SECOND SECTION
CASE OF
GÜLBAHAR ÖZER AND OTHERS v. TURKEY
(Application no.
44125/06)
JUDGMENT
STRASBOURG
2 July 2013
This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Gülbahar Özer and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 11 June 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
44125/06) against the Republic of Turkey lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by five Turkish nationals, Ms Gülbahar Özer, Mr Yusuf Özer,
Mr Halil Esen, Mr Hüseyin Esen and Mr Abdurrahman Çınar (“the
applicants”), on 19 October 2006.
The applicants were represented Ms Reyhan Yalçındağ
Baydemir, Ms Aygül Demirtaş and Mr Selahattin Demirtaş, lawyers
practising in Diyarbakır. The Turkish Government (“the Government”) were
represented by their Agent.
The applicants alleged, in particular, that the
killing of their five children by a number of soldiers and the lack of an
effective investigation into their killing had been in violation of Article 2
of the Convention.
On 20 September 2010 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1963, 1965, 1947,
1952 and 1946 respectively. The first and second applicants live in İzmir,
the third and fourth applicants live in Mardin and the fifth applicant lives in
Diyarbakır.
The facts of the case as submitted by the
parties, and as they appear from the documents submitted by them, may be
summarised as follows.
Gülbahar Özer is the mother of Sibel Sartık,
Yusuf Özer is the father of Nergiz Özer, Halil Esen is the father of Zerga
Esen, Hüseyin Esen is the father of Zühal Esen, and Abdurrahman Çınar is
the father of Hamdullah Çınar.
Sibel Sartık, who was 24, and her cousin
Nergiz Özer, who was 15, were living in İzmir and working as a singer and
a textile worker respectively. On 17 December 2004 they left their homes
in İzmir. Sibel Sartık told her family that she was going to visit
her three children who were living with her ex-husband in the city of Siirt.
Zühal Esen and Zerga Esen were 16 and 13 years
old respectively and were working on farms in Manisa. On 20 December 2004 they
left their homes and told their families that they were going shopping.
Hamdullah Çınar was 22 years old and was
working on a building site in Ankara. The last time his family heard from him
was towards the end of December 2004.
On 19 January 2005 Sibel, Nergiz, Zuhal, Zerga
and Hamdullah were killed by soldiers in a place one and a half kilometres to
the north of a small village in south-east Turkey.
According to a report prepared on 20 January
2005 by twenty-six soldiers who had taken part in the incident, at about 6.00
p.m. on 19 January 2005 special police teams who had observed with their
night vision cameras nine or ten persons in an area near Cudi mountain, informed
the military about the presence of the group.
A number of units of soldiers were then
dispatched to the area at 6.30 p.m. where they came under fire from members of
the group. The soldiers retreated to a safer area and issued verbal warnings,
in Turkish and Kurdish, and asked members of the group to surrender. When their
calls for surrender were rejected and they came under more fire, the soldiers
blocked all exit routes and opened mortar fire on those who tried to run away.
Both sides also threw hand grenades at each other during the clash.
The following morning the soldiers found the
bodies of the applicants’ five children and a number of weapons and food stocks
near to them. There were no other casualties and none of the soldiers suffered
any injuries. On arrival of a different unit of soldiers responsible for crime
scene investigations, the soldiers who had taken part in the operation left the
area.
Soldiers responsible for crime scene
investigations photographed the bodies and the weapons next to the bodies, and
drew up sketches showing the position of the bodies. It was stated in a report
drawn up by the investigating soldiers that, “as it was raining the weapons
[found next to the bodies] were wet and muddy and [the investigators] have thus
been unable to carry out fingerprint analysis on the weapons”. Five automatic
rifles found next to the bodies, together with a number of spent bullet
cartridges found in the area, were taken away as evidence.
With the help of a number of villagers brought
to the area by soldiers from the nearby village, the bodies of the applicants’
children were brought to the Şırnak State Hospital where they were
examined by a doctor and a prosecutor at midday on 20 January 2005. It appears
from a number of reports drawn up the same day that the prosecutor had been
told by members of the security forces that the place where the five persons
had been killed was not safe for the prosecutor to go and the prosecutor had
asked the soldiers to bring the bodies to Şırnak.
