SECOND SECTION

DECISION

Application no. 24873/02 by Makbule KABUL and Others against Turkey

The European Court of Human Rights (Second Section), sitting on 4 September 2007 as a Chamber composed of:

Mrs F. Tulkens , President , Mr A.B. Baka , Mr I. Cabral Barreto , Mr R. Türmen , Mr M. Ugrekhelidze , Mr V. Zagrebelsky , Mr D. Popović, judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 4 June 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the formal declarations accepting a friendly settlement of the case.

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Makbule Kabul, Mr Naim Kabul, Mr İdris Kabul , Mr Mehmet Kabul, Mr Ramazan Kabul, Mr Feysel Kabul and Ms Aysel Kabul are Turkish nationals who were born in 1961, 1979, 1984, 1987, 1989, 1990, and 1994, respectively , and live in Şırnak . They were represented before the Court by Ms A. Demirtaş , a lawyer practising in Diyarbakır . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 26 June 1995 , at about 6 a.m. , Ahmet Kabul went to the forest in Cevizdüzü precinct in the district of Şırnak, to cut some wood in order to sell it. He was accompanied by Guri Kazan, Mahmut Birlik, Mahmut Ergin and Mehmet Salih Ergin.

At about 8 a.m., the security forces carried out an operation in the hills surrounding the village of Cevizdüzü , located on the slopes of Cudi Mountain in Şırnak, to capture PKK [1] members who had attacked their battalion a few days before. Ahmet Kabul was shot during this operation and died on the way to hospital.

A post mortem examination of the body was carried out by a doctor in the presence of the public prosecutor at Şırnak State Hospital . In his report, the doctor concluded that death was clearly the result of a rupture of the main arteries by bullet wounds, and that there was thus no need to conduct a classical autopsy.

On 31 July 1995 the first applicant petitioned the public prosecutor in Şırnak. In her petition, she stated that her husband had gone to the Cevizdüzü precinct to cut some wood as they were selling it for a living, a fact which could be verified by the testimonies of Guri Kazan, Mahmut Ergin and Mehmet Salih Ergin. She alleged that her husband was killed by the security forces, as was proven by the traces of the G-3 bullet wounds recorded in the autopsy report. She requested that the perpetrators be brought to justice.

On 2 October 1996 the Şırnak p ublic p rosecutor decided that he lacked jurisdiction to pursue the investigation since the case involved the prosecution of soldiers and permission had to be obtained from the local administrative council pursuant to the Law on the Prosecution of Civil Servants . Subsequently, the investigation file was transmitted to the Şırnak Provincial Administrative Council.

On 10 August 2000 the Şırnak Provincial Administrative Council rendered its decision and concluded that Ahmet Kabul had been shot during a clash between the security forces and members of the PKK. However, as it was not possible to identify by whom he had been shot, it was decided that no criminal proceedings should be brought against the members of the security forces who had taken part in the operation on 26 June 1995.

On 30 April 2003 the Supreme Administrative Court upheld the decision of the Administrative Council finding insufficient evidence to bring criminal proceedings against the accused soldiers.

COMPLAINTS

1. The applicants complain ed under Article 2 of the Convent ion that their relative had been unlawfully killed by the security forces.

2. They allege d under Article 3 of the Convention that their relative had been ill-treated before or after his death. They also maintain ed that they had suffered as a result of the authorities ’ negligence.

3. Relying on Article 6 of the Convention the applicants question ed the impartiality and independence of the Provincial Administrative Council, which had conducted the investigation. They further complain ed about the length of the investigation, which had lasted for seven years.

4. Under Article 8 of the Convention, the applicants allege d a violation of their family life on account of the death of their relative, who had been maintaining the family.

5. Invoking Article 13 of the Convention, they complained about the ineffectiveness of the investigation.

6. Finally, they allege d a violation of Article 14 of the Convention on account of the deceased ’ s ethnic origin.

THE LAW

The Court received the following declaration signed by the Government:

“ I declare that the Government of Turkey offer to pay ex gratia to the applicant s an all-inclusive amount of EUR 20 , 0 00 ( twenty thousand euros) with a view to securing a friendly settlement of the above-mentioned application pending before the European Court of Human Rights.

The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the right to life – including the obligation to carry out effective investigations – is respected. It is noted in this connection that new legal and administrative measures have been adopted and more effective investigations have been conducted.

This sum, which also covers legal expenses connected with the case, shall be free of any tax that may be applicable and be paid in euros , to be converted into New Turkish liras at the rate applicable at the date of payment, to a bank account named by the applicant s and/or their duly authorised representative. It shall be payable within three months from the date of notification of the decision delivered by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. This payment will constitute the final settlement of the case. In the event of failure to pay this sum within the said three month period, the Government undertake to pay, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points . ”

The Court received the following declaration from the applicants:

“ I note that the Government of Turkey are prepared to pay ex gratia to the applicant s an all-inclusive amount of EUR 20 , 0 00 ( twenty thousand euros) with a view to securing a friendly settlement of the above-mentioned application pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal costs and expenses connected with the case, shall be paid in euros, to be converted into New Turkish liras at the rate applicable at the date of payment, to a bank account named by me. It shall be payable within three months from the date of notification of the decision delivered by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three month period, the Government undertake to pay, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Turkey in respect of the facts of this application. I declare that this constitutes a final settlement of the case.

This declaration is made in the context of a friendly settlement which the Government and I have reached. ”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.

For these re asons, the Court unanimously

Decides to strike the application out of its list of cases.

             F. Elens-Passos F. Tulkens Deputy Registrar President

[1] The Kurdistan Workers’ Party, an illegal organisation.