CEDH · CASELAW;CLIN;ENG — 28 juillet 1998

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Turkey - 23818/94 Judgment 28.7.1998 Article 2 Positive obligations Article 2-1 Life Effective investigation Alleged unlawful killing by security forces, planning and conduct of their operation and alleged failure of authorities to carry out effective investigation into circumstances of death: no violation, violation   [This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions ). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.] I.   GOVERNMENT’S PRELIMINARY OBJECTIONS A.   Invalidity of application Government not estopped from raising before the Court their objection as to the validity of the application – however, as to merits of objection, Court saw no reason to depart from Commission’s finding that the application before it disclosed a genuine and valid exercise of applicant’s right of individual petition under Article 25 of the Convention. Conclusion : objection dismissed (unanimously). B.   Non-exhaustion of domestic remedies Government failed to submit at the admissibility stage before the Commission observations on exhaustion of domestic remedies. Conclusion : estoppel (unanimously). II.   MERITS A.   Article 2 of the Convention 1.   Alleged unlawful killing of the applicant’s sister Divergent versions as to circumstances which led to killing of applicant’s sister Havva Ergi – having regard to Commission’s fact-finding and to its own careful examination of evidence, Court considered that legitimate doubts as to origin of the bullet which killed Havva Ergi and the context of firing – accordingly, insufficient factual and evidentiary basis on which to conclude that applicant’s sister was, beyond reasonable doubt, intentionally killed by the security forces in circumstances alleged by him. Conclusion : no violation (unanimously). 2.   Alleged failure to comply with other requirements of Article 2 (a)   Planning and conduct of the operation Under Article 2 of the Convention, read in conjunction with Article 1, the State could be required to take certain measures in order to “secure” an effective enjoyment of the right to life – that responsibility not confined to circumstances where significant evidence that misdirected fire from agents of the State has killed a civilian – it could also be engaged where they failed to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, minimising, incidental loss of civilian life – Court, having regard to Commission’s findings and to its own assessment, considered that there had been a real risk to the lives of the civilian population through being exposed to cross-fire between security forces and PKK – in light of failure of respondent State to adduce direct evidence on planning and conduct of ambush operation, it could reasonably be inferred that insufficient precautions had been taken to protect civilian lives. (b)   Alleged inadequacy of the investigation Obligation under Article 2 to carry out an effective investigation into circumstances of killings not limited to cases where established that caused by agent of the State – nor was it decisive whether formal complaint about killing lodged with competent investigatory authority – in present case mere knowledge of killing on the part of the authorities gave rise ipso facto to an obligation to carry out an effective investigation. However, authorities had failed to comply with this requirement: Court struck by the heavy reliance placed by public prosecutor on the conclusion of gendarmerie incident report that it was the PKK which had shot applicant’s sister – no detailed consideration given by either the district gendarmerie commander or the public prosecutor to verifying whether the security forces had conducted operation in a proper manner. (c)   Overall conclusion Turkish authorities failed to protect Havva Ergi’s right to life on account of the defects in planning and conduct of security forces’ operation and lack of an adequate and effective investigation. Conclusion : violation (unanimously). B.   Article 8 of the Convention Complaint made before Commission that killing of Havva Ergi violated her daughter’s rights under Article 8 not pursued before the Court. Conclusion : not necessary to examine complaint (unanimously). C.   Article 13 of the Convention Reiteration of Court’s case-law on nature of an effective remedy in cases of arguable allegations of serious violations of Convention rights – no doubt that applicant had an arguable claim for purposes of Article 13 – as to further question whether requirements of this provision complied with, Court recalled its findings above that the authorities had failed to carry out an effective investigation into the circumstances surrounding the death of Havva Ergi – this failure undermined exercise of any remedies applicant and his niece had at their disposal under Turkish law. Conclusion : violation (eight votes to one). D.   Articles 14 and 18 of the Convention Complaints not sustained by facts as established by the Commission. Conclusion : no violation (unanimously). E.   Article 25 § 1 of the Convention Questioning of applicant by Turkish authorities not confined to matters regarding his declaration of means to the Commission – he was asked about subject matter of his application to latter and to provide an explanation concerning any application he might have made – no plausible reason as to why he was heard twice and why questioning had been conducted by anti-terrorism department of police and public prosecutor – applicant must have felt intimidated as a result of his contact with the authorities in a manner which unduly interfered with his petition to the Commission. Conclusion : violation (eight votes to one). III.   ARTICLE 50 OF THE CONVENTION A.   Non-pecuniary damage: Awards made in respect of applicant and Havva Ergi’s daughter. Conclusion : respondent State to pay specified sums (respectively eight votes to one and unanimously). B.   Costs and expenses: Applicant’s claim allowed in part. Conclusion : respondent State to pay specified sum to applicant (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes