Information Note on the Court’s case-law 69
November 2004
Issa and Others v. Turkey - 31821/96
Judgment 16.11.2004 [Section II]
Article 1
Jurisdiction of States
Jurisdiction of Turkey in relation to the alleged ill-treatment and killing of shepherds by the Turkish army in northern Iraq
Article 2
Article 2-1
Life
Killing of shepherds in northern Iraq, allegedly by Turkish troