CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 28 mars 2000

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s21B97EC1 { width:25.99pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s76CF415B { page-break-before:always; clear:both } .s147A4AAD { width:18pt; display:inline-block } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; 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 } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     213   28.3.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF KILIÇ v. TURKEY   In a judgment delivered at Strasbourg on 28 March 2000 in the case of Kılıç v. Turkey, the European Court of Human Rights held by six votes to one that the Government failed to protect the life of Kemal Kılıç, the applicant’s brother, in violation of Article 2 (right to life) of the European Convention on Human Rights; unanimously that there has been a violation of Article 2 of the Convention on account of the failure of the authorities of the respondent State to conduct an effective investigation into the circumstances of the death of Kemal Kılıç; unanimously that it was unnecessary to examine whether there has been a violation of Article 10 (freedom of expression) of the Convention; by six votes to one that there has been a violation of Article 13 (right to an effective remedy ) ; and unanimously that it was unnecessary to examine whether there has been a violation of Article 14 (prohibition of discrimination).   Under Article 41 (just satisfaction), the Court awarded, by six votes to one, GBP 15,000 for non-pecuniary damage in respect of the applicant’s brother and, unanimously, GBP 2,500 in respect of the applicant himself. It also awarded, unanimously, GBP 20,000 for legal costs and expenses.   1.   Principal facts   The case concerns an application brought by a Turkish national, Cemil Kılıç, who was born in 1960 and is resident in Şanlıurfa.   The applicant’s brother Kemal Kılıç was a journalist who worked for the newspaper Özgür Gündem in Şanlıurfa in the south-east of Turkey. On 23 December 1992, Kemal Kılıç petitioned the Governor of Şanlıurfa for protection to be given to himself and others who worked at the newspaper due to the threats and attacks which were allegedly suffered by people associated with the newspaper. Protection was refused. On 18 February 1993, Kemal Kılıç was shot dead by four men who had waited for him on his route home from work.   2.   Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 13 August 1993. Having declared the application admissible, the Commission adopted a report on 23 October 1998 in which it expressed the unanimous opinion that there had been a violation of Article 2, by 25 votes to 3 that no separate issue arose under Article 10, unanimously that there had been a violation of Article 13 and unanimously that no separate issue arose under Article 14.   The Commission referred the case to the Court on 8 March 1999. A hearing was held on 18 January 2000.   Judgment was given by a Chamber of seven judges, composed as follows:   Elisabeth Palm (Swedish), President , Josep Casadevall (Andorran), Luigi Ferrari Bravo [1] (Italian), Bostjan Zupančič (Slovenian), Wilhelmina Thomassen (Dutch), Rait Maruste (Estonian),   judges , Feyyaz Gölcüklü (Turkish), ad hoc judge ,   and also Michael O’Boyle, Section Registrar .   3.   Summary of the judgment [2]   Complaints   The applicant complained under Article 2 of the Convention that his brother was killed by or with the connivance of the security forces because he was a journalist working for Özgür Gündem . He also complained of the lack of a proper and effective investigation into the death of his brother, in breach of the procedural aspects of Article 2 and also in violation of Article 13. He further complained that the killing of his brother, targeted as a journalist, disclosed interference with freedom of expression, guaranteed under Article 10, and discrimination, contrary to Article 14.   Decision of the Court   The Court’s assessment of the facts   The Court noted that the Commission had carried out hearings of witnesses in this case. Having regard to the Commission’s report and the submissions of the parties, it found 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. The Court further noted the lack of any satisfactory or convincing explanation by the Government as to the non-attendance of an important official witness at the hearings before the Commission’s delegates. It confirmed the finding reached by the Commission in its report that in this case the Government fell short of their obligations under former Article   28   §   1 (a) of the Convention to furnish all necessary facilities to the Commission in its task of establishing the facts.   Article 2   of the Convention   (a) Alleged failure to protect life   The Court found that it had not been established beyond reasonable doubt that any State agent or person acting on behalf of the State authorities were involved in the killing of Kemal Kılıç. It had to be determined however whether the authorities had failed to comply with any positive obligation to protect him from a known risk to his life. It found that Kemal Kılıç, as a   journalist working on Özgür Gündem in the south-east of Turkey, was at particular risk of falling victim to an unlawful attack. The authorities were aware of this risk, in particular as Kemal Kılıç had petitioned the Şanliurfa Governor for protection.   The authorities were also aware, or ought to have been aware, of the possibility that this risk derived from the activities of persons or groups acting with knowledge or acquiescence of elements in the security forces. The Court therefore had to consider whether the authorities had done all that could be reasonably expected of them to avoid the risk to Kemal Kılıç.   