CASE OF SAKİNE EPÖZDEMİR AND OTHERS v. TURKEY

SECOND SECTION

CASE OF SAKİNE EPÖZDEMİR AND OTHERS v. TURKEY

(Application no. 26589/06)

JUDGMENT

STRASBOURG

1 December 2015

FINAL

02/05/2016

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

In the case of Sakine Epözdemir and Others v. Turkey,

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

Nebojša Vučinić, Acting President,
Işıl Karakaş,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 3 November 2015,

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

PROCEDURE

1. The case originated in an application (no. 26589/06) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Turkish nationals, Mrs Sakine Epözdemir, Mr Serdar Epözdemir and Mr Serhat Epözdemir (“the applicants”), on 29 June 2006.

2. The applicants were represented by Mr M. Selim Okçuoğlu, Mr Hikmet Epözdemir, Mr Yaşar Aydın and Ms Ruhşen Doğan, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicants alleged, in particular, that the respondent State had failed to take steps to protect the right to life of their relative Mr Şevket Epözdemir (“the deceased”).

4. On 30 May 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1947, 1966 and 1968, respectively, and live in Istanbul. The first applicant is the wife and the second and third applicants are the sons of Mr Şevket Epözdemir.

6. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.

A. The incident

7. The deceased was a lawyer and the chairman of the Tatvan provincial branch of a pro-Kurdish political party, the Democracy Party (“DEP”).

8. The applicants submitted that between August and December 1993, DEP party buildings were bombed and ten of its members and administrators were killed. The applicants also alleged that during a meeting with political party representatives, General K.T., who was the commander of the Tatvan 6th Armoured Brigade, had threatened their relative, Şevket Epözdemir, and one of his colleagues, the chairman of DEP’s Bitlis provincial branch, Mr İshak Tepe. The General had told the two men that “they would meet their deaths very soon”. Subsequently, Mr Tepe’s son had been abducted and killed.

9. On the morning of 25 November 1993 Mr Epözdemir left his house to go to his office, which was nearby. At around 8 p.m. the same day Mr Epözdemir telephoned his wife, the first applicant, and told her that he was leaving his office to come home. When he failed to arrive the family became concerned and contacted the authorities.

10. At midday the following day the first applicant went to the police station in Tatvan, where she asked the police officers to find her husband. She told the police officers that when her husband had failed to come home the previous evening she had telephoned the local prosecutor and asked him whether her husband had been arrested. After the prosecutor had told her that her husband had not been arrested, she had informed members of her family about her husband’s disappearance, and then waited up all night.

11. Unbeknown to the first applicant, some half an hour before she went to the police station the body of her husband had been found by soldiers in the vicinity of the nearby town of Güroymak, in a ditch at the side of a road which connected the town of Tatvan to the city of Bitlis. He was blindfolded and there was a gunshot wound on his face. The police officers who subsequently arrived at the scene informed the soldiers that it could be the body of Şevket Epözdemir, whose disappearance had been reported to them by his family.

B. The criminal investigation

12. The local prosecutor arrived at the scene at 1.45 p.m. on the same day and gave instructions for the deceased’s body to be taken to the hospital in Bitlis, where it was formally identified by Mr Epözdemir’s brother, Şakir Epözdemir, who also informed the prosecutor that after his brother had failed to come home the previous evening the family had telephoned the local police at 9.30 p.m. because they feared that he might have been abducted. He added that his deceased brother had been a prominent figure in the town of Tatvan and that that had been the reason for the family’s suspicions that he might have been abducted.

13. On the same day Mr Epözdemir’s body was examined by two doctors, who noted that there was a bullet entry hole on the face and a corresponding exit hole on the back of the head. The doctors also noted the existence of widespread injuries on many parts of the face and the body which, according to the doctors, had been caused by physical trauma. The doctors, who established the cause of death as cerebrovascular haemorrhagic shock caused by the gunshot wound, did not consider it necessary to carry out a full autopsy.

14. On the same day the Tatvan prosecutor opened an investigation file into the killing and informed the Ministry of Justice.

15. On 27 November 1993 the Tatvan police headquarters sent a letter to the governor’s office in the town of Güroymak, in whose administrative jurisdiction the body had been found, and asked the governor whether the applicants’ relative had been in Güroymak on 25 November 1993 and whether they had any information about anyone in Güroymak who might have harboured hostile feelings towards Mr Epözdemir.

16. On 29 November 1993 the second applicant asked the Tatvan prosecutor whether there had been an outstanding arrest warrant in respect of his father. On the same day the prosecutor informed the second applicant that no such warrant had been issued.