As there were no identity cards on them, the
prosecutor was unable to identify the five deceased. In his report the
prosecutor, who referred to the five deceased as “PKK terrorists killed in a clash with the security forces” and
instructed the soldiers to search for the remaining “terrorists” who had
managed to escape, stated that “anti-terrorism experts and crime-scene
investigators from the gendarmerie had carried out the necessary examinations
and searched for evidence at the place of the incident”.
At the recommendation of the doctor who examined
the bodies and who concluded that the applicants’ five children had died as a
result of loss of blood and damage to their internal organs caused by firearms,
the prosecutor decided that there was no need to carry out a classic autopsy.
A decision was also taken to destroy some of the
clothes the deceased had been wearing.
On 22 January 2005 the applicants and their
relatives formally identified the bodies of the five deceased. In official
identification documents the prosecutor again referred to the applicants’ five
children as “members of the PKK killed in an armed clash with members of the
military”.
On 25 January 2005 the applicants’ lawyers asked
the Şırnak prosecutor for copies of documents from the investigation
file. They were provided with the above-mentioned post mortem report, documents
relating to the formal identification of the bodies, documents for the release of
some of the bodies, and copies of the identity cards of some of the applicants.
None of the documents drawn up by members of the military were handed over to
the applicants.
The Human Rights Association of Turkey released
a report on 27 January 2005 on the killing of the applicants’ five
children. It was stated in the report that the authorities had refused to hand
over the bodies of Nergiz Özer and Sibel Sartık to their families and had
buried them in an undisclosed location.
The report, drawn up after having interviewed a
number of villagers living near the place where the applicants’ five children
were killed by the soldiers, the prosecutor in charge of the investigation, and
the families of the deceased, criticises the prosecutor’s failure to go to the
place of the incident and the collection of the evidence by the soldiers. The
report also criticises the fact that the documents drawn up by the soldiers in
the aftermath of the incidents had not been sent to the prosecutor in charge. The
report concludes it to be highly probable that the applicants’ five children
had run away from their homes in order to join the PKK, and had then been
killed by the soldiers even though they were unarmed.
On 31 January 2005 an army major sent to the
prosecutor the documents drawn up by the soldiers after the killings (see
paragraphs 12-16 above).
On 1 February 2005 the applicants Gülbahar Özer and
Yusuf Özer, with the assistance of their lawyers, lodged a formal complaint
against the soldiers responsible for the killing of the five persons. In their
petition the two applicants asked the prosecutor to carry out an investigation
and prosecute those responsible for the killings. They invited the prosecutor
to, inter alia, question the soldiers and the residents of the nearby
villages, and to examine whether their children were likely to have been able
to handle the weapons allegedly found next to their bodies, given their young
age and their lack of training in firearms. They also asked the prosecutor to
obtain swabs from the hands of the deceased with a view to assessing whether
they had indeed handled the weapons. They further asked the prosecutor to
recall the items of evidence which had been sent to the gendarmerie’s forensic
laboratories, and send them instead to the independent and impartial Forensic
Medicine Institute.
The prosecutor started an investigation on 23 February
2005 against the applicants’ five dead children, as well as against “PKK
members”, for the offence of undermining the territorial integrity of Turkey.
On 23 February 2005 the applicants Gülbahar Özer
and Yusuf Özer were questioned by a police officer in relation to their
complaints to the prosecutor. Both applicants told the police officer that they
wanted those who had killed their children to be found and punished.
According to the report of the ballistic
examination conducted by the gendarmerie, twenty-one of the empty bullet cases
found in the area had been discharged from the five rifles found next to the
bodies of the applicants’ children.
In a report of 13 April 2005 a police firearms
expert concluded that it would be possible for children from the age of 11,
with one to two hours’ training, to use the weapons found next to the bodies of
the five deceased.
On 7 April 2005 the police forensic laboratory
examined a number of spent bullet cases found in the area. On 25 May 2005 an
expert examined the thermal camera footage recorded by the police special teams
on the day of the incident, and confirmed the sighting of seven persons in the
footage.