While there were large numbers of security force personnel in the south-east and a framework of law in place with the aim of protecting life, the implementation of the criminal law in respect of unlawful acts allegedly carried out with the involvement of the security forces disclosed particular characteristics in the south-east region during this period.   Firstly, where offences were committed by State officials in certain circumstances, the public prosecutor’s competence to investigate was removed to administrative councils which took the decision whether to prosecute. The Court had already found in two previous cases that these councils, made up of civil servants under the orders of the Governor, did not provide an independent or effective procedure for investigating deaths implicating the security forces.   Secondly, the cases examined by the Convention organs concerning the region at this time have produced a series of findings of failures by the authorities to investigate allegations of wrongdoing by the security forces, both in the context of the procedural obligations under Article 2 of the Convention and the requirement for effective remedies imposed by Article 13 of the Convention. A common feature of these cases was a finding that the public prosecutor has failed to pursue complaints by individuals claiming that the security forces were involved in an unlawful act, for example not interviewing or taking statements from members of the security forces concerned and attributing incidents to the PKK on the basis of minimal or no evidence.   Thirdly, the attribution of responsibility for incidents to the PKK had particular significance as regards the investigation and judicial procedures which ensue since jurisdiction for terrorist crimes had been given to the State Security Courts, which had been found by the Court not to fulfil the requirement of independence imposed by Article 6 of the Convention, due to the presence of a military judge whose participation gave rise to legitimate fears that the court may be unduly influenced by considerations extraneous to the the case. The Court found that these defects undermined the effectiveness of criminal law protection, permitting or fostering a lack of accountability of members of the security forces for their actions incompatible with the rule of law in a democratic society respecting the fundamental rights and freedoms guaranteed under the Convention.   Furthermore, in this case, there was an absence of any operational measures of protection. There is no evidence that the authorities took any steps in response to Kemal Kılıç’s request for protection either by applying reasonable measures of protection or by investigating the extent of the alleged risk to Özgür Gündem employees in Şanlıurfa with a view to instituting   any appropriate measures of prevention. The Court concluded that in the circumstances of this case the authorities failed to take reasonable measures available to them to prevent a real and immediate risk to the life of Kemal Kılıç and, accordingly, there had been a violation of Article 2.     (b)   Alleged inadequacy of the investigation   The Court noted the investigation into the killing by the gendarmes had effectively ended on by 15 March 1993, less than a month afterwards. Though a suspect Hüseyin Güney tried for separatist offences as a Hizbollah member was alleged in an indictment before the Diyarbakır State Security Court to have killed Kemal Kıliıç,   there was no direct evidence linking him with that particular crime and no steps had been taken to seek such evidence during the proceedings. The State Security Court finally concluded on 29 March 1999 that it was not proved that Güney had been involved in the Kılıç murder. These proceedings had nonetheless had the effect of closing the investigation into the murder by any other body. No enquiries were made as to the possible targeting of Kemal Kılıç due to his job as an Özgür Gündem journalist or any steps taken to investigate any collusion by security forces in the incident. Having regard therefore to the limited scope and short duration of the investigation in this case, the Court found that the authorities failed to carry out an effective investigation into the circumstances surrounding Kemal Kılıç’s death. It concluded that there had been in this respect been a violation of Article 2.   Article 13 of the Convention   As there was an arguable claim of a violation of Article 2 and it was undisputed that Kemal Kılıç was a victim of an unlawful killing, the authorities were under an obligation to carry out an effective investigation into the circumstances of the killing. However, no effective criminal investigation could be considered as having been conducted. The applicant was thereby denied an effective remedy in respect of the death of his brother and access to any other available remedies at his disposal, including a claim for compensation.   Articles 10 and 14 of the Convention   As the complaints under these provisions arose out of the same facts as those considered under Articles 2 and 13, the Court did not find it necessary to examine them separately.   Article 41 of the Convention   The Court did not find it appropriate to make any award for pecuniary damage in this case as Kemal Kılıç was unmarried without children and it was not claimed that the applicant had been dependent on him. As regarded non-pecuniary damage, it awarded GBP 15,000 in respect of Kemal Kılıç, to be held by the applicant for his brother’s heirs and GBP 2,500 for the applicant himself. For costs and expenses, it awarded GBP 20,000 less the amount awarded for legal aid by the Council of Europe.   Judge Gölcüklü expressed a dissenting opinion and this is annexed to the judgment.   *** 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 Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] Elected as the judge in respect of San Marino. [2] This summary by the registry does not bind the Court.