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SECOND
SECTION
CASE OF SEYFETTİN ACAR AND OTHERS v. TURKEY
(Application
no. 30742/03)
JUDGMENT
STRASBOURG
6 October
2009
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 Seyfettin Acar and
Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30742/03) 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 six Turkish nationals, Mr Seyfettin Acar,
Mr Talat Acar, Mr Yusuf Acar, Mr Süleyman Acar, Mrs
Narinci Acar and Mrs Hasbiye Acar (“the applicants”), on
17 July 2003.
- The
applicants were represented by Ms Türkan Aslan, a lawyer
practising in İzmir. The Turkish Government (“the
Government”) were represented by their Agent.
- The
applicants alleged, in particular, that the authorities of the
respondent Government had injured two of them and killed two of their
relatives, in breach of the right to life guaranteed by Article 2 of
the Convention.
- On
25 March 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1945, 1967, 1945, 1953, 1957 and 1959,
respectively. Mr Talat Acar lives in İzmir. The other applicants
live in Midyat.
- At
the time of the events the applicants were living in the village of
Çalpınar, which is located within the administrative
jurisdiction of the town of Midyat, in south-east Turkey.
- On
20 April 1992 a number of villagers from Çalpınar village
were travelling in two vehicles. Some time after they left their
village the vehicles were stopped by a group of village guards.
The village guards then opened fire on the villagers and killed six
of them, including the first applicant's brother and the sixth
applicant's husband, Mr Süleyman Acar.
A number of other villagers were injured. Two of the injured persons,
including the second applicant's brother and the fifth applicant's
husband, Mr Sabri Acar, died the following day in hospital. The third
and the fourth applicants were among those injured in the incident.
The third applicant, Yusuf Acar, was shot in the leg and his injuries
required a month to heal. The fourth applicant, Süleyman Acar,
had broken bones and a bullet had split in his body. The doctors did
not deem it necessary to remove the bullet pieces as they were not
life-threatening.
- The
same day the Midyat prosecutor visited the area and, with the
assistance of a forensic doctor, examined the bodies. It was
established that the deceased persons had been shot at close range.
- The
prosecutor asked the gendarmes who were in the area to collect the
spent bullet cases. When the soldiers refused to help him, the
prosecutor himself collected and secured a total of sixty-six spent
cartridges discharged from the village guards' rifles. The rifles had
been given to the village guards by the gendarmerie. As the gendarmes
also refused to take the injured persons to the hospital, the
prosecutor's clerk had to do it himself.
- The
prosecutor expressed the opinion that the village guards had set an
ambush to kill the villagers.
- According
to a report prepared by the gendarmerie, however, it had not been the
village guards who opened fire on the villagers but a group of PKK
members wearing military uniforms.
- On
8 July 1992 the Midyat prosecutor filed an indictment with the Midyat
Assize Court, charging twenty-seven village guards with multiple
offences of homicide and attempted homicide.
- For
security reasons the trial was moved from the Midyat Assize Court to
the Denizli Assize Court, in the west of the country.
- Some
eight and a half years later the Denizli Assize Court rendered its
judgment on 20 November 2000 and acquitted all the defendants.
- On
7 February 2002 the Denizli Assize Court's judgment was upheld by the
Court of Cassation in respect of seventeen of the twenty-seven
village guards but was quashed in respect of the remaining ten.
- A
retrial began before the Denizli Assize Court, which, on 20 May
2003, found the ten village guards guilty of the murder of the eight
villagers as well as the attempted murder of a number of others,
including the third and fourth applicants. The village guards were
sentenced to life imprisonment. In its judgment the Denizli Assize
Court stated the following:
“In view of the autopsy reports, there is no
question as to the cause of death of the villagers. Instead, the
question to be resolved is whether those who fired on the villagers
were the accused village guards.
It is not possible to rely solely on the witness
statements as they are contradictory on several points. However the
witness statements given during the preliminary investigation seem to
be, in general, objective. Relying on these initial statements it is
established that the persons who had fired had their faces covered in
order not to be recognised.
Furthermore, in the court's opinion, what a military
commander should normally do when he is notified of an incident is to
go to the scene of the incident as soon as possible. However in the
present case, the fact that the non-commissioned officer Ali Kılıç
checked all twenty-seven weapons one by one, without taking any
action, is incomprehensible. Moreover the court notes that the Midyat
Public Prosecutor maintained that the soldiers were not collecting
the empty cartridges to help him and that he had to personally
collect the empty cartridges which were near the dead bodies. In view
of the above, the court concludes that Ali Kılıç,
Kazım Demirbaş and Arif Güner were trying to defend
the accused who were working with them to fight against terrorism,
and therefore it does not find their statements reliable.
