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 } .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 } .sE0EA7154 { width:21.33pt; display:inline-block } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; 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 } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     214   28.3.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF MAHMUT KAYA v. TURKEY   In a judgment delivered at Strasbourg on 28 March 2000 in the case of Mahmut Kaya v. Turkey, the European Court of Human Rights held by six votes to one that the Government failed to protect the life of Dr Hasan Kaya, 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 Dr Kaya’s death; by six votes to one that there has been a violation of Article 3 (prohibition of torture); 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) of the Convention.   Under Article 41 (just satisfction), the Court awarded, by six votes to one, 15,000 pounds sterling (GBP) for non-pecuniary damage in respect of Dr Hasan Kaya and, unanimously, GBP 2,500 in respect of the applicant himself. It also awarded, unanimously, GBP 22,000 for legal costs and expenses.   1.   Principal facts   The case concerns an application brought by a Turkish national, Mahmut Kaya, who was born in 1958 and is resident in Switzerland.   The applicant’s brother Dr Hasan Kaya practised medicine in Elazığ. He was a friend of Metin Can, a lawyer who was President of the Elazığ Human Rights Association. On 21 February 1993, after being contacted by two men, Mr Can left his home with Dr Kaya. The next day, when they had not returned home, the police were informed that they had disappeared. On 27 February   1993, the bodies of the two men were found under a bridge near Tunceli. Both had been shot through the head and bore marks of injuries on their bodies.   There were subsequent reports in the media that both men had been killed as Kurdistan Workers’ Party (PKK) sympathisers by contra-guerillas acting with the knowledge and support of the security forces. The Susurluk report issued by the Prime Minister’s office in January 1998 referred to Metin Can as one of the men targeted by elements acting outside the law in the south-east of Turkey with the knowledge of the authorities.   2.   Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 20 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 26 votes to 2 that there had been a violation of Article 3, by 27 votes to 1 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, Dr Hasan Kaya,   was killed by or with the connivance of the security forces and that prior to his death, his brother was tortured contrary to Article 3. He also complained of the lack of a proper and effective investigation into the disappearance, torture and killing of his brother in breach of the procedural aspects of Articles 2 and 3 and also in violation of Article 13. He further complained under Article 14 that his brother, targeted due to his Kurdish origins, has been subject to discrimination.   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.   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 Dr Kaya. 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 Dr Kaya as a doctor suspected of aiding and abetting the PKK was at this time at particular risk of falling victim to an unlawful attack. The authorities were aware, or ought to have been aware, of this risk and also 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 Dr Kaya.   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 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, there is no evidence that the authorities took any steps prior to the Susurluk report to investigate the existence of contra-guerrilla groups and the extent to which State officials were implicated in unlawful killings carried out during this period, with a view to instituting any appropriate measures of protection. Though a wide range of preventive measures would have been available to the authorities regarding the activities of their own security forces and those groups allegedly acting under their auspices or with their knowledge, nothing was done.     The Court concludes 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 Dr Kaya. There had, accordingly, been a violation of Article 2 of the Convention.   (b)   Alleged inadequacy of the investigation   The Court noted the investigation changed hands four times and is still pending before the Malatya State Security Court. Of the two autopsies, the first was cursory and inaccurate, while the second omitted explanations and conclusions concerning marks and injuries on the bodies. There was no forensic examination of the scene or report regarding whether the victims were killed at the scene or how they were deposited at the scene. No investigative steps were taken to discover how the two victims had been transported from Elazığ to Tunceli, which journey would have involved stopping at a series of official checkpoints along the 130 km route.   It was noticeable that the major, indeed the only, leads in the investigation concerned alleged contra-guerilla and security force involvement and were provided by information from the relatives of the victims and press sources. While the public prosecutors concerned did take steps in response, these were often limited, superficial and dilatory. There were significant delays in seeking statements from witnesses and periods of a complete absence of activity. The Court emphasised that, where there were serious allegations of misconduct and infliction of unlawful harm implicating state security officers, it was incumbent on the authorities to respond actively and with reasonable expedition.   Accordingly, the Court was not satisfied that the investigation carried out into the killing of Dr Kaya and Mr Can was adequate or effective or that it was conducted with the diligence and determination necessary for there to be any realistic prospect of the identification and apprehension of the perpetrators.   The Court concluded that there had been in this respect a violation of Article 2.   Article 3 of the Convention   As the authorities knew or ought to have known that Dr Kaya was at risk of targeting as he was suspected of giving assistance to wounded members of the PKK, the Court found that the failure to protect his life through specific measures and the general failings in the criminal law framework placed him in danger not only of extra-judicial execution but also of ill-treatment from persons who were unaccountable for their actions. The Government were therefore responsible for the ill-treatment suffered by Dr Kaya after his disappearance and prior to his death. It was not possible to assess from the medical details available whether the treatment amounted to torture within the meaning of Article 3. The Court did find however that the marks on his body - cuts made by wire on the wrists and signs that the feet had been immersed for a long period in snow or water - disclosed that he had suffered inhuman and degrading treatment.   Article 13 of the Convention   As it was undisputed that Dr Kaya was the victim of an unlawful killing and there was an arguable claim of a violation of Article 2, 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.     Article 14 of the Convention   As the complaints arose out of the same facts as those considered under Articles 2, 3 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 Dr Kaya 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 Dr Kaya, 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 22,000 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.