EVRM-Hof vindt onvoldoende bewijs om Turkije te veroordelen voor militaire executies in Koerdisch dorp (en)

 

The European Court of Human Rights has today notified in writing a judgment [1] in the case of Acar and Others v. Turkey (application nos. 36088/97 and 38417/97).

The Court held unanimously:

that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights in respect of the death of the applicants' relatives and the wounding of two of the applicants;

that there had been a violation of Article 2 (inadequate investigation) of the Convention in that the authorities failed to carry out an adequate and effective investigation into those deaths and injuries;

that there had been a violation of Article 13 (right to an effective remedy);

that there had been no violation of Article 8 (right to respect for private and family life);

that it was not necessary to consider the applicants' complaint under Article 6 § 1 (right to a fair hearing within a reasonable time).

Under Article 41 (just satisfaction), the Court awarded the applicants a total of 352,338 euros (EUR) (individual awards ranging from EUR 4,000 to EUR 54,000) for pecuniary and non-pecuniary damage and for costs and expenses. (The judgment is available only in English.)

• 1. 

  Principal facts

The applicants are ten Turkish nationals, born between 1933 and 1978. At the time of the events at issue, they lived in Çalpınar, a village in south-east Turkey.

On 20 April 1992, at around 7 a.m., a group of villagers left Çalpınar for the district of Midyat in a minibus and a truck. An armed group of people stopped the villagers one kilometre away from Çalpınar, forcing the villagers to get out of the vehicles and ordering them to line up near the road. They fired at the villagers and fled. According to the applicants, the armed group were village guards.

Gendarmes drew a sketch map of the crime scene and drafted an incident report, which stated that a group of terrorists wearing military uniforms had stopped a minibus and a truck near the hamlet of Kuyubaşı attached to the village of Çalpınar and that they had killed six villagers: Hasan Akay, İsmet Acar, Mehmet Ağırman, Abdülkadir Akan, Süleyman Acar and Mehmet Akan. Nine villagers were wounded: Reşit Acar, Mehmet Emin Acar, Sabri Acar, Ahmet Acar, İbrahim Akan, Yusuf Acar, Erdal Acar, Salih Acar, Süleyman Acar and Semra Akan. The gendarmes found 66 empty 7.62 mm cartridges which had been fired from Kalashnikov rifles. The report concluded that members of the Kurdistan Workers' Party (PKK) were responsible.

An autopsy report of the same day established that the people killed in the incident had died of bullet wounds.

A ballistic report by the Diyarbakır Provincial Criminal Police Laboratory, dated 23 June 1992, found that most of the examined cartridges had been fired from the guns of ten named village guards.

On 8 July 1992 the Midyat public prosecutor filed a bill of indictment against 27 village guards from Kutlubey, accusing them of murder and attempted murder. Following lengthy proceedings, on 20 November 2000 Denizli Assize Court acquitted the village guards. The court concluded, among other things, that it was "highly probable that empty cartridges from the incident of 20 April 1992 were placed at the scene of the crime before or after the villagers were killed by unknown persons".

The criminal proceedings were reopened against ten of the accused village guards and, on 25 May 2003, they were convicted as charged and sentenced to life imprisonment. On 9 December 2004 the Court of Cassation quashed the decision concerning two of the village guards (against whom proceedings are still pending) and upheld it concerning the other eight.

• 2. 

  Procedure and composition of the Court

The case originated in two applications (nos. 36088/97 and 38417/97), lodged with the European Commission of Human Rights on 6 December 1996 and 25 August 1997 respectively. The applications were transmitted to the Court on 1 November 1998. On 27 November 2001 the Court declared the applications partly admissible.

Judgment was given by a Chamber of seven judges, composed as follows:

Nicolas Bratza (British), President,

Josep Casadevall (Andorran),

Matti Pellonpää (Finnish),

Rait Maruste (Estonian),

Kristaq Traja (Albanian),

Ján Sikuta (Slovakian), judges,

Feyyaz Gölcüklü (Turkish), ad hoc judge,

and also Michael O'Boyle, Section Registrar.

• 3. 

  Summary of the judgment [2]

Complaints

The applicants alleged that their relatives were deliberately killed by village guards and, in the case of İbrahim Akan and Reşit Acar, that the village guards had attempted to kill them. The applicants also submitted: that the national authorities failed to carry out an adequate and effective investigation into the killings and attempted killings; that, in the state of emergency region in Turkey, criminal proceedings against the perpetrators of such violations were bound to fail and were incapable of preventing unlawful acts and abuse of power by the authorities; that the trial had lasted over 12 years; and, that they had been compelled to leave their village following alleged pressure from the security forces. They relied on Articles 2, 6 and 8 of the Convention. Certain applicants also relied on Article 13 in conjunction with Article 2.

