EHRM-Hof veroordeelt Turkije na onduidelijkheid over eventueel politiegeweld en moord van Koerden (en)
The European Court of Human Rights has today notified in writing a judgment [1] in the case of Hamiyet Kaplan and Others v. Turkey (application no. 36749/97).
The Court held unanimously that there had been:
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-a violation of Article 2 of the European Convention on Human Rights (right to life) on account of the manner in which the police operation in which the applicants' relatives had been killed was organised;
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-a violation Article 2 of the Convention on account of the inadequate nature of the investigation carried out by the Turkish authorities into the deaths;
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-no violation of Article 3 (prohibition of inhuman or degrading treatment) on account of the grief caused to the applicants by their relatives' deaths;
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-a violation of Article 13 (right and effective remedy).
Under Article 41 (just satisfaction), the Court awarded Hamiyet Kaplan - Ömer Bayram's partner - 31,000 euros (EUR) for pecuniary and non-pecuniary damage and his heirs EUR 20,000. It awarded Fatma Kaya - Rıdvan Altun's wife - EUR 200 for pecuniary damage and EUR 1,000 for non-pecuniary damage and his heirs EUR 20,000 for pecuniary damage and non-pecuniary damage. The Court also awarded all six applicants EUR 1,000 each for non-pecuniary damage and made a joint award of EUR 4,300 for costs and expenses, less EUR 626 they had already received from the Council of Europe in legal aid. (The judgment is available only in French.)
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1.Principal facts
The eight applicants, Hamiyet Kaplan, Beşir Bayram, Suphiye Altun, Fatma Kaya, Halil Altun, Naciye Kavak, Sabri Altun and Azize Altun are Turkish nationals who were born in 1973, 1961, 1965, 1973, 1950, 1959, 1955 and 1955 respectively and live in Adana (Turkey). They were close relatives of Ömer Bayram and Rıdvan Altun, who were both killed in August 1996 in a police operation that had been mounted against suspected members of the PKK by the anti-terrorist branch of the Adana Security Directorate.
The facts of the case were disputed.
According to the applicants, Rıdvan Altun was arrested by security forces at about 2 a.m. on 8 August 1996. At approximately 4.30 a.m. he was taken in handcuffs and with his head covered by a bag to the rear of Ömer Bayram's house. Ömer Bayram and his partner Hamiyet Kaplan opened the door to the police when told to do so. An exchange of fire followed between the police and a man called Abdurrahman Sarı, who was on the balcony. Mr Sarı and a police officer were killed during the exchange.
The applicants said that one of the police officers then executed Rıdvan Altun with a bullet to the head. The police officers proceeded with the raid, throwing grenades and firing at the house. They killed Ömer Bayram on learning that he was the owner of the property and shot the applicant Hamiyet Kaplan and two of the couple's daughters who had sought refuge in the kitchen. Hamiyet Kaplan sustained serious injuries while the two girls, aged two and six, died.
The Turkish Government said in their account that following his arrest by the security forces, Rıdvan Altun denounced Hamiyet Kaplan and Ömer Bayram as members of the PKK and said that the organisation held meetings at their home. Rıdvan Altun, Abdurrahman Sarı, Ömer Bayram, two of Hamiyet Kaplan's children and the police officer who led the operation were killed during the confrontation between the police officers and the people in the house.
An autopsy was carried out on the bodies the same day and further forensic tests were performed on 4 September 1996. Records were compiled on the incident, accompanied by sketch maps showing the scene and the position of the bodies. Depositions were taken from the police officers.
Hamiyet Kaplan was taken to hospital with a series of gunshot wounds and placed in police custody. Criminal proceedings were instituted against her, but she was acquitted by the Adana State Security Court on 4 March 1999 for lack of evidence. Criminal proceedings brought by Hamiyet Kaplan against the police officers who had taken part in the raid ended with the acquittal of the 23 officers on 27 January 1997, the Adana State Security Court ruling that they had acted in lawful self-defence. An appeal on points of law by Hamiyet Kaplan against that judgment was dismissed by the Court of Cassation on 29 January 1997.
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2.Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 20 May 1997 and transmitted to the Court on 1 November 1998. It was declared partly admissible on 6 November 2001.
Judgment was given by a Chamber of 7 judges, composed as follows:
Jean-Paul Costa (French), President,
András Baka (Hungarian),
Riza Türmen (Turkish),
Karel Jungwiert (Czech),
Mindia Ugrekhelidze (Georgian),
Danute Jočienė (Lithuanian),
Dragoljub Popović (citizen of Serbia and Montenegro), judges,
and also Sally Dollé, Section Registrar.
