CASE OF BOZKIR AND OTHERS v. TURKEY

SECOND SECTION

CASE OF BOZKIR AND OTHERS v. TURKEY

(Application no. 24589/04)

JUDGMENT

STRASBOURG

26 February 2013

FINAL

08/07/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Bozkır and Others v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
András Sajó,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 29 January 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 24589/04) against the Republic of Turkey lodged with the Court on 16 May 2004 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eighteen Turkish nationals who live in Hakkari and whose particulars are set out in the attached table.

2. The applicants, who had been granted legal aid, were represented by Mr Mikail Demiroğlu, a lawyer practising in Hakkari. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicants alleged, in particular, that following their detention by soldiers, their relatives Ahmet Bozkır, Selahattin Aşkan, Süleyman Tekin, Lokman Kaya and Halit Ertuş had disappeared in circumstances engaging the responsibility of the respondent State under Articles 2, 3, 5, and 13 of the Convention. Details of the applicants’ relationship to the five disappeared men are set out in the attached table.

4. On 7 July 2008 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The following information emerges from the submissions of the parties and from the documents submitted by the parties.

6. The applicants’ relatives, Ahmet Bozkır, Selahattin Aşkan, Süleyman Tekin, Lokman Kaya and Halit Ertuş, worked as shepherds in the valleys and mountains surrounding their village of Otluca, which is located within the administrative jurisdiction of the province of Hakkari, in south-east Turkey.

7. On 24 August 1996 an armed clash took place between members of the PKK[1] and soldiers from the Hakkari Mountain and Commando Brigade (Hakkari Dağ ve Komando Tugay Komutanlığı) in the proximity of Otluca. Two non-commissioned officers and four soldiers were killed.

8. On 26 August 1996 a military operation was initiated by the Brigade commander’s office in the area surrounding Otluca. After the operation the five shepherds, who had been in a nearby meadow grazing their sheep, went missing and nothing has been heard from them since that day.

9. On 6 September 1996 relatives of Ahmet Bozkır, Selahattin Aşkan, Lokman Kaya and Halit Ertuş petitioned the Hakkari prosecutor’s office. They maintained that during the military operation there had been large-scale arrests in their village. They further submitted that on 5 September 1996 the villagers, with the permission of the Hakkari Brigade commander, had conducted an unsuccessful search in the meadow to find the shepherds. The petitioners asked the prosecutor’s office to initiate an investigation into the disappearance of their relatives.

10. The same day the Brigade commander’s office informed the Governor of Hakkari in writing that they had not arrested or detained the applicants’ missing relatives. In the opinion of the commander, the applicants’ relatives might have joined the PKK.

11. On 10 September 1996 the Hakkari prosecutor asked the Hakkari police headquarters and the Gendarmerie Command whether the shepherds had been detained.

12. On 16 and 30 September 1996 the police headquarters and the Gendarmerie Command informed the prosecutor that the applicants’ relatives had not been arrested or detained by them.

13. On an unspecified date the Hakkari prosecutor requested the Hakkari Mountain and Commando Brigade commander’s office to provide information as to the whereabouts of the applicants’ relatives.

14. On 11 October 1996 a colonel from the Hakkari Mountain and Commando Brigade commander’s office sent a letter to the Hakkari prosecutor in which he informed the prosecutor that the military forces did not have any information regarding the shepherds’ whereabouts. The colonel further noted that the shepherds might have joined the PKK. According to the letter, four other shepherds, F.A., A.Y., A.A. and F.AŞ., had been arrested on suspicion of aiding members of the PKK during the same operation.

15. On 15 October 1996 the applicant, Güli Tekin, also submitted a petition to the Hakkari prosecutor’s office and asked the prosecutor to search for her husband, Süleyman Tekin.

16. The Hakkari prosecutor instructed the Hakkari police headquarters on 24 December 1996 to instigate a country-wide search for the missing men.

17. On 14 and 28 May 1997 Yaşar Ertuş and Hasan Kaya lodged further petitions with the Hakkari prosecutor’s office on behalf of the families of the missing shepherds, and requested information about the investigation.

18. On 28 May 1997 the Hakkari prosecutor took statements from Hasan Kaya, who maintained that three other shepherds, A.S., H.S. and A.A., had been arrested by soldiers during the military operation and had subsequently been released. Hasan Kaya told the prosecutor that those shepherds could provide information regarding the missing persons.

