SECOND SECTION
DECISION
Applications nos. 7253/04, 7260/04, 7266/04, 7268/04, 7270/04, 7272/04, 14873/04, 15047/04, 15071/04, 15093/04 and 15113/04
by Güli HACIOĞLU and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 4 January 2007 as a Chamber composed of:
MrJ.-P. Costa, President,
MrA.B. Baka,
MrR. Türmen,
MrM. Ugrekhelidze,
MrsA. Mularoni,
MrsE. Fura-Sandström,
MrD. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above applications lodged on 31 December 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case;
Having deliberated, decides as follows:
THE FACTS
The applicants, whose names appear in the appendix, are Turkish nationals and live in Diyarbakır. They are represented before the Court by Mr T. Elçi and Mr A. Erkmen, lawyers practising in Diyarbakır. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings in this case before the Court
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 14 August 1993 between 7 a.m. and 9 a.m., inhabitants of the villages of the Digor and Kağızman districts of Kars went to Digor to take part in a demonstration. The march in question was allegedly organised by the PKK (the Kurdistan Workers’ Party), which had forced the villagers to participate in the demonstration.
When the crowd arrived at Digor, it was stopped by the police and military forces. The crowd was then surrounded by officers from the Special Operations Department of the Kars Security Directorate (Kars İli Emniyet Müdürlüğü Özel Harekat Şube Müdürlüğü). Members of the special teams were also positioned on the hills around the road where the crowd had gathered.
According to the Government, there were three groups of people who wanted to enter Digor city centre. The first two groups, consisting of approximately of 1000 and 100 people, returned home following warnings by the security forces that the demonstration was illegal. However, the third group continued their march. There were members of the PKK in this group who opened fire with long-range weapons on the security forces. The clashes between the security forces and members of the PKK caused the killing and injury of a number of people.
In the applicants’ opinion, the special teams located on the hills abruptly opened fire on the demonstrators. As a result, 17 people died and 63 were seriously wounded.
Amongst the dead were Tuncer Hacıoğlu, the son of Güli Hacıoğlu and brother of İsmail Hacıoğlu (no. 7253/04); Cemil Özvariş, the husband of Zenure Özvariş and father of Çiğdem, Adem, Selçuk, Güleser and Çimen Özvariş (no. 7260/04); Zarife Boylu, the daughter of Latif Boylu (no. 7266/04); Suna Çidamal, the daughter of Serfirat Çidamal (no. 7268/04); Faruk Aydın, the husband of Dilber Aydın, father of Delal Aydın and brother of Halit, Meliha, Rahile, Cemile and Murat Aydın (nos. 7272/04 and 15093/04); Fatma Parlak, the daughter of Abdurrahman Parlak (no. 14873/04); and Süleyman Taş, the husband of Hazal Taş (no. 15071/04).
Amongst the wounded were Mehmet Kaya, Herdem Serbest (Bezar), Hasan Özbuğanlı and Abdurrahman Aras (no. 7270/04); Türkan Parlak and Fatma Canpolat (Parlak) (no. 15047/04); and Zahir Serbest and Cafer Özbuğanlı (no. 15113/04).
According to the scene of incident report (olay yeri tespit ve zaptetme tutanağı) drawn up by three police and two army officers, the demonstrators had been ordered to stop by means of a loudspeaker announcement. Members of the PKK, who were among the demonstrators, then opened fire on the security forces, giving rise to a clash between the security forces and the PKK. The clashes resulted in the death of 8 people and the wounding of 20 to 25 others. The security forces found a light anti-tank weapon, 2 Kalashnikov-type weapons, a cartridge from a rocket propelled grenade, 3 unexploded hand grenades, 73 spent cartridges, 16 unspent cartridges and 2 cartridge clips. The report on the incidents (olay tutanağı) prepared by the security forces confirmed the contents of the scene of incident report.
On 14 August 1993 and 7 September 1993, the public prosecutor obtained statements from Zahir Serbest, Türkan Parlak, Fatma Canpolat (Parlak), Cafer Özbuğanlı, Mehmet Kaya and Abdurrahman Çidamal. These persons claimed that they had been forced to participate in the demonstration by PKK members. Türkan Parlak and Fatma Canpolat (Parlak) contended that they had been shot by some of the demonstrators and that they would not be lodging official complaints. Other applicants maintained that they were wounded by snipers or by members of the special operations department, and lodged complaints against the security forces.
On 14 August, 9 September and 14 December 1993, autopsies were carried out on the deceased, except for Cemil Özvariş. On various dates the injured applicants, except for Fatma Canpolat (Parlak), underwent medical examinations.