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3.Summary of the judgment [2]
Complaints
The applicants alleged that close relatives of theirs had been summarily executed during a police raid. In the alternative, they alleged that the police had unreasonably used lethal force during the raid. The applicants also complained of the way their relatives and Hamiyet Kaplan had been treated and alleged that they themselves had suffered inhuman and degrading treatment as a result of their relatives' deaths. They complained of the failure to hold an adequate and effective investigation into the circumstances that had led to the deaths. They relied on Articles 2, 3, 6 § 1 (right to a fair hearing) and 13 of the Convention.
Decision of the Court
Article 2 of the Convention
The Court noted that Rıdvan Altun, Ömer Bayram and two of the latter's children died during a police raid on suspected members of the PKK, in the course of which a senior police officer was also killed by gunfire from the suspects' home.
The deaths of the applicants' close relatives
As regards the manner in which the police raid was conducted, the Court found that, in the light of the material before it and the lack of tangible proof, the conclusion that the applicants' relatives were victims of extrajudicial executions by State agents was based more on hypothesis and speculation than reliable evidence.
It held, therefore, that it had not been established beyond all reasonable doubt that Turkey's responsibility had been engaged by the actions of the police officers involved in the raid.
As regards the organisation of the operation, the Court noted that no distinction had been made between lethal and non-lethal force: the police officers had used only firearms, not tear gas or stun grenades. The uncontrolled violence of the assault on the house had inevitably put the suspects' lives in great danger.
The Court attached little credibility to the Government's submission that the children and suspects had been killed by the accidental explosion of a grenade. The reality was that the two suspects were killed by gunfire and Hamiyet Kaplan received serious gunshot wounds when everyone was in the kitchen, in other words in the same room as the children.
The Court noted that the system in place in Turkey did not provide any clear recommendations or criteria regarding the use of force in peacetime. It had been more or less inevitable that the police officers would act with considerable autonomy and take unreasonable risks vis-à-vis the occupants of the house, a situation which would probably not have arisen had they received adequate training and instructions. The lack of clear rules could also serve to explain why nearly all the police officers had spontaneously taken part in the raid and used their guns without referring to central command.
In those circumstances, the Court found that the Turkish authorities had not done all that could reasonably be expected of them to afford citizens the level of protection required, particularly in cases involving recourse to potentially lethal force, or to avert the real and present danger to life which police operations involving the pursuit of suspects were, albeit exceptionally, liable to entail.
Consequently, the Court held that there had been a violation of Article 2 of the Convention.
Inadequate nature of the investigation
The Court noted that the authorities had not ordered a ballistics examination of the bullets or cartridges that were found both inside and outside the house or of the weapons used by the police officers. In the circumstances of the case, such an examination was crucial to determining the origin of the bullets that had caused the deaths and Hamiyet Kaplan's injuries. Furthermore, the exact position and actions of each police officer had not been established and the police officers' depositions were in stereotypical form and lacking in detail. The Court also noted that no photographs were taken after the incident.
Those omissions had prevented the judicial authorities from performing an accurate reconstruction of the events and checking the applicants' allegations. Since the authorities had not sufficiently clarified the circumstances in which the deaths had occurred, the Court also held that there had been a violation of Article 2 on account of the inadequate nature of the investigation.
Article 3 of the Convention
Having found a violation of Article 2, the Court held that no separate issue arose under Article 3 as regards the first applicant's injuries and the treatment of the other victims.
The Court was under no doubt that the applicants had suffered considerable grief as a result of their relatives' deaths. However, it noted that their allegations of summary executions had not been proved. Nor did the material before the Court enable it to conclude that the threshold required by Article 3 in this particular type of situation had been reached. The Court accordingly held that there had been no violation of Article 3.
Article 6 § 1 and Article 13 of the Convention
The Court decided to examine the applicants' complaints of a lack of an adequate and effective investigation solely under Article 13.
The authorities were under an obligation to carry out an effective investigation into the circumstances in which the deceased had died. As the Court had already found, the judicial investigation in the case before it was not apt to establish the circumstances in which the deaths had occurred. In those circumstances, no effective criminal investigation could be considered to have been conducted in accordance with Article 13, the requirements of which were broader than the obligation to investigate imposed by Article 2. Accordingly, the Court held that there had been a violation of Article 13.
Judge Costa expressed a partly concurring opinion, which is annexed to the judgment.
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[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.