19. Subsequently, on 30 May 1997 the Hakkari prosecutor heard A.S., H.S. and A.A., who stated that they had not seen the applicants’ relatives while they were in the custody of the military.

20. On 10 June 1997 the prosecutor took statements from F.A. and A.Y. (see paragraph 14 above), who contended that they had not seen the applicants’ relatives while they were in custody.

21. On 9 July 1997 Yaşar Ertuş lodged a petition with the Hakkari prosecutor’s office and requested that H.O., a non-commissioned officer from the Elazığ Gendarmerie Command, be heard by the prosecutor, since that person had stated before the Turkish Parliamentary (Susurluk) Investigation Commission that during the military operation initiated on 26 August 1996, five shepherds had been killed by soldiers.

22. Following the request of the Hakkari prosecutor, a prosecutor in Izmir took a statement from H.O. on 8 December 1997. H.O. maintained that a non-commissioned officer, Y.Y., had told him that five shepherds had been killed during the operation in August 1996.

23. On 26 January 1998 the Hakkari prosecutor heard Y.Y., who stated that he had not told H.O. anything about the killing of the shepherds and that he had no knowledge of their whereabouts.

24. On 23 March 1998 Hasan Ertuş made statements to the Hakkari prosecutor. He maintained that when they had searched the meadow following the disappearance of the shepherds, they had found the shepherds’ rugs and other personal belongings in the sheepfold. He stated that the rugs were still in his possession and told the prosecutor that he could hand them over to him.

25. On 26 March 1998 Hasan Ertuş gave the rugs to the Hakkari prosecutor, who observed that they bore no traces of blood or bullet holes.

26. Between March and July 1998 the prosecutor questioned a number of villagers who had been arrested during the incidents in August 1996 and subsequently released. They told the prosecutor that they had not seen the applicants’ relatives in custody.

27. In July 1998 Hasan Kaya, Yaşar Ertuş and Mehmet Bozkır filed further petitions with the Hakkari prosecutor’s office, repeating their request for a more in-depth investigation into their relatives’ disappearance.

28. On 13 August 1998 Hasan Ertuş, Hasan Kaya and Ahmet Bozkır’s father, M.B., informed the Hakkari prosecutor that the owner of the sheep that Ahmet Bozkır kept, A.K., had told them that he had seen the missing shepherds when he had been detained in custody by the military in Hakkari.

29. In April and May 1999 the applicants submitted further petitions to the prosecutor and asked for their relatives to be found. The prosecutor contacted the military authorities and asked them to carry out further investigations.

30. On 22 September 1999 Narinç Kaya lodged a petition with the prosecutor’s office requesting that her son, Lokman Kaya, be found. In her petition she noted that an army captain named Yusuf had told the villagers that the missing shepherds had been taken into custody during the operation in August 1996, as the soldiers needed guides in the area. She also maintained that a certain A.Ç. had been told by a member of the PKK, K.B., that her son had been taken into custody by the military after the operation.

31. The same day the prosecutor asked the military authorities to find “Captain Yusuf”. The military authorities subsequently informed the prosecutor that no captain with the name of Yusuf had worked for them.

32. On 29 September 1999 A.Ç. told the prosecutor that he had no knowledge of the shepherds’ whereabouts and did not know Narinç Kaya.

33. On 30 November 1999 K.B. maintained before the prosecutor that he had not seen the missing shepherds while he had been in military custody.

34. On 29 March 2001 Hasan Kaya once again asked the Hakkari prosecutor’s office to carry out further investigations.

35. On 26 December 2002 the Hakkari prosecutor asked the Hakkari Gendarmerie Command whether it had any information regarding the missing shepherds’ whereabouts.

36. On the same day, the Hakkari prosecutor asked the police headquarters to find the owner of the sheep, A.K. (see paragraph 28 above).

37. On 31 December 2002 A.K. told the Hakkari prosecutor that he had not seen the shepherds while he had been in military custody. A.K. maintained that he was not on good terms with the shepherds’ families, as they probably held him responsible for the shepherds’ disappearance.

