CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 14 mai 2002

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .sEDF00F56 { margin-left:18pt; text-indent:-18pt; text-align:justify; font-family:serif; list-style-position:inside } .s90404E59 { width:6.48pt; font:7pt 'Times New Roman'; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS   260   14.5.2002     Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF ŞEMSE ÖNEN v. TURKEY   The European Court of Human Rights has today notified in writing its Chamber judgment in the case Şemse     Önen v. Turkey (application no. 22876/93).   The Court held, unanimously, that there had been:     no violation of Article 2 of the European Convention on Human Rights (right to life) concerning the killing of the applicant’s parents and brother;     a violation of Article 2 concerning the lack of an effective investigation into the killings;     no violation of Article 3 (prohibition of inhuman or degrading treatment);     no violation of Article 8 (right to respect for private and family life);     no violation of Article   14 (prohibition of discrimination), taken in conjunction with Articles 2, 3, 6 (right to a fair hearing), 8, and 13.   The Court also held, by six votes to one, that there had been a violation of Article   13 (right to an effective remedy).   The Court further held, unanimously, that it was not necessary to examine the applicant’s complaint under Article 6 and that it lacked jurisdiction to examine the complaints that the failure of the authorities to carry out an effective investigation breached Articles 3 and 8.   Under Article 41 (just satisfaction) of the Convention, the Court awarded 16,000 euros (EUR) each to the applicant and her sister Mekiye and EUR 13,000 to each of their surviving siblings for non-pecuniary damage;     15,000 pounds sterling (GBP) and GBP 2,500 for costs and expenses, less the amount already paid in legal aid. (The judgment is available only in English.)     1.     Principal facts   The applicant, Şemse Önen, a Turkish citizen born in 1969, applied on her own behalf and also that of her deceased brother and parents and ten other siblings. At the relevant time, they lived in the village Karataş near Mazıdağı (Mardin) in south-east Turkey.   The application concerned the attack on Ms Önen’s family home and the killing of her parents and brother Orhan, on 16 March 1993, and the subsequent investigation. The facts of the case, in particular the circumstances of the killings and the efforts of the authorities to investigate the killings, are disputed.     While it was undisputed that the killings in question were the result of a premeditated plan to kill the applicant’s brother, the applicant alleged that the killings had been the result of a planned action by village guards from Balpınar, a neighbouring village, while the Government maintained that the PKK had a motive for the killing. Following a fact-finding mission, the European Commission of Human Rights found the Government’s version of events to be unsubstantiated and contradicted by substantial evidence. Nevertheless, although the evidence was sufficient to give rise to suspicion as to the identity of the killers, the Commission did not find that it had been established to the required standard of proof and beyond reasonable doubt that the applicant’s brother, father and mother were killed by agents of the State. However, the Commission found that the domestic investigation and subsequent judicial proceedings disclosed a number of grave deficiencies, in particular, concerning the search of the scene of the crime and the taking of evidence from eyewitnesses.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 15 September 1993. Having declared the application admissible, the Commission adopted a report on 10 September 1999 in which it expressed the unanimous opinion that there had been violations only of Articles 2 and 13 concerning the lack of an effective investigation. The case was referred to the Court on 30 October 1999.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , András Baka (Hungarian), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Wilhelmina Thomassen (Dutch), Mindia Ugrekhelidze (Georgian), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge ,   and also Sally Dollé , Section Registrar .     3.     Summary of the judgment [1]   Complaints The applicant alleged that her parents and brother were deliberately killed by State agents (village guards) and that there was no effective investigation into their deaths, in breach of Article 2 of the European Convention on Human Rights. She also maintained that subjecting her and her siblings to an armed attack in their home, in the course of which they witnessed the killing of their parents and brother, and the lack of an effective investigation constituted inhuman treatment, in violation of Article 3. She further complained about the attacks and killings and lack of an effective investigation under Article 8. Under Articles 6 § 1 (right to a fair hearing) and 13, she complained of the lack of an effective investigation. She also alleged, under Article 13, that there was a practice of failure to provide effective remedies. Lastly, she alleged a violation of Article 14, given her and her family’s Kurdish origins and the inadequacy of investigations into allegations of security force wrongdoing in the predominantly Kurdish south-eastern region of Turkey.   Decision of the Court   Article 2 The Court found that there was insufficient evidence on which to conclude that the applicant’s brother and parents were, beyond reasonable doubt, killed by agents of the State in the circumstances alleged by the applicant. There had, therefore, been no violation of Article 2 in that respect.   However, the Court recalled that there should be some form of effective official investigation whenever individuals had been killed as a result of the use of force and that this obligation was not confined to cases where State responsibility had been established. In this case, rather than carrying out a serious and effective investigation in the preliminary phase, the competent authorities appeared to have proceeded on the assumption that it was the PKK, not State security forces or gendarmes, who were responsible for the killings. Similar criticism could also be made about the subsequent investigation before the State Security Court. The Court noted that, since the conclusion of those proceedings, nothing had come to light which suggested that the authorities had taken further investigative measures that could be regarded as effective for the purposes of Article 2. The Court therefore found that the authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the killings and that there had been a violation of Article 2 in that respect.   Article 3 Recalling that it had not been established that State agents were implicated in the attack and   resulting killings, the Court found no violation of Article 3 concerning the allegation that the attack and killings amounted to inhuman treatment of the applicant and her siblings.   The Court had no jurisdiction to examine the allegation that the authorities’ failure to conduct an effective investigation amounted to degrading treatment, as it was not covered by the Commission’s decision of admissibility.   Articles 6 § 1 and 13 The Court noted that the applicant’s complaint of lack of access to a court was bound up with her more general complaint concerning the manner in which the investigating authorities dealt with the killings and the repercussions which this had had on her access to an effective remedy. In those circumstances, the Court found it appropriate to examine the compliant in relation to Article 13.   The Court recalled that Article 13 imposed an obligation on States to carry out a thorough and effective investigation capable of leading to the identification and punishment of those responsible, in which the complainant had effective access to the investigatory procedure and to compensation, where appropriate. Recalling its conclusion under Article 2 concerning the inadequacy of the investigation, the Court found that Turkey had failed to meet its obligations and that there had, therefore, been a violation of Article 13.   The Court found it unnecessary to examine separately the applicant’s allegation that there was a practice of failure to provide effective remedies under Article 13.   Article 8 Bearing in mind its conclusions that it had not been established beyond reasonable doubt that State agents were implicated in the events at issue, the Court found no violation of Article 8.   It had no jurisdiction to examine the submission that the failure to investigate also amounted to a violation of Article 8, as it was not covered by the Commission’s decision of admissibility.   Article 14 The Court found no substantiation of a violation of Article 14, taken in conjunction with Articles 2, 3, 6, 8 and 13.     Judge Gölcüklü expressed a partly concurring and partly dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     This summary by the Registry does not bind the Court.