In the case of Meryem Çelik 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,
Neboja Vučinić,
Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 26 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
3598/03) 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 fourteen Turkish nationals, Ms Meryem Çelik,
Ms Zübeyda Uysal, Ms Misrihan Sevli, Ms Emine Çelik, Ms Marya Çelik, Mr
Hamit Şengül, Ms Fatma Şengül, Ms Besna Sevli, Ms Hanife Izci, Mr Şakir
Öztürk, Ms Kimet Şengül, Ms Hazima Çelik, Ms Şekirnaz İnan and
Ms Hamayil İnan (the applicants), on 10 September 2002.
The applicants, who had been granted legal aid,
were represented by Mr L. Kanat, a lawyer practising in Ankara. The Turkish
Government (the Government) were represented by their Agent.
The applicants alleged, in particular, that State
security forces were responsible for the killing and forced disappearance of
their relatives. They asserted that their rights protected by Articles 2, 3, 5,
6, 8, 13 and 14 of the Convention had been violated.
On 17 April 2007 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
I. THE CIRCUMSTANCES OF THE CASE
The applicants are Turkish nationals and live in
the Şemdinli district of Hakkari.
The applicants are the close relatives of the
thirteen persons who went missing (Casım Çelik, Aşur Seçkin, Cemal
Sevli, Yusuf Çelik, Mirhaç Çelik, Naci Şengül, Seddık Şengül,
Reşit Sevli, Kemal İzci, Hayrullah Öztürk, Salih Şengül,
Hurşit Taşkın and Abdullah İnan) and one person who was
allegedly killed (Kerem İnan) in July 1994, during an operation conducted
by security forces in the Ormancık hamlet of the Ortaklar village, in the
Şemdinli district of Hakkari. The inhabitants of Ormancık had been
village guards prior to the events giving rise to the present application. The
relationship between the applicants and their missing relatives is as follows:
Meryem Çelik - wife of Casım Çelik;
Misrihan Sevli - wife of Cemal Sevli;
Emine Çelik - wife of Yusuf Çelik;
Marya Çelik - wife of Mirhaç Çelik;
Hamit Şengül - brother of Naci Şengül;
Fatma Şengül - wife of Seddık Şengül;
Besna Sevli - wife of Reşit Sevli;
Hanife İzci - wife of Kemal İzci;
Şakir Öztürk- brother of Hayrullah Öztürk;
Kimet Şengül -wife of Salih Şengül;
Hazima Çelik - partner of Hurşit Taşkın;
Şekirnaz İnan - partner of Abdullah İnan;
Zübeyda Uysal -partner of Aşur Seçkin;
Hamayil İnan - wife of Kerem İnan.
A. The alleged events giving rise to the present
application
According to the applicants submissions, on 24
July 1994 military and gendarmerie forces arrived in Ormancık. The
inhabitants of the hamlet were told by members of the security forces to gather
at the helicopter landing pad, which was in the main square. The men of the
village were stripped naked and beaten. Two of the applicants, Emine Çelik and
Zübeyda Uysal, who were pregnant at the time of the events, were also beaten
when they protested against the security forces conduct and both eventually
suffered miscarriages. Furthermore, Kerem İnan was killed by a non-commissioned gendarmerie officer, a
certain F.A., when he did not obey the order to gather in the main square.
The security forces set fire to the houses in the
hamlet. Subsequently, Cemal Sevli, Reşit Sevli, Aşur Seçkin, Salih
Şengül, Yusuf Çelik, Naci Şengül and Kemal İzci were put in
military vehicles by the soldiers to be taken to the military base. On the way
to the base, the soldiers stopped two cars in which ten villagers were
travelling. The soldiers let the four children in the cars go, but arrested
Hayrullah Öztürk, Abdullah İnan, Mirhaç Çelik, Seddik Şengül,
Casım Çelik and Hurşit Taşkın. The soldiers then set fire
to the villagers cars.
The applicants and other villagers were forced to
leave Ormancık and Turkey by the security forces. They then crossed the
border into Iraq. In that respect, according to a document dated 24 July 1994,
drafted and signed by members of the administrative council (including the mayor)
of Ortaklar village, there was an armed clash in Ormancık on that day and
all property in the hamlet was burned. The document further states that the
inhabitants of Ormancık were forced to leave the hamlet soon afterwards
and flee to Iraq.
Between 1994 and 1997, the applicants lived in
the Atrush refugee camp, which had been established by the United Nations High
Commissioner for Refugees, in northern Iraq. In March 1997, following the
closure of the camp by the United Nations, the applicants moved to
Suleymaniyeh, a city in northern Iraq. During the autumn of 1997 they finally
returned to Turkey and began living in Şemdinli.
On an unspecified date, criminal proceedings
were brought against six people who had lived in the Atrush refugee camp,
including two of the applicants, Emine Çelik and Besna Sevli, who were charged
with aiding and abetting members of the PKK (the Workers Party of Kurdistan,
an illegal organisation) while living in the camp.
On 28 November 1997 the Van State Security Court
acquitted the accused, finding that the charges against them were not proved
beyond reasonable doubt.
B. The parliamentary inquiry into the alleged
events
In July 1998 a member of parliament, Naim
Geylani, visited Şemdinli. Some of the applicants met Mr Geylani and
told him that in July 1994 one person had been killed, thirteen others had
disappeared and two of the applicants had suffered miscarriages following a
military operation in their hamlet. Mr Geylani then requested the Human
Rights Commission attached to the Turkish Grand National Assembly (the
Parliamentary Human Rights Commission) to initiate an investigation into the
applicants allegations. On 4 July 1998 a newspaper published an
article about Mr Geylanis request.
On 10 February 1999 the chair of the
Parliamentary Human Rights Commission, Dr Sema Pişkinsüt, sent a letter to
Mr Geylani informing him of the findings in the investigation conducted
into the alleged events. She stated that in 1988 a number of people from the
Ormancık hamlet of Ortaklar village had become village guards. Some of
them, including Casım Çelik, Seddık Şengül, Kerem İnan and
Salih Şengül (the relatives of the first, seventh, thirteenth and tenth
applicants, respectively), had then made a deal with the PKK that it would not
perpetrate acts of violence in the village in exchange for logistical support
such as a months salary from each village guard, food, shelter and ammunition.
In July 1994 and June 1995 the village guards had helped members of the PKK to
ambush security forces. In the first incident, three members of the security
forces had lost their lives and fifteen of them had been injured, and in the
second incident fifteen members of the security forces had been killed.
According to the report, as a result of pressure from the PKK the villagers
moved to the Atrush camp in northern Iraq in July 1994. Following
the closure of the Atrush camp by the United Nations, the villagers had
returned to their homes in December 1997. Thirteen persons who had been
involved in the illegal activities of the PKK had then surrendered to the
authorities and seven of them had been put on trial after having been
questioned. However, the residents of the Ormancık hamlet, particularly
the women who had been questioned by the authorities on their return, had not
mentioned anyone having been killed. Nor had they made any such allegations to
the authorities. Consequently, it was considered that the allegations were
unfounded.
C. The criminal investigation into the alleged events
On 6 July 1998, after having read the
above-mentioned newspaper article (see paragraph 13 above), the Hakkari public
prosecutor asked the Şemdinli public prosecutor to open an investigation
into the allegations.