38. Following the prosecutor’s letter to the Hakkari Gendarmerie Command dated 29 December 2002, the statements of Yaşar Ertuş and Ahmet Bozkır’s brother were taken by gendarmerie officers. They reiterated that they had found their relatives’ rugs in the meadow and that they had no knowledge of the shepherds’ whereabouts.

39. On 25 July 2003 the prosecutor issued a standing search order, and instructed law-enforcement personnel to continue to search for the applicants’ relatives and the persons responsible for their disappearance. Since that date, police officers and gendarmerie soldiers have regularly sent information notes to the prosecutor concerning their inability to find the applicants’ relatives or the perpetrators.

40. In 2004 the applicants instructed their legal representative to make submissions to the national authorities on their behalf. On 3 March 2004 the legal representative submitted a petition to the Hakkari prosecutor and requested information about the investigation. On 16 March 2004 the prosecutor gave the legal representative the information sought by him.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

41. The applicants complained that the security forces had been responsible for the disappearance of their relatives, who, in their opinion, should be presumed dead in breach of Article 2 of the Convention. Under the same provision they also submitted that the national authorities had failed to carry out a meaningful investigation into their relatives’ disappearance. Article 2 of the Convention reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

42. The Government contested that argument.

A. Admissibility

43. The Government argued that the applicants had failed to comply with the six-month time-limit as required by Article 35 § 1 of the Convention. In this connection the Government submitted that their national authorities had conducted investigations into each and every request made by the applicants and that there had not been any period of inactivity in the investigations which could be attributed to their authorities. In the opinion of the Government, if the applicants considered the investigations to be ineffective, they should have applied to the Court within six months of the disappearance of their relatives on 26 August 1996. They had not done so and had waited almost eight years before introducing their application.

44. The applicants challenged the Government’s submissions and argued that at the time of the disappearance of their relatives, Hakkari and twelve other provinces had been under emergency rule. During that time there had been many execution-style killings and a number of villages had been evacuated. It had been impossible for victims of actions perpetrated by military personnel to seek assistance from the national authorities.

45. The Court reiterates that the purpose of the six-month rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002; Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002-III).

46. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. In cases concerning deprivation of life, if no remedies are available or if they are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of. Special considerations may apply in exceptional cases where an applicant first avails himself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of circumstances which make that remedy ineffective. In such a situation, the six-month period may be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (ibid; see also Hazar and others v. Turkey (dec.), no. 62566/00, 10 January 2002).

47. In cases concerning disappearances the Court has held that allowances must be made for the uncertainty and confusion which frequently mark the aftermath of a disappearance (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, §§ 162-163, ECHR 2009). Furthermore, as the Court held recently, the nature of the investigations into disappearances is such that relatives of a disappeared person may be justified in waiting lengthy periods of time for the national authorities to conclude their investigations. Thus, in the case of Er and Others v. Turkey (no. 23016/04, §§ 55-58, 31 July 2012) the applicants, who had waited for a period of almost ten years after the disappearance of their relative before lodging their application, were held to have complied with the six-month rule because an investigation was being conducted at the national level into the disappearance (see, a contrario, Yetişen v. Turkey (dec.), no. 21099/06, 10 July 2012).

48. In the present application the applicants’ relatives disappeared on 26 August 1996 and the applicants made official complaints to the prosecutor on 6 September 1996. As the Government pointed out (see paragraph 43 above), the prosecutor did not remain inactive and took a number of steps to establish the circumstances surrounding the disappearance of the applicants’ five relatives. The applicants took an active part in the investigation and cooperated with the prosecutor by making statements as well as by informing the prosecutor about the developments and about potential eyewitnesses. When the legal representative instructed by the applicants was informed about the prosecutor’s decision to issue a standing search order (see paragraphs 39-40 above), which, according to the Court’s case-law is not an effective investigation method (see, most recently, Taşçı and Duman v. Turkey (dec.), no. 40787/10, § 19, 9 October 2012), the applicants applied to the Court.

49. The Court thus observes that an investigation was being conducted during the period in question and that the applicants were doing all that could be expected of them to assist the authorities. Furthermore, there were no significant periods of inactivity in the investigation. Consequently, the Court finds that the applicants did not fail to show the requisite diligence by waiting for the pending investigation to yield results, and rejects the Government’s objection as to the admissibility of this complaint based on the six-month time-limit.