On 23 August 1993 Selim Sadak, Ali Yiğit, Mahmut Alınak and Sırrı Sakık, members of the Turkish National Assembly and of the Democracy Party (DEP) at the material time, visited Digor. They subsequently filed a petition with the Digor public prosecutor’s office and requested the latter to open an investigation into the incidents.
On an unspecified date, the Digor public prosecutor initiated an investigation. On 9 November 1993 he obtained statements from police officers who denied the allegations made against them. They maintained that there had been gunfire coming from the demonstrators. In order to disperse them, they had had to fire into the air. The police officers denied having opened fire on the demonstrators.
On 23 November 1993 the Digor public prosecutor issued a decision of non-jurisdiction. In his decision, the public prosecutor identified some of the inhabitants of the villages, including two of the applicants, as the defendants and charged them with manslaughter, attempted manslaughter and aiding and abetting an illegal organisation. He then referred the case file to the public prosecutor’s office at the Erzincan State Security Court.
In 1994 the Kars public prosecutor started a new investigation into the incidents. On 22 April 1996 the public prosecutor filed a bill of indictment with the Kars Assize Court (ağır ceza mahkemesi) against 8 police officers from the Special Operations Department of the Kars Security Directorate on duty at the time of the demonstration. The charges were brought under Articles 31, 33, 62, 448, 450 § 5 and 463 of the Turkish Criminal Code. The defendants were charged with attempted manslaughter and manslaughter.
Between 22 April 1996 and 30 September 2003? the Kars Assize Court held 42 hearings. In the course of the proceedings, the first-instance court ordered that the statements of Hasan Özbuğanlı, Mehmet Kaya, Cafer Özbuğanlı, Türkan Parlak, Fatma Canpolat (Parlak) and the accused police officers be taken.
On several dates in 1996 the accused police officers made statements before various criminal courts. They all denied the allegations made against them.
On 7 March 1996 the Erzincan State Security Court issued a decision of non-jurisdiction and transferred the case file to the Digor Criminal Court of First Instance.
On 23 May 1996 Türkan Parlak and Fatma Canpolat (Parlak) made statements before the Kağızman Criminal Court of First Instance and reiterated their statements of 14 August 1993.
On 1 October 1998 Mehmet Kaya reiterated his statement of 14 August 1998 before the Digor Criminal Court of First Instance.
On 25 May 2000 the Kars Assize Court heard Hasan Özbuğanlı. The latter stated that he had not seen the persons who had shot at him and that he was unwilling to lodge a complaint.
On an unspecified date, the Digor Criminal Court of First Instance suspended the delivery of a final judgment in the criminal proceedings against the 8 police officers in accordance with Law no. 4616 dated 22 December 2000. This law provides for the conditional release of convicts and the suspension of proceedings, as well as the delivery of final judgments, in respect of certain offences committed before 23 April 1999.
COMPLAINTS
The applicants originally complained under Article 2 of the Convention that Tuncer Hacıoğlu, Cemil Özvariş, Zarife Boylu, Faruk Aydın, Süleyman Taş and Fatma Parlak had been unlawfully killed by members of the Kars Special Operations Department. They maintained that Mehmet Kaya, Herdem Serbest (Bezar), Hasan Özbuğanlı, Abdurrahman Aras, Türkan Parlak, Fatma Canpolat (Parlak), Zahir Serbest and Cafer Özbuğanlı had been wounded as a result of the disproportionate use of gun fire by the security forces. They further claimed that no effective investigation had been conducted into the circumstances of their relatives’ death or injury.
The applicants complained under Article 3 of the Convention that Mehmet Kaya, Herdem Serbest (Bezar), Hasan Özbuğanlı, Abdurrahman Aras, Türkan Parlak, Fatma Canpolat (Parlak), Zahir Serbest and Cafer Özbuğanlı had been shot and wounded by the security forces and that they had been denied medical treatment following the incident.
The applicants submitted under Article 13 of the Convention that the authorities had failed to carry out a prompt and effective investigation into the events in question.
THE LAW
Following informal contacts between the applicants’ and the Government’s representatives, the Section Registrar was asked to assist the parties in reaching a solution to the matter.
As a result, the Court received the following declaration from the Government:
“1. The Government regret the occurrence of individual cases of death and injuries resulting from the use of excessive force notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions.
2. It is accepted that the use of excessive or disproportionate force resulting in death or fatal injury constitutes a violation of Article 2 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the right to life – including the obligation to carry out effective investigations – is respected. It is noted in this connection that new legal and administrative measures have been adopted which have resulted in a reduction in the occurrence of deaths and injuries in circumstances similar to those of the present applications as well as more effective investigations.