In August 1998 and January 1999, Meryem Çelik,
Zübeyda Uysal, Misrihan Sevli, Emine Çelik, Fatma Şengül, Besna Sevli, Hanife
İzci, Hamayil İnan, Kimet Şengül and Hazima Çelik made
statements before the Şemdinli public prosecutor, through interpreters, as
they did not speak Turkish. They all maintained that, following the security
forces arrival at the hamlet, they had been forced to gather in the main
square, whereupon the men of the village had been beaten. They stated that they
did not know the reason why the security forces had come to the hamlet. They
alleged that the security forces had illegally confiscated their belongings,
such as money and jewellery, and had destroyed their houses. They further
contended that a gendarmerie officer named Fatih had killed Kerem İnan and
that seven men had been taken away by soldiers. Hamayil İnan, Kerem
İnans wife, maintained that they could not bury his husband as they had
to leave the hamlet immediately after the killing and that she had been told
that Kerem İnans corpse had been buried where he had been killed by
villagers from another hamlet. The applicants stated that the soldiers had
taken six other inhabitants of Ormancık into custody while driving to the
military base. The applicants maintained that they had been told that their
relatives had subsequently been killed and their corpses left in the vicinity
of the military base. They further alleged that a lieutenant colonel known as
Ali had told the villagers that they were traitors and did not deserve to
live in Turkey, and that they should go to live in Iraq, Iran or Syria. The inhabitants of the hamlet had then been coerced into leaving the hamlet and,
subsequently, the country. They had been forced to go to Iraq by members of the PKK. Zübeyda Uysal and Emine Çelik further maintained that they had been
pregnant at the time of the incident and that they had both suffered miscarriages
as a result of having being beaten by the security forces. The applicants
requested that those responsible for the killing of Kerem İnan and the
disappearance of the thirteen other villagers be found and punished.
The Şemdinli public prosecutor also took
statements from Lieutenant Colonel A.Ç., who had allegedly been the commanding
officer of the soldiers who had gone to Ormancık, as well as from the non-commissioned gendarmerie officer, F.A.
They both denied the applicants allegations.
On 11 August 1998, upon the request of the
Şemdinli public prosecutor, the military forces sent a letter to the
public prosecutors office stating that soldiers had arrested thirteen
villagers and taken them to the Derecik military base. The villagers had been
released after questioning. However, Aşur Seçkin had died immediately
afterwards as a result of gunshot wounds received from an unknown source while
trying to escape to join the PKK.
On 13 April 1999 the Şemdinli public
prosecutor drew up a report (fezleke) in which he set
out the developments in the investigation. In his report, the public prosecutor
identified A.Ç. and F.A. as the accused and Meryem Çelik, Zübeyda Uysal,
Misrihan Sevli, Emine Çelik, Fatma Şengül, Besna Sevli, Hanife İzci,
Hamayil İnan, Kimet Şengül and Hazima Çelik as the complainants.
The offences allegedly committed by the accused were defined as homicide,
aggravated theft (gasp), the causing of a miscarriage, the forced
evacuation of a village and the burning of vehicles. According to this report,
on 24 July 1998, in the vicinity of the Ormancık hamlet, two soldiers had
been killed and fourteen soldiers wounded, in an ambush set up by members of
the PKK with the aid of a group of village guards from the hamlet.
Subsequently, a group of soldiers under the command of Lieutenant Colonel A.Ç.
and non-commissioned officer F.A. had arrived at the hamlet. The Şemdinli
public prosecutor cited the allegations of the applicants who had made
statements in August 1998 and January 1999 and the contents of the letter from
the military forces dated 11 August 1998. The public prosecutor concluded that
the Hakkari Assize Court had jurisdiction to deal with cases involving offences
allegedly committed by members of the security forces and referred the
investigation file to the Hakkari public prosecutors office with a request to
punish the accused for the offences cited in the report.
On 22 April 1999 the Hakkari public prosecutor
declined jurisdiction and sent the file to the Şemdinli District
Administrative Council for authorisation to investigate the actions of the
members of the security forces, pursuant to Articles 1 and 4 (b) of Legislative
Decree no. 285 and the Prosecution of Civil Servants Act.
On 8 June 2000 the Şemdinli District
Administrative Council decided not to authorise the prosecution of A.Ç. and
F.A. In its decision, the Administrative Council noted that the complainants
had maintained that they had not known the accused. The Administrative Council
further stated that the complainants account of events was hypothetical and
that the accused officers had not been in Ormancık on 24 July 1994 and
furthermore that F.A. had never been there.
The decision of 8 June 2000 was not served on
the complainants. However, as decisions not to prosecute made by district
councils were subject to an automatic appeal to regional administrative courts
at the material time, the decision was then referred to the Van Regional
Administrative Court.
On 18 July 2000 the Van Regional Administrative
Court upheld the decision not to prosecute A.Ç. and F.A. This decision was
not served on the complainants.
D. The lodging of the present application with the
Court
On 23 October 2001 the applicants appointed Mr
L. Kanat as their legal representative.
On 7 March 2002 Mr Kanat applied to the
Şemdinli public prosecutors office for the case to be referred to the
Şemdinli District Administrative Council, and requested information
concerning the outcome of the investigation.
On 4 April 2002 the Şemdinli public
prosecutor sent Mr Kanat a copy of the decisions of the Şemdinli District
Administrative Council and the Van Regional Administrative Court.
On 10 September 2002 he lodged the present
application with the Court.
On 2 November 2006 Mr Kanat submitted to the
Court a letter dated 7 September 2006 from the president of the Van Regional Administrative Court, stating that review decisions of this type were not
communicated to the parties. The president noted that such judgments were sent
to the relevant domestic authorities, together with the investigation files.
On the same day, Mr Kanat also submitted a
document signed by members of the Ortaklar Community Council and four
witnesses, in which the latter declared that Zübeyda Uysal, Hazima Çelik and
Şekirnaz İnan had been the partners of Aşur Seçkin,
Hurşit Taşkın and Abdullah İnan, respectively, to whom they
had been married according to Islamic traditions.
II. RELEVANT DOMESTIC LAW
The relevant domestic law and practice
applicable at the material time can be found in the judgment of İpek v.
Turkey (no. 25760/94, §§ 92-106, ECHR 2004-II).
THE LAW
I. ADMISSIBILITY
A. The parties submissions
In their observations dated 5 October 2008 the
Government argued that the applicants had failed to observe the six-month
time-limit. Relying on the Courts decisions in the cases of Bayram and
Yıldırım v. Turkey ((dec.), no. 38587/97, ECHR 2002-III);
Bulut and Yavuz v. Turkey ((dec.), no. 73065/01, 28 May 2002); and Hazar
and Others v. Turkey (dec.), nos. 62566/00, 62567/00, 62568/00, 62569/00,
62570/00, 62571/00, 62572/00, 62573/00, 62574/00, 62575/00, 62576/00, 62577/00,
62579/00, 62580/00, 62581/00, 10 January 2002), the Government contended that
had the applicants considered that there were no effective remedies at the
domestic level, they should have submitted their application to the Court
within six months after the alleged events took place. They maintained that the
applicants had not lodged a complaint with the State authorities after the
alleged events had taken place and that an investigation had been instigated by
the investigating authorities of their own motion. The Government argued that
the applicants should have applied to the Court earlier if they thought that
this investigation would not be adequate.
The Government further submitted that the final
decision in domestic law had been delivered by the Van Regional Administrative
Court on 18 July 2000, whereas the application had been lodged on 10
September 2002.