17. On 6 December 1993 the Bitlis prosecutor decided that he did not have the requisite jurisdiction ratione materiae to investigate the case and forwarded the investigation file to the prosecutor’s office at the Diyarbakır State Security Court, which did have jurisdiction to investigate such offences.

18. On 21 December 1993 the prosecutor at the Diyarbakır State Security Court sent a letter to the Bitlis prosecutor and asked him to resume his investigation into the killing and to inform him every three months about developments.

19. On 5 June 2003 the applicants sent letters to the offices of the Van and Tatvan prosecutors and asked to be provided with information regarding the steps taken in the investigation over the course of the previous ten years.

20. On 26 June 2003 the Van prosecutor’s office decided that it had no jurisdiction ratione loci to investigate the incident and forwarded the applicants’ letter (mentioned in the preceding paragraph) to the office of the prosecutor in Tatvan. On 30 June 2003 the Tatvan prosecutor decided that his office did not have jurisdiction ratione loci either and sent the letter to the prosecutor’s office in Güroymak. On 24 July 2003 the Güroymak prosecutor took a decision of non-jurisdiction ratione materiae and sent the letter to the prosecutor’s office at the Van State Security Court.

21. On 14 August 2003 the prosecutor at the Van State Security Court replied to the applicants’ letter of 5 June 2003 and informed them that the investigation was still continuing. On the same day the prosecutor also issued a standing search order and asked the Güroymak prosecutor to continue to search for the perpetrators and to inform his office every three months about developments.

22. On 10 May 2010 the Güroymak prosecutor instructed the local gendarmerie to search for the perpetrators until 26 November 2013 (the date of the expiry of the time-limit prescribed by the statute of limitations). On 1 December 2010 and 24 March 2011 a number of gendarmes visited the place where the body had been found in 1993 and noted that there was no evidence there to help solve the killing.

C. The compensation proceedings

23. In the meantime, on 10 January 1995 the applicants brought compensation proceedings against the Ministry of the Interior. In their petition the applicants argued that the perpetrators of the killing had not been found, despite the fact that more than one year had elapsed since the incident. They submitted that their relative had been a well-liked person in Tatvan and that he had never had any problems with anyone. The applicants argued that States were responsible for protecting their citizens’ lives and that in the event that they failed to do so, they had a duty to find and punish the perpetrators of any resultant unlawful death; otherwise they themselves should be held responsible for such loss of life. The applicants also submitted that, because of the failure to find and punish the perpetrators of the killing of Şevket Epözdemir, they had suffered immeasurable pain and stress and the State had thus an obligation to compensate them for the damage that they had sustained. They argued that the State’s liability arose from its failure to protect the deceased’s life. In any event, even if no such failure could be said to have occurred, they further argued that the State nevertheless had an “absolute liability” to compensate them.

24. On 10 June 1996 the Bitlis police headquarters informed the Van Administrative Court, in response to an apparent query from the latter, that the applicants’ relative, Şevket Epözdemir, had never requested protection from the authorities.

25. On 16 December 1997 the Van Administrative Court decided to award compensation to the applicants, in accordance with Article 125 of the Constitution (see paragraphs 32-34 below). It held that when carrying out their duties the public authorities had an obligation to take the necessary measures and to show due diligence in doing so. In the present case the public authorities had failed to comply with that obligation.

26. The Ministry of the Interior appealed, arguing that it had not failed in that obligation because the reason for the killing and the identity of its perpetrators had not yet been established.

27. The applicants did not submit any observations in reply to those of the Ministry of the Interior.

28. In its decision of 6 November 2000 the Supreme Administrative Court quashed the decision of the Van Administrative Court because it considered that, given that the reason for the killing had not been established and the perpetrators had not been identified, no causal link could be said to exist between the damage caused by the killing and any actions on the part of the public authorities. It added that for the public authorities to be said to have failed in their obligation, it was necessary to establish that they had either not performed their duties at all, or had failed to perform them in a timely manner, or had performed them in an unsatisfactory fashion. The Supreme Administrative Court further held that the lack of the above-mentioned causal link also prevented the courts from awarding compensation to the family on the basis of the public authorities’ “absolute liability” because the sole fact that the deceased had been a “member of society” was not sufficient. For it to be able to award compensation on the basis of the “social risk doctrine” it was a precondition for the damage to have arisen in a setting within which public servants were carrying out their duties.

29. On 15 May 2001 the Van Administrative Court re-examined the case in the light of the Supreme Administrative Court’s decision and decided to reject the applicants’ claim for compensation. In reaching its conclusion, the administrative court noted that the investigation into the killing was still ongoing and, in any event, the deceased had never sought protection from the State. It thus held that the public authorities had not acted in breach of their duties. It further held that, as the conditions of the “social risk doctrine” had not been satisfied, it was not possible to award compensation to the family on the basis of the State’s “absolute liability”.

