Communicated on 5 September 2014
SECOND SECTION
Application no. 12938/07
Yaşar CERF against Turkey
lodged on 15 March 2007
STATEMENT OF FACTS
1. The applicant, Ms Yaşar Cerf, is a Turkish national, who was born in 1946 and lives in Adana. She is represented before the Court by Mr Mark Muller, Mr Tim Otty, and Mr KerimYıldız, lawyers at the Kurdish Human Rights Project in London.
The circumstances of the case
2. The facts of the case, as submitted by the applicant and as they appear from the documents submitted by her, may be summarised as follows.
3. The applicant’s husband, Mr Sefer Cerf, was the district leader and administrative board member of the People’s Democracy Party (Halkın Demokrasi Partisi, hereinafter referred to as “HADEP”), a political party which was dissolved by the Constitutional Court in 2003 (see HADEP and Demir v. Turkey, no. 28003/03, 14 December 2010), in the town of Yüreğir, within the administrative jurisdiction of the province of Adana. He and his family were often harassed, intimidated and threatened by plainclothes police officers on account of his political activities. On 1 October 1994 a man had fired a shot at the applicant’s then 11-year-old son outside their house, narrowly missing him.
4. At around 8 a.m. on 3 October 1994, the applicant’s husband left home to go to a café in the town centre. According to a number of eyewitnesses, Sefer arrived at the café and sat outside on the terrace next to his friend, Rebih Çabuk, who was also an administrative board member of HADEP.
5. The witnesses then heard six rounds of gunshots and immediately afterwards saw two men with pistols in their hands running away from the café. The applicant’s husband Sefer and his friend Rebih were shot and Sefer died at the scene. Rebih was injured and was being taken to a hospital by a friend, Mr Ahmet Dizman. However, he died before they reached the hospital. A third person, Mr Salih Satan, was also hit by a ricocheting bullet and wounded on his foot.
6. Police officers who arrived at the café questioned the eyewitnesses and collected six spent bullet cases and two deformed bullets from the scene.
7. Mr Sait Macir, also a board member of HADEP, was inside the café at the time and went outside to help the two victims. He told the authorities that he had seen the two assailants running away from the scene. Some three months after the incident, Mr Macir was also shot and killed outside the same café (see Macir v. Turkey (friendly settlement), no. 28516/95, 22 April 2003). After his death, Mr Macir’s wife was taken to a police station where she was threatened and questioned about her husband’s connections to the applicant’s husband and to Mr Rebih Çabuk.
8. A couple of days after the incident, Ahmet Dizman, who had tried to take Rebih Çabuk to hospital (see paragraph 5 above), was detained by the police. The police officers beat him up and told him that that they had seen him at the funeral of Sefer Cerf and Rehib Çabuk the day before. They threatened him and told him that if he continued to be involved in such activities, his end would be like those of the dead HADEP members. As a result of that ill-treatment Mr Dizman’s jaw was broken (see Dizman v. Turkey, no. 27309/95, §§ 12 and 15, 20 September 2005).
9. Threats against the applicant also continued after the killing of her husband. Plainclothes police officers continuously observed their family home, questioned their visitors and, on a number of occasions, threw notes into the garden with messages such as “like your father, your end has come”, addressed to the applicant’s daughter.
10. On 20 October the Adana prosecutor’s office issued a search warrant in relation to the killing of Sefer Cerf and Rebih Çabuk, requesting that the perpetrators be sought as long as prosecution was not time-barred, and that information be given to his office on a regular basis every three months.
11. In the subsequent years a number of persons were arrested and detained in relation to a large number of assassinations perpetrated in south-east Turkey at the relevant time. In 2000 a Mr Mahmut Demir was arrested for his alleged links to Hizbullah, which was involved in the assassination of individuals with pro-Kurdish sympathies in south-east Turkey in the early 1990s. In April 1995 a Commission set up within the Turkish Parliament to investigate unsolved killings concluded that security forces had assisted in running a Hizbullah training camp.
12. Mr Demir admitted membership of Hizbullah, and told the authorities that he had taken part in the killing of the applicant’s husband and his friend Rebih Çabuk. He gave a detailed account of the assassination and described the role played by his two co-assassins. Subsequently, one of those co-assassins, a Mr Aydın Akgün, was also arrested and confessed to the killings. Mr Akgün described the role played by the third person involved in the killing, a Mr Kemal Gülşen, who had been their leader and given them the orders.