The applicants contended that they had been
forced to leave Turkey after the events complained of had taken place and that
they had returned from Iraq in 1997. They noted that they had informed Mr
Geylani of the events giving rise to the present application on their return to
Turkey and had made detailed submissions to the Şemdinli public prosecutor
once the investigation had been initiated. However, they had not been informed
of the developments in the investigation. Specifically, they had received no
notification of the decisions that had been delivered. The applicants submitted
that they had actually been waiting to be summoned to the court hearing where
the military officers were to be tried. The applicants further asserted that
the final decision had not been served on them and that they had lodged their
application with the Court within the six-month period after the date on which
their representative had been notified of that decision. Furthermore, the
applicants representative emphasised that most of his clients did not speak
Turkish and therefore had been unable to learn the outcome of the investigation
without the assistance of a lawyer.
B. The Courts assessment
The Court reiterates that the purpose of the
six-month rule is to promote security of law and to ensure that cases raising
issues under the Convention are dealt with within a reasonable time.
Furthermore, it ought also to protect the authorities and other persons
concerned from being under any uncertainty for a prolonged period of time (see Bulut
and Yavuz (dec.), cited above and Bayram and Yıldırım v.
Turkey (dec.), no. 38587/97, ECHR 2002-III).
The Court further reiterates that, according to
the case-law on the six-month rule in cases concerning deprivation of life, if
no remedies are available or if they are judged to be ineffective, the
six-month time-limit runs, in principle, from the date of the act complained
of. Special considerations may apply in exceptional cases where an applicant
first avails himself of a domestic remedy and only at a later stage becomes aware,
or should have become aware, of circumstances which make that remedy
ineffective. In such a situation, the six-month period may be calculated from
the time when the applicant becomes aware, or should have become aware, of
these circumstances (see Hazar and Others (dec.), cited above; Bulut
and Yavuz (dec.), cited above; and Bayram and
Yıldırım (dec.), cited above).
As regards the Governments submission that the
applicants should have lodged their application with the Court within six
months after the alleged events took place, the Court considers that it should
first examine the period between July 1994 and autumn 1997, namely the period during
which the applicants claim to have been living in northern Iraq. In this
connection, the Court observes that the applicants submitted that they left Turkey and went to Iraq to live in a refugee camp which was under the control of the Office of the
United Nations High Commissioner for Refugees. According to their submissions,
the applicants left northern Iraq and returned to Şemdinli only after the
United Nations had closed down the camp (see paragraph 10 above). The Court
further observes that the Government did not deny the veracity of this claim,
nor did they claim or attempt to demonstrate that the applicants had actually
been living in Turkey during those years. In any case, the Şemdinli public
prosecutor who conducted the initial investigation referred to the applicants
statement that they had been in Iraq until the autumn of 1997 and did not
question the authenticity of this claim in his report of 13 April 1999
containing a request for the punishment of two military officers. Besides, the
report of the Human Rights Commission attached to the Turkish Grand National
Assembly also states that the applicants were in Northern Iraq between July
1994 and December 1997 (see paragraph 14 above).
Having regard to the aforementioned elements,
the Court is led to conclude that the applicants lived in northern Iraq as refugees for at least three years before they returned to Turkey in the autumn of 1997. In
these circumstances, the Court considers that the present case is different from
the case of Bayram and Yıldırım (dec.), cited above,
where the applicants did not petition the public prosecutors office for more
than three years with regard to the death of their relatives and where the
Court found that the applicants failure to do so was due to their own
negligence. In the Courts view, in the instant case, the applicants could not
have been expected to initiate an investigation in Turkey concerning the
alleged events of July 1994 while they were living as refugees in a camp in
another country. The Court therefore concludes that special circumstances
prevented the applicants from using domestic remedies during this period.
As to the period between autumn 1997 and 23
October 2001, that is to say, the date on which the applicants appointed their
lawyer with a view to learning the outcome of the investigation, the Court
acknowledges that at first sight the present case may appear to be similar to
the cases of Bulut and Yavuz (dec.) (cited above), and Hazar
and Others (dec.) (cited above). In the case of Bulut and Yavuz (dec.)
(cited above), the applicants alleged that they had become aware of the
ineffectiveness of the proceedings almost five years after the last decision
taken in the investigation. In its decision in that case, the Court considered
that the applicants, whose close relative had been killed, might be expected to
display a certain amount of diligence and initiative in informing themselves
about the progress made in the investigation and ruled that the applicants had
been negligent in that respect. The Court similarly declared Hazar and
Others (dec.) (cited above), inadmissible, holding that the applicants, who
had not availed themselves of any remedy for seven years after the destruction
of their homes, should have become aware of the ineffectiveness of the remedies
much earlier.
The Court, however, considers that there are
substantial differences between the above-mentioned cases and the present
application. Firstly, most of the applicants in the present case are rural
women who are illiterate and who do not speak Turkish. Secondly, they had to
leave their village and then their country, for more than three years after the
alleged events took place, during which time they lived as refugees. In the
Courts view, therefore, they could not have been expected to have applied to
the domestic authorities immediately after their return to Turkey in the autumn of 1997. Nevertheless, they contacted Mr Geylani (a member of parliament at
that time) in July 1998 and explained the events that had allegedly taken place
in July 1994 (see paragraph 13 above). Furthermore, in 1998 and 1999 a
parliamentary investigation took place at Mr Geylanis request, based on the
applicants account of events. The Court further notes that in 1998 and 1999
the applicants made statements when they were summoned to testify in the
investigation which was initiated by the Şemdinli public prosecutor of his
own motion (see paragraphs 15 and 16 above). They cooperated with the
prosecutor and provided him with evidence. In fact, this investigation
continued to be actively conducted by the prosecutor, who carried out a
detailed examination of the events in question before asking the Hakkari public
prosecutor to lodge a bill of indictment with the Hakkari Assize Court in April
1999 accusing the two military officers of various crimes (see paragraph 19
above).
In these circumstances, the Court considers that
the applicants received a positive response from the national authorities in
the face of their allegations and therefore it was not unreasonable on their
part to await the outcome of this investigation between 1999 and 2001. Besides,
unlike the cases referred to by the Government, the applicants in the present
case have not claimed that they lodged their case pending an investigation
because they found the latter ineffective. Having regard to the aforementioned
elements, the Court considers that the principles in the Courts case-law referred
to by the Government cannot be applied in the present case.
The Court further points out that in cases
concerning disappearances it has held that allowances must be made for the
uncertainty and confusion which frequently mark the aftermath of a
disappearance (see Varnava and Others v. Turkey [GC], nos.
16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90
and 16073/90, §§ 162-163, ECHR 2009). Furthermore, as the Court held
recently, the nature of the investigations into disappearances is such that
relatives of a disappeared person may be justified in waiting lengthy periods
of time for the national authorities to conclude their investigations. Thus, in
the case of Er and Others v. Turkey (no. 23016/04, §§ 55-58, 31 July 2012) the applicants,
who had waited for a period of almost ten years after the disappearance of
their relative before lodging their application, were held to have complied
with the six-month rule because an investigation was being conducted at the
national level into the disappearance (see, a contrario, Yetişen v. Turkey (dec.), no.
21099/06, 10 July 2012).
The Court is mindful of the fact that the
investigation at the domestic level did not only concern the disappearance of
the applicants relatives, but also the alleged killing of two persons, the
alleged ill-treatment of nine others and the destruction of the applicants
homes. Nevertheless, given that the Şemdinli public prosecutor did not
find it necessary to conduct separate investigations into the above-mentioned
allegations and considering that the examination of the compliance with the
six-month rule is intrinsically linked to the investigation conducted, the
Court finds that the aforementioned factors which were taken into consideration
in the case of Er and Others (cited above, §§ 45-60) are also relevant
in the present case.
