Ergi v. Turkey

JUDGMENT IN THE CASE OF ERGI v. TURKEY

In a judgment delivered at Strasbourg on 28 July 1998 in the case of Ergi v. Turkey, the European Court of Human Rights unanimously dismissed the Government's preliminary objection as to the validity of the application and held that they were estopped from making a preliminary objection concerning the exhaustion of domestic remedies under Article 26 of the European Convention on Human Rights. The Court then held that it had not been established that the applicant's sister had been killed by the Turkish security forces in breach of Article 2 (right to life) (unanimously), but that there had been a violation of this Article on account of the planning and conduct of the security force operation and in respect of the failure of the Turkish authorities to conduct an adequate and effective investigation into the circumstances surrounding her death (unanimously). The Court further held that it was not necessary to examine the complaint made under Article 8 (right to respect for private and family life) (unanimously) and that there had been a violation of Article 13 (right to an effective remedy) with respect to the applicant and his niece (eight votes to one). It found no violation of Articles 14 (prohibition of discrimination) and 18 (limitation on use of restrictions on rights) (unanimously) but held that that there had been a violation of Article 25 § 1 (right of individual application) (eight votes to one). Under Article 50 of the Convention, the Court awarded the applicant and his niece specified sums for non-pecuniary damage and for legal costs and expenses. The judgment was read out in open court by Mr Rudolf Bernhardt, the President of the Court.

I.BACKGROUND TO THE CASE

A.Principal facts

The applicant was born in 1954 and lives at Incirliova, Aydin, in the province of Diyarbakir. Ms havva Ergi lived in the village of Kesentas (South-East Turkey). On the night of 29 September 1993, while standing in a doorway leading onto the balcony of her house, she was hit in the head by a 7.62 mm rifle bullet and killed instantly. The circumstances surrounding Ms Ergi's death are a matter of dispute. The applicant claimed that the village was attacked indiscriminately by security forces, apparently in retaliation for the killing by members of the PKK (Workers' Party of Kurdistan) of a villager who had "collaborated" with the Government. The Government alleged that security forces had ambushed a PKK unit on the outskirts of the village, that Ms Ergi was caught in the crossfire and that the bullet which killed her might well have been fired by a member of the PKK. The day after the shooting a public prosecutor, accompanied by gendarmes, arrived at the village and spoke with a number of persons. An autopsy was carried out on Ms Ergi's body and the bullet was removed. Another public prosecutor later took control of the investigation but did not carry out or order any further investigative measures. On 12 December 1993, having come to the conclusion on the basis of the available reports that the bullet had been fired by a PKK member and accordingly the matter fell outside his competence, he forwarded the case-file to the National Security Court where the case is still pending. On 30 October and 3 November 1995, while the case was pending before the Commission, the applicant was questioned by the Anti-Terrorist Department of the police and a public prosecutor in connection with his request for legal aid to the Commission.

B.Proceedings before the European Commission of Human Rights

The application to the Commission, which was lodged on 25 March 1994, was declared admissible on 2 March 1995. Evidence was heard by a delegation of the Commission in the presence of the representatives of the parties in Ankara from 7 to 8 February 1996. Having attempted unsuccessfully to secure a friendly settlement, the Commission adopted a report on 20 May 1997 in which it established the facts and expressed the opinion that it had not been established that the bullet had been fired by Government security forces but that there were strong indications that it might have been. Not did it find that the operation had not genuinely been an ambush to capture armed PKK members rather than a retaliatory operation against the village. On the other hand, in the Commission's opinion, the operation had not been carried out with sufficient regard for the safety of the civilian population of Kesentas and the investigation into the circumstances of Ms Ergi's death had been inadequate and ineffective; there had accordingly been a violation of Article 2 of the Convention (unanimously). In view of that finding, the Commission did not consider that any separate issues arose under Articles 8 (unanimously) and 13 (twenty-two votes to nine). Furthermore, it found no violation of Articles 14 and 18 (unanimously). Finally, the Commission concluded that the applicant had been subject to pressure by the authorities and that accordingly there had been a hindrance in respect of his right of individual petition, contrary to Article 25 § 1 (thirty votes to one).

II.SUMMARY OF THE JUDGMENT

The applicant complained on his own behalf, on behalf of his deceased sister, Havva Ergi, as well as on behalf of her daughter that Havva Ergi had been killed by the security forces in violation of Article 2 of the Convention. He further alleged that his niece had been the victim of a violation of Article 8 and that both he and she had been denied an effective remedy in breach of Article 13. In addition, he alleged violations of Articles 14 and 18. Finally, the applicant complained that the Turkish authorities had hindered him in the exercise of his right to petition, in breach of Article 25 § 1.

A.The Government's first preliminary objections

1.The Government's first preliminary objection

The Government could not be considered estopped from raising before the Court their objection as to the validity of the application. However, as to the merits of their objection, the Court saw no reason to depart from the Commission's finding that the application before it disclosed a genuine and valid exercise of the applicant's right of individual petition under Article 25 of the Convention. The Court, accordingly, rejected the Government's first preliminary objection.

[See paragraphs 62 to 64 of the judgment and point 1 of the operative provisions.]

2.The Government's second preliminary objection

The Government had in fact been granted an extended time-limit by which to comment on the issue of admissibility, including a specific question as to whether the applicant had fulfilled the requirement of exhaustion of domestic remedies or was exempted from doing so. Notwithstanding this they had failed to submit any observations at the admissibility stage. Accordingly, they ere estopped from raising their objection of non-exhaustion.

[See paragraph 67 of the judgment and point 2 of the operative provisions.]