Considering the Midyat Public Prosecutor's statements,
in which he said that there was a smell of gunpowder, the court comes
to the conclusion that the allegation concerning the placing of empty
cartridges at the scene of the incident in order to implicate the
village guards in the crime is not corroborated in any persuasive
manner by eyewitnesses or other evidence.
Moreover, the fact that three of the sixty-six
cartridges were not fired from the village guards' weapons cannot be
taken as a proof of their innocence. It is possible that one of the
village guards had a weapon that had not been seized by the
authorities after the incident.
In conclusion, relying on the findings of the ballistic
report and the statements of the Midyat Public Prosecutor, who had an
impartial position in the present case, the court decides that ten of
the accused village guards are responsible for the wounding and
killing of the villagers whom they considered to be PKK supporters.”
- On
9 December 2004 the Court of Cassation quashed the Denizli Assize
Court's judgment in respect of two of the village guards and upheld
it in respect of the remaining eight.
- Criminal
proceedings against the two village guards recommenced before the
Denizli Assize Court and are still continuing, according to the
information in the case file, as submitted by the parties.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 2, 6 AND 13 OF THE
CONVENTION
- Four
of the applicants complained that their relatives had been deprived
of their right to life in violation of Article 2 of the Convention.
Under the same provision, the remaining two applicants who were
injured in the incident, that is Yusuf Acar and Süleyman Acar,
complained that their right to life had also been infringed.
- The
applicants further complained that the trial conducted by the Denizli
Assize Court could not be regarded as an effective remedy within the
meaning of Article 13 of the Convention. Relying on Article 6 §
1 of the Convention, they argued that the Denizli Assize Court was
not an independent or impartial tribunal and that the proceedings
against the village guards had not been concluded within a reasonable
time.
- The
Court considers it appropriate to examine these complaints 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.”
- The
Government contested the applicants' arguments.
A. Admissibility
- The
Government referred to the ongoing trial before the Denizli Assize
Court and argued that the complaint was inadmissible on account of
the applicants' failure to exhaust domestic remedies.
- In
view of the substantial delays involved and the serious nature of the
alleged crimes, the Court is not satisfied that the criminal
proceedings, which have now been pending for over seventeen years,
can be considered as furnishing an effective remedy which the
applicants were required to use under Article 35 § 1 of the
Convention (see Acar and Others v. Turkey (dec.), nos.
36088/97 and 38417/97, 27 November 2001). It follows that the
Government's objection to the admissibility of the complaint must be
rejected.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 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 submitted that their relatives had been deliberately
killed by the village guards because they had refused to become
village guards.
- They
further alleged that the investigation into the shooting had been
ineffective and not independent. The gendarmes had attempted to cover
up the killings by hindering the prosecutor's investigation. After
the incident, members of the security forces and village guards had
threatened the applicants and their relatives in relation to their
complaints.
- The
applicants also drew the Court's attention to the Ministry of the
Interior's information, according to which a total of 4,938 village
guards had committed offences in the past eighteen years and that
1,215 of these offences had been against the person. In the opinion
of the applicants, the respondent Government had failed to prevent
village guards from committing similar offences in the present case
and had thus been in breach of their obligation to protect the right
to life of their two deceased relatives, as well as the
life-threatening injuries caused to the two surviving applicants,
Yusuf Acar and Süleyman Acar.
- The
Government considered that, although all necessary measures had been
taken to prevent village guards from committing offences, it was
impossible to expect a State to control the activities of all persons
acting on its behalf. There was no guarantee that the suspects in the
present case, who had been employed to combat terrorism and who had
had no comprehensive professional training, would not commit crimes.
What could justifiably be expected from a State was to supervise such
persons and to punish them if they became involved in criminal
activities.
- The
Government were of the opinion that there had been hostility between
the applicants' relatives and the village guards and, as such, the
village guards had not acted on behalf of the State. The subsequent
investigation and trial had been effective.
- The
Court observes that it has already examined the circumstances
surrounding the same shooting incident and the effectiveness of the
same investigation in its judgment in the case of Acar and Others
v. Turkey (nos. 36088/97 and 38417/97, 24 May 2005),
which had been lodged by two injured persons as well as by relatives
of six of the eight persons killed in the same incident.
- In
its above-mentioned judgment of 24 May 2005, the Court concluded that
the killing of the six persons and the injuries caused to the two
applicants had been in breach of Article 2 of the Convention in its
substantive aspect (ibid., §§ 80-86). It also reached the
conclusion that the investigation and the trial had been ineffective
and that the applicants had thus been deprived of an effective
remedy, in breach of Articles 2 (in its procedural aspect) and 13 of
the Convention (ibid., §§ 87-103).