Finally, as regards the Governments submission
that the final decision in domestic law was delivered on 18 July 2000 by the Van Regional Administrative Court whereas the application was lodged on 10 September 2002,
the Court notes that an explicit and detailed question was put to the
Government as to whether this decision had been served on the applicants. The
Court observes that the Government failed to respond to this question. Moreover,
the applicants submitted a document in which the president of the Van Regional Administrative Court stated that these types of review decisions were not
communicated to the parties. In these circumstances, the Court concludes that
this decision was not served on the applicants. As the Court has considered
that the applicants could reasonably have awaited the outcome of the
investigation (see paragraph 40 above) and since the decision of the Van
Regional Administrative Court was not served on the applicants before their
lawyer requested information from the Şemdinli public prosecutors office,
the Court is of the opinion that 5 April 2002, that is the day after the date
on which the applicants lawyer was notified of the decisions in the
investigation, should be taken as the starting-point of the six-month period.
In view of the aforementioned considerations,
the Court dismisses the Governments objection based on the six-month
time-limit.
The Court also notes that the application 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.
II. MERITS
A. Alleged violation of Article 2 of the Convention on
account of the disappearance of Casım Çelik, Cemal Sevli, Yusuf Çelik,
Mirhaç Çelik, Naci Şengül, Seddık Şengül, Reşit Sevli,
Kemal İzci, Hayrullah Öztürk, Salih Şengül, Hurşit
Taşkın, Abdullah İnan and the killing of Aşur Seçkin
The applicants complained under Article 2 of the
Convention that members of the armed forces had been responsible for the
disappearance of their relatives: Casım Çelik, Cemal Sevli, Yusuf Çelik,
Mirhaç Çelik, Naci Şengül, Seddık Şengül, Reşit Sevli,
Kemal İzci, Hayrullah Öztürk, Salih Şengül, Hurşit
Taşkın, Abdullah İnan and Aşur Seçkin. Article 2 of the
Convention reads as follows:
1. Everyones 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 did not make any submissions on
these issues.
1. The Courts assessment of the evidence and
establishment of the facts as regards the disappearance of Casım Çelik, Cemal
Sevli, Yusuf Çelik, Mirhaç Çelik, Naci Şengül, Seddık
Şengül, Reşit Sevli, Kemal İzci, Hayrullah Öztürk, Salih
Şengül, Hurşit Taşkın, Abdullah İnan and the killing
of Aşur Seçkin
The Court reiterates that the national authorities
are responsible for the well-being of persons in custody and that respondent
States bear the burden of providing a plausible explanation for any injuries,
deaths and disappearances which occur in custody (see Selmouni v. France
[GC], no. 25803/94, § 87, ECHR 1999-V; Salman v. Turkey [GC],
no. 21986/93, § 99, ECHR 2000-VII; Tanış and
Others v. Turkey, no. 65899/01, § 160, ECHR 2005-VIII; and Er and
Others, cited above, § 66).
In the present case, the Court observes that the
applicants alleged that Casım Çelik, Cemal Sevli, Yusuf Çelik,
Mirhaç Çelik, Naci Şengül, Seddık Şengül, Reşit Sevli,
Kemal İzci, Hayrullah Öztürk, Salih Şengül, Hurşit
Taşkın, Abdullah İnan and Aşur Seçkin were arrested and
taken away by members of the military forces and the Government did not offer
any evidence to the contrary. The Court further observes from correspondence
dated 11 August 1998 that the military forces sent a letter to the
Şemdinli public prosecutor, in which it was acknowledged that soldiers had
arrested the thirteen villagers and taken them to the Derecik military base.
However, according to the above-mentioned letter, the villagers had been
released after questioning (see paragraph 18 above).
The Court reiterates that there is an obligation
to account for the well-being of a detainee if it is established that he or she
was officially summoned by the military or the police, and entered a place
under their control and has not been seen since. In such circumstances, the
onus is on the Government to provide a plausible explanation as to what
happened on the premises and to show that the person concerned was not detained
by the authorities, but left the premises without subsequently being deprived
of his or her liberty (see Tanış and Others, cited above,
§ 160). The authorities obligation to account for the fate of a detained
individual continues until they have shown that the person has been released
(see Er and Others, cited above, § 71). Besides, in its
judgment in the case of Süheyla Aydın v. Turkey (no. 25660/94,
§ 154, 24 May 2005), which concerned the unlawful killing of Mrs
Aydıns husband after he was allegedly released from police custody, the
Court held that the absence of an official release document meant that the
Government had failed to discharge their burden of proving that Mr Aydın
had indeed been released, and found the respondent State responsible for the
killing.
In reaching that conclusion in Süheyla
Aydın (cited above), the Court had regard to Article 11 of the
Declaration on the Protection of all Persons from Enforced Disappearance
(United Nations General Assembly resolution 47/133 of 18 December 1992),
which provides that [a]ll persons deprived of liberty must be released in a
manner permitting reliable verification that they have actually been released
and, further, have been released in conditions in which their physical
integrity and ability fully to exercise their rights are assured (see also
Article 21 of the International Convention for the Protection of All Persons
from Enforced Disappearance, which entered into force on 23 December 2010).
The Court further notes that the unlawfulness of
detaining persons in south-east Turkey in the early 1990s without any details
being entered in custody records has been noted by the Court in previous
judgments (see, inter alia, Orhan v. Turkey, no. 25656/94, § 372,
18 June 2002). In a number of its judgments the Court has examined the
failure by members of the armed forces to keep adequate custody records and
concluded that the deficiencies in the keeping of such records attested to the
absence of effective measures to safeguard individuals in detention against the
risk of disappearance (see Er and Others, cited above, § 69; Orhan,
cited above, §§ 313 and 372 and the cases cited therein; see also Çiçek
v. Turkey, no. 25704/94, § 137, 27 February 2001).
In the present case, and as detailed above,
although their presence at the Derecik military base was later acknowledged, no
documents were drawn up by the military officials concerning either the
detention of Casım Çelik, Cemal Sevli, Yusuf Çelik, Mirhaç Çelik, Naci
Şengül, Seddık Şengül, Reşit Sevli, Kemal İzci,
Hayrullah Öztürk, Salih Şengül, Hurşit Taşkın, Abdullah
İnan and Aşur Seçkin, or their alleged release.
In the light of the foregoing, the Court finds
it established that the applicants relatives, Casım Çelik, Cemal Sevli,
Yusuf Çelik, Mirhaç Çelik, Naci Şengül, Seddık Şengül,
Reşit Sevli, Kemal İzci, Hayrullah Öztürk, Salih Şengül,
Hurşit Taşkın and Abdullah İnan remained in the custody of
the State. It follows that the Government are under an obligation to account
for their disappearance.
The Court further observes that, despite the
applicants claim that Aşur Seçkin also disappeared, according to the
documents in the case file, he was, in fact, killed at the Derecik military
base (see paragraph 18 above).
On the basis of the aforementioned findings, the
Court will proceed to examine the applicants complaints under Article 2 of the
Convention. The Court will, however, examine the complaints brought by Zübeyda
Uysal concerning her partner Aşur Seçkin, in the light of the principles
governing death in the custody of security forces rather than those regarding
forced disappearances.
2. Disappearance of Casım Çelik, Cemal Sevli,
Yusuf Çelik, Mirhaç Çelik, Naci Şengül, Seddık Şengül,
Reşit Sevli, Kemal İzci, Hayrullah Öztürk, Salih Şengül,
Hurşit Taşkın and Abdullah İnan
In the Timurtaş v. Turkey judgment (no.
