Nihayet Arıcı and Others v. Turkey

Information Note on the Court’s case-law No. 156

October 2012

Nihayet Arıcı and Others v. Turkey - 24604/04 and 16855/05

Judgment 23.10.2012 [Section II]

Article 2

Article 2-1

Life

Effective investigation

Murder of two villagers by soldiers, followed by a preliminary investigation started over thirteen years ago and still pending: violations

Article 46

Article 46-2

Execution of judgment

Individual measures

Respondent State required to conclude without delay thirteen-year preliminary investigation into villagers’ deaths at the hands of the military and to take the delays into account when assessing compensation

Facts – The applicants are respectively the wife and children of the late Mehmet Arıcı and the parents of the late Muhsin Güngör. In September 1999 the two men’s bodies were found buried under a rock behind a village close to the Iraqi border which was under military control at the time. The administrative and criminal proceedings failed to produce results. The investigation is ongoing.

Law – Article 2

(a) Substantive aspect: It was clear from the public prosecutor’s decision of November 1999 declining jurisdiction ratione materiae that military units had been stationed near the village and had subjected the applicants’ relatives to checks. The accounts given to the national authorities by the various witnesses had been consistent and the statements made by the members of the armed forces confirmed that an operation had been conducted in the vicinity of the village. Lastly, a report had been drawn up on the search of Mehmet Arıcı’s home by military personnel. The witness statements had also been corroborated by the autopsy report and the evidence gathered, such as the spent cartridges which were found in the area where the bodies had been discovered and which matched the type of ammunition used in armed forces personnel weapons. Neither the applicants’ relatives nor the other persons arrested by the soldiers had been armed, nor had they been dressed in a way that would suggest that they were members of an illegal armed organisation. According to the autopsy report, they had been killed by bullets to the head and the thorax. Lastly, the additional criminal investigation had established that the armed forces had been stationed in the village itself at the time of the events. The national authorities had not furnished any explanation as to what had happened after the applicants’ relatives had been arrested, nor had they given any reasons capable of justifying the use of lethal force by their agents. Consequently, the applicants’ relatives had been killed by members of the armed forces in the circumstances described in the decision of November 1999.

Conclusion: violation (unanimously).

(b) Procedural aspect: The criminal investigation was still pending, with no timetable set for its completion. In all, two criminal investigations and one administrative investigation had been conducted, none of which had succeeded in establishing the circumstances of the men’s deaths or identifying those responsible. The villagers had informed the public prosecutor that seven bodies had been discovered, including that of Mehmet Arıcı. However, the prosecutor had not taken the trouble, for security reasons, to go to the scene in order to record in detail the evidence found there, but had instead requested the muhtar to bring back the bodies himself for the purposes of the autopsy. Furthermore, although the villagers had found spent cartridges and a live round of ammunition at the scene of the incident, the prosecutor had not ordered any ballistics tests. Despite instituting a criminal investigation into the persons allegedly responsible, the prosecutor had not taken possession of the search report drawn up by the soldiers who searched the house of Mehmet Arıcı, which had been signed by the dead man’s daughter, and had not questioned the latter. He had taken evidence from a number of soldiers without managing to establish which of them had taken part in the operation at issue. The prosecutor had also been sent a list of soldiers by the military authorities but had drawn no conclusions from it with regard to the men’s deaths. In his statement, the muhtar said that he had gone with a professional soldier to the headquarters of the commando units located in the area, where he had been informed that an operation had been conducted in the village and that five people, including Mehmet Arıcı, had been arrested and handed over to the gendarmes. However, neither the soldier in question nor the commanding officer of the commando unit had been questioned by the public prosecutor. In the case file sent by the Government, some statements from armed forces personnel were missing, while others were illegible; meanwhile, other members of the armed forces had still not been questioned. Hence, the domestic authorities had not conducted a thorough and effective investigation into the circumstances surrounding the deaths of the applicants’ relatives.

Conclusion: violation (unanimously).

Article 46: The Court had found a violation of the Convention on account of the fact that the applicants’ relatives had been killed by soldiers in the circumstances described in the public prosecutor’s decision of November 1999 declining jurisdiction ratione materiae, and the fact that the domestic authorities had not conducted a thorough and effective investigation into the circumstances surrounding the deaths. The applicants had not submitted any claim for pecuniary or non-pecuniary damage under Article 41. However, the thrust of their allegations was that their relatives had been killed by members of the armed forces and that they had had no remedy in domestic law by which to claim compensation. Consequently, in view of the particular circumstances of the applications and the fact that the criminal investigation was still pending before the domestic authorities, the Court considered that the respondent State must take all necessary measures, subject to supervision by the Committee of Ministers, to ensure that the preliminary investigation, which was still ongoing after more than thirteen years, was concluded without delay in order to shed light on the circumstances in which the applicants’ relatives had been killed, and must take the appropriate action regarding the compensation to be awarded to the applicants.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes

 

Full & Egal Universal Law Academy