50. The Court also notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Disappearance of the applicants’ five relatives

51. The applicants alleged that the information provided by them to the Court, including, in particular, the statement taken from H.O. by the İzmir prosecutor (see paragraph 22 above), showed that their relatives had been apprehended by the soldiers who conducted the military operation on 26 August 1996, and subsequently killed.

52. The Government considered the applicants’ allegations to be illogical, fictitious and unsupported by any concrete evidence.

53. The Court notes at the outset that it is not disputed between the parties that the applicants’ five relatives disappeared on 26 August 1996 and that nothing has been heard from them since. What is disputed is whether or not the five men were arrested by soldiers.

54. The Court has examined the evidence submitted to it by the parties. It observes that both before the national authorities and in the proceedings before the Court the applicants have done all that could be reasonably expected from them to support their allegations. Nevertheless, the Court is unable to establish, on the basis of the evidence in the file, whether or not their relatives were detained by soldiers who conducted an operation near their village on 26 August 1996. This inability is partly the result of the national authorities’ failure to take a number of important investigative measures which are highlighted below (see paragraphs 59-62). The Court finds it more appropriate to deal with the consequences of this failure when examining the applicants’ complaint concerning the effectiveness of the investigation.

55. In the light of the above, the Court concludes that it is unable to establish who might have been responsible for the disappearance of the applicants’ relatives. It follows, therefore, that there has been no violation of Article 2 of the Convention on that account.

2. Effectiveness of the investigation into the disappearance of the applicants’ relatives

56. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, 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”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324). In that connection, the Court points out that this obligation is not confined to cases where it is apparent that the killing was caused by an agent of the State (see Salman v. Turkey [GC], no. 21986/93, § 105, ECHR 2000‑VII).

57. The investigation must also be effective in the sense that it should be capable of leading to the identification and punishment of those responsible (see Oğur v. Turkey [GC], no. 21594/93, § 88, ECHR 1999-III). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999‑IV). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of that standard.

58. The above-mentioned obligations apply equally to cases where a person has disappeared in circumstances which may be regarded as life-threatening. In this connection, the Court has already accepted that the more time that goes by without any news of the person who has disappeared, the greater the likelihood that he or she has died (see Tahsin Acar v. Turkey [GC], no. 26307/95, § 226, ECHR 2004‑III).

59. In the present case, and as set out above under “The Circumstances of the Case”, the prosecutors in charge of the investigation into the disappearance of the applicants’ relatives took a number of steps and questioned all potential eyewitnesses whose names had been brought to their attention. They were unable, ultimately, to find the applicants’ relatives or to establish what had happened to them. It must be stressed at this juncture that, as mentioned above (see paragraph 57), the obligation to investigate a disappearance is not an obligation of result, but of means. It follows, therefore, that the authorities cannot be reproached for their failure to establish the fate of the applicants’ relatives. Nevertheless, the Court cannot but observe that there were also a number of serious shortcomings in the investigation, which, in the opinion of the Court, had a negative bearing on the outcome of the investigation and which, as set out above, subsequently made it impossible for the Court to establish whether or not the soldiers had been responsible for the disappearance of the applicants’ relatives (see paragraphs 54-55 above).

60. The Court notes at the outset that no civilian investigating authority visited the applicants’ village or the place where their relatives grazed their sheep, with a view to verifying the applicants’ allegations and to collecting evidence. For the Court, that omission is sufficient, of itself, to conclude that the investigation was seriously deficient (see İpek v. Turkey, no. 25760/94, § 176, ECHR 2004‑II (extracts).

61. Of equal importance, the prosecutors appear to have made no attempt to summon and directly question the military personnel who took part in the operation on 26 August 1996 during which the applicants’ relatives went missing and who, according to the applicants, were responsible for their relatives’ disappearance. Rather, the prosecutors accepted at face value the letters sent to them by members of the security forces denying their involvement in the disappearances (see paragraphs 10, 12 and 14 above). Indeed, the prosecutors did not even attempt to obtain and examine the custody records of the military detention facilities, despite the repeated allegations brought to their attention that the five men had been detained by the military.