23531/94, §§ 82-83, ECHR 2000-VI) the Court stated as follows:
... where an individual is taken into custody in good health
but is found to be injured at the time of release, it is incumbent on the State
to provide a plausible explanation of how those injuries were caused, failing
which an issue arises under Article 3 of the Convention .... In the same vein,
Article 5 imposes an obligation on the State to account for the whereabouts of
any person taken into detention and who has thus been placed under the control
of the authorities .... Whether the failure on the part of the authorities to
provide a plausible explanation as to a detainees fate, in the absence of a
body, might also raise issues under Article 2 of the Convention will depend on
all the circumstances of the case, and in particular on the existence of
sufficient circumstantial evidence, based on concrete elements, from which it
may be concluded to the requisite standard of proof that the detainee must be
presumed to have died in custody ...
In this respect the period of time which has elapsed
since the person was placed in detention, although not decisive in itself, is a
relevant factor to be taken into account. It must be accepted that the more
time goes by without any news of the detained person, the greater the
likelihood that he or she has died. The passage of time may therefore to some
extent affect the weight to be attached to other elements of circumstantial
evidence before it can be concluded that the person concerned is to be presumed
dead. In this respect the Court considers that this situation gives rise to issues
which go beyond a mere irregular detention in violation of Article 5. Such an
interpretation is in keeping with the effective protection of the right to life
as afforded by Article 2, which ranks as one of the most fundamental provisions
in the Convention ...
Furthermore, in its recent judgment in the case
of Er and Others (cited above), noting that the disappearance of the
applicants relative Ahmet Er took place in 1995, the Court observed that this
disappearance fitted in with the pattern of disappearances of large numbers of
persons in south-east Turkey between 1992 and 1996. The Court further noted
that in its examination of a number of those disappearances, it had reached the
conclusion that the disappearance of a person in south-east Turkey at the relevant time could be regarded as a
life-threatening event (see, Er and Others, cited above, § 77, and
the following cases cited therein: Osmanoğlu v. Turkey,
no. 48804/99, 24 January 2008; Akdeniz v. Turkey, no. 25165/94, 31
May 2005; İpek, cited above; Akdeniz and Others
v. Turkey, no. 23954/94, 31 May 2001; Çiçek, cited above; Taş
v. Turkey, no. 24396/94, 14 November 2000; Timurtaş, cited
above; Ertak v. Turkey, no. 20764/92, ECHR 2000-V; and Çakıcı
v. Turkey [GC], no. 23657/94, ECHR 1999-IV).
The Court considers that the disappearance in
the present case also fits into the above-mentioned pattern. Besides, as in the
case of Er and Others, cited above, the lack of any documentary evidence
relating to the detention of Casım Çelik, Cemal Sevli, Yusuf Çelik, Mirhaç
Çelik, Naci Şengül, Seddık Şengül, Reşit Sevli, Kemal
İzci, Hayrullah Öztürk, Salih Şengül, Hurşit Taşkın
and Abdullah İnan at a military base would have increased the risk to
their lives in the general context of the situation in south-east Turkey at the
time of their disappearance (see Er and Others, cited above, § 78).
In the light of the aforementioned elements and
given that no information has come to light concerning the whereabouts of
Casım Çelik, Cemal Sevli, Yusuf Çelik, Mirhaç Çelik, Naci Şengül,
Seddık Şengül, Reşit Sevli, Kemal İzci, Hayrullah Öztürk,
Salih Şengül, Hurşit Taşkın and Abdullah İnan over the
period of more than eighteen years since they were detained by the security
forces, the Court accepts that they must be presumed dead. Consequently, the
responsibility of the respondent State for their death is engaged. Noting that
the authorities have not accounted for what happened during their detention and
that they do not offer any justification for the possible use of lethal force
by their agents, it follows that liability for their death is attributable to
the respondent Government (see Er and Others, cited above, § 79).
Accordingly, there has been a violation of Article 2 of
the Convention in its substantive aspect.
3. Killing of Aşur Seçkin
The Court reiterates that where an individual is taken into
custody in good health and dies at the hands of the security forces, the
obligation on the authorities to account for the treatment of that individual
is particularly stringent (see Taş, cited above, § 63).
Where the events in issue lie wholly, or in
large part, within the exclusive knowledge of the authorities, as in the case
of persons within their control in custody, strong presumptions of fact will
arise in respect of injuries and death occurring during that detention. Indeed,
the burden of proof may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Avşar v. Turkey,
no. 25657/94, § 392, ECHR 2001-VII;
Salman, cited above, § 100; Çakıcı, cited
above, § 85; Ertak, cited above, § 32; and Timurtaş, cited
above, § 82).
The Court observes at the outset that Aşur
Seçkin was one of those persons whose arrest was acknowledged by the military
forces. The Court further observes that according to the above-mentioned
letter, the contents of which was included in the Şemdinli public
prosecutors report, he was brought to the military base with other persons and
died immediately after his questioning as a result of gunshot wounds received
from an unknown source while trying to escape to join the PKK (see paragraph 18
above). The Court notes that the deceased was under the exclusive control of
the State authorities when he received those gunshot wounds and died. Yet no
steps were taken to identify the cause of his death or the perpetrator of the
shooting. The Government did not offer any explanation, let alone a plausible
one, as regards the death of Aşur Seçkin. The Court therefore concludes
that the Government have failed to discharge the burden of proof imposed on
them.
Accordingly, the Court finds that the Government
have not accounted for the killing of Aşur Seçkin as a result of gunshot
wounds during his detention at the Derecik military base and that the
respondent States responsibility for his death is engaged.
It follows that there has been a violation of Article 2 under
its substantive aspect in this respect.
B. Alleged violation of Article 2 of the Convention on
account of the alleged killing of Kerem İnan
One of the applicants, Hamayil İnan,
submitted under Article 2 of the Convention that on 24 July 1994 her husband
Kerem İnan had been shot and killed by a military officer when soldiers
raided their village.
The Government did not submit any observations
on this point.
The Court observes at
the outset that Hamayil İnans allegation
under Article 2 concerns a grave violation of the Convention. It further
observes that both before the Court and before the domestic authorities,
Hamayil İnans claims were consistent.
The account of events as stated by the applicant when she made statements
before the Şemdinli public prosecutor was coherent with the statements of
other applicants before the public prosecutor. Besides, the Şemdinli
public prosecutor considered these allegations sufficiently reliable and
arguable and requested that a case be brought against two military officers
Furthermore, the Hakkari public prosecutor also found the applicants
allegations credible and asked for authorisation for the prosecution of the
military officer named Fatih for the murder of Kerem İnan. The Court therefore considers that the applicant made out
a prima facie case before the national authorities that his husband had
been killed.
The Court, however, cannot confirm the veracity of the
applicants allegations. In particular, it cannot verify whether the alleged
killing occurred and, if so, whether it resulted from the actions of members of
the security forces.
In
the Courts view, its inability to establish a clear picture of the
circumstances stems mainly from two factors. First, the Governments failure to
make submissions regarding the merits of the application is a factor affecting
the Courts ability to find out the factual circumstances. The second and
primary factor is the absence of a judicial investigation into the alleged
killing. Owing to this failure to carry out an investigation which could have
shed light on those events, the Court finds that there is nothing in the case
file proving or disproving the veracity of the applicants claims. The
Court finds it more appropriate to deal with the consequences of this failure
when examining the applicants complaint concerning the Governments alleged
failure to fulfil their obligation under Article 2 of the Convention to carry
out an effective investigation (see paragraphs 70-78 below).