B.The merits of the applicant's complaints

1.Article 2 of the Convention

(a)As to alleged unlawful killing of the applicant's sister

There were divergent versions as to the circumstances which had led to the killing of the applicant's sister, Havva Ergi. Having regard to the Commission's fact-finding and to its own careful examination of the evidence, the Court considered that there were legitimate doubts as to the origin of the bullet which had killed Havva Ergi and the context of the firing. It was thus not persuaded that there existed any exceptional circumstances compelling it to reach a different conclusion from that of the Commission which has the primary task of establishment and verification of the facts. Accordingly, the Court too considered that there was an insufficient factual and evidentiary basis on which to conclude that the applicant's sister had, beyond reasonable doubt, been intentionally killed by the security forces in the circumstances alleged by him.

[See paragraphs 77-78 of the judgment and point 3 of the operative provisions.]

(b)Alleged failure to comply with other requirements of Article 2

i.As to planning and conduct of the operation

Under Article 2 of the Convention read in conjunction with Article 1, the State could be required to take certain measures in order to "secure" an effective enjoyment of the right to life. That responsibility was not confined to circumstances when there was significant evidence that misdirected fire from agents of the State had killed a civilian. It could also be engaged where they had failed to take all feasible precautions to avoiding and, in any event, to minimizing, incidental loss of civilian life. The Court, having regard to the Commission's findings and to its own assessment, considered that there had been a real risk to the lives of the civilian population in the village concerned through being exposed to cross fire between the security forces and the PKK. In the light of the failure of the Turkish authorities to adduce direct evidence on the planning and conduct of the ambush operation, the Court, in agreement with the Commission, found that it could reasonably be inferred that insufficient precautions had been taken to protect the lives of the civilian population.

ii.As to the alleged inadequacy of the investigation

The obligation under Article 2 to carry out an effective investigation into circumstances of killings was not confined to cases where it had been established that the killing had been caused by an agent of the State. Nor was it decisive whether members of the deceased's family or others had lodged a formal complaint about the killing with the competent investigatory authority. In the case under consideration, the mere knowledge of the killing on the part of the authorities gave rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death. However, the authorities had failed to comply with this requirement. The Court was struck by the heavy reliance placed by the public prosecutor, who had the obligation to carry out an investigation into the death, on the conclusion of a certain gendarme incident report that it was the PKK which had shot the applicant's sister. Nor had any detailed consideration been given by either the district gendarme commander or the public prosecutor to verifying whether the security forces had conducted the operation in a proper manner.

iii.Overall conclusion

The Turkish authorities had failed to protect Havva Ergi's right to life on account of the defects in the planning and conduct of the security forces' operation and the lack of an adequate and effective investigation. Accordingly, there had been a violation of Article 2 of the Convention.

[See paragraphs 79-86 of the judgment and point 4 of the operative provisions.]

2.Article 8 of the Convention

The complaint made before the Commission that the killing of Havva Ergi had violated her daughter's rights under Article 8 was not pursued before the Court, which did not deem it necessary to consider it.

[See paragraphs 87-90 of the judgment and point 5 of the operative provisions.]

3.Article 13 of the Convention

The Court reiterated its case-law on the nature of an effective remedy in cases of arguable claims of serious violations of the Convention. There was no doubt that the applicant had an arguable claim for the purposes of Article 13. As to the further question whether the requirements of this provision had been complied with, the Court recalled its findings above that the authorities had failed to carry out an effective investigation into the circumstances surrounding the death of Havva Ergi. This failure had undermined the exercise of any remedies the applicant and his niece had had at their disposal under Turkish law. Accordingly, it found that there had been a violation of Article 13.

[See paragraphs 96-98 of the judgment and point 6 of the operative provisions.]

4.Articles 14 and 18 of the Convention

The Court, on the basis of the facts as established by the Commission, found no violation of Articles 14 and 18.

[See paragraph 100-101 of the judgment and point 7 of the operative provisions.]

5.Article 25 §1 of the Convention

The questioning of the applicant by the Turkish authorities had not been confined to matters regarding the declaration of means submitted by the applicant in the context of his request for legal aid before the Commission. He had been asked about the subject-matter of his application to the Commission and to provide an explanation concerning any application he might have made. Also, there was no plausible reason as to why he had been heard twice by the authorities and why the questioning had been conducted by the Anti-Terrorist Police and the public prosecutor. In view of this, the Court considered that the applicant must have felt intimidated as a result of his contact with the authorities on these occasions in a manner which unduly interfered with his petition to the Commission. The respondent State had failed to comply with its obligations under this provision, which had thus been a violated.

[See paragraph 105 of the judgment and point 8 of the operative provisions.]

C.Article 50 of the Convention

As regards non-pecuniary damage, the Court awarded the applicant and his niece respectively 1,000 and 5,000 pounds sterling (GBP). In addition, it awarded the applicant 12,000 GBP in respect of costs and expenses, less the amounts paid in legal aid by the Council of Europe.

[See paragraphs 110-111 and 115 of the judgment and points 9-13 of the operative provisions.]

Judgment was given by a Chamber composed of nine judges, namely Mr R. Bernhardt (German), president, Mr F. Gölcüklü (Turkish), Mr A.N. Loizou (Cypriot), Mr M.A.Lopes Rocha (Portuguese), Mr L. Wildhaber (Swiss), Mr G. Mifsud Bonnici (Maltese), Mr B. Repik (Slovakian), Mr E. Levits (Latvian) and Mr V. Toumanov (Russian), and also of Mr, H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar. Judge Gölcüklü's partly dissenting opinion is annexed to the judgment.