On 26 May 2005 the Şırnak prosecutor
visited the area and recovered forty-two spent bullet cases at the spot
where the bodies had been found. He also found an unspecified number of
bullets, used in his opinion by the soldiers, in two places 50 and 150 metres
away from the place where the bodies had been found. The prosecutor also
questioned five villagers who were living in a nearby village and who had
assisted the soldiers in recovering the bodies on 20 January 2005.
The weapons and ammunition found in the area by
the prosecutor were examined by the police and gendarmerie forensic
laboratories and their findings were recorded in reports drawn up on 10 August
and 23 September 2005.
On 7 and 9 February 2006 a prosecutor and a
gendarme non-commissioned officer questioned fifteen of the twenty-six soldiers
who had taken part in the operation (see paragraph 33 above). The soldiers were
questioned as “eyewitnesses”. The non-commissioned officer was entrusted the
task of taking down the minutes of the soldiers’ questioning “because of the
nature and the urgency of the investigation”. The soldiers’ names were not
written down in the statements and they were referred to by their military
identification numbers.
In the fifteen identical statements the soldiers
were quoted as having stated that the PKK members had ignored their warnings to
surrender, which had been made in Turkish and Kurdish. Instead, the PKK members
had opened fire on them and they had returned fire. The clash had lasted for
approximately two hours. They also stated that, although they had initially
seen a group of approximately eight to ten persons with their night vision
cameras, they did not know what had happened to the remaining ones other than
the five killed by them.
On 6 March 2006 the Şırnak prosecutor
decided not to prosecute any of the soldiers responsible for the killing of the
applicants’ five children. In his decision the prosecutor summarised the
documents in the investigation file, and held, inter alia, the
following: “Members of the security forces issued warnings [to the group] to
surrender. However, [the group] responded by firing on the soldiers. Those
found dead at the end of the clash had been armed. According to the examination
of the place of the incident the following morning, as well as according to the
examinations subsequently conducted by the prosecution service and the forensic
authorities, the spent bullet cases had been discharged from the weapons which
had been in working order. There is no evidence or eyewitness statements to
suggest that the soldiers had opened fire first.” The prosecutor also mentioned
in his decision that, according to the military reports the weapons found next
to the bodies had been wet and muddy and it had thus not been possible to look
for fingerprints on them.
It also appears from the prosecutor’s decision
that on the day after the killings a TV channel reported, based on information
obtained from PKK sources, that the applicants’ five children had not been PKK
militants, but that they had gone to the area unarmed to meet with PKK members.
Nevertheless, the prosecutor considered in his decision that the deceased had
been PKK members who had been trying to “undermine the territorial integrity of
Turkey” and that the soldiers had carried out their duties by killing them.
On 28 March 2006 the two applicants lodged an
objection against the prosecutor’s decision. In their objection they denied
that their children had been PKK members. They alleged that their children had
been unarmed at the time of the killings. In this connection they pointed to
the failure to obtain swabs from the hands of the deceased. The two applicants
also criticised the investigating authorities’ failure to question the soldiers
until thirteen months after the killings and the presence of the gendarme
officer when the prosecutor had been questioning the soldiers. They pointed out
that the statements made by these soldiers were identical as a result of the
psychological pressure exerted on them by the gendarme officer present during
their questioning.
On 12 April 2006 the objection lodged by the two
applicants was rejected by the Siirt Assize Court which considered that all the
necessary steps had been taken in the investigation. The Assize Court
considered that the right to life guaranteed in the European Convention on
Human Rights was not absolute. If the resort to use of force becomes absolutely
necessary in order to protect from unlawful violence, then there would be no
deprivation of the right to life. On the basis of the investigation, the
“terrorists” had been killed by the soldiers who had had to resort to the use
of firearms in order to protect themselves from unlawful violence. There was no
evidence to the contrary.
No mention was made in the Assize Court’s
decision about the applicants’ complaints concerning the failure to obtain
swabs from the hands of the deceased or the failure to question the soldiers until
thirteen months after the killings and in the presence of the gendarme
officer.
The decision of the Siirt Assize Court was
communicated to the applicants on 28 April 2006.
Following the communication of the application
to the respondent Government, on 18 January 2011 the İzmir prosecutor took
a statement from the applicant Ms Gülbahar Özer. The applicant repeated her
allegations about the unlawful killing of her daughter Sibel Sartık.