Agains
this background and having regard to the unclear circumstances of the case,
the Court is unable to establish whether Kerem İnan was deprived of his
life by members of the security forces as alleged. The Court is therefore led
to conclude that there has been no violation of Article 2 of the Convention
under its substantive limb with regard to the death of Kerem İnan.
C. Alleged violations of Articles 2 and 13 of the
Convention on account of the alleged ineffectiveness of the investigation into
the disappearance of Casım Çelik, Cemal Sevli, Yusuf Çelik, Mirhaç Çelik,
Naci Şengül, Seddık Şengül, Reşit Sevli, Kemal İzci,
Hayrullah Öztürk, Salih Şengül, Hurşit Taşkın and Abdullah
İnan, the killing of Aşur Seçkin and the alleged killing of Kerem
İnan
The applicants complained under Articles 2 and
13 of the Convention that the domestic authorities had failed to carry out an
effective investigation into the circumstances of their relatives
disappearance and the killing of Kerem İnan.
The Government did not make any submissions on
these issues.
The Court considers that this complaint should
be examined from the standpoint of Article 2 alone.
In this connection, the Court reiterates that,
according to its case-law, the obligation to protect the right to life
under Article 2, read in conjunction with the States general duty
under Article 1 to secure to everyone within [its] jurisdiction the
rights and freedoms defined in [the] Convention, requires by implication that
there should be some form of effective official investigation when individuals
have been killed. This obligation is not confined to cases where it has been
established that the killing was caused by an agent of the State (seeMcCann
and Others v. the United Kingdom, 27 September 1995, § 161, Series A no.
324 and Salman v. Turkey [GC], no. 21986/93, § 105, ECHR 2000-VII).
Nor is it decisive whether members of the deceaseds family or others have
lodged a formal complaint about the killing with the competent investigating
authority. The mere fact that the authorities were informed of the killing of
an individual gives rise, ipso facto, to an obligation
under Article 2 of the Convention to carry out an effective
investigation into the circumstances surrounding the death (see Ucar v.
Turkey, no. 52392/99, § 90, 11 April 2006).
74 For an investigation into an allegation of
unlawful killing by State agents to be effective, it may generally be regarded
as necessary for the persons responsible for the investigation and its conduct
to be independent from those implicated in the events (see Tahsin
Acar v. Turkey [GC], no. 26307/95, § 222, ECHR 2004-III; Güleç v. Turkey, 27 July
1998, §§ 81-82, Reports of
Judgments and Decisions 1998-IV; and Oğur v. Turkey [GC],
no. 21594/93, §§ 91-92, ECHR 1999-III). This means not only the
absence of a hierarchical or institutional connection but also independence in
practical terms (see Ergi v. Turkey, 28 July 1998, §§ 83-84, Reports 1998-IV, and Paul and Audrey Edwards
v. the United Kingdom, no. 46477/99, § 70, ECHR 2002-II).
The above-mentioned obligations apply equally to
cases where a person has disappeared in circumstances which may be regarded as
life-threatening. In this connection, the Court has already accepted that the
more time that goes by without any news of the person who has disappeared, the
greater the likelihood that he or she has died (see Tahsin
Acar, cited above, § 226, and Er and Others, cited above, § 82).
In the present case, the Court observes that the
Şemdinli public prosecutor initiated an investigation and took steps to
find out the truth of the events giving rise to the present application. The
investigation, however, could not be continued owing to the decision of the
Şemdinli Administrative Council to deny authorisation for the prosecution
of two suspects (see paragraph 21 above). Consequently, there were no criminal
proceedings in which those responsible for the disappearance of Casım
Çelik, Cemal Sevli, Yusuf Çelik, Mirhaç Çelik, Naci Şengül, Seddık
Şengül, Reşit Sevli, Kemal İzci, Hayrullah Öztürk, Salih
Şengül, Hurşit Taşkın and Abdullah İnan, the killing
of Aşur Seçkin and the alleged killing of Kerem İnan could be
identified and punished.
The Court reiterates its earlier findings
in a number of cases, the administrative councils cannot be regarded as
independent since these councils are chaired by the governors or their
deputies, and composed of local representatives of the executive, who are
hierarchically dependent on the governor - an executive officer linked to the
very security forces under investigation (see, among many others Ipek,
cited above, § 174; Oğur, cited above, § 91; Güleç, cited above, § 80;
and Orhan, cited above, § 342).
The Court finds no reason in the instant case to
depart from its aforementioned previous findings. It therefore concludes that the domestic authorities did
not conduct an adequate and effective investigation into the
disappearance of Casım Çelik, Cemal Sevli, Yusuf Çelik, Mirhaç
Çelik, Naci Şengül, Seddık Şengül, Reşit Sevli, Kemal
İzci, Hayrullah Öztürk, Salih Şengül, Hurşit Taşkın
and Abdullah İnan, the killing of Aşur Seçkin and the alleged killing
of Kerem İnan by the members of the security forces.
There has accordingly been a violation of Article 2 of the
Convention in its procedural aspect.
D. Alleged violation of Article 5 of the Convention on
account of the detention of Casım Çelik, Cemal Sevli, Yusuf Çelik, Mirhaç
Çelik, Naci Şengül, Seddık Şengül, Reşit Sevli, Kemal
İzci, Hayrullah Öztürk, Salih Şengül, Hurşit Taşkın,
Abdullah İnan and Aşur Seçkin
The applicants
whose relatives were arrested and taken away by the members of the security
forces complained that the detention of Casım Çelik, Cemal Sevli, Yusuf Çelik, Mirhaç Çelik,
Naci Şengül, Seddık Şengül, Reşit Sevli, Kemal
İzci, Hayrullah Öztürk, Salih Şengül, Hurşit Taşkın,
Abdullah İnan and Aşur Seçkin had given rise to multiple
violations of Article 5 of the Convention.
Article 5 of the Convention, in so far as
relevant, provides as follows:
1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a person for
non- compliance with the lawful order of a court or in order to secure the
fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so;
(d) the detention of a minor by lawful order for the
purpose of educational supervision or his lawful detention for the purpose of
bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to
prevent his effecting an unauthorised entry into the country or of a person
against whom action is being taken with a view to deportation or extradition.
...
The Government did not submit any observations
on this point.
The Court reiterates the fundamental importance
of the guarantees contained in Article 5 of the Convention for securing the
right of individuals in a democracy to be free from arbitrary detention at the
hands of the authorities. The Court has stressed in that connection that any
deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in keeping
with the very purpose of Article 5 of the Convention, namely to protect the
individual from arbitrary detention (see, for example, İpek, cited
above, § 187; Ucar, cited above, § 163; and Er and Others,
cited above, § 102).
In order to minimise the risks of arbitrary
detention, Article 5 of the Convention provides a corpus of substantive rights
intended to ensure that the act of deprivation of liberty is amenable to
independent judicial scrutiny and secures the accountability of the authorities
for that measure. The unacknowledged detention of an individual is a complete
negation of these guarantees and discloses a most grave violation of Article 5
of the Convention. Bearing in mind the responsibility of the authorities to
account for individuals under their control, Article 5 of the Convention
requires them to take effective measures to safeguard against the risk of
disappearance and to conduct a prompt and effective investigation into an
arguable claim that a person has been taken into custody and has not been seen
since (see Er and Others, cited above, § 103, and Akdeniz, cited
above, § 129 and the authorities cited therein).
