Vijf vermeende aanhangers van de extreem-linkse groepering Dev-Sol vinden de dood tijdens politie-inval - Mensenrechtenhof veroordeelt Turkije (en)

Press release issued by the Registrar

CHAMBER JUDGMENT - ERDO?AN AND OTHERS v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Erdo?an and Others v. Turkey (application no. 19807/92).

The Court held:

• • 

  by six votes to one, that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights in respect of the deaths of five men killed by Turkish security forces;

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  unanimously, that there had been a violation of Article 2 concerning Turkey’s obligation to conduct an effective investigation into the men’s deaths; and,

• • 

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

Under Article 41 (just satisfaction), the Court awarded, by six votes to one, 30,000 euros (EUR), each, to the heirs of the five men for non-pecuniary damage. It also awarded, unanimously, EUR 3,000 to each of the applicants for non-pecuniary damage and EUR 12,000 to them, jointly, for costs and expenses. (The judgment is available only in English.)

• 1. 

  Principal facts

The applicants, all Turkish nationals, are relatives of ?brahim Erdo?an, Yücel ?im?ek, ?brahim Ilc?, Cavit Özkaya and Hasan Eliuygun, suspected members of Dev-Sol (Revolutionary Left) – an extreme left-wing armed movement classified as a terrorist organisation by the Turkish judicial authorities – who were killed by the security forces in ?stanbul on 12 July 1991.

Hüseyin Erdo?an (born in 1933 and now deceased) was the father and Sevgi Erdo?an (born in 1956 and now deceased) was the wife of ?brahim Erdo?an. Esme ?im?ek (1946) is Yücel ?im?ek’s mother and Hüseyin ?im?ek (1942) is his father. ?smail Hakk? Ilc? (1960) is ?brahim Ilc?’s brother and Nahit Özkaya (1962) is Cavit Özkaya’s brother. Mahmut Ali Eliuygun (born in 1926 and now deceased) was the father and Necla Nurlu (1956) is the sister of Hasan Eliuygun [2].

According to the Turkish Government, the five men were among ten individuals killed during a police operation, in four different buildings in Istanbul, to apprehend terrorist suspects and bring them to trial. The victims had been under surveillance for some time and the area was sealed off. The police reports suggested that the deceased had opened fire when asked to surrender. The reports also stated that the deceased had been heavily armed, that they had opened fire first and that guns and rifles of various sizes, bombs, hand grenades and material used for producing explosives were found in the buildings. No member of the police force was killed or injured.

The applicants argued that the security forces had planned to kill rather than arrest the deceased individuals, given the lack of evidence of search or arrest warrants and, among other things, the fact that the security forces were not armed with non-lethal weapons such as CS gas or stun-grenades.

Professor Pounder, an independent forensic pathologist, found, among other things, no evidence of an exchange of fire within the main room of the apartment in the building where Ibrahim Erdogan and Yucel ?im?ek were killed. Also, having examined the autopsy report relating to Cavit Özkaya, he found that five of the shots fired at the suspect appeared to have been fired from behind, while the only fatal wound to the front side of his body appeared to have been fired when the body was on a firm surface, such as the ground.

Criminal proceedings were subsequently brought against a total of 21 police officers. The courts found that, in three of the locations, the areas had first been sealed off and the deceased given warnings by megaphone. Certain witnesses stated that the deceased had started shooting from the windows and that the security forces had returned fire, while others stated that they could not tell clearly who had fired first. On the basis of that evidence, it was concluded that the police had been fired at first and that they had acted in legitimate self-defence. On 8 February 1995 the domestic courts therefore found no grounds for imposing any punishment on those police officers. On 13 November 1997 the police officers charged with the killing of ?brahim Ilc? and Bilal Karakaya were acquitted on the ground that the deceased had opened fire first and that the police officers had fired back in lawful self-defence.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 6 January 1992 and declared admissible on 16 January 1996.

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

Josep Casadevall (Andorran), Judge,

Giovanni Bonello (Maltese),

Rait Maruste (Estonian),

Kristaq Traja (Albanian),

Stanislav Pavlovschi (Moldovan),

Ján Šikuta (Slovakian), judges,

Feyyaz Gölcüklü (Turkish), ad hoc judge,

and also Michael O’Boyle, Deputy Registrar.

• 3. 

  Summary of the judgment [3]

Complaints

The applicants complained under Article 2 (right to life) that there had been a premeditated plan to kill the deceased individuals rather than to arrest them. Alternatively, they submitted that their relatives’ deaths had resulted from a use of lethal force that had been more than absolutely necessary. They further alleged that the investigation and criminal proceedings against certain members of the security forces were fundamentally flawed and ineffective. Under Article 6 § 1 (right to a fair hearing), they complained that there was no effective investigation and that they were denied access to a court. They also relied on Article 13 (right to an effective remedy).

Decision of the Court

Article 2

The killing of the applicants’ relatives

The Court found that the investigation which led up to the institution of criminal proceedings against the police officers concerned was marked by very serious deficiencies (see below under “investigation”). It had therefore to treat the findings of the domestic courts with some caution. The Court was also hampered by the absence of any contemporaneous documents recording the planning of the operations and the briefings given to the officers involved.