The Şırnak prosecutor, having regard
to the statement taken from Ms Özer on 18 January 2011 by his counterpart
in İzmir, took another decision not to prosecute anyone in connection with
the killing. The prosecutor considered that there was no new evidence to lead
to a different decision. The applicant’s objection against the prosecutor’s
decision was rejected by the Siirt Assize Court on 10 February 2011.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2, 13 AND 17 OF
THE CONVENTION
The applicants complained that their children had
been killed in breach of Article 2 of the Convention. In support of their
allegation they argued that, had the authorities carried out swab tests it
would have become apparent that their children had been unarmed and had not
opened fire on the soldiers. Furthermore, the fact that none of the soldiers
had been killed or injured in the incident was another indication that their
children had been unarmed.
Under Articles 2 and 13 of the Convention the
applicants complained that the investigation into the killings had been
ineffective.
Relying on Article 17 of the Convention, the
applicants complained that the killings had not been justified under Article 2
§ 2 of the Convention because it had not been proved that their children had
been PKK members or that they had opened fire on the soldiers.
The Government contested the applicants’
arguments.
The Court considers that the applicants’
complaints relate to the deprivation of the right to life of their children and
the effectiveness of the investigation into their killing. As such, their
complaints can be examined solely from the standpoint of Article 2 of the
Convention which reads as follows:
“1. Everyone’s right to life shall be protected by
law. No one shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for which this
penalty is provided by law.
2. Deprivation of life shall not be regarded as
inflicted in contravention of this article when it results from the use of
force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent
the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of
quelling a riot or insurrection.”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The applicants argued that their children had
been unarmed when they were killed by the soldiers. There was no evidence, such
as a camera recording, to show that the soldiers had warned them to surrender
but that their children had opened fire on the soldiers. Furthermore, the fact
that not a single soldier had been injured during an alleged two-hour long
armed operation, especially despite the allegation that it had been their
children who had fired first, further proved that their children had been
unarmed.
The applicants argued that the initial
examinations of the place of the incident and the bodies of their children had
been conducted by the soldiers who killed their children, and not by a prosecutor.
This, in the applicants’ opinion, showed that the investigation had been flawed
from its very early stages. They referred to their applications to the national
authorities (see paragraphs 25, 27 and 37 above), and submitted that they had
complained about the prosecutor’s failure to go to the scene of the incident.
They did not find it convincing that the prosecutor had been unable to go to a
place where civilians had been killed and where not even a soldier had been
injured.
The applicants also criticised the failure to
take swabs from the bodies of their children with a view to verifying whether
or not they had traces of gunpowder residue.
The Government submitted that the PKK was an
internationally recognised terrorist organisation whose objective was to
overthrow the constitutional order of the Republic of Turkey through armed
struggle. There was no reason to doubt the accuracy of the assessment of the
security forces that the applicant’s children had been members of the PKK.
In light of the convincing and concrete
evidence, it had been established that the applicants’ children had been PKK
members who had tried to use the heavy rain and darkness to reach the Cudi
Mountain in order to join a PKK camp. The incident had begun soon after the
soldiers’ final assessment. The force used in the incident had been absolutely
necessary for the legitimate aim of defence of others from unlawful violence. The
planning of the operation had not disclosed a lack of care which might have
rendered the use of force disproportionate to the aim pursued.
The soldiers had acted with the aim of arresting
the terrorist group and handing them over to the judicial authorities. However,
members of the terrorist group had opened fire on them and the soldiers had had
to protect themselves. The incident had lasted for a period of two hours and
five terrorists had been recovered together with their weapons and other
equipment.
The authorities had carried out an effective
investigation into the killing of the five terrorists and collected all the evidence.
However, it had not been possible to take fingerprints from the rifles found
next to the bodies because they had been too wet and muddy.
In carrying out his investigation the prosecutor
had not unduly relied on the information provided by the military. Although the
prosecutor had not been able to go to the area on the same day due to security
risks, he had asked the soldiers to bring the bodies into the hospital. He had
visited the place of the incident as soon as the necessary security measures
had been taken by the soldiers.