62. The Court finds that the investigation conducted into the disappearance of the applicants’ relatives resembles other investigations carried out at the relevant time in south-east Turkey, which have been examined by the Court in a number of cases. A common feature of these cases is a finding that the prosecutor failed to pursue complaints by individuals claiming that the security forces were involved in an unlawful act, by, for example, not interviewing or taking statements from implicated members of the security forces and accepting at face value the reports of incidents submitted by them (see, inter alia, Akdeniz v. Turkey, no. 25165/94, § 111, 31 May 2005).

63. In the light of those shortcomings, the Court concludes that the investigation carried out into the disappearance of the applicants’ relatives was inadequate and deficient. There has accordingly been a violation of Article 2 of the Convention in its procedural aspect.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

64. The applicants contended that their relatives had been taken away by soldiers and killed. In this connection, they alleged that Article 3 of the Convention had been breached on account of the anguish and distress that their relatives must have suffered at the hands of the armed forces.

65. The Government submitted that the applicants’ complaint that the investigation into their missing relatives had been inadequate and that it thus amounted to a breach of Article 3 of the Convention was unfounded because an effective investigation had been conducted into the disappearance.

66. The Court observes that the applicants’ complaint under this provision was misunderstood by the Government; the applicants do not complain that the ineffectiveness of the investigation gave rise to a breach of Article 3 of the Convention, but submit that the anguish and distress that their relatives must have suffered at the hands of the armed forces amounted to ill-treatment within the meaning of that provision.

67. Having regard to its inability to make a finding as to who might have been responsible for the disappearance of the applicants’ relatives (see paragraph 55 above), the Court considers that there is no factual basis on which to substantiate the applicants’ complaints under Article 3 of the Convention.

68. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

69. The applicants alleged that their relatives had been deprived of their liberty in breach of Article 5 of the Convention.

70. The Government denied that the applicants’ relatives had been detained by the soldiers.

71. The Court reiterates that it has been unable to make a finding as to who might have been responsible for the disappearance of the applicants’ relatives (see paragraph 55 above).

72. Consequently, this part of the application must also be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

73. Lastly, the applicants complained that they had not had an effective remedy, within the meaning of Article 13 of the Convention, by which to obtain an investigation into the disappearance and subsequent death of their relatives and to seek compensation.

74. The Government did not deal with this complaint in their observations.

75. Article 13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

76. The Court notes that this complaint is linked to the one examined above (see paragraph 50) and must therefore likewise be declared admissible.

77. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Article 13 of the Convention thus requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although the Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 of the Convention also varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 of the Convention must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Aksoy v. Turkey, 18 December 1996, § 95, Reports of Judgments and Decisions 1996-VI).

78. Furthermore, where a person has an arguable claim that his or her relative has disappeared at the hands of the authorities, or where a right as fundamentally important as the right to life is at stake, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible (see Timurtaş v. Turkey, no. 23531/94, § 111, ECHR 2000‑VI, and the other authorities cited therein). The Court considers that this also applies in the case of a disappearance in life-threatening circumstances (see paragraph 58 above).

79. On the basis of the evidence adduced in the present case, the Court has not found it proved that agents of the State were involved in the disappearance of the applicants’ relatives. As it has held in previous cases, however, that does not preclude the complaint in relation to Article 2 of the Convention from being an “arguable” one for the purposes of Article 13 (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, § 104, ECHR 2000‑X and the cases cited therein). In this connection, the Court observes that it has already found that the applicants’ relatives disappeared in life-threatening circumstances (see paragraph 58 above), and the applicants may therefore be considered to have an “arguable claim”.

80. Accordingly, the national authorities were under an obligation to carry out an effective investigation into the circumstances of the men’s disappearance. For the reasons set out above (see paragraphs 59-63), no effective criminal investigation can be considered to have been conducted in accordance with Article 13 of the Convention, the requirements of which may be broader than the obligation to investigate imposed by Article 2 (see Kaya v. Turkey, 19 February 1998, § 107, Reports 1998‑I). The Court finds, therefore, that the applicants were denied an effective remedy in respect of the disappearance of their relatives, and were thereby denied access to any other available remedies at their disposal, including a claim for compensation.