Decision of the Court

Article 2

Concerning the applicability of Article 2 to İbrahim Akan and Reşit Acar, the Court found it established that they were wounded in the course of a sustained and lethal attack with firearms which resulted in the death of eight of their fellow villagers. In those circumstances, and particularly in view of the degree and type of force used, the Court concluded that the applicants were the victims of conduct which, by its very nature, put their lives at grave risk, even though, in the event, they survived. Article 2 was therefore applicable.

The killings and woundings

The Court observed that there was a judicial determination of the facts of the case at domestic level and that no material has been adduced in the course of the Strasbourg proceedings which could call into question the findings of fact of the Denizli Assize Court in their decision of 25 May 2003 and lead the Court to depart from them. Therefore, even if certain facts remained unclear, the Court considered, in the light of all the material produced before it, that there was a sufficient factual and evidentiary basis on which to assess the case, taking as a starting point, as mentioned above, the findings of the domestic court.

It was not disputed that the applicants' relatives were killed and two applicants were wounded unlawfully and in circumstances falling outside the exceptions set out in the second paragraph of Article 2.

Concerning whether the Turkish Government might be held responsible for the deaths and unlawful wounding, the Court noted that the village guards enjoyed an official position, with duties and responsibilities. They were accountable administratively to the village muhtar and subject to his supervision. Their salaries, aids and indemnities for service were paid by the Ministry of Interior. Occupationally, guards were under the command of the gendarme commander. Resistance to them was punished in the same way as resistance to gendarmes. When carrying out their duties along with military or security forces, the village guards, under the command of those units, had the same powers and responsibilities as those in that unit.

In that context, the Court had already found that there was a risk attached to the use of civilian volunteers in a quasi-police function. It was not apparent what supervision was, or could be exerted over guards who were engaged in duties outside the jurisdiction of the district gendarme commander. Nor, as the village guards operated outside the normal structure of discipline and training applicable to gendarmes and police officers, was it apparent what safeguards there were against wilful or unintentional abuses of position carried out by the village guards either on their own initiative or under the instructions of security officers.

The Court was of the opinion that the failure of the gendarmes to react to the unlawful activities of the village guards in the applicants' case supported a strong inference of acquiescence in those activities.

In those circumstances, the Court found that the State had to bear responsibility for the killing of the applicants' relatives and the attempt to kill two of the applicants. No justifications for the killings or attempted killings having been provided, the Court concluded, unanimously, that there had been a breach of Article 2.

The investigation

The Court noted that a preliminary investigation was initiated immediately after the incident. However, despite the seriousness of the incident and the necessity to gather and record the evidence which would help to shed light on the facts of the incident, there were a number of omissions.

Due to the gendarmes' failure to assist the public prosecutor in collecting the empty cartridges, only 66 cartridges were collected from the scene of the incident and sent for ballistics examination. The court was then able to identify only ten out of the 27 accused village guards.

The Court also noted important shortcomings in the conduct of the criminal proceedings. In particular, it considered that once the case was before the criminal court, the steps taken by the court were half-hearted and dilatory: the first set of criminal proceedings lasted more than eight years and the total length of the criminal proceedings had already exceeded 12 years; weapons were submitted for ballistic examination only one year after the first order of the court; bullets were removed from only three of the six victims with a bullet lodged in their bodies; and, bullets removed from two victim's bodies had oxidised once they reached the laboratory as they had not been properly preserved.

Considering the duration and serious shortcomings of the criminal investigation and trial proceedings in the case, the Court held, unanimously, that there had been a violation of Article 2.

Articles 6 and 13

The Court found it appropriate to examine the applicants' Article 6 complaint in relation to the more general obligation under Article 13

Finding that the applicants had been denied an effective remedy in respect of their complaints under Article 2 and thereby access to any other available remedies at their disposal, including a claim for compensation, the Court held, unanimously, that there had been a violation of Article 13.

Article 8

Having examined the applicants' allegations in the light of the evidence submitted to it, the Court considered that it did not have a sufficient factual basis on which to reach a conclusion that there had been a violation of Article 8

***

The Court's judgments are accessible on its Internet site ( http://www.echr.coe.int ).

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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.

[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.