The Court notes that in their observations the
Government made extensive submissions to the effect that the applicants’
children had been terrorists and members of the PKK. The Court thus deems it
appropriate to stress at the outset that it is not a criminal court entrusted
with the task of examining whether or not the applicants’ five children were
members of the PKK, or assessing their criminal liability for membership or
otherwise of any outlawed organisation. In the present case the Court is called
upon to examine whether or not the applicants’ children were killed in
circumstances engaging the responsibility of the respondent Government. The
Court will carry out its examination with sole reference to whether or not the
use of lethal force against the applicants’ five children was absolutely
necessary and proportionate, as required by Article 2 of the Convention.
The Court reiterates that
the text of Article 2 of the Convention read as a whole demonstrates that
paragraph 2 does not primarily define instances where it is permitted to
intentionally kill an individual, but describes situations where it is
permitted to “use force” which may result, as an unintended outcome, in the
deprivation of life. The use of force, however, must be no more than
“absolutely necessary” for the achievement of any of the purposes set out in
subparagraphs (a), (b) or (c). In this respect the use of the term “absolutely
necessary” in Article 2 § 2 indicates that a stricter and more compelling test
of necessity must be employed than that normally applicable when determining
whether State action is “necessary in a democratic society” under paragraph 2
of Articles 8-11 of the Convention. In particular, the force used must be
strictly proportionate to the achievement of the aims set out in the
subparagraphs of the Article (see McCann and Others v. the United
Kingdom, 27 September 1995, §§ 148-149, Series A no. 324).
. Turning
to the circumstances of the present case, it is not disputed between the
parties that the applicants’ five children were killed by the soldiers of the
respondent State. The Court will therefore examine whether the Government have
discharged their burden of justifying the killings. In doing so, it will have
particular regard to the investigation carried out at the domestic level in
order to establish whether that investigation was effective, in the sense that
it was capable of leading to the determination of whether the force used was or
was not justified in the circumstances.
. In
this connection, the Court reiterates that it is sensitive to the subsidiary
nature of its functions and recognises that it must be cautious in taking on
the role of a first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Where domestic proceedings have taken place, it
is not the Court’s task to substitute its own assessment of facts for that of
the domestic courts and, as a general rule, it is for those courts to assess
the evidence before them. Though the Court is not bound by the findings of
domestic authorities, in normal circumstances it requires cogent elements to
lead it to depart from the findings of fact reached by those authorities (see, mutatis mutandis, Klaas v. Germany, 22 September
1993, §§ 29-30, Series A no. 269).
. Turning
to the circumstances of the present case, when notice of the present
application was given to the Government, the facts as presented by the
applicants led the Court to put a number of specific questions relating to the
way in which the investigation was conducted. The Court notes that it did not
receive any responses from the Government to some of its questions and that the
replies it did receive are incapable of dispelling the very serious misgivings
it has about this investigation.
. The
Court notes at the outset that the initial and critical phases of the
investigation were carried out by members of the military and without the
supervision of the prosecutor. In this connection, the Court does not find it
convincing that the prosecutor had been unable to go to the place of the
incident on account of safety concerns. It is noteworthy that the same safety
concerns did not stop the soldiers from asking a number of civilian villagers living
in a nearby village to go to the area to help them retrieve the bodies (see
paragraph 16 above). However the prosecutor, who seems to have accepted the
soldiers’ advice about the safety concerns without any hesitation, did not go
to the area until some four months after the incident.
The Court considers that
allowing a unit of soldiers to take such an active part in the investigation
into the killing of five persons by another unit of soldiers is not only so
serious as to taint the independence of the entirety of the criminal
proceedings (see Ramsahai and Others v. the Netherlands
[GC], no. 52391/99, §§ 339-341, ECHR 2007-II), but
also entailed the risk that crucial evidence implicating the soldiers in the
killing would be destroyed or ignored (see Özcan and Others v. Turkey,
no. 18893/05, § 66, 20 April 2010).
. The
Court also finds it striking that the documents drawn up by the military about
the killings were not handed over to the prosecutor for a period of eleven days
(see paragraph 24 above). Nevertheless, even in the absence of those documents
the prosecutor was still able, presumably on the oral advice of the military,
to conclude that the applicants’ children had been PKK members and killed in a
clash with the security forces (see paragraph 17 above). During the same
eleven-day period no steps were taken by the prosecutor to investigate the killings.