81. Consequently, there has been a violation of Article 13 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

82. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

83. The applicants claimed the following sums in respect of pecuniary and non-pecuniary damage:

i) the first applicant, Mrs Saliha Bozkır: 200,000 Turkish liras (TRY; approximately 88,000 euros (EUR)) in respect of pecuniary and TRY 250,000 (approximately EUR 110,000) in respect of non-pecuniary damage;

ii) the second applicant, Mrs Mahbup Aşkan: TRY 200,000 (approximately EUR 88,000) in respect of pecuniary and TRY 250,000 (approximately EUR 110,000) in respect of non-pecuniary damage;

iii) the third applicant, Mrs Guli Tekin: TRY 200,000 (approximately EUR 88,000) in respect of pecuniary and TRY 250,000 (approximately EUR 110,000) in respect of non-pecuniary damage. Her children, that is applicants 4 to 7, namely Erhan, Tebrize, Orhan and Remziye Tekin did not make any claims;

iv) each of the eighth and the ninth applicants, namely Mr Hasan Kaya and Mrs Narinç Kaya: TRY 200,000 (approximately EUR 88,000) in respect of pecuniary and TRY 250,000 (approximately EUR 110,000) in respect of non-pecuniary damage; and

v) each of the tenth and the eighteenth applicants, namely Mrs Fehima Ertuş and Mr Yaşar Ertuş: TRY 200,000 (approximately EUR 88,000) in respect of pecuniary and TRY 200,000 (approximately EUR 88,000) in respect of non-pecuniary damage; these two applicants also claimed the sum of TRY 92,000 (approximately EUR 40,500) in respect of 230 sheep which, the applicants claim, their relative Mr Halit Ertuş had been keeping on the day his disappearance and which had allegedly been killed by the soldiers during the military operation;

vi) lastly, each of the eleventh to seventeenth applicants, namely Mrs Muhti Özer (Ertuş), Mrs Kübra Tekçe (Ertuş), Mrs Makbule Çelik (Ertuş), Mr Hasan Ertuş, Mr Salih Ertuş, Mr Zahir Ertuş and Mr Hamdi Ertuş, claimed TRY 150,000 (approximately EUR 66,000) in respect of non-pecuniary damage.

84. The Government contested the applicants’ claims.

85. The Court does not discern any causal link between the violation found and the pecuniary damages alleged; it therefore rejects these claims. On the other hand, it awards the applicants the following sums in respect of non-pecuniary damage:

i) EUR 20,000 to the first applicant, Mrs Saliha Bozkır;

ii) EUR 20,000 to the second applicant, Mrs Mahbup Aşkan;

iii) EUR 20,000 to the third applicant, Mrs Guli Tekin;

iv) EUR 20,000 jointly to the eighth and the ninth applicants, namely Mr Hasan Kaya and Mrs Narinç Kaya; and

v) EUR 20,000 jointly to the tenth to eighteenth applicants, namely Mrs Fehima Ertuş, Mrs Muhti Özer (Ertuş), Mrs Kübra Tekçe (Ertuş), Mrs Makbule Çelik (Ertuş), Mr Hasan Ertuş, Mr Salih Ertuş, Mr Zahir Ertuş, Mr Hamdi Ertuş and Mr Yaşar Ertuş.

B. Costs and expenses

86. The applicants did not make a claim in respect of any costs and expenses.

C. Default interest

87. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Declares unanimously the complaints under Articles 2 and 13 of the Convention admissible and the remainder of the application inadmissible;

2. Holds unanimously that there has been no violation of Article 2 of the Convention in respect of the disappearance of the applicants’ relatives;

3. Holds unanimously that there has been a violation of Article 2 of the Convention on account of the failure of the authorities of the respondent State to conduct an effective investigation into the circumstances of the disappearance of the applicants’ relatives;

4. Holds unanimously that there has been a violation of Article 13 of the Convention;

5. Holds by six votes to one

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 20,000 to Mrs Saliha Bozkır;

(ii) EUR 20,000 to Mrs Mahbup Aşkan;

(iii) EUR 20,000 to Mrs Guli Tekin;

(iv) EUR 20,000 jointly to Mr Hasan Kaya and Mrs Narinç Kaya; and

(v) EUR 20,000 jointly to Mrs Fehima Ertuş, Mrs Muhti Özer (Ertuş), Mrs Kübra Tekçe (Ertuş), Mrs Makbule Çelik (Ertuş), Mr Hasan Ertuş, Mr Salih Ertuş, Mr Zahir Ertuş, Mr Hamdi Ertuş and Mr Yaşar Ertuş;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses by six votes to one the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 26 February 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley NaismithGuido Raimondi
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinion of Judge H. Keller is annexed to this judgment.