- The
Court has examined the present application and the parties'
submissions. It considers that the Government have not advanced any
arguments requiring the Court to depart from its findings in the
above-mentioned judgment.
- In
this connection, the Court reiterates, in particular, its misgivings
as regards the use of civilian volunteers such as village guards in a
quasi-police function. As pointed out in the judgment in the case of
Avşar v. Turkey (no. 25657/94, §§ 413-414,
ECHR 2001 VII (extracts)), the village guards operated outside
the normal structure of discipline and training applicable to
gendarmes and police officers, it was thus not 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 (see also
Acar and Others, cited above, § 84). In this connection
the Court considers it noteworthy that the Government themselves
considered that the village guards had not been given comprehensive
professional training (see paragraph 29 above). The Court's
misgivings in this respect are further compounded by the Ministry of
the Interior's information, which was submitted to the Court by the
applicants (see paragraph 28 above), the accuracy of which is not
disputed by the Government.
- Moreover,
the Court is not prepared to accept the Government's suggestion that
the shootings were carried out by village guards acting in their
private capacity. It notes in this connection that village guards are
employed and armed by the State. As established by the Denizli Assize
Court, they were assisted by a number of soldiers in trying to cover
their tracks and in hindering the prosecutor's investigation (see
paragraphs 9 and 16 above). Indeed, as it held in the above-mentioned
Acar and Others judgment, the Court considers that the failure
of the gendarmes to react to the unlawful activities of the village
guards supports a strong inference of acquiescence in those
activities.
- In
the light of the foregoing, the Court finds that the State must bear
responsibility for the killing of the applicants' relatives Süleyman
Acar and Sabri Acar, and the attempt to kill the applicants Yusuf
Acar and Süleyman Acar. No justifications for the killings
or attempted killings having been provided, the Court concludes
accordingly that there has been a breach of Article 2.
- The
Court has also examined the investigation. It considers, once more,
that the Government have not advanced any arguments requiring the
Court to reach a different conclusion from that found in the
above-mentioned Acar and Others judgment (§§ 87-94).
- It
follows that there has been a violation of Article 2 of the
Convention in its procedural aspects regarding the ineffectiveness of
the investigation.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- Under
Article 8 of the Convention, the applicants complained that they had
been forced by security forces to become village guards and, when
they had refused, they had been forced to leave their village.
- The
Government contested that argument.
- The
Court has examined the applicants' allegation in the light of the
evidence submitted to it. It considers that there is an insufficient
basis in fact to ground this allegation. It follows that this
complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 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
- The
fifth applicant, Mrs Narinci Acar, claimed damages on her own behalf
and on behalf of her nine children, who were aged between four months
and seventeen years at the time of the killing of her husband Sabri
Acar. She claimed that her husband had been supporting his family by
working as a farmer. Having regard to the legal minimum wage and the
applicable interest rate, Narinci Acar claimed the sum of 50,000
euros (EUR) in respect of pecuniary damage and EUR 150,000 in respect
of non-pecuniary damage.
- The
sixth applicant, Mrs Hasbiye Acar, claimed damages on her behalf and
on behalf of her seven children, who had been aged between five
months and twelve years at the time of the killing of her husband
Süleyman Acar. She maintained that they had been dependent
on Süleyman Acar as a husband and father. He had been
supporting his family by working as a farmer. Having regard to the
legal minimum wage and the applicable interest rate, Hasbiye Acar
claimed the sum of EUR 50,000 in respect of pecuniary damage and EUR
150,000 in respect of non-pecuniary damage.
- The
first applicant, Seyfettin Acar, claimed EUR 50,000 in respect of
pecuniary damage and EUR 130,000 in respect of non-pecuniary damage
on his own behalf and on behalf of the wife and seven children of his
deceased brother Süleyman Acar.
- The
second applicant, Talat Acar, claimed EUR 50,000 in respect of
pecuniary damage and EUR 150,000 in respect of non-pecuniary damage
on his behalf and on behalf of the wife and nine children of his
deceased brother Sabri Acar.
- The
third applicant, Yusuf Acar, claimed EUR 50,000 in respect of
pecuniary damage. He submitted that, as a result of his injuries, he
had become disabled and had thus been unable to work since the
incident and provide for his wife and four children. He also claimed
EUR 75,000 in respect of non-pecuniary damage.
- The
fourth applicant, Süleyman Acar, claimed EUR 50,000 in respect
of pecuniary damage. He submitted that, as a result of his injuries,
he had become disabled and had thus been unable to work since the
incident and provide for his wife and fourteen children. He also
claimed EUR 75,000 in respect of non-pecuniary damage.
- The
Government considered the sums to be excessive and unsupported, and
submitted that awarding such amounts would lead to unjust enrichment.