. Indeed,
the Court notes that even the applicants’ serious allegations and their
requests for a number of pertinent investigatory steps to be taken (see
paragraph 25 above) did not seem to have spurred the prosecutor to take action
in the subsequent days and months. The first step taken by the prosecutor, after
he has examined the bodies on 20 January 2005, was to instigate a criminal
investigation against the applicants’ five dead children on 23 February
2005 for “undermining the territorial integrity of
Turkey” (see paragraph 26 above).
. Another
very crucial defect in the investigation was the failure to examine whether the
weapons found next to the bodies of the applicants’ children had their
fingerprints on them. The only explanation for this is the one sentence which
features in the report drawn up by the soldiers at the place of the incident on
20 January 2005, which reads that “as it was raining the weapons [found
next to the bodies] were wet and muddy and [the investigators] have thus been
unable to carry out fingerprint analysis on the weapons”. That sentence was
relied on both by the prosecutor when closing his investigation (see paragraph 35
above) and by the Government in their observations (see paragraph 55 above). Despite
the applicants’ repeated requests (see paragraphs 25 and 37), the national
authorities did not arrange any forensic examinations of the rifles with a view
to establishing whether it was indeed impossible to lift any fingerprints from
them and the Court has not been provided with any explanation about that
failure.
. Similarly,
there is no information in any of the documents in the investigation file to
show that any attempt had been made to examine the bodies and the clothes the
deceased had been wearing for gunpowder residues. Instead, it appears from the
documents that a decision had been taken by the authorities to destroy some of the
clothes the deceased had been wearing (see paragraph 19 above).
. The
Court considers that a search for fingerprints and for gunpowder residue on the
bodies and clothes should have been the logical starting point for the
prosecutor in the investigation. In light of these two serious failures, the
Court cannot find it established that the applicants’ five children had handled
those weapons and fired at the soldiers.
Furthermore, the soldiers who
had killed the applicants’ five children were not questioned for a period of
almost thirteen months after the operation (see paragraph 33 above). For the
Court, such a lengthy delay to question the main suspects in an investigation
into multiple killings did not disclose the necessary diligence required by
Article 2 of the Convention. As well as creating an appearance of collusion
between the judicial authorities and the military, the failure to question the
soldiers is conducive to leading the relatives of the deceased - as well as the
public in general - to form the opinion that members of the security forces
operate in a vacuum in which they are not accountable to the judicial
authorities for their actions (Bektaş and Özalp v. Turkey, no. 10036/03, § 65, 20 April 2010).
. The
Court observes that the soldiers who killed the applicants’ children were also
the only eyewitnesses to the events and their questioning should have been
regarded as a priority. Nevertheless, there is no information in the documents
in the investigation file to explain this lengthy delay. Furthermore, the
respondent Government who have been invited by the Court to provide an
explanation, did not deal with that request in their observations.
. When
the prosecutor did finally take statements from the soldiers on 7 and 9
February 2006, only fifteen of the twenty-six soldiers who took part in
the operation gave evidence (see paragraph 33 above). An army non-commissioned
officer was also present in the room and took down their statements. The Court has
not been provided with any information as to what exact “nature” (see paragraph
33 above) of the investigation necessitated the presence of an army officer at
the risk of damaging the “independence and impartiality” of the investigation. Moreover,
having regard to the delay of thirteen months to summon the soldiers before the
prosecutor, the Court is also not convinced that there could have been any
“urgency” at that late stage of the investigation requiring for whatever reason
the assistance of the army officer. The Court does share, on the other hand,
the misgivings of the applicants who consider that the identical nature of the
soldiers’ statements is the result of the pressure that must have been exerted
by the army officer on the soldiers during their questioning.
. The
Court must emphasise at this juncture that it does not share the Government’s opinion
that the prosecutor had not unduly relied on the information provided by
the military in conducting his investigation (see paragraph 56 above). According
to the documents summarised above, other than examining the bodies of the
applicants’ five children, the prosecutor did not take any meaningful step
without the assistance or presence of members of the military.
