SECOND SECTION

DECISION

Application no. 9542/06 by Kası m ÇAĞDAVUL and Others against Turkey

The European Court of Human Rights (Second Section), sitting on 27 September 2011 as a Committee composed of:

David Thór Björgvinsson , President, Giorgio Malinverni , Guido Raimondi , judges,

and Françoise Elens Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 6 March 2006,

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

Having deliberated, decides as follows:

PROCEDURE

The applicants, whose names appear in the appendix, are Turkish nationals and live in Kars . They were represented before the Court by lawyers at the legal department of the Kurdish Human Rights Project (“KHRP”) in London and by Mr Kahraman Özçağın , a lawyer practicing in Kars . The Turkish Government (“the Government”) were represented by their Agent.

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

On 14 August 1993 the applicants left their villages to take part in a demonstration. The march in question was organised by the PKK (Kurdistan Workers ’ Party), an illegal armed organisation, which allegedly forced the villagers to participate in the march.

When the crowd arrived at Digor , it was stopped by the security forces. The crowd was then surrounded by officers from the Special Operations Department of the Kars Security Directorate. Members of the special teams were also positioned on the hills around the road where the crowd had gathered.

The special teams located on the hills allegedly opened fire abruptly on the demonstrators. As a result, officially, seventeen persons died and sixty ‑ three were seriously wounded. Z eynep ÇaÄŸdavul , sister of Kasım ÇaÄŸdavul ; Nurettin Orun , husband of Besrayi Orun and father of Yavuz Orun ; Nejla Geçener , daughter of Güvercin Geçener and sister of Turgut Geçener ; Tütiye Talan , mot her of Mehmet Zeki Talan ; Selvi ÇaÄŸdavul , daughter of Tahir Mirze ÇaÄŸdavul and Hacer ÇaÄŸdavul ; Gülcan ÇaÄŸdavul , sister of Makbule ÇaÄŸdavul ; Kiyasettin ÇaliÅŸci , husband of Hazal ÇaliÅŸci , Hasan ÇaÄŸdavul , h usband of Kiney ÇaÄŸdavul , Yeter Kerenciler , daughter of Hüseyin Kerenciler ; and Erdan BuÄŸan , son of Nuriye BuÄŸan and Sürmeli BuÄŸan were among those who died. Feyfur Çeberli , Hadi Kesik and Yıldız DalÄŸa ’ s husband, Zikri DalÄŸa , were wounded by gunshots.

When the shooting stopped, the security forces allegedly prevented the wounded from receiving medical treatment. Some of the injured were ill ‑ treated, for example by being dragged along by Panzer-type armoured vehicles.

On 23 August 1993 Selim Sadak , Ali Yiğit , Mahmut Alınak and Sırrı Sakık , members of the Turkish National Assembly and of the Democracy Party (DEP) at the material time, visited Digor . They subsequently filed a petition with the Digor public prosecutor ’ s office and requested the latter to open an investigation into the incidents.

On 22 April 1996 the Kars public prosecutor filed a bill of indictment with the Kars Assize Court against eight police officers from the Special Operations Department of the Kars Security Directorate on duty at the time of the demonstration. The charges were brought under Articles 448, 450 § 5, 46 3, 62, 31 and 33 of the Turkish Criminal Code. The defendants were charged with attempted manslaughter and manslaughter.

On various dates in the course of the trial the applicants joined the proceedings as civil parties.

On 21 February 2006 the Kars Assize Court, taking into account the evidence in the case file, including guns collected from the scene and witness testimony, found it established that members of the PKK had been present in the crowd and that they had fired at the police officers, who had responded by firing back in order to protect themselves. It accordingly acquitted the eight police offices of all the charges against them on the ground that they had acted in self-defence.

On 7 April 2009 the Court of Cassation quashed the judgment of the first-instance court on procedural grounds.

The case is still pending before the Kars Assize Court .

COMPLAINTS

The first, second, third, fifth, sixth, seventh, eighth, ninth, tenth, twelfth, thirteenth, fourteenth, fifteenth, sixteenth and seventeenth applicants complained under Article 2 of the Convention about the killing of their relatives. The first, third, fourth, fifth, seventh and eleventh applicants further claimed a violation of Article 2 of the Convention in that their lives had been put at extreme risk as a result of the security forces ’ actions. Under this head, the applicants submitted that the force used by the security forces had been disproportionate and criticised the legislative and administrative framework concerning the use of force and firearms by the security forces. They also complained that neither the investigation nor the criminal proceedings brought against the accused police officers had been effective.

The applicants complained under Article 3 about the treatment they suffered at the hands of the security forces on the day of the demonstration and, subsequently, during the criminal investigation and the proceedings. Under this head they further complained that their relatives were dragged behind armoured vehicles while they were still alive or shortly after they had died.

The applicants complained under Article 6 of the Convention about the length of the criminal proceedings brought against the accused police officers.