30. The applicants lodged an appeal with the Supreme Administrative Court against the decision and argued that a citizen need not officially seek protection from the authorities in order to trigger the State’s obligation to protect such a citizen’s life. To argue otherwise would be at odds with the Constitution and the international treaties to which Turkey was a party. The applicants also submitted that at the time of the killing, a state of emergency had been declared in their part of the country; this had created a climate that was conducive to the perpetration of such crimes. The fact that some eight years after the killing the perpetrators had still not been identified was an indication that the public authorities had failed in their duties. The applicants maintained that the authorities had failed to take the necessary steps to prevent the attack on their relative and to find the perpetrators. The Ministry was therefore responsible for the pecuniary and non-pecuniary damage arising from the failures on its part.

31. The appeal lodged by the applicants was rejected by the Supreme Administrative Court on 17 April 2003. A request made by the applicants for the Supreme Administrative Court’s decision to be rectified was also rejected, on 14 November 2005. The final decision was served on the applicants on 3 January 2006.

II. RELEVANT DOMESTIC LAW AND PRACTICE

32. Article 125 of the Constitution, in so far as relevant, provides as follows:

“All acts or decisions of the authorities are subject to judicial review ...

...

The authorities shall be liable to make reparation for all damage caused by their acts or measures.”

33. This provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may be held liable to compensate anyone who has sustained damage as a result of acts committed by unidentified persons.

34. Under the same provision the State could be held responsible for damage sustained on account of the “social risk doctrine”, which is a no fault-based principle and, as such, does not require that any failure be attributed to public officials. The “social risk doctrine” is a principle developed and employed by administrative courts according to which the burden of the damage caused in the fight against terrorism should be shared by society as a whole, in accordance with the principles of “justice” and “the social State”.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 2, 6 AND 13 OF THE CONVENTION

35. Relying on Articles 2, 6 and 13 of the Convention, the applicants complained that the national authorities should have been aware of the danger to the life of their relative, Şevket Epözdemir, a local provincial executive of a pro-Kurdish opposition political party, and should have protected him against an apparent risk of attack. They argued that in 1993, prior to Şevket Epözdemir’s death, many DEP members had already been attacked and killed; indeed, shortly before his death, Mr Epözdemir had been threatened at a meeting with military officers.

36. The applicants also alleged that the authorities had failed to carry out an effective investigation because the perpetrators had not been identified and the circumstances surrounding the killing of Şevket Epözdemir had not been clarified.

37. The Government contested those arguments.

38. The Court considers it appropriate to examine the applicants’ complaints solely from the standpoint of Article 2 of the Convention, the relevant parts of which read as follows:

“1. Everyone’s right to life shall be protected by law ...”

39. The Court notes that the applicants complain both about the national authorities’ alleged failure to meet their obligation to take steps to protect the right to life of Şevket Epözdemir and also about the same authorities’ alleged failure to comply with their procedural obligation to carry out an effective investigation into the killing. Having regard to the differences in the applicable principles as regards the admissibility and merits of these two complaints, the Court considers it appropriate to examine them separately.

A. Admissibility

1. The complaint concerning the alleged failure to protect the life of Şevket Epözdemir

40. The Government argued that the applicants had not brought to the attention of the national authorities their allegation that a high-ranking officer had been involved in the abduction of Şevket Epözdemir. They argued that the applicants had therefore failed to exhaust domestic remedies in respect of their complaints.

41. The applicants challenged the Government’s arguments, maintaining that the fact that (i) the first applicant had telephoned the prosecutor during the night on which her husband went missing (see paragraph 10 above) and (ii) the deceased’s brother, Şakir Epözdemir, had previously drawn the prosecutor’s attention to Şevket Epözdemir’s prominence in the town and had also informed the prosecutor about the family’s suspicion that he might have been abducted (see paragraph 12 above) demonstrated that they had had a well-founded fear that Şevket Epözdemir had been taken away or kidnapped by an officer.

42. The Court notes that it is the national authorities’ alleged failure to take steps to protect the right to life of the deceased that forms the substance of the applicants’ complaint. It also notes that the applicants initiated compensation proceedings before the Administrative Court. In theory, at least, at the end of those proceedings they could have obtained an assessment of whether or not the authorities had indeed acted negligently and they could have received compensation for the damage they had suffered. That remedy was therefore appropriate in the present case.