. The
prosecutor’s serious failures, coupled with the criminal investigation hastily
introduced against the applicants’ dead children before taking any
investigatory steps into their killings first, illustrate that the prosecutor
had concluded very early on in his investigation that the applicants’ children
had been PKK members. The Court considers that that conclusion, coupled with
the prosecutor’s deferential attitude to the soldiers, explains the prosecutor’s
blinkered approach throughout the investigation into the killings. Having
regard to the entirety of the investigation, it cannot be said that the
prosecutor did his utmost to find out what really happened on the day of the
incident.
In light of the serious defects in the
investigation which are highlighted above and which are in breach of the
obligation under Article 2 of the Convention to carry out effective
investigations, the Court considers that the investigation
carried out at the domestic level was clearly inadequate and left many obvious
questions unanswered. Moreover, by closing the investigation when they did, the
authorities deprived the applicants of the opportunity to find out and be
convinced as to how and why their children had been killed (see, mutatis
mutandis, Beker v. Turkey, no. 27866/03, §§ 51-54, 24 March 2009).
. In
the light of the foregoing, the Court considers that no meaningful
investigation was conducted at the domestic level capable of establishing the
true facts surrounding the killings. Consequently, it concludes that the
Government have failed to show to the Court’s satisfaction that the resort to
the use of fatal force against the applicants’ five children had been
absolutely necessary and proportionate.
. It
follows that there has been a violation of Article 2 of the Convention in its
substantive and procedural aspects in respect of the killing of the applicants’
five children.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicants complained that the sadness
caused to them by the killing of their children amounted to ill-treatment
within the meaning of Article 3 of the Convention.
The Court considers that this complaint may be
declared admissible. However, having regard to its finding relating to Article 2
of the Convention (see paragraph 76 above), the Court considers that it is
not necessary to examine whether, in this case, there has been a violation of
Article 3 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
Each of the five applicants claimed 20,000 euros
(EUR) in respect of pecuniary and EUR 80,000 in respect of non-pecuniary
damage. They argued that they had endured unbearable pain on account of the
arbitrary killing of their children and the failure of the authorities to punish
the perpetrators.
The applicant Ms Gülbahar Özer stated that her
daughter Sibel Sartık had left behind three children. She and the
applicant Mr Yusuf Özer added that they were brothers and sisters and the pain
they had suffered from the killing of their own children had been exacerbated
by the killings of their respective nieces.
The applicant Mr Abdurrahman Çınar argued
that his son Hamdullah Çınar had been working on building sites and had
been providing financial help to his family.
The Government considered that the claims for
pecuniary and non-pecuniary damage were excessive and unsubstantiated.
Having regard to the applicants’ failure to
submit any evidence or other information in support of their claim for
pecuniary damage, the Court rejects their claims.
Having regard to the applicants’ suffering on
account of the killing of their children by the soldiers which, contrary to the
Government’s submissions, does not require substantiation, the Court awards each
of the five applicants EUR 65,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicants also claimed a total of EUR 5,930
for the costs and expenses incurred before the Court. This sum consisted of the
fees of their lawyers, as well as for the expenses such as translation, postage,
photocopying and stationery. In respect of their claim for the fees of their
lawyers (EUR 5,256) the applicants submitted to the Court a time sheet showing the amount of time
spent by their lawyers in representing them before
the Court. They also submitted a bill from a translation agency for the amount
of EUR 515. They claimed that their remaining expenses such as photocopying,
fax and stationery amounted to EUR 159.
The Government were of the opinion that the
claim for costs and expenses was not supported with documentary evidence.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents submitted by the applicants in support of their claims for costs and
expenses and the above criteria, the Court considers it reasonable to award the
sum claimed by the applicants in full.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the
application admissible;
2. Holds that
there has been a violation of Article 2 of the Convention in both its
substantive and procedural aspects;
3. Holds that there is no need to examine separately
the complaint under Article 3 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicants,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 65,000 (sixty-five thousand euros), plus
any tax that may be chargeable, to each of the five applicants, in respect of
non-pecuniary damage;
(ii) EUR 5,930 (five thousand nine hundred and
thirty euros) to the applicants jointly, plus any tax that may be chargeable to
them, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 2 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
