right to an effective remedy), and Article   1 of Protocol No. 1 (protection of property).   Decision of the Court   Article 2   Killing of the applicants’ relatives The Court observed that it was not in dispute between the parties that the applicants’ two relatives were killed by members of Turkey’s security forces using guns and at least two hand grenades.   It was noteworthy that the offence of which the soldiers were suspected was qualified by the prosecutors as “causing death by negligence and carelessness”. Given that the soldiers had all stated that they had opened fire directly on the two men before throwing at least two hand grenades at them, the Court found it incomprehensible that the soldiers’ actions could ever have been qualified as “negligent” or “careless”. It had to be foreseeable for any person – let alone trained army officers – that shooting at a person at a distance of 40 metres with high velocity machine guns and then throwing a number of hand grenades at them would be lethal.   Indeed, notwithstanding that qualification of the offence, neither the military experts appointed by the military prosecutor, nor the military prosecutor himself, examined how and why exactly the soldiers had been “negligent” or “careless”. Experts were satisfied that the men were killed on the assumption that they were terrorists and the military prosecutor considered that the men’s refusal to surrender was sufficient to justify their killing.   Furthermore, no attempt was made to establish that the soldiers who took part in the operation had followed any guidelines regulating the use of firearms.   As regards the question of whether the domestic authorities had examined if the force used by the soldiers was no more than absolutely necessary, the Court observed that the alleged refusal of the applicants’ relatives to surrender was sufficient for the military prosecutor to reach the conclusion that “killing them had become a duty for the soldiers”. The Court would stress that such a conclusion, which was upheld by Diyarbakır Military Court, could not in any way be reconciled with the Convention requirement of “absolute necessity”.   The Court further observed that the military prosecutor did not deal with the inconsistencies in the witness statements. The Court concluded that there were serious failings by the domestic authorities, which rendered the investigation insufficient and inadequate to establish, firstly, whether the soldiers had used their firearms lawfully and, secondly, whether the use of lethal force had been absolutely necessary.   The Court observed that the operation in question had not been planned in advance but was carried out following the sighting of two suspicious persons in an area frequently used by terrorists. Nevertheless, the soldiers had adequate time (over two hours) and resources to give thought to possible ways of apprehending the two men alive, using non-lethal methods. It could not be said that the decision to open fire was taken, or that the execution of that decision by the soldiers had been carried out, in the heat of the moment. It followed that a higher standard of care for the protection of the right to life should have been displayed by the soldiers.   In conclusion, the Court was not persuaded that the killing of the two men constituted a use of force which was no more than absolutely necessary. There had, therefore, been a violation of Article 2 on account of the killing by the soldiers of the applicant’s two relatives.   Investigation The Court observed that, notwithstanding the applicants’ attempts to obtain information and their willingness to assist the authorities with the investigation, they were not provided with any information or documents about it.   Even after the decision not to prosecute was taken, the military prosecutor refused to give the applicants any documents from the investigation file apart from the applicants’ own statements, such that they did not have knowledge of the case file when lodging their objection against the decision not to prosecute. Had they been in possession of the documents from the investigation file, they could have drawn the attention of Diyarbakır Military Court to the inconsistencies and other shortcomings in the investigation, which could have increased the prospect of success of their objection. That, in turn, might have prevented the violation of Article 2 found by the Court.   The failure of the authorities to involve the applicants in the investigation or even to provide information about it – for which the Government had not offered any explanation – deprived the applicants of the opportunity to safeguard their legitimate interests and also prevented any scrutiny of the investigation by the public. The Court therefore concluded that the authorities failed to carry out an effective investigation into the deaths of the applicants’ relatives, in violation of Article 2.   Other articles   The Court held unanimously that it was unnecessary to examine separately the applicant’s other complaints.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).       Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30)   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.   [1] Under Article 43 of the Convention, 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] The Kurdistan Workers’ Party, an illegal organisation. [3] This summary by the Registry does not bind the Court.