G.R.A.
S.H.N.

NAME

DATE OF BIRTH

RELATIONSHIP TO THE DISAPPEARED MEN

1

Saliha BOZKIR

1956

Ahmet Bozkır’s wife

2

Mahbup AŞKAN

1964

Selahattin Aşkan’s wife

3

Güli TEKİN

1955

Süleyman Tekin’s wife

4

Erhan TEKİN

1991

Süleyman Tekin’s son

5

Tebrize TEKİN

1992

Süleyman Tekin’s daughter

6

Orhan TEKİN

1995

Süleyman Tekin’s son

7

Remziye TEKİN

1996

Süleyman Tekin’s daughter

8

Hasan KAYA

1947

Lokman Kaya’s father

9

Narinç KAYA

1950

Lokman Kaya’s mother

10

Fehima ERTUŞ

1933

Halit Ertuş’s wife

11

Muhti ÖZER (ERTUŞ)

1954

Halit Ertuş’s daughter

12

Kübra TEKÇE (ERTUŞ)

1962

Halit Ertuş’s daughter

13

Makbule ÇELİK (ERTUŞ)

1964

Halit Ertuş’s daughter

14

Hasan ERTUŞ

1955

Halit Ertuş’s son

15

Salih ERTUŞ

1959

Halit Ertuş’s son

16

Zahir ERTUŞ

1961

Halit Ertuş’s son

17

Hamdi ERTUŞ

1974

Halit Ertuş’s son

18

Yaşar ERTUŞ

1976

Halit Ertuş’s son

PARTLY DISSENTING OPINION OF JUDGE KELLER

1. The case concerns the disappearance of five close relatives of the applicants during a military operation in south-east Turkey in 1996. The application forms part of a group of disappearance cases and hence of a category of the most serious human rights violations. The Court unanimously found a violation of Article 2 of the Convention in its procedural aspect as the State had failed to conduct an effective investigation into the circumstances of the disappearance of the applicants’ relatives.

2. Additionally, the Court unanimously found a violation of Article 13. The applicants specifically complained that they had not had an effective remedy enabling them to obtain an investigation into the disappearance and subsequent deaths of their relatives and to seek compensation (§ 73). Up to this point, I am in full agreement with my fellow judges.

3. My disagreement concerns only the amount granted under Article 41 of the Convention in respect of non-pecuniary damage. The Court awarded EUR 20,000 to each family that made a claim (for details, see § 83 et seq). This amount appears to be low in view of the Court’s findings of two violations of the Convention, i.e. breaches of Article 2 and Article 13.

4. The Court has frequently been criticised for its non-transparent practice in granting awards in respect of pecuniary and non-pecuniary damage.[2] This dissenting opinion is not the place to respond to such criticism. However, it seems to me to be a logical imperative that, where violations of several substantive provisions of the Convention have been found, these should be taken into consideration under Article 41. Obviously, the Court does so under normal circumstances (see, for example, the case of Güvec v. Turkey, no. 70337/01, ECHR 2009 (extracts), in which the Court, in calculating non-pecuniary damages for the purposes of Article 41, explicitly had regard to the “multiple violations” of the Convention it had previously found (§ 140)). However, all attempts at a systematic comparison of the amounts granted under Article 41 have failed for various reasons: differences in living costs and currencies, inflation, time and – last but not least – the ex aequo et bono nature of the compensation awarded under Article 41.

5. Be that as it may, it appears that the Court does not follow the above-mentioned practice regarding “multiple violations” where Article 13 is concerned, on the ground that a violation of Article 2 (or Article 3) in its procedural limb and a violation of Article 13 are very similar. Here I disagree.

6. It is true that Article 13 contains an ancillary guarantee, that is to say, it can be invoked only together with another Convention right (see Diallo v. the Czech Republic, no. 20493/07, 23 June 2011, § 55; and Bubbins v. the United Kingdom, no. 50196/99, 17 March 2005, ECHR 2005-II (extracts), § 170). This does not mean, however, that another substantive Convention right has to be violated as a pre-condition for an issue to arise under Article 13. Neither does it mean that Article 13 is a kind of second-class human right. On the contrary, Article 13 is a fully fledged human rights guarantee under the Convention.