43. Having regard to the fact that when bringing the administrative proceedings the applicants raised the substance of their complaint under Article 2 of the Convention by arguing that the State had failed to protect their relative’s life (see paragraph 23 above), the Court does not consider that their failure to specifically mention in those proceedings their allegation that a high-ranking military officer had threatened their relative amounted to a failure to comply with the requirement to exhaust domestic remedies. The Court deems it more appropriate to deal with that failure when examining the merits of the applicants’ complaint (see paragraphs 69-70 below). It therefore dismisses the Government’s objection to the admissibility of this complaint.

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

2. The complaint concerning the effectiveness of the investigation into the killing of Şevket Epözdemir

45. The Government considered this complaint to be inadmissible and argued that the gendarmes and a public prosecutor had acted promptly and secured the evidence. A post-mortem examination of the body had been carried out by expert doctors and the office of the Governor had asked to be informed as to whether anyone had seen Mr Epözdemir in the town on the day he was killed. Thus, each national authority had fulfilled its obligation to carry out an effective investigation into the circumstances of the killing.

46. The applicants alleged that the authorities had failed to carry out an effective investigation because the perpetrators had not been identified and the circumstances surrounding the killing of Şevket Epözdemir had not been clarified. In this connection the applicants pointed to the investigation’s limited scope and short duration and also complained that there had been a number of shortcomings in the examination of the body of their relative and also that the authorities had failed to question persons who might have had information about the killing.

47. The Court reiterates that under Article 35 § 1 of the Convention it can only deal with applications after all domestic remedies have been exhausted and within a period of six months from the date on which the final domestic decision was taken. The Court further reiterates that it cannot set aside the application of the six-month rule solely because a government has not made a preliminary objection to that effect (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I; Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006‑III; Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 71, 10 January 2012; and Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012). It therefore finds it necessary to review the applicants’ compliance with the six-month rule in respect of this specific complaint.

48. The Court notes that the applicants’ complaint concerns the respondent State’s procedural obligation to carry out an effective investigation with a view to identifying and punishing the perpetrators of the killing of their relative. Therefore, although – as held above – the compensation proceedings brought by them could have served as a judicial fact-finding forum by means of which they could have established whether the national authorities had acted negligently and failed to protect the life of their relative and thus obtained compensation for the damage they had incurred, those compensation proceedings did not in fact involve the identification or punishment of the alleged perpetrators. As such, although it was a relevant remedy in respect of the respondent State’s alleged failure to comply with its obligation to take steps to protect the right to life of the applicants’ relative, it cannot be taken into account when assessing the respondent Government’s compliance with its procedural obligation under Article 2 of the Convention to carry out an effective investigation to identify and punish the perpetrators (see McKerr v. the United Kingdom, no. 28883/95, § 156, ECHR 2001‑III). The Court therefore finds that the administrative proceedings by which the applicants sought to obtain compensation do not affect the running of the six-month period (see Alkın v. Turkey, no. 75588/01, § 33, 13 October 2009; and Erkan v. Turkey (dec.), no. 41792/10, §§ 64-65, 28 January 2014).

49. The Court reiterates that the six-month time-limit provided for by Article 35 § 1 of the Convention has a number of aims. Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time. That rule marks out the temporal limit of the supervision exercised by the Court and signals, both to individuals and State authorities, the period beyond which such supervision is no longer possible. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant. Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level, otherwise the principle of subsidiarity would be breached. Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances. The Court has already held that, in cases concerning an investigation into the suspicious death of a relative, as in those concerning an investigation into ill-treatment, applicants are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation. It follows that the obligation of diligence incumbent on applicants contains two distinct but closely linked aspects: on the one hand, the applicants must contact the domestic authorities promptly concerning progress in the investigation – which implies the need to apply to them with diligence, since any delay risks compromising the effectiveness of the investigation – and, on the other, they must lodge their application promptly with the Court as soon as they become aware or should have become aware that the investigation is not effective (Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, §§ 258-260 and 263-264, ECHR 2014 (extracts) and the cases cited therein).

50. In the present case the Court observes that the investigation into the killing was started by the prosecutors of their own motion and without the applicants having made an official complaint (see paragraph 14 above). It also observes that, apart from examining the body and asking the governor whether the applicants’ relative had been seen in the town of Güroymak on the day he was killed, no investigative steps were taken in the investigation. Thus, the last step in the investigation was taken on 27 November 1993 (see paragraph 15 above) and not a single further step appears to have been taken in the investigation before the applicants sent a letter to the prosecutors some ten years after the killing in 2003 (see paragraph 19 above). On the other hand, during the same ten-year period the applicants do not appear to have taken any steps to acquaint themselves with the investigation’s progress.