Nevertheless, on the material available to it, the Court did not find it sufficiently established that within ?stanbul Police there had been a conspiracy to kill the suspects or that the police officers entering the apartments had been instructed by superior officers to kill the suspects, irrespective of the existence of any justification for the use of lethal force.

The Court noted that the Dev-Sol group had committed numerous crimes, including the assassination of many police officers, army officers or public prosecutors. That, coupled with the fact that the deceased had been followed by the police for months as Dev-Sol members, contributed to their being perceived as a dangerous threat in the eyes of the police. The Court accepted that police chiefs, while planning the operation, could reasonably assume that the suspected Dev-Sol members would be armed and likely to use their arms if confronted. It was also true that the authorities operated on the basis of limited information as to the actual weapons kept by the suspects on each of the premises. Consequently, the Court found that the police could reasonably have considered that there would be a need to resort to the use of their weapons in order to arrest the suspects or neutralise the threat posed by them.

That said, serious questions nevertheless arose as to the organisation of the operation. The Turkish Government referred to the legal rules under which the police officers had acted. However, they did not explain how the rules concerning the use of force were implemented in practice and what controls were in place to ensure that they were respected. It appeared that the system in place did not give law enforcement officials clear guidelines and criteria governing the use of force when carrying out arrests of dangerous suspects in peacetime. Thus, it was almost unavoidable that the authorities responsible for planning the arrest of the suspects enjoyed an excessively wide autonomy of action and took unconsidered initiatives.

In the applicants’ case it was not clear whether, in applying those rules, police chiefs instructed the police officers executing the operation to identify themselves as such and to give a clear warning of their intent to use firearms with sufficient time for the warnings to be observed. Furthermore, the police authorities appeared to have made no distinction between non-lethal and lethal methods while planning the operation. The Court had been provided with no evidence that clear instructions were issued by superiors as to how to capture and detain the suspects alive or as to how to negotiate a peaceful surrender, which must have increased the risk to the lives of any who might have been willing to surrender. In fact, the police officers who entered the apartments appeared to have been provided only with guns and grenades and were not issued with non-lethal weapons. As a result, even though the suspects were surrounded and had taken no hostages whom they might have harmed, the storming of the premises, as planned and executed by the police authorities, could only be achieved in a manner which put the suspects’ lives in jeopardy. Those failures by the authorities amounted to a lack of appropriate care in the control and organisation of the arrest operation.

The manner in which the operations were actually carried out at the four locations also gave rise to concern. The precise course of events at the scene of the operations was unclear. There was conflicting evidence as to whether warnings were given to the suspects and as to whether the initial firing came from outside or inside the premises. Moreover, the lack of contemporaneous forensic and other evidence made it difficult to arrive at a clear assessment as to the manner in which the suspects lost their lives. It remained a striking feature of the case that, although all the alleged members of Dev-Sol were shot dead, none of the police officers was either killed or injured, despite the intensity of the exchange of fire which was alleged to have occurred in at least three of the locations. Further, the Court attached particular weight to Professor Pounder’s findings, which provided strong evidence that, in at least two of the locations, the suspects were not shot and killed in self defence during an exchange of fire, as suggested by the police reports. While such findings might perhaps have been refuted or explained by cogent evidence of a forensic or other nature, such evidence was not made available to the Court.

In sum, the Court found that in the planning and manner of execution of the operations there was a failure on the part of the national authorities to protect the right to life of the applicants’ relatives and that it had not been shown that the killing of the applicants’ relatives constituted a use of force which was no more than absolutely necessary. The applicants had therefore been the victims of a violation of Article 2.

Investigation

The Court reiterated that there were striking omissions in the conduct of the investigation, in particular the lack of:

• • 

  any effective investigation into the planning of the coordinated operations at the four locations;

• • 

  photographs or sketch plans of the scenes of the incidents;

• • 

  fingerprint, ballistics or other forensic evidence; or,

• • 

  contemporaneous individual statements by the police officers involved.

Those omissions seriously undermined the effectiveness of the investigation and the reliability of the findings; it also hampered the domestic courts in establishing the facts. The Court therefore concluded that there had been a further violation of Article 2 concerning the authorities’ failure to carry out an effective investigation into the events leading to the deaths of the applicants’ relatives.

Articles 6 and 13

The Court considered that it was appropriate to examine the applicants’ Article 6 complaint under Article 13 and accordingly did not find it necessary to determine whether there had been a violation of Article 6 § 1.

The Court reiterated that the Turkish authorities had had an obligation to carry out an effective investigation into the circumstances of the deaths of the applicants’ relatives, but that no effective criminal investigation could be considered to have been conducted in accordance with Article 13. The Court found, therefore, that the applicants were denied an effective remedy in respect of the death of their relatives, and were thereby denied access to any other available remedies at their disposal, including a claim for compensation. There had therefore been a violation of Article 13.

Judge Gölcüklü expressed a dissenting opinion, which is annexed to the judgment.

***

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

Press contacts

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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.

[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] Following their deaths, Hüseyin Erdo?an and Sevgi Erdo?an were replaced as applicants in the case by Hatice Erdogan and Mahmut Ali Eliuygun was replaced by Bakiye Eliuygun.

[3] This summary by the Registry does not bind the Court.