The Court has already found that the applicants
relatives were taken away from their village by members of the security forces
on 24 July 1994 and that they were taken to the Derecik military base.
Their detention there was not logged in the relevant custody records and there
is no official record of the purported release of Casım Çelik, Cemal
Sevli, Yusuf Çelik, Mirhaç Çelik, Naci Şengül, Seddık Şengül,
Reşit Sevli, Kemal İzci, Hayrullah Öztürk, Salih Şengül,
Hurşit Taşkın and Abdullah İnan. In the view of the Court,
this fact in itself must be considered a most serious failing since it enables
those responsible for an act of deprivation of liberty to conceal their
involvement in a crime, to cover their tracks and to escape accountability for
the fate of detainees. Furthermore, the absence of records of such details as
the date, time and location of the detention, the name of the detainee as well
as the reasons for the detention, the name of the person effecting it and the
time and date of release must be seen as incompatible with the very purpose of
Article 5 of the Convention (see Er and Others, cited above, §
104, and Akdeniz, cited above, § 130).
Accordingly, the Court finds that Casım
Çelik, Cemal Sevli, Yusuf Çelik, Mirhaç Çelik, Naci Şengül, Seddık
Şengül, Reşit Sevli, Kemal İzci, Hayrullah Öztürk, Salih
Şengül, Hurşit Taşkın, Abdullah İnan and Aşur
Seçkin were held in unacknowledged detention in the complete absence of the
safeguards contained in Article 5 of the Convention and that there has been a
violation of the right to liberty and security of person guaranteed by that
provision.
E. Alleged violation of Article 3 of the Convention on
account of the suffering of Meryem Çelik, Misrihan Sevli, Emine Çelik, Marya
Çelik, Hamit Şengül, Fatma Şengül, Besna Sevli, Hanife İzci, Şakir
Öztürk, Kimet Şengül, Hazima Çelik, Şekirnaz İnan and Zübeyda
Uysal due to their relatives disappearance
The applicants whose relatives were arrested and
taken away by the members of the security forces complained that the suffering they endured on account of their relatives
disappearance was in violation of Article 3 of the Convention.
Article 3 of the Convention provides as follows:
No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.
The Government did not make any submissions on
this point.
The Court reiterates that the question whether a
family member of a disappeared person is a victim of treatment contrary to
Article 3 of the Convention will depend on the existence of special factors
which give the suffering of the applicant a dimension and character distinct
from the emotional distress which may be regarded as inevitably caused to relatives
of a victim of a serious human rights violation. Such elements will include the
proximity of the family tie - in that context, a certain weight will attach to
the parent-child bond - the particular circumstances of the relationship, the
extent to which the family member witnessed the events in question, the
involvement of the family member in attempts to obtain information about the
missing person and the way in which the authorities responded to those
enquiries (see İpek, cited above, §§ 181-183, and the authorities
cited therein). The Court further emphasises that the essence of such a
violation does not so much lie in the fact of the disappearance of the family
member but rather the authorities reactions and attitudes to the situation
when it is brought to their attention. It is especially in respect of the
latter that a relative may claim directly to be a victim of the authorities
conduct (see Çakıcı, cited above, § 98).
In the present case, the Court notes that the applicants
are the wives, partners and brothers of the persons who disappeared. They
witnessed their relatives being taken away by soldiers and have not heard from
them since. Although after the applicants contacted Mr Geylani and described to
him the arrest and disappearance of their relatives, an investigation was
initiated by the Şemdinli public prosecutor of his own motion and the
Şemdinli public prosecutor took several steps, that investigation ended
with the decision of an administrative body (see paragraph 21 above). In fact,
the domestic authorities took no meaningful action, notwithstanding the
unlawful nature of the detention. As a result, the applicants have not had any
news of their relatives for more than eighteen years and despite their cooperation
with the authorities, they have never received any plausible explanation or
information as to what became of their relatives following their disappearance.
In view of the above and having regard, in
particular, to the fact that the investigation ended with Şemdinli
Administrative Council denying authorisation for prosecution, the Court
concludes that the applicants as relatives of the missing persons, suffered and
continue to suffer distress and anguish as a result of that disappearance,
their inability to find out what happened to them and the manner in which their
allegations were dealt with (see, among many others, Kadirova and Others v.
Russia, no. 5432/07,
§§ 120-122, 27 March 2012, and Er and Others, cited above, §§
95-97).
Accordingly, there has been a violation of
Article 3 of the Convention on this account.
F. Other alleged violations of the Convention
The applicants
complained under Article 3 of the Convention that Cemal Sevli,
Reşit Sevli, Aşur Seçkin, Salih Şengül, Yusuf Çelik, Naci
Şengül and Kemal İzci had been beaten by members of the security
forces before being arrested. Zübeyda Uysal and Emine Çelik also complained
under Articles 2 and 3 of the Convention that they had both suffered
miscarriages as a result of the violence to which they had been subjected by
members of the security forces. The applicants maintained under Article 8 of the Convention that on the day of the events
giving rise to the present application the security forces had conducted
searches of their houses, seized their belongings illegally and subsequently
destroyed the houses. The applicants further submitted under Article 13
of the Convention that they had been denied an effective
remedy in respect of their aforementioned allegations. They also complained
of violations of a number of rights in respect of Casım Çelik,
Aşur Seçkin, Cemal Sevli, Yusuf Çelik, Mirhaç Çelik,
Naci Şengül, Seddık Şengül, Reşit Sevli, Kemal
İzci, Hayrullah Öztürk, Salih Şengül, Hurşit Taşkın
and Abdullah İnan under Article 6 of the Convention. The applicants finally complained, under Article 14 of the
Convention, that all the alleged breaches of their rights enshrined in the
Convention had been motivated by their Kurdish ethnic origin.
The
Government did not make any submission on these points.
Having
regard to the facts of the case and its finding of violations of Articles 2, 3
and 5 of the Convention, the Court considers that it has examined the main
legal questions raised in the present application. It concludes therefore that
there is no need to give a separate ruling on the applicants remaining
complaints under the Convention (see, mutatis mutandis, Kamil Uzun v. Turkey,
no. 37410/97, § 64, 10 May 2007; Getiren v. Turkey,
no. 10301/03, § 132, 22 July 2008; Akkum and Others v. Turkey, no.
21894/93, § 271, ECHR 2005-II); and Güveç v.
Turkey, no. 70337/01, § 135, ECHR 2009)
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. Pecuniary damage
The applicants Meryem Çelik, Emine Çelik, Marya
Çelik, Fatma Şengül, Besna Sevli, Hamayil İnan, Kimet Şengül,
Hazima Çelik and Şekirnaz İnan each claimed 100,000 euros (EUR) in
respect of pecuniary damage. The applicants Zübeyda Uysal, Misrihan Sevli and
Hanife Izci each claimed EUR 80,000 under this head. Hamit Şengül and
Şakir Öztürk did not submit any claim in respect of pecuniary damage.
Those applicants who submitted claims in respect of pecuniary damage maintained
that they had been deprived of the financial support of their husbands and
partners who had died or disappeared. They also referred to the destruction of
their homes.
The Government considered that there was no
causal link between the damage claimed by the applicants and their complaints.
They also submitted that the sums claimed were devoid of any basis.
As regards the applicant Hamayil İnan, the
Court does not discern any causal link between the
violation found and the pecuniary damages alleged; it therefore rejects her
claim.