51. After the applicants had sent their letter in 2003, the investigating authorities – other than establishing which prosecutor had jurisdiction to examine the killing (see paragraph 20 above) and issuing a standing search order (see paragraph 21 above) – did not take any investigative steps. Pursuant to the standing search order issued on 14 August 2003, a number of gendarmes in 2010 and 2011 visited the place where the body had been found in 1993 and notified the prosecutor in the form of “information notes” that they had been unable to find any evidence there (see paragraph 22 above). Presumably, the gendarmes continued visiting the place of the incident at three-monthly intervals until 26 November 2013, the date of the expiry of the time-limit prescribed by the statute of limitations (see paragraph 22 above).

52. The Court points out that such information notes are prepared by law-enforcement officials pursuant to standing search orders issued by prosecutors and that they are aimed at informing prosecutors about any developments in the search for the victim or the perpetrator of an offence. They are sent to the prosecutor at three-monthly intervals until the expiry of the time-limit prescribed by the statute of limitations under domestic law in respect of the offence in question. In a number of its judgments the Court has examined this particular method of investigation in Turkey, and has ruled that such visits to the place of the crime many years after the events could not be taken as constituting part of any meaningful investigation (see, inter alia, Taşçı and Duman v. Turkey (dec.), no. 40787/10, § 19, 9 October 2012 and the cases cited therein).

53. In the light of the foregoing, the Court considers that the absence of a meaningful investigation must have been apparent to the applicants long before they introduced their application with the Court in 2006. Nevertheless, it does not appear that the applicants exercised due diligence in determining that the criminal investigation had become dormant (see Alkın, cited above, § 34; and the cases cited therein).

54. In the light of the foregoing, the Court considers that the applicants have failed to comply with the six-month rule in respect of their complaint concerning the effectiveness of the investigation into the killing of their relative. That aspect of the case must therefore be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.

B. Merits

55. Referring to the Court’s judgments in the cases of Mahmut Kaya v. Turkey (no. 22535/93, ECHR 2000‑III); and Kılıç v. Turkey (no. 22492/93, § 68, ECHR 2000‑III), the applicants referred to incidents that had taken place in their home area in the period prior to their relative’s death (see paragraph 35 above) and argued that their relative had been at particular risk of falling victim to an unlawful attack in such a setting. That risk could therefore have been regarded as real and immediate and the authorities had been aware, or ought to have been aware, of the possibility that that risk derived from the activities of persons or groups acting with the knowledge or acquiescence of elements in the security forces. In that connection the applicants referred to a report prepared by a parliamentary investigation commission in 1993 and submitted to the office of the then Prime Minister which concluded that some State officials had been implicated in 908 unsolved killings in the south-eastern region of Turkey. In another report prepared in 1998, the office of the then Prime Minister had been informed that the authorities had been aware of killings carried out to eliminate political opponents during the period in question.

56. The applicants argued that it was not important to establish whether or not their relative had requested protection from the national authorities; even if he had not done so, the authorities should still have taken into consideration their relative’s prominent position within the DEP and taken all appropriate measures to protect him in the light of that fact. However, there was no evidence to show that they had taken any such measures.

57. The Government submitted that neither Şevket Epözdemir nor the applicants had informed the national authorities of the threats they claimed had been made against him. Accordingly, the authorities had not been alerted to the possibility of an immediate risk to the life of Mr Epözdemir and they had not, therefore, been under a positive obligation to act to protect him.

58. The Court recalls that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III). This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by a law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998‑VIII).

59. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life therefore can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman, cited above, § 116).

60. The Court has already had occasion to examine similar complaints in cases against Turkey brought by applicants in respect of relatives who had been abducted and killed in circumstances similar to those in which the applicants’ relative was abducted and killed. In one such case the Court noted, for example, that the brother of the applicant in question – as the chairman of the Elbistan branch of HADEP, a pro-Kurdish political party established after the DEP was dissolved by the Constitutional Court (see Dicle for the Democratic Party (DEP) of Turkey v. Turkey, no. 25141/94, 10 December 2002; see also, HADEP and Demir v. Turkey, no. 28003/03, 14 December 2010, regarding the dissolution of HADEP by the Constitutional Court) – had belonged to a category of person who ran a particular risk of falling victim to abduction and murder (see Koku v. Turkey, no. 27305/95, § 131, 31 May 2005). In the same judgment the Court pointed out that dozens of politicians working for HADEP and its predecessors had been kidnapped, injured and killed at around the time of the death of the brother of the applicant in question, and that some of those incidents had been examined by the Court (see, inter alia, Binbay v. Turkey (friendly settlement), no. 24922/94, 21 October 2004; Ekinci v. Turkey, no. 25625/94, 18 July 2000; Nuray Şen (no. 2) v. Turkey, no. 25354/94, 30 March 2004; Sincar v. Turkey (dec.), no. 70835/01, 10 October 2002; Sabuktekin v. Turkey, no. 27243/95, ECHR 2002‑II (extracts); and Macır v. Turkey, no. 28516/95, 22 April 2004).