- The
Government also contested the claims made by the first and the second
applicants on behalf of the wives of their two deceased brothers. The
former were themselves applicants in the case and were making their
own separate claims in respect of pecuniary as well as non-pecuniary
damage.
- The
Court reiterates that there must be a causal connection between the
damage alleged by the applicants and the violations of the Convention
found. This may, if appropriate, include compensation in respect of
loss of earnings (see, inter alia, Barberà,
Messegué and Jabardo v. Spain (Article 50), 13 June
1994, §§ 16-20, Series A no. 285 C).
- The
Court has held (paragraph 36 above) that the authorities were
responsible under Article 2 of the Convention for the death of the
applicants' relatives and for the injuries to two of the applicants.
It considers that there is a direct causal link between the violation
of Article 2 and the loss of potential financial support which the
victims had been providing to their dependants. The Court recognises
that, if they were still alive or able- bodied, they would have been
able to contribute to their family's livelihood (see Acar and
Others, cited above, §120).
- In
view of the documents submitted by the applicants in support of their
claims and having regard to equitable considerations, the Court
awards the applicants the following amounts in respect of pecuniary
damage:
(a) EUR
25,000 to the fifth applicant Narinci Acar and her nine children;
(b) EUR
24,000 to the sixth applicant Mrs Hasbiye Acar and her seven
children;
(c) EUR
10,000 to the third applicant Yusuf Acar; and
(d) EUR
10,000 to the fourth applicant Süleyman Acar.
- In
light of the foregoing the Court does not deem it necessary to make
awards to Mr Seyfettin Acar or Talat Acar in respect of pecuniary
damage for the killings of their brothers.
- The
Court reiterates that it has found that the authorities were
responsible for the incident which resulted in the wounding of some
of the applicants and the killing of their relatives. In addition to
violations of Article 2 in that respect, it has also found that
the authorities failed to provide an effective investigation of these
matters, in breach of the procedural obligation under Article 2 of
the Convention (see paragraph 38 above). In these circumstances and
having regard to the awards made in comparable cases (ibid., §
126), the Court awards, on an equitable basis, the sum of EUR 30,000
for non-pecuniary damage to each of the two applicants Mrs Hasbiye
Acar and Mrs Narinci Acar; EUR 20,000 for non-pecuniary damage
to each of the two applicants Mr Yusuf Acar and Mr Süleyman
Acar, and EUR 5,000 for non-pecuniary damage to each of the two
remaining applicants Seyfettin Acar and Talat Acar.
B. Costs and expenses
- The
applicants also claimed EUR 4,150 for costs and expenses incurred
before the Court. This sum included EUR 3,500 for the fees of their
legal representative, in respect of which the applicants submitted a
document showing that the legal representative had spent a total of
102 hours on the case. The remaining EUR 650 was claimed in
respect of postal and telephone expenses.
- The
Government were of the opinion that the amount claimed was excessive
and unsupported.
- 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 in its possession and the above criteria, the Court
considers that the applicants' claims may be regarded as having been
necessarily incurred and reasonable in their amounts. It thus awards
the applicants, jointly, EUR 4,150 to cover the costs of the
proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaints under Article 2 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
2 of the Convention in both its substantive and procedural aspects;
- 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 plus any tax that may be chargeable, to be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement:
(i) EUR
5,000 (five thousand euros) to the first applicant Mr Seyfettin
Acar in respect of non-pecuniary damage;
(ii) EUR
5,000 (five thousand euros) to the second applicant Mr Talat
Acar in respect of non-pecuniary damage;
(iii) EUR
10,000 (ten thousand euros) to the third applicant Mr Yusuf Acar
in respect of pecuniary and EUR 20,000 (twenty thousand euros)
in respect of non-pecuniary damage;
(iv) EUR
10,000 (ten thousand euros) to the fourth applicant Mr Süleyman
Acar in respect of pecuniary and EUR 20,000 (twenty thousand
euros) in respect of non-pecuniary damage;
(v) EUR
25,000 (twenty-five thousand euros) to the fifth applicant Mrs
Narinci Acar in respect of pecuniary and EUR 30,000 (thirty thousand
euros) in respect of non-pecuniary damage
(vi) EUR
24,000 (twenty-four thousand euros) to the sixth applicant
Mrs Hasbiye Acar in respect of pecuniary and EUR 30,000
(thirty thousand euros) in respect of non-pecuniary damage; and
(b) that
the respondent State is to pay the applicants, within the same three
month period EUR 4,150 (four thousand one hundred and fifty euros) to
the six applicants jointly in respect of costs and expenses, plus any
tax that may be chargeable to the applicants;
(c) 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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 6 October 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