7. The Court has slowly developed the independent nature of Article 13. A milestone in this regard was the Grand Chamber judgment in Kudła v. Poland (no. 30210/96, 26 October 2000, ECHR 2000-XI), in which the Court emancipated Article 13 from Article 6 § 1 of the Convention by finding that “the requirements of Article 13 are to be seen as reinforcing those of Article 6 § 1, rather than being absorbed by the general obligation imposed by that Article” (§ 152). Although the right to an effective remedy and the right to a speedy procedure seem to be similar at first glance, the holding in Kudła is very much justified. Indeed, it is necessary to separate two matters: one is the right to a speedy procedure as such, and the second is the possibility to effectively challenge the State’s failure to guarantee that right.

8. The same holds true for the relationship between the procedural obligations under Articles 2 and 3, on the one hand, and the right to an effective remedy on the other. In fact, the Court has rightly stressed the vital role of Article 13 in disappearance cases in its past case-law, including in the new leading case of El-Masri v. the Former Yugoslav Republic of Macedonia (no. 39630/09, [GC], 13 December 2012, §§ 256 and 257). Precisely because of the pre-eminent importance of the possibility for the disappeared person’s relatives to be able to effectively challenge the State’s responsibility, the Court has frequently found an additional violation of Article 13 in such cases (see, for example, Er and Others v. Turkey, no. 23016/04, 31 July 2012, §§ 110–113; Ipek v. Turkey, no. 25760/94, 17 February 2004, ECHR 2004-II (extracts), § 198; Togcu v. Turkey, no. 27601/95, 31 May 2005, §§ 137–140; and Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007, §§ 93 and 94). The Court’s case-law, however, is not consistent in this regard (see, for example, Varnava and Others v. Turkey, nos. 16064/90, 16065/90, 16066/90..., [GC], 18 September 2009, § 211). Where no State responsibility has been established, the Court usually does not find it necessary to examine the merits of a complaint under Article 13 separately, and therefore does not find a breach of that provision (see Movsayevy v. Russia, no. 20303/07, 14 June 2011, § 107).

9. Once we accept the full-fledged nature of Article 13, it is clear that a violation of the right to an effective remedy should be considered as an additional violation of the Convention for the purposes of Article 41.

10. The case at hand illustrates the importance of this legal consequence. Under Article 13, the applicants complained that they had not had an effective remedy by which they could obtain an investigation into the disappearances and seek compensation (§ 73). The independent nature of the Article 13 claim and the subsequent finding of a violation of that Article should be taken into consideration for the purposes of Article 41 because the applicants should have been compensated for their loss under national law as well.

11. Support for this conclusion can be found in the case of Kalinkin and Others v. Russia (nos. 16967/10, 12850/10, 13683/10..., 17 April 2012), in which, in awarding non-pecuniary damages under Article 41, the Court specifically took into account the fact that there had been both a violation of Article 6 § of the Convention and a continuing violation of Article 13 (§ 60). Though these cases did not concern disappearances, the similarity of the Kalinkin judgment with the Court’s reasoning in Kudła v. Poland (cited above) is apparent. The Kalinkin judgment might indicate an emerging practice of the Court regarding the consideration of violations of Article 13 for the purpose of determining non-pecuniary damages.

12. The current practice of the Court concerning the independent nature of an Article 13 violation in conjunction with violations of Articles 2 and 3 as applied in the case at hand demonstrates that the right to an effective remedy is still not conceived as a fully fledged human right. The time has come for a change, particularly also under Article 41.

[1] The Kurdistan Workers’ Party, an illegal organisation.

[2] See, for example, Harris David / O’Boyle Michael / Warbrick Colin (Eds.), Law of the European Convention on Human Rights, 2nd Edition, Oxford University Press: Oxford 2009, p. 856, and Karpenstein Ulrich / Mayer Franz C., EMRK: Konvention zum Schutz der Menschenrechte und Grundfreiheiten – Kommentar, C. H. Beck: München 2012, p. 581, N. 21.

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