61. In a number of its judgments in cases comparable to the present application, the Court also noted the high number of victims of the conflict in the south-eastern region of Turkey and recalled that there had been rumours alleging that “contra-guerrilla” elements had been involved in targeting persons suspected of supporting the PKK. In those judgments the Court considered it to be undisputed that there had been a significant number of such killings – the “unknown perpetrator killing” phenomenon[1] – which included those of prominent Kurdish figures such as Musa Anter, as well as other persons suspected of opposing the authorities’ policies in the south-east (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, § 81, ECHR 2000‑X and the case cited therein; see also, Mahmut Kaya § 89 and Kılıç, § 68, both cited above).

62. Furthermore, as pointed out by the applicants in the present case (see paragraph 8 above), the son of İshak Tepe (the chairman of DEP’s Bitlis provincial branch, who was also allegedly threatened by General K.T.), was also abducted and killed. The Court observes that the abduction and killing of Mr Tepe’s son and the role of General K.T. was examined by it in its judgment in the case of Tepe v. Turkey (no. 27244/95, §§ 12, 20, 80-82, 85, 132, 141, 164 and 179, 9 May 2003).

63. Moreover, the reports prepared by the Parliamentary Commission relied on by the applicants in support of their allegations (see paragraph 55 above) have also been examined by the Court in a number of its judgments. In those judgments the Court considered that, although the reports could not be relied on as establishing that any State official was implicated in any particular killing, they did provide further strong substantiation for allegations – made at around the time of Mr Epözdemir’s killing and since – that contra-guerrilla groups involving confessors[2] or terrorist groups had been targeting individuals perceived to be acting against the State’s interests, with the acquiescence – and possible assistance – of members of the security forces (see, inter alia, Akkoç, cited above, §§ 83-84).

64. The Court has examined the present applicants’ allegations in the light of the information set out in the preceding paragraphs. It considers that the applicants’ allegation – that their relative Şevket Epözdemir, as a prominent Kurdish politician and chairman of a local branch of a pro-Kurdish political party, was at that time at particular risk of falling victim to an unlawful attack – is not without basis (see, mutatis mutandis, Akkoç, cited above, § 81). Indeed, the Court notes that the applicants’ allegation that Mr Epözdemir’s life had been at real and immediate risk was not challenged by the Government, which limited its observations to arguing that at the time of the killing their authorities had not been aware of the risk to the life of the applicants’ relative (see paragraph 57 above).

65. As to whether the national authorities must be regarded as having been aware of that risk, the Court considers that the judgments cited by the applicants do not lend support to their allegation that the authorities had been aware of the risks to their relative’s life. The Court observes that in those cases there had been specific elements which led it to conclude that the authorities had been or ought to have been aware of the existence of a real and immediate risk to the lives of the relatives of the respective applicants.

66. For example, in its judgment in the case of Kılıç the Court observed that the applicant’s brother, Mr Kılıç, had petitioned the local governor, informed that governor of the threats directed at him and his fellow journalists, and requested protective measures. After the governor had failed to provide such measures, Mr Kılıç had issued a press release about those threats and stated that attacks against persons involved in the sale and distribution of the daily newspaper for which he worked were continuing, despite urgent requests for protective measures (see Kılıç, cited above, §§ 10-12 and 67).

67. In its judgment in the case of Mahmut Kaya the Court was satisfied that the authorities had to be regarded as having been aware of a risk to life because they had been informed by a witness that the said witness had been questioned by the police about the applicant’s brother – a doctor – having treated wounded members of the PKK. The witness stated that a threat had been made that the applicant’s brother would be punished (see Mahmut Kaya, cited above, §§ 10 and 90).

68. Similarly, in its judgment in the case of Akkoç the Court was satisfied that the authorities should be regarded as having been aware of a risk to the life of the applicant’s husband because the family had been receiving threatening telephone calls and had been harassed by the security forces. It also observed that, even though the authorities had been informed about those threats, they had ignored them. Moreover, the applicant’s husband had been detained by the police on several occasions prior to his death (see Akkoç, cited above, §§ 18 and 82).

