I Council of Europe
| Author | Leo Zwaak |
| DOI | 10.1177/092405199801600205 |
| Published date | 01 June 1998 |
| Date | 01 June 1998 |
| Subject Matter | Part B: Human Rights News |
Part B: Human Rights News
ICOUNCIL OF EUROPE
Leo Zwaak
European Court of Human Rights
19 February 1998, Kaya (Turkey). At the time
of
the events in question the applicant was
living in Dolunay village in the district of Lice which is situated in the province
of
Diyarbakir in south-eastern Turkey. His brother, Mr Abdtilmenaf Kaya, who also lived in
Dolunay before his death, was killed on 25 March 1993 in the vicinity
of
the village in
circumstances which are disputed and which have given rise to the proceedings before the
Convention institutions. The applicant has alleged that his brother was deliberately killed
by the security forces on 25 March 1993. The Government on the contrary has contended
that Mr Abdulmenaf Kaya was killed in a gun battle between members
of
the security
forces and a group
of
terrorists who had engaged the security forces on the day in
question. They claim that the applicant's brother was among the assailants. The applicant
has based his account
of
the events surrounding the killing
of
his brother on 25 March
1993 on the evidence
of
villagers from Ciftlibahce village whom he alleges witnessed the
incident and on the testimony
of
Mr Hikmet Aksoy, a villager from Dolunay whom he
maintains was in the company of his brother on the day the latter was killed. The applicant
was not himself an eyewitness to the events. The Government maintained that the security
forces arrived in the vicinity of Dolunay on 25 March 1993 having received information
that terrorists had been seen in the area. While they were conducting a field search in line
formation they came under fire somewhere between Dolunay village and Ciftlibahce
village. The gunfire was directed at them from a rocky area, a creek and from the hills
around. The security forces, numbering about 60, took cover and returned fire. The
terrorists retreated after about 30 minutes and in the lull a search
of
the scene
of
the attack
was carried out during which the security forces recovered a dead body alongside
of
which
lay an automatic assault gun. During the field search considerable traces
of
blood were
found along the route used by the terrorists to make their escape. The same day a District
Government Doctor and the Public Prosecutor for Lice were flown to the scene
of
the
incident by helicopter. On arrival at the scene the body was found to be lying on its back
in the bushes on the bank
of
a creek. It was moved to a flat piece
of
ground. A large
number
of
bullet entry and exit holes were found. The bones
of
the legs were broken as
a result
of
the blows received. In the report drew up on-the-spot it was stated that the
cause
of
death was cardiovascular insufficiency as a result
of
wounds caused by firearms.
The report further states that the rifle and the ammunition were seized for safekeeping as
corpus delicti.
It
concludes by stating that the forensic examination
of
the body and the
autopsy procedure had been completed. Following the events
of
25 March 1993 and the
identification
of
the body as that
of
Abdillmenaf Kaya, a decision
of
non-jurisdiction was
issued on 20 July 1993 by the Public Prosecutor at Lice and rhe file was transferred to the
Public Prosecutor at the Diyarbakir State Security Court. The State Security Court in tum
transmitted the file to the Lice District Administrative Council for investigation. The case
is apparently still pending. The applicant complained that his brother had been unlawfully
killed by the security forces in circumstances where there was no threat to their lives. He
Netherlands Quarterly
of
Human Rights. Vol.
1612,
201-246. 1998.
©Netherlands Institute
of
Human Rights (SIM). Printed in the Netherlands. 201
NQHR
2/1998
also maintained that no effective investigation was conducted by the authorities into his
brother's death and that this failing also made it impossible for the next-of-kin to seek a
remedy in respect
of
his brother's death. The Government challenged Mr Kaya's standing
as an applicant in the proceedings before the Convention institutions. They contended that
it was questionable whether he had ever in fact consciously lodged an application with the
Commission since the proceedings were initiated on the strength
of
a statement he made
to Mr Abdullah Koc
of
the Diyabakir branch
of
the Human Rights Association. The
Government insisted that Mr Kaya had never at any stage participated in the proceedings.
Significantly, he failed to tum up at the hearing held by the Commission's Delegates in
Diyabakir on 9 November 1995 and could not confirm his attendance at a further hearing
which the Commission had wished to hold in Strasbourg in March 1996. For these
reasons, the Government requested the Court to dismiss the case on account
of
the absence
of
an applicant. The Court noted that the Government's challenge to Mr Kaya's standing
was not raised at the admissibility stage, or even at any subsequent stage,
of
the
proceedings before the Commission. It is to be observed that the sole objection raised at
the admissibility stage concerned his failure to exhaust domestic remedies, an objection
which has only been pursued before the Court as a defence to the applicant's Article 6
complaint and not with respect to the admissibility
of
the case as a whole. The
Government's preliminary objection was accordingly rejected. The applicant submitted that
his brother had been deliberately killed on 25 March 1993 by members
of
the security
forces without justification, in breach
of
Article 2. In the instant case the Commission was
unable to draw a complete picture
of
the factual circumstances surrounding the death
of
the applicant's brother. The Commission's fact-finding was considerably impaired on
account
of
the failure
of
the applicant and in particular Hikmet Aksoy to testify before the
Delegates; nor were the Delegates able to secure the presence at the hearing
of
the
villagers who, according to both the applicant and Hikmet Aksoy, were eyewitnesses to
the alleged killing
of
Abdiilmenaf Kaya by the security forces. The inability
of
the
Delegates to test the probative value
of
their evidence and to observe how they withstood
the cross-examination of the Government side must be considered to constitute a serious
impediment to the attainment
of
the evidentiary requirement which the Commission
correctly sought to apply, namely proof beyond reasonable doubt. It was also to be noted
that the applicant relies essentially on the doubts which certain features
of
the
Government's account
of
the events raised in the minds
of
the members
of
the
Commission. The Court for its part considered that those doubts are in fact legitimate and
it cannot be maintained that they have been allayed by the explanations which the
Government have advanced in their pleadings. Notwithstanding, it was not convinced that,
taken together, these elements substantiate the applicant's allegation. While it is true that
the attainment
of
the required evidentiary standard may follow from the coexistence
of
sufficiently strong, clear and concordant inferences, it must be concluded that their
probative force must be considered in the circumstances at issue to be off-set by the total
absence
of
any direct oral account
of
the applicant's version
of
the events before the
Delegates. Having regard to the Commission's fact-finding and to its own careful
examination
of
the evidence, the Court considered that there was an insufficient factual
and evidentiary basis on which to conclude that the applicant's brother was, beyond
reasonable doubt, intentionally killed by the security forces in the circumstances alleged
by the applicant. The Court recalled at the outset that the general legal prohibition
of
arbitrary killing by agents
of
the State contained in Article 2 would be ineffective, in
practice, if there existed no procedure for reviewing the lawfulness
of
the use
of
lethal
202
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