The applicants alleged, relying on Articles 10 and 11 of the Convention, that the police intervention in the demonstration and use of force by the police had infringed the participants ’ rights to freedom of expression and peaceful assembly.

The applicants alleged that they had been denied an effective remedy within the meaning of Article 13, in conjunction wit h Articles 2, 3, 6, 10 and 11 of the Convention.

Finally, the applicants submitted under Article 14 in conjunction with Articles 2, 3, 6, 10, 11 and 13 of the Convention that they had been discriminated against on account of their Kurdish ethnic origin.

THE LAW

On 28 April 2011 the Court received the following declaration from the Government:

“1. The Government regret the occurrence of individual cases of death and injuries resulting from the use of excessive force notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions.

2. It is accepted that the use of excessive or disproportionate force resulting in death or fatal injury constitutes a violation of Article 2 of the Convention. 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 which have resulted in a reduction in the occurrence of deaths and injuries in circumstances similar to those of the present application as well as more effective investigations.

3. I declare that the Government of the Republic of Turkey offer to pay ex gratia to the applicants the following sums:

EUR 35,000 Kasım Çağdavul

EUR 35,000 Besrayi Orun , Yavuz Orun

EUR 10,000 Zeki Çeberli

EUR 35,000 Güvercin Geçener , Turgut Geçener

EUR 35,000 Mehmet Zeki Talan

EUR 35,000 Tahir Mirze Çağdavul , Hacer Çağdavul

EUR 35,000 Makbule Çağdavul

EUR 10,000 Hadi Kesik

EUR 35,000 Hazal Çalişci

EUR 35,000 Kiney Çağdavul

EUR 35,000 YaÅŸar Kerenciler

EUR 35,000 Nuriye Buğan , Sürmeli Buğan

EUR 10,000 Yıldız Dalğa

4. The above sums, which also cover legal expenses connected with the case, shall be converted into Turkish Liras on the date of payment and paid to a bank account named by the applicants . These sums shall be payable, free of any taxes that may be applicable, within three months from the date of notification of the decisions taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. This payment will constitute the final settlement of the cases. ”

On 17 June 2011 the Court received the following declaration signed by the applicants ’ legal representative:

“1. In my capacity as the representative of the applica nts, Kasım Çağdavul , Besrayi Orun , Yavuz Orun , Güvercin Geçener , Turgut Geçener , Mehmet Zeki Talan , Tahir Mirze Çağdavul , Hacer Çağdavul , Makbule Çağdavul , Hazal Çalişci , Kiney Çağdavul , Yaşar Kerenciler , Nuriye Buğan , Sürmeli Buğan , Zeki Çeber li , Hadi Kesik and Yıldız Dalğa , I have taken cognisance of the declaration of the Government of the Republic of Turkey that they are prepared to make to the applicants an ex gratia all-inclusive payment of a total amount of EUR 380,000 (three hundred and eighty thousand euros ) with a view to concluding a friendly settlement of their case that originated in application no. 9542/06. This sum, which also covers the costs and expenses related to the case, will be paid in accordance with the terms stipulated in the said declaration within three months from the date of notification of the decisions taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights.

2. Having duly consulted the applicants, I accept that offer and they, in consequence, waive all other claims against the Republic of Turkey in respect of the matters that were at the origin of the application. We declare that this constitutes a final resolution of the case.

3. This declaration is made within the scope of the friendly settlement which the Government and I, in agreement with the applicants, 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 reasons to justify a continued examination o f the application (Article 37 § 1 in fine of the Convention).

In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

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

Françoise Elens-Passos David Thór Björgvinsson Deputy Registrar President

Appendix

List of applicants

1. Kasım Çağdavul , born in 1955

2. Besrayi Orun , born in 1952

3. Yavuz Orun , born in 1972

4. Feyfur Çeberli , born in 1927 [1] ;

5. Güvercin Geçener , born in 1929

6. Turgut Geçener , born in 1960

7. Mehmet Zeki Talan , born in 1973

8. Tahir Mirze Çağdavul , born in 1941

9. Hacer Çağdavul , born in 1947

10. Makbule Çağdavul , born in 1985

11. Hadi Kesik , born in 1961

12. Hazal Çalişci , born in 1965

13. Kiney Çağdavul , born in 1951

14. Hüseyin Kerenciler , born in 1929 [2]

15. Nuriye BuÄŸan , born in 1948

16. Sürmeli Buğan , born in 1939

17. Yıldız Dalğa , born in 1950

[1] 1. Feyfur Çeberli died on 20 January 2009. On 25 August 2009 the applicant’s heir Zeki Çeberli , born in 1953, expressed his intention to pursue the application on her behalf.

[2] 2. Hüseyin Kerenciler died on 16 April 2008. On 19 November 2008 the applicant’s heir Yaşar Kerenciler , born in 1964, expressed his intention to pursue the application on his behalf.