Lexploria

Information Note on the Court’s case-law 8

July 1999

Tanrıkulu v. Turkey [GC] - 23763/94

Judgment 8.7.1999 [GC]

Article 2

Article 2-1

Life

Killing by unidentified persons and effectiveness of investigation: no violation, violation

Article 34

Hinder the exercise of the right of application

Alleged pressure by the authorities on applicant: violation

(Extract from press release)

Facts : The appli cant, Selma Tanrıkulu, a Turkish national, was born in 1964 and lives in Diyarbakır (Turkey). The applicant’s husband, Zeki Tanrıkulu, was a doctor in the Silvan State hospital. At around noon on 2 September 1993 he was shot on a steep road which runs betw een the hospital and the Silvan police headquarters. The applicant, who heard the shots, rushed over from her apartment situated in the grounds of the hospital and saw two men running away. Her husband died soon after. The applicant and the Government had put forward different versions of the events concerned.

According to the applicant, there were at least eight members of the security forces standing in a line across the road where her husband was shot, brandishing machine guns. She pleaded with them not to let the two men whom she had seen running away escape but they did nothing.

According to the Government, there were no more than two police officers present outside the police headquarters. These officers, who were under strict instructions not to leave their post, stood guard outside the entrance to the he adquarters, which was around the corner from where the incident took place.

On 5 November 1993 the Silvan public prosecutor’s office ruled that it had no jurisdiction to investigate the matter and transferred the file to the State Security Court at Diyarba kır. The chief public prosecutor at that Court took a statement from the applicant on 18 November 1994. The investigation has not led to any arrests and is still pending.

The applicant complained that the killing of her husband by security forces or with t he connivance of those forces, as well as the lack of an effective official investigation into the killing and the lack of protection in domestic law of the right to life, constituted violations of that right to life guaranteed under Article 2 of the Conve ntion. She further complained of an infringement of Article 13 in that she had been denied an effective remedy for Convention breaches and, arguing that her husband had been killed because of his Kurdish origins, she also alleged a violation of Article 14 (freedom from discrimination in the enjoyment of Convention rights). Finally, the applicant complained that she had been hindered in the exercise of the right of individual petition as guaranteed by former Article 25 § 1.

Law : Government’s preliminary obje ctions: The Government had maintained before the Court that the applicant had not exhausted the domestic remedies afforded her by Turkish law. The Court noted that civil law remedies could only succeed if the person responsible for the act complained of ha d been identified, which had not been the case. With respect to an action in administrative law the Court observed that it had not been provided with any examples of persons having brought such an action in a situation comparable to the applicant’s. Moreov er, an obligation to exhaust such an administrative law remedy that was capable only of leading to an award of damages might render illusory a Contracting State’s obligation under Articles 2 and 13 of the Convention to conduct an investigation capable of l eading to the identification and punishment of those responsible for the deprivation of life. The Court consequently dismissed the preliminary objection in so far as civil and administrative law remedies were concerned. It joined the preliminary objection concerning remedies in criminal law to the merits.

The Court’s assessment of the facts: The Court accepted the facts as they had been established by the Commission which had carried out a fact-finding mission in Ankara to this end. It noted, however, that the Commission’s task of establishing the facts had been made more difficult since the Government had failed to provide the complete investigation file and had also not secured the attendance before the Commission’s Delegates of two public prosecutors. The Court, considering that it was of the utmost importance for the effective operation of the system of individual petition instituted under former Article 25 of the Convention (now replaced by Article 34) that States furnish all necessary facilities to make possible a proper and effective examination of applications (former Article 28 § 1 (a), now replaced by Article 38), found that the Government had fallen short of this duty.

Article 2 of the Convention:

(1) The death of the applicant’s husband: The Court considered that the material in the case file did not enable it to conclude beyond reasonable doubt that the applicant’s husband had been killed by security forces or with their connivance.

