Information Note on the Court’s case-law 168

November 2013

Benzer and Others v. Turkey - 23502/06

Judgment 12.11.2013 [Section II]

Article 2

Positive obligations

Article 2-1

Life

Effective investigation

Article 2-2

Use of force

Bombing of civilian villages by military aircraft and subsequent failure to conduct an effective investigation: violation

Article 3

Inhuman treatment

A nguish and distress as a result of bombing of civilian villages: violation

Article 38

Obligation to furnish all necessary facilities

Failure by respondent Government to provide essential piece of evidence: failure to comply with Article 38

Article 46

Indiv idual measures (pilot judgment)

Respondent Government required to conduct investigation to identify those responsible for bombing of civilian villages in 1994

Facts – The applicants were Turkish nationals who lived and worked with their families in two villages in South-Eastern Turkey. The facts of the case were disputed between the parties. According to the applicants, in 1994 their villages were bombed by an aircra ft belonging to the Turkish military. As a consequence, thirty-four of the applicants’ close relatives died, some of the applicants themselves were injured, and most of their property and livestock was destroyed. After the incident, all surviving villagers abandoned their villages and moved to different parts of the country. At the time of the European Court’s judgment, the villages were still uninhabited. In 1994, 1996 and 2006, local prosecutors concluded that the bombing of the villages had been carried out by members of the PKK. The Government upheld this view and maintained that there was no evidence of the State’s involvement in the incident. In 2012 the applicants submitted to the Court a flight log drawn up by the Civil Aviation Directorate, which re ferred to two flying missions carried out by the national Air Force on the same day the applicants’ villages were bombed.

Law – Preliminary objection ( six-month rule ): The respondent Government argued that the applicants had not complied with the six-month rule as they had lodged their application twelve years after the incident. Owing to the particular circumstances of the case, the Court accepted that the applicants had been unable to complain about the events to the national authorities for a long period after the attack on their villages. They had introduced official complaints with the national authorities as soon as they had had the possibility to do so, and had applied to the European Court shortly after they realised that the domestic remedies would not yield any results.

Conclusion : preliminary objection dismissed (unanimously).

Article 2

(a) Substantive aspect – The only argument the Government relied on to support their claim that the villages had been attacked by members of the PKK were statement s taken from a number of villagers in 2008 and the decisions of some civilian and military prosecutors taken in 1994, 1996, and 2006. As for the witness statements, all but one of these had been given by people who were not resident in either of the applic ants’ two villages and were not present at the incident. That evidence was thus merely hearsay. Moreover, most of those witnesses had been questioned by members of the military and not by an independent judicial authority. The only witness who had allegedl y been in one of the two villages on the day of the incident and who had claimed that PKK members, rather than planes, had carried out the bombing, could not be considered independent or impartial as he was employed by the State as a village guard. As for the ensuing investigations, the files of the investigations conducted in 1994 and 1996 by civilian prosecutors did not contain any evidence to substantiate the PKK’s involvement in the attacks. Therefore, the conclusions reached by those prosecutors were b aseless. As for the investigation carried out in 2006 by the military prosecutor, the Court found that it had been based on evidence that involved illogical reasoning and was subsequently proven incorrect. The Court could therefore not attach any importanc e to the conclusions reached by the prosecutors or consider that they supported the Government’s submissions.

As for the applicants’ allegation that the attack had been carried out by a military aircraft, the Court noted that the applicants had consistentl y maintained this account over a number of years. Further investigations by the prosecuting authorities in 2004 and 2005, based on eyewitness testimony, concluded that the villages had been bombed by an aircraft and not the PKK. In addition, the flight log drawn up by the Civil Aviation Directorate established that missions had been flown to the location of the villages at the time the applicants claimed the attack had occurred. In the light of this evidence, the Court concluded that a military aircraft bel onging to the Turkish Air Force had conducted an aerial attack killing thirty-three of the applicants’ relatives and injuring three of the applicants themselves. In the Court’s view, an indiscriminate aerial bombing of civilians and their villages could no t be acceptable in a democratic society or reconcilable with any of the grounds regulating the use of force set out in Article 2 § 2 of the Convention, the customary rules of international humanitarian law or any of the international treaties regulating th e use of force in armed conflicts.

Conclusion : violation (unanimously).

(b) Procedural aspect – The investigation into the bombing was wholly inadequate and many important steps were omitted. For example, the prosecutors had not carried out any significan t inquiry in the immediate aftermath of the bombing, and, once the incident had actually been looked into, the investigators were not independent, had formed baseless conclusions on extremely minimal investigations, and had attempted to withhold the invest igation documents from the applicants. Most crucially, no investigation had been conducted into the flight log which constituted a key element in the possible identification and prosecution of those responsible. Having regard to the abundance of informatio n and evidence showing that the applicants’ villages had been bombed by the Air Force, the Court concluded that the inadequacy of the investigation had been the result of the national investigating authorities’ unwillingness to officially establish the tru th and punish those responsible.

Conclusion : violation (unanimously).

Article 3: It was not disputed that the applicants had witnessed the killings of their relatives and the destruction of their belongings, had had to deal with the consequence of the inci dent alone, and had been obliged to leave their place of residence. The bombing had been ordered and carried out without the slightest concern for human life by the pilots or by their superiors, who had then tried to cover it up by refusing to hand over th e flight log. The national authorities had failed to offer even the minimum humanitarian assistance to the applicants in the aftermath of the bombing. In these circumstances, the Court considered that witnessing the killing of their close relatives, couple d with the authorities’ wholly inadequate and inefficient response in the aftermath of the events had caused the applicants suffering that had attained the threshold of inhuman and degrading treatment. In addition, the bombing of their homes had deprived t hem and their families of shelter and support and obliged them to leave the place where they and their friends had been living. The anguish and distress caused by that destruction was sufficiently severe to constitute inhuman treatment within the meaning o f Article 3.

Conclusion : violation (unanimously).

Article 38: Despite the fact that the Government had been expressly requested by the Court to submit a copy of the entire investigation file in 2009, they had not submitted the relevant flight log or mentio ned its existence in their observations. This piece of information had been supplied to the Court by the applicants in June 2012, after the Government had already submitted their observations on the case. The Government had not disputed the authenticity of the flight log, argued that they were unaware of its existence, or provided any explanation as to why it had not previously been supplied to the Court. Bearing in mind the importance of a respondent Government’s co-operation in Convention proceedings, the failure to provide the flight log had amounted to a failure to comply with the obligation under Article 38 to provide all necessary facilities to assist the Court in its task of establishing the facts.

Conclusion : failure to comply with Article 38 (unanim ously).

Article 46: Having regard to the fact that the investigation file was still open at the national level and to the documents in its possession, the Court considered that new investigatory steps should be taken by the national authorities under the s upervision of the Committee of Ministers. These steps should include carrying out an effective criminal investigation, with the help of the flight log, with a view to identifying and punishing those responsible for the bombing of the applicants’ villages.

Article 41: Sums ranging from EUR 15,000 to EUR 250,000 in respect of non-pecuniary damage; claims in respect of pecuniary damage dismissed.

(See also Akdıvar and Others v. Turkey , 21893/93, 16 September 1996; Timurtaş v. Turkey , 23531/94, 13 June 2000; an d Musayev and Others v. Russia , 57941/00, 58699/00 and 60403/00, 26 July 2007, Information Note 99 )

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

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