3. I declare that the Government of the Republic of Turkey offer to pay ex gratia to the applicants the following sums:
EUR 35,000Güli Hacıoğlu and İsmail Hacıoğlu (application no. 7253/04);
EUR 35,000Adem Özvariş, Güleser Özvariş, Çimen Özvariş, Zenure Özvariş, Selçuk Özvariş, Çiğdem Özvariş (application no. 7260/04);
EUR 35,000Latif Boylu (application no. 7266/04);
EUR 35,000Serfirat Çidamal (application no. 7268/04);
EUR 35,000Dilber Aydın, Halit Aydın, Delal Aydın, Rahile Taşdelen Meliha Taşdelen, Cemile Aydın and Murat Aydın (applications nos. 7272/04 and 15093/04);
EUR 35,000Abdurrahman Parlak (application no. 14873/04);
EUR 35,000Hazal Taş (application no. 15071/04);
EUR 10,000Mehmet Kaya,
EUR 10,000Herdem Bezar,
EUR 10,000Hasan Özbuğanlı,
EUR 10,000Abdurrahman Aras (application no. 7270/04);
EUR 10,000Fatma Canpolat
EUR 10,000Türkan Parlak (application no. 15047/04);
EUR 10,000Cafer Özbuğanlı;
EUR 10,000Zahir Serbest (application no. 15113/04).
4. The above sums, which also cover legal expenses connected with the cases, shall be converted into New Turkish Liras on the date of payment and paid to a bank account named by the applicants. These sums shall be payable, free of any taxes that may be applicable, within three months from the date of notification of the decisions taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. This payment will constitute the final settlement of the cases.”
The Court received the following declaration signed by the applicants’ representative:
“1. In my capacity as the representative of the applicants, Güli Hacıoğlu and İsmail Hacıoğlu (application no. 7253/04), Adem Özvariş, Güleser Özvariş, Çimen Özvariş, Zenure Özvariş, Selçuk Özvariş, Çiğdem Özvariş (application no. 7260/04), Latif Boylu (application no. 7266/04), Serfirat Çidamal (application no. 7268/04), Dilber Aydın, Halit Aydın, Delal Aydın, Rahile Taşdelen (Aydın), Meliha Taşdelen, Cemile Aydın and Murat Aydın (applications nos. 7272/04 and 15093/04), Dilber Aydın, Halit Aydın, Delal Aydın, Rahile Taşdelen, Meliha Taşdelen, Cemile Aydın and Murat Aydın (applications nos. 7272/04 and 15093/04), Abdurrahman Parlak (application no. 14873/04), Hazal Taş (application no. 15071/04), Mehmet Kaya, Herdem Bezar, Hasan Özbuğanlı, Abdurrahman Aras (application no. 7270/04), Fatma Canpolat, Türkan Parlak (application no. 15047/04), Cafer Özbuğanlı, Zahir Serbest (application no. 15113/04), I have taken cognisance of the declaration of the Government of the Republic of Turkey that they are prepared to make to the applicants an ex gratia all-inclusive payment of a total amount of EUR 325,000 (three hundred and twenty-five thousand euros) with a view to concluding a friendly settlement of their cases that originated in applications nos. 7253/04, 7260/04, 7266/04, 7268/04, 7270/04, 7272/04, 14873/04, 15047/04, 15071/04, 15093/04, 15113/04. This sum, which also covers the costs and expenses related to the cases, will be paid in accordance with the terms stipulated in the said declaration within three months from the date of notification of the decisions taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights.
2. Having duly consulted the applicants, I accept that offer and they, in consequence, waive all other claims against the Republic of Turkey in respect of the matters that were at the origin of the application. We declare that this constitutes a final resolution of the cases.
3. This declaration is made within the scope of the friendly settlement which the Government and I, in agreement with the applicants, have reached.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
Decides to join the applications;
Decides to strike the applications out of its list of cases.
S. DolléJ.-P. costa
RegistrarPresident
Appendix
List of Applicants
1. 7253/04Güli Hacıoğlu and İsmail Hacıoğlu
2. 7260/04 Adem Özvariş, Güleser Özvariş, Çimen Özvariş, Zenure Özvariş, Selçuk Özvariş, Çiğdem Özvariş
3. 7266/04 Latif Boylu
4. 7268/04 Serfirat Çidamal
5. 7270/04 Mehmet Kaya, Herdem Bezar, Hasan Özbuğanlı, Abdurrahman Aras
6. 7272/04 Dilber Aydın, Halit Aydın, Delal Aydın, Rahile Taşdelen, Meliha Taşdelen
7. 14873/04 Abdurrahman Parlak
8. 15047/04Türkan Parlak, Fatma Canpolat
9. 15071/04 Hazal Taş
10. 15093/04 Cemile Aydın and Murat Aydın
11. 15113/04Zahir Serbest and Cafer Özbuğanlı
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