Information Note on the Court’s case-law 16

March 2000

Mahmut Kaya v. Turkey - 22535/93

Judgment 28.3.2000 [Section I]

Article 2

Article 2-1

Life

Shooting by unidentified perpetrators and adequacy of investigation: violation

Facts : The applicant's brother, H, a doctor, was found shot dead in February 1993. A few days earlier, he had gone with a lawyer friend to treat a wounded member of the PKK and had failed to return. The lawyer had also been shot. The victims' hands had been bound. Both victims had previously indicated that they believed they were under surveillance and that their lives were at risk. Autopsies were carried out, revealing some brui sing and indicating prolonged exposure of H's feet to water or snow, but it was not considered necessary to conduct full autopsies. The applicant's father lodged several petitions with the public prosecutor in which he referred to various sources of inform ation indicating that the victims had been abducted by the police and attributing the murders to contra-guerrillas acting with official approval. One particular individual had allegedly been seen receiving assistance from gendarmes. Unsuccessful attempts w ere made to apprehend the suspects and the file was transferred on several occasions to different prosecutors on jurisdictional grounds. A delegation of the European Commission of Human Rights took evidence from witnesses.

Law : The Court found no elements that might require it to exercise its own power to verify the facts and therefore accepted the facts as established by the Commission.

Article 2: It has not been established beyond a reasonable doubt that any State agent was involved in the killing, but st rong inferences can be drawn that the perpetrators were known to the authorities, including the fact that the victims were transported over 130 kilometers through several checkpoints. The question is whether the authorities failed in a positive obligation to protect H from a risk to his life. At the time, there were rumours of contra-guerrillas being involved in targeting those suspected of supporting the PKK and it was undisputed that a significant number of killings occurred. The Court was therefore satis fied that H, as a doctor suspected of aiding the PKK, was at particular risk and that that risk could be regarded as real and immediate. Moreover, the authorities were aware of that risk and were aware, or ought to have been aware, of the possibility that it emanated from persons or groups acting with the knowledge or acquiescence of elements in the security forces. As to whether the authorities did all that could reasonably be expected of them, there was a framework of law in place with the aim of protecti ng life (criminal law, police/gendarmerie, prosecutors, courts), but at the relevant time the implementation of the criminal law in south-east Turkey disclosed particular characteristics which undermined the effectiveness of criminal law protection (in par ticular, the transfer of jurisdiction to administrative councils, the series of failures to investigate allegations of wrongdoing by the security forces and the attribution of responsibility for incidents to the PKK, resulting in the matter falling within the jurisdiction of State Security Courts). This permitted or fostered a lack of accountability of members of the security forces which was not compatible with the rule of law in a democratic society. These defects removed the protection which H should hav e received by law. A wide range of preventive measures would have been available with regard to the activities of the security forces and groups allegedly acting under their auspices, and in the circumstances the authorities failed to take reasonable measu res to prevent a real and immediate threat to life. There has therefore been a violation of Article 2 in that respect.

Conclusion : violation (6 votes to 1).

As to the investigation, the file changed hands several times, the autopsies were incomplete, and t here was no forensic examination of the scene or investigation concerning how the victims were transported. The prosecutors took steps in response to information provided by the victims' relatives, but these steps were often limited and superficial. The in vestigation was also dilatory and there were periods during which no apparent activity took place. In view of the serious allegations of misconduct implicating the security forces, it was incumbent on the authorities to respond actively and with reasonable expedition. The Court was not satisfied that the investigation was adequate or effective and there had also been a violation of Article 2 in that respect.

Conclusion : violation (unanimously).

Article 3: The authorities knew or ought to have known that H was at risk of being targeted and the failure to protect his life placed him in danger not only of extra-judicial execution but also of ill-treatment from persons who were unaccountable for thei r actions. The Government is therefore responsible for the ill-treatment he suffered after his disappearance. The medical evidence available does not establish that the level of suffering could be regarded as very cruel and severe, but the cutting of H's s kin due to the binding of his hands and the prolonged exposure of his feet to water or snow, whether caused intentionally or otherwise, may be regarded as inflicting inhuman or degrading treatment.

Conclusion : violation (6 votes to 1).

Article 13: Although the Court found that it had not been proved beyond reasonable doubt that State agents were implicated in the killing of H, this does not mean that the complaint under Article 2 is not an "arguable" one. There was an arguable claim and therefore an obligat ion to carry out an effective investigation. Since no effective criminal investigation can be considered to have been conducted, the applicant has been denied an effective remedy.

Conclusion : violation (6 votes to 1).

Alleged practice infringing Articles 2, 3 and 13: The Court did not find it necessary to determine whether the failings identified were part of a practice adopted by the authorities.

Article 14: The Court considered that these complaints arose out of the s ame facts considered under Articles 2 and 13 and did not find it necessary to examine them separately.

Conclusion : not necessary to examine (unanimously).

Article 41: The Court did not find it appropriate to make any award to the applicant in respect of pe cuniary damage, since the claims related to alleged losses accruing subsequent to the death of H, who was unmarried and had no children, and not to losses actually incurred by either H before his death or the applicant after the death. The Court awarded 15 ,000 pounds sterling (GBP) in respect of non-pecuniary damage, to be held by the applicant for his brother's heirs. It also awarded the applicant GBP 2,500 in respect of the non-pecuniary damage sustained by him. Finally, the Court made an award in respect of costs.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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