(2) The investigations by the national authorities: Th e Court reiterated that the obligation to protect the right to life under Article 2, read in conjunction with the State’s general duty under Article 1 to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, required by implication that there should be some form of effective official investigation when individuals had been killed as a result of the use of force. The investigation should have been capable of leading to the identification and punishment of those respons ible. The Court doubted that the examination conducted at the scene of the incident could have been more than superficial in view of the limited time that had been spent on it and because no photographs had been taken. There was, moreover, no record of any attempt having been made to retrieve eleven missing bullets that had passed through the body of the applicant’s husband. The Court expressed misgivings as to the limited amount of forensic information obtained from the post-mortem examination and consider ed it regrettable that no forensic specialist had been involved and that no full autopsy had been performed. The Court was further struck by the fact that the public prosecutor had referred the investigation to the Diyarbakır State Security Court, indicati ng that in his opinion the killing constituted a terrorist offence, since there did not appear to have been any evidence available supporting that conclusion. The applicant’s statement had not been taken until more than a year after the event, and even whe n the authorities had been made aware of her complaints after she had filed an application with the Commission, the authorities had not been prompted, for instance, to take statements from those members of the security forces who had been standing guard ou tside the police headquarters.

In conclusion, the investigations in the case could not be regarded as effective investigations capable of leading to the identification and punishment of those responsible for the killing of the applicant’s husband. The Cou rt was, moreover, not persuaded that the criminal law remedies nominally available to the applicant would have been capable of altering to any significant extent the investigation that was carried out.

Accordingly, the Court dismissed the remainder of the Government’s preliminary objection and held that there had been a violation of Article 2. In view of that finding, the Court considered that it was not necessary to examine the applicant’s complaint regarding an alleged lack of protection in domestic law of the right to life.

Conclusion : violation (unanimous).

Article 13 of the Convention: Referring to its reasoning in, among other things, its judgment of 19 February 1998 in the case of Kaya v. Turkey, the Court considered that the national authorities had been under an obligation to carry out an effective investigation into the circumstances of the killing of the applicant’s husband. Reiterating its finding under Article 2 that no such effective investigation had been conducted, the Court concluded that th ere had been a violation of Article 13.

Conclusion : violation (16 votes to 1).

Article 14: The Court found that it did not have any evidence before it substantiating the alleged breach of Article 14. Accordingly, there had been no violation of this provisi on.

Conclusion : no violation (unanimous).

Former Article 25 § 1 of the Convention: The Court noted that the applicant had been questioned by the chief public prosecutor at the Diyarbakır State Security Court about the authenticity of the power of attorney which had been submitted to the Commission in respect of her legal representation in the proceedings before that institution. The Court emphasised that it was not appropriate for the authorities of a respondent Government to enter into direct contact with an applicant about such matters, and considered that to proceed as the Government had in the present case could have been interpreted by the applicant as an attempt to intimidate her. The Court further noted that according to the record of this questioning the applicant had been shown a power of attorney bearing a name which was not hers, even though the only power of attorney that had been transmitted to the Government by the Commission had been in the applicant’s name. Subsequent to the applicant’s having been questioned, the Government had informed the Commission that the applicant had denied signing the power of attorney. The Court was of the opinion that a deliberate attempt had been made on the part of the authorities to cast doubt on the validity of t he application to the Commission and thereby on the credibility of the applicant. In conclusion, the Court found that the respondent State had failed to comply with their obligations under former Article 25 § 1 of the Convention.

Conclusion : Failure to com ply with obligations (16 votes to 1).

Article 41 of the Convention: The applicant had claimed 15,000 pounds sterling (GBP) for non-pecuniary damage to compensate herself, her husband and their three minor children, and GBP 24, 396.06 by way of reimburseme nt of her costs and expenses.

The Court, ruling on an equitable basis, awarded the applicant GBP 15,000 for non-pecuniary damage and GBP 15,000 for costs and expenses.

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