69. By contrast, the Court notes that the applicants in the present case did not dispute the Government’s assertion that neither their relative nor they had informed the authorities at any stage that his life was at risk or asked for protection (see paragraphs 23 and 56 above). Moreover, the applicants did not mention their allegations when they brought proceedings to obtain compensation from the Ministry of the Interior on account of that Ministry’s alleged failure to protect the right to life of the deceased (see paragraph 23 above). Neither did the applicants challenge during the appeal proceedings the Ministry’s submission that it had not failed in its obligation to take the necessary measures to protect the deceased and to show due diligence in doing so (see paragraph 27 above).

70. The Court considers that the applicants’ failure to dispute that assertion and to mention their allegations during the proceedings conducted in Turkey amounts to an implicit acknowledgement on the part of the applicants that the national authorities had been unaware of the possibility that their relative’s right to life had been at risk from a high-ranking military official. In fact, the Court notes that the applicants only voiced for the first time their allegations implicating that military official in the application form that they submitted to the Court.

71. In a number of its judgments in cases concerning abductions of applicants’ relatives in similar circumstances in the same area of Turkey during the period in question, the Court observed that in the immediate aftermath of those abductions the applicants had informed the national authorities of a risk to life and asked those authorities to take steps to find their relatives. The Court considered in those cases that the disappearances of persons in life-threatening circumstances – even in the absence of any evidence of State involvement – had required the State, pursuant to the obligation stipulated in Article 2 of the Convention, to take operational measures to protect the right to life of the disappeared persons in question because following their abductions their lives had been at more real and immediate risk than those of other persons at that time. It stated that the action which had been expected from the domestic authorities was not to prevent the abductions – which had already taken place – but to take preventive operational measures to protect their lives, which were at risk from the criminal acts of other individuals (cf. Koku, cited above, § 132, and Osmanoğlu v. Turkey, no. 48804/99, § 75, 24 January 2008).

72. The Court observes that in the present case the applicants did not, in the immediate aftermath of the disappearance of their relative but before his body was found – or at any subsequent stage – inform the investigating authorities of their allegation that their relative had been threatened by a high-ranking military officer or ask those authorities to investigate those allegations with a view to finding their relative.

73. In the light of the foregoing, the Court cannot conclude that the authorities had been aware or ought to have been aware of the risk to the life of Şevket Epözdemir to the extent sufficient to trigger their positive obligation to take pre-emptive steps to protect his life. They cannot, therefore, be reproached for not having taken any steps to protect his life.

74. There has therefore been no violation of Article 2 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

75. Lastly, the applicants complained that, as a result of the ongoing uncertainty surrounding the killing of their relative because of the authorities’ failure to find the perpetrators of the killing, they suffered anguish and pain which amounted to ill-treatment within the meaning of Article 3 of the Convention.

76. Under Article 5 of the Convention the applicants complained that their relative had been deprived of his liberty unlawfully and subsequently killed.

77. Relying on Article 14 of the Convention, the applicants complained that their relative had been killed on account of his Kurdish origin and his political activities.

78. Having regard to the documents in its possession, the Court finds that this part of the application does not disclose any appearance of a violation of the Convention’s provisions. It follows that this part of the application is manifestly ill-founded and should be rejected, in accordance with Article 35 § 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT

1. Declares, unanimously, the complaint under Article 2 of the Convention concerning the alleged failure to protect the life of Şevket Epözdemir admissible and the remainder of the application inadmissible;

2. Holds, by five votes to two, that there has been no violation of Article 2 of the Convention;

Done in English, and notified in writing on 1 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithNebojša Vučinić
RegistrarActing President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate joint opinion of Judges Vučinić and Lemmens is annexed to this judgment.

N.V.U.
S.H.N.

JOINT PARTLY DISSENTING OPINION OF JUDGES VUČINIĆ AND LEMMENS

1. To our regret, we are unable to join the majority in finding that there has been no violation of Article 2.

2. According to the applicants, between August and December 1993, the buildings of the Democracy Party (DEP) were bombed, and ten of its members and administrators were killed (paragraph 8 of the judgment). The majority refer to a number of judgments in which the Court has noted the high number of victims at the time of the conflict in the south-eastern region of Turkey and the existence of rumours alleging that “contra-guerrilla” elements had been involved in targeting persons suspected of supporting the PKK. In those judgments the Court considered it to be undisputed that a significant number of such killings – the “unknown perpetrator killing” phenomenon – included those of prominent Kurdish figures as well as other persons suspected of opposing the authorities’ policies in south-eastern Turkey (paragraph 61 of the judgment, referring to Mahmut Kaya v. Turkey, no. 22535/93, § 89, ECHR 2000-III; Kılıç v. Turkey, no. 22492/93, § 68, ECHR 2000‑III; and Akkoç v. Turkey, nos. 22947/93 and 22948/93, § 81, ECHR 2000‑X). The majority refer in particular to the case of Ferhat Tepe, son of a colleague of Mr Şevket Epözdemir, who was abducted and killed some months before Mr Epözdemir was killed (paragraph 62 of the judgment, referring to Tepe v. Turkey, no. 27244/95, 9 May 2003).

