Lexploria

Information Note on the Court’s case-law 73

March 2005

Akkum and Others v. Turkey - 21894/93

Judgment 24.3.2005 [Section I]

Article 2

Article 2-1

Life

Killing of civilians during military operation: violation

Article 38

Obligation to furnish all necessary facilities

Failure to comply with Article 38

Facts : The applicants are the father, brother and mother of three relatives found dead after a military op eration in 1992 near Diyarbakır. The applicants alleged that their relatives had been killed unlawfully by the security forces and that the authorities had failed to carry out an adequate investigation into the killings. Mr Akkum also submitted that his so n’s ears had been cut off after his death and that he had had to bury an incomplete and mutilated body. The applicants further complained that the soldiers had killed a horse, a dog and livestock. They maintained that there was a practice of conducting ina dequate investigations into the killings of individuals in south-east Turkey, where agents of the State were alleged to have been involved, and of failing to prosecute those responsible. The applicants also complained that, because of their Kurdish origin, they and their deceased relatives had been subjected to discrimination. The Government denied that soldiers had been responsible for the killing of Mr Karakoç and maintained that Mr Akkum and Mr Akan had been killed in crossfire between soldiers and membe rs of the Kurdistan Workers’ Party (PKK) and that it had not been possible to establish who had shot them.

Law : Preliminary objection – The Court did not deem it necessary to re-examine the Government’s argument (already put to the Commission) that the app licants had failed to exhaust domestic remedies.

Conclusion : Objection dismissed (unanimously).

Article 38 § 1 ( a) – The Government had withheld key documentary evidence indispensable for the correct and complete establishment of the facts and had advanced no explanation for the failure to submit this material.

Conclusion : failure to fulfil obligation under Article 38 (unanimously).

Establishment of the facts – Some reports made available in the Convention proceedings had been full of omissions and contradictions. Moreover, information provided by State agents and relating to the facts of the case was contradictory a nd, at least as regards statements made by a number of those agents, could not be accepted as truthful. The overall circumstances justified the drawing of inferences as to the well-foundedness of the applicants’ allegations. The Court found it established that Mr Karakoç, his horse and his dog had been killed by the soldiers in the circumstances alleged by applicant Karakoç. As regards the killing of Mr Akkum and Mr Akan, it was legitimate to draw a parallel between the situation of detainees, for whose wel l-being the State was held responsible, and the situation of people found injured or dead in an area within the exclusive control of the State authorities. In both situations, information about the events in question lied wholly, or to a large extent, with in the exclusive control of the authorities. The Government had failed to adduce any argument from which it could be deduced that the documents withheld by them contained no information bearing on the applicant’s claims. No meaningful investigation had bee n conducted at domestic level capable, firstly, of establishing the true facts surrounding the killings of Mr Akkum and Mr Akan and the mutilation of Mr Akkum’s body, and, secondly, of leading to the identification and punishment of those responsible. The Government had therefore failed to account for the killing of Mr Akkum and Mr Akan or for the mutilation of Mr Akkum’s body.

Conclusion : Respondent State liable for the death of the applicants’ three relatives (unanimously).

Article 2 ( obligation to protect the right to life ) – The Court having established that Mr Karakoç had been killed by soldiers on 10 November 1992 and the Turkish Government having failed to account for the killing of Mr Akkum and Mr Akan, there had been a violation of Article 2 concerning the killings. It was not necessary to reach any separate finding concerning the alleged lack of care in the planning and control of the operation.

Conclusions : violation (unanimously); unnecessary to determine whether there had been a violation on account of the alleged lack of care in the planning and control of the operation (unanimously).

Article 2 ( obligation to conduct an effective investigation ) – The domestic authorities had failed to carry out an adequate and effective invest igation into the killings of the applicants’ three relatives.

Conclusion : violation (unanimously).

Article 3 – The Court had no doubts that the anguish caused to Mr Akkum as a result of the mutilation of the body of his son amounted to degrading treatment contrary to Article 3.

Conclusion : violation (unanimously).

Article 13 – No criminal investigation could be considered to have been conducted in accordance with this provision. The applicants had therefore been denied an effective remedy in respect of the deaths of their relatives and the mutilation of the body of Mr Akkum and had thereby been denied access to any other available remedies at their disposal, including a claim for compensation. Having regard to its findings under Articles 2 and 13, the Court did not find it necessary to determine whether the failings identified in the case were part of a practice adopted by the Turkish authorities.

Conclusions : violation (unanimously); unnecessary to determine whether there had been a practice by the authoriti es of infringing Articles 2 and 13 (unanimously).

Articles 14 and 18 – Noting its findings of a violation of Articles 2 and 13, the Court did not consider it necessary also to consider those complaints in conjunction with Article 14. In light of its findin gs it also saw no need to examine the complaint under Article 18 separately.

Conclusion : Unnecessary to determine whether there has been a violation of Article 14 in conjunction with Articles 2 and 13 (unanimously) or of Article 18 (unanimously).

Article 1 of Protocol No. 1 – The killing of the horse and the dog constituted an unjustified interference with Mr Karakoç’s right to the peaceful enjoyment of his possessions. Regarding the killing of livestock, no evidence had been submitted by the applicants con cerning the number of killed animals belonging to them and the Court had been unable to establish the circumstances in which they were killed. In those circumstances, the Court did not find it established that there had been a violation in that respect.

Co nclusion : violation in part and non-violation in part (unanimously).

Article 41 – The Court awarded applicant Karakoç EUR 57,300 for pecuniary damage, to be held by her for the wife and children of her son, Mr Karakoç. The Court awarded EUR 81,100 for non- pecuniary damage to the three applicants and the heirs of their deceased relatives. It also made an award for costs and expenses.

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