As regards the remaining applicants claim for
pecuniary damage, the Courts case-law has established that there must be a
clear causal connection between the damage claimed by the applicant and the
violation of the Convention and that this may, in appropriate cases, include
compensation in respect of loss of earnings (see, among other authorities, Er
and Others, cited above, § 118; Barberà, Messegué and Jabardo v. Spain
(Article 50), 13 June 1994, §§ 16-20, Series A no. 285-C; and Çakıcı,
cited above, § 127). The Court has found that the authorities were liable under
Article 2 of the Convention for the disappearance and death of the applicants
relatives (see paragraphs 60 and 63 above). The Court observes that although
the applicants have failed to submit to the Court itemised claims detailing
their loss of financial support, the fact remains that the applicants missing
and deceased relatives had been providing their families with a living and this
has not been disputed by the Government. In these circumstances, the Court
finds it established that there was a direct causal link between the violation
of Article 2 and the applicants loss of the financial support provided by
their missing and deceased relatives.
In the light of the foregoing the Court,
deciding on a reasonable basis, awards Meryem Çelik, Zübeyda Uysal, Misrihan
Sevli, Emine Çelik, Marya Çelik, Fatma Şengül, Besna Sevli, Hanife
İzci, Kimet Şengül, Hazima Çelik and Şekirnaz İnan EUR
60,000 each in respect of pecuniary damage.
B. Non-pecuniary damage
The applicants Zübeyda Uysal and Emine Çelik
claimed EUR 90,000 in respect of non-pecuniary damage. The remaining
applicants each claimed EUR 80,000 under this head.
The Government were of the opinion that there
was no causal link between the damage claimed by the applicants and their
complaints. They further submitted that the applicants claims were excessive.
The Court observes that it has found that the
authorities are to be held accountable for the disappearance and death of the
relatives of Meryem Çelik, Misrihan Sevli, Emine Çelik, Marya Çelik, Hamit
Şengül, Fatma Şengül, Besna Sevli, Hanife İzci, Şakir Öztürk,
Kimet Şengül, Hazima Çelik, Şekirnaz İnan and Zübeyda Uysal. In
addition to the violation of Articles 2, 3 and 5 in that respect, it has
further found that the authorities failed to undertake an effective
investigation into the disappearance and death of the applicants relatives
contrary to the procedural obligation under Article 2 of the Convention. The
violation of Article 2 of the Convention in its procedural aspect also
concerned the alleged killing of Hamayil İnans husband, Kerem İnan, by
members of the security forces.
The Court finds that the applicants suffered non-pecuniary damage which cannot entirely be
compensated for by the finding of violations. The Court accordingly
awards Meryem Çelik, Zübeyda Uysal, Misrihan Sevli, Emine Çelik, Marya Çelik,
Fatma Şengül, Besna Sevli, Hanife İzci, Kimet Şengül, Hazima
Çelik and Şekirnaz İnan EUR 65,000 each in respect of non-pecuniary
damage. The Court further awards Hamit Şengül and Şakir Öztürk EUR
32,500 each under this head. The Court finally awards Hamayil İnan EUR
20,000 in respect of non-pecuniary damage.
C. Costs and expenses
The applicants also claimed a total of EUR
14,988 for costs and expenses incurred before the Court. They requested EUR 300
to cover administrative costs, such as telephone, postage, photocopying and
stationery. They further requested EUR 14,688 for their lawyers fee, in
support of which they submitted a breakdown of expenses and also referred to
the recommendations of the Ankara Bar Association regarding lawyers fees.
The Government contested these claims and
submitted that the applicants had failed to demonstrate that these costs and
expenses had actually been incurred. The Government further maintained that the
claims were excessive.
According to the Courts 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 dismisses the
claim for administrative costs, which were not supported by any documentary
evidence. However, it considers it reasonable to make a joint award to the
applicants of the sum of EUR 5,200 to cover the fee of their legal
representative in the proceedings before it. From this sum should be deducted
the EUR 850 granted by way of legal aid under the Council of Europes legal aid
scheme.
D. 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
1. Declares the application admissible by a
majority;
2. Holds unanimously that there has been a
violation of Article 2 of the Convention on account of the disappearance and
presumed death of Casım Çelik, Cemal Sevli, Yusuf Çelik, Mirhaç Çelik,
Naci Şengül, Seddık Şengül, Reşit Sevli, Kemal İzci,
Hayrullah Öztürk, Salih Şengül, Hurşit Taşkın and Abdullah
İnan;
3. Holds unanimously that there has been a
violation of Article 2 of the Convention on account of the killing of Aşur
Seçkin;
4. Holds unanimously that there has been a
violation of Article 2 of the Convention on account of the failure of the
authorities of the respondent State to conduct an adequate and effective
investigation into the disappearance of Casım Çelik, Cemal Sevli, Yusuf
Çelik, Mirhaç Çelik, Naci Şengül, Seddık Şengül, Reşit
Sevli, Kemal İzci, Hayrullah Öztürk, Salih Şengül, Hurşit
Taşkın and Abdullah İnan, the killing of Aşur Seçkin and
the alleged killing of Kerem İnan by members of the security forces;
5. Holds unanimously that there has been a violation
of Article 5 of the Convention on account of the unlawful detention of
Casım Çelik, Cemal Sevli, Yusuf Çelik, Mirhaç Çelik, Naci Şengül,
Seddık Şengül, Reşit Sevli, Kemal İzci, Hayrullah Öztürk,
Salih Şengül, Hurşit Taşkın, Abdullah İnan and
Aşur Seçkin;
6. Holds unanimously that there has been a
violation of Article 3 of the Convention on account of the suffering of Meryem
Çelik, Misrihan Sevli, Emine Çelik, Marya Çelik, Hamit Şengül, Fatma
Şengül, Besna Sevli, Hanife İzci, Şakir Öztürk, Kimet
Şengül, Hazima Çelik, Şekirnaz İnan and Zübeyda Uysal due to the
disappearance of their relatives;
7. Holds unanimously that there is no need to
examine the applicants other complaints under Articles 2, 3, 6, 8, 13 and 14
of the Convention;
8. Holds
(a) by six votes to one that the respondent State
is to pay, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the
Convention, EUR 60,000 (sixty thousand euros) which is to be
converted into the currency of the respondent State
at the rate applicable at the date of settlement, each to Meryem Çelik, Zübeyda
Uysal, Misrihan Sevli, Emine Çelik, Marya Çelik, Fatma Şengül, Besna
Sevli, Hanife İzci, Kimet Şengül, Hazima Çelik and Şekirnaz
İnan in respect of pecuniary damage;
(b) unanimously that the respondent State is to
pay, 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) each,
plus any tax that may be chargeable, to Meryem Çelik, Zübeyda Uysal, Misrihan
Sevli, Emine Çelik, Marya Çelik, Fatma Şengül, Besna Sevli, Hanife
İzci, Kimet Şengül, Hazima Çelik and Şekirnaz İnan in
respect of non-pecuniary damage;
(ii) EUR 32,500 (thirty-two thousand five hundred
euros) each, plus any tax that may be chargeable, to Hamit Şengül and
Şakir Öztürk in respect of non-pecuniary damage;
(iii) EUR 20,000 (twenty thousand euros), plus any
tax that may be chargeable, to Hamayil İnan in respect of non-pecuniary
damage;
(iv) EUR 5,200 (five thousand two hundred euros) jointly in respect of costs and expenses, less the EUR 850 (eight
hundred and fifty euros), granted by way of legal aid, 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;
9. Dismisses unanimously the remainder of the
applicants claim for just satisfaction.
Done in English, and notified in writing on 16 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