13. Subsequently, a large number of decisions were taken by the judicial authorities in order to establish which judicial authority had jurisdiction to prosecute the suspects.
14. On 10 February 2005 the applicant submitted a petition to the Adana prosecutor’s office and requested information and copies of the documents from the investigation file. The prosecutor replied and informed the applicant in his letter that the investigation in question not only concerned the killing of her husband and Rebih Çabuk, but the killings of seven other persons in 1994 and 1995. The prosecutor informed the applicant in his letter of 11 February 2005 that on account of the confidential nature of the investigation, he could not give her a copy of the entire investigation file. The prosecutor did, however, give the applicant copies of certain documents from the file, and informed her that five persons had been identified as possible suspects in the killing of her husband and that criminal proceedings had been initiated against one of those persons before the Diyarbakır State Security Court. When the applicant insisted in obtaining copies of all the investigation documents so that she could make an application to the European Court of Human Rights, the prosecutor told her that he could not give her those documents because they would be used against Turkey.
15. On 5 March 2007 the applicant submitted a detailed petition to the office of the Diyarbakır State Security Court’s prosecutor, and informed that prosecutor about the steps taken by her in having her husband’s killing investigated. She also shared with the prosecutor the evidence in her possession and informed him of her allegations. She asked the prosecutor to reply to a number of questions set out by her in her petition concerning the investigation. In reply, the prosecutor informed the applicant about the steps taken in the criminal proceedings against the suspects Kemal Gülşen and Aydın Akgün (see paragraph 12 above).
16. On 30 December 2009 the Diyarbakır Assize Court, who had taken over the trial from the State Security Court, handed down its 1153-page judgment. It appears from this judgment that separate criminal proceedings instigated against 31 defendants for the killing of a total of 181 persons, including the applicant’s husband and his friend Rebih Çabuk, had been joined in this case. The 31 defendants included Kemal Gülşen and Mahmut Demir, but not Aydın Akgün (see paragraph 12 above).
17. The Diyarbakır Assize Court observed that the defendant Aydın Akgün had confessed to the killing of the applicant’s husband and had also been put on trial for that offence. It concluded that through their activities Kemal Gülşen and Mahmut Demir had committed the offence of undermining the constitutional order of Turkey, and sentenced them to life imprisonment.
18. It also appears from this judgment that a separate trial had been conducted by the Diyarbakır Assize Court which had found it established in 2008 that a Mr Mehmet Ali Oğuzhan had also been found guilty for the incident during which the applicant’s husband had been killed.
19. On 10 September 2012 the applicant asked the Diyarbakır Assize Court for information about the whereabouts of Kemal Gülşen, Mahmut Demir and Aydın Akgün. However, she has not been provided with any information in response.
20. According to the news reports obtained by the applicant, Kemal Gülşen and Mahmut Demir were released from prison on 4 January 2011, and on 26 January 2011 the Court of Appeal upheld their convictions. Following their release they left Turkey and fled to Syria.
COMPLAINTS
The applicant complains under Article 2 of the Convention that the respondent State’s security forces caused or colluded in her husband’s death and that the national authorities failed to conduct an effective investigation into his killing.
Under Article 13 of the Convention the applicant complains that the investigation was systematically and persistently flawed and politically compromised. As a result, enforcement of the available domestic remedies was rendered ineffective.
Relying on Article 14 of the Convention the applicant alleges that her husband was killed on account of his Kurdish origin and his political activities. In support of this complaint the applicant refers to the killing of her husband’s friend Sait Macir and the ill-treatment of Ahmet Dizman referred to above (see paragraphs 7 and 8), both of whom had also been HADEP members.
Finally, under the same provision she also alleges that the prosecutor did not carry out an effective investigation because her husband was Kurdish.
QUESTIONS TO THE PARTIES
Has the applicant’s husband right to life, ensured by Article 2 of the Convention, been violated in the present case?
Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention? In this connection, have the national authorities carried out an effective investigation and conducted an adequate trial in order to identify and punish the perpetrators ‐including those who confessed to the killing of the applicant’s husband‐ for the killing of the applicant’s husband?
Furthermore, having regard to the prosecutor’s refusal to hand over to the applicant a copy of the investigation file, has the applicant been able to effectively participate in the investigation?
Your Government are requested to submit to the court a copy of the documents concerning the investigation and trial of Mr Mehmet Ali Oğuzhan and Mr Aydın Akgün for the killing of the applicant’s husband.
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