The majority conclude that Mr Epözdemir, as a prominent Kurdish politician and chairman of the local branch of a pro-Kurdish political party, belonged to a category of persons who were at the time of the events “at particular risk of falling victim to an unlawful attack” (paragraph 64 of the judgment). We fully agree with this assessment of the facts.

3. The question then arises whether the State authorities were, in these specific circumstances, under an obligation to take measures to protect Mr Epözdemir. According to the majority, there was no such obligation, because the authorities had not been aware – nor should they have been aware – of the risk to the life of Mr Epözdemir “to [an] extent sufficient to trigger their positive obligation to take pre-emptive steps to protect his life” (paragraph 73 of the judgment).

It is on this point that we respectfully disagree.

We do not see why the authorities should have waited until Mr Epözdemir (or one of his relatives) came to them and explained to them what must have been obvious at that time, namely that he was “at particular risk”. We consider that it was the authorities’ duty to assess the general situation, characterised by a climate of terror against Kurdish leaders, and to draw the appropriate conclusions with respect to the persons belonging to the targeted group. In a situation like the one prevailing at the time, the authorities could not hide behind the simple excuse that they had not been approached and specifically informed about the risk to the life of a man like Mr Epözdemir (see paragraph 69 of the judgment). In our opinion there was enough information available to the authorities, and they could have been expected to take protective measures of their own motion.

We would also like to observe that the majority adopt a rather abstract view as to the duty to inform the public authorities, without having regard to the concrete situation. Mr Epözdemir was at risk of being killed by sympathisers of the Turkish regime. To require him to ask for protection from the Turkish authorities amounts to requiring him to enter a hostile environment to beg for help.

4. The majority seem to expect Mr Epözdemir or his relatives to have informed the authorities specifically about the threats made by General K.T. (paragraph 70 of the judgment).

We do not think that the mere fact that the authorities might have been unaware of the precise words used by the General is decisive. It was not the specific threat by the General that made it clear that there was a real risk to Mr Epözdemir’s life (compare, with respect to the relevance of the threats made by the General to the children of local Kurdish party leaders, in Tepe, cited above, § 12). The real risk resulted rather from the general climate of targeted killings of Kurdish party leaders. Even if there had been no threat at all from this one General, there had been good reason for the authorities to act.

5. The majority refer to some cases in which, after the abduction of a person, the relatives contacted the authorities and asked them to take measures to protect the life of the kidnapped person (paragraph 71 of the judgment, referring to Koku v. Turkey, no. 27305/95, § 132, 31 May 2005, and Osmanoğlu v. Turkey, no. 48804/99, § 75, 24 January 2008).

We consider these precedents to concern totally different situations. In Koku and Osmanoğlu witnesses had seen how the victims were abducted. For some time there was no information about their whereabouts. The request to the authorities for protective measures concerned the period when the kidnapped persons were supposedly in the hands of their kidnappers.

The present case, by contrast, concerns a plain murder, with the body being found and identified already the next day. The complaint raises the issue of the protective measures that should have been taken before the killing took place.

6. We would like to make two additional comments.

First, we consider that in a situation such as that which prevailed at the time in south-eastern Turkey, an unreserved and visible protection of the targeted persons would have sent the message to the “unknown perpetrators” that their criminal acts could not be tolerated. We are afraid that the absence of protective measures could by contrast have been understood as a message to the perpetrators that they could continue their activities with virtual impunity.

Second, we are aware of the fact that the obligation to take preventive operational measures to protect an individual whose life is at risk “must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities” (see, among others, Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998‑VIII). In the present case, however, where the Government have not indicated that any measures were taken or that any such measures were even considered by the authorities, the question of the burden on the latter does not arise.

7. To conclude, we consider that in the circumstances existing in south‑eastern Turkey at the time, the authorities were under an obligation to take reasonable steps to protect people like Mr Epözdemir. Since the Government do not mention any such measures adopted by the authorities, aimed at the protection either of local Kurdish leaders in general or of Mr Epözdemir in particular, we consider that the authorities failed in their duty to protect the life of Mr Epözdemir.

We therefore conclude that there has been a violation of Article 2.

[1]1. The term “unknown-perpetrator killings” is used to define the execution-style killings of thousands of persons in Turkey in the 1990s by persons who have remained unidentified and who have thus gone unpunished.

[2]2. Confessors are persons who cooperate with the authorities after confessing to having been involved with the PKK.

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