Information Note on the Court’s case-law No. 77
July-August 2005
Fatma Kaçar v. Turkey - 35838/97
Judgment 15.7.2005 [Section I]
Article 2
Article 2-1
Life
Killing of the applicant's husband by persons that were identified, and effectiveness of the investigation: no violation, violation
Facts: In 1994 the applicant’s husband was shot and killed in the street as he left his home. An investigation was launched: evidence was gathered at the scene, a statement taken from a witness and a post-mortem carried out which revealed that the victim had died after receiving several gunshot wounds to the back.
In December 1998 the police arrested a suspect, I.H., in connection with an operation mounted against an illegal terrorist organisation. He admitted carrying out the killing with a person known as U., on the organisation’s orders. The criminal proceedings instituted against I.H. were pending before the assize court when the Court delivered its judgment. The applicant applied to join the proceedings as a third party. In June 2001 the police arrested H.G., who said in a statement that he and an accomplice, M.E.G., had received orders from the organisation through an intermediary known as S. to kill the applicant’s husband. The criminal proceedings against H.G. were pending before the assize court when the Court delivered its judgment. In October 2002 the State Security Court sentenced M.E.G. to life imprisonment for, among other offences, his involvement in the murder. It found that the killing had been carried out by H.G. on the orders of S., while M.E.G. had supervised and covered the operation.
Law: Article 2 – The circumstances in which the applicant’s husband died: The applicant alleged that her husband had been the victim of an extrajudicial execution. However, any conclusion that her husband had been killed by State agents or with their complicity was based more on conjecture and speculation than on reliable evidence. It had not been established beyond reasonable doubt that Turkey’s responsibility was engaged in the murder.
Conclusion: no substantive violation (unanimously).
Alleged inadequacy of the investigation: Although the investigation had been started immediately after the death, the Turkish authorities had failed to conduct it diligently. There had been periods of unexplained inactivity in the first phase of the investigation; the public prosecutor’s office had taken only one witness statement; neither the deceased’s family nor their representative had been kept informed of progress in the investigation; the public prosecutor’s office itself had had difficulties in verifying what point the police had reached in their preliminary inquiries; the ballistics report had failed to establish what type of weapon had been used. Although the authorities had launched a criminal investigation into the suspected perpetrators, not all the suspects had been traced. The other suspect in the murder, committed in 1994, whose name had been revealed by his accomplices, had still not been found by 2005. The criminal proceedings instituted against the persons arrested in 1998 and 2001 had still been pending at first instance several years later in 2005, without any explanation from the Government.
Consequently, the investigation by the authorities into the circumstances surrounding the death could not be considered to have been effective.
Conclusion: procedural violation (six votes to one).
Article 13 – Although the authorities had been under an obligation to carry out an effective investigation into the circumstances of the death, the investigations started several years previously into the involvement of various suspects had yet to be concluded. Consequently, the State could not be considered to have conducted an effective criminal investigation.
Conclusion: violation (six votes to one).
Article 41 – The Court awarded the applicant and her three children 10,000 euros in respect of non-pecuniary damage. It also made an award for costs and expenses.
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This summary by the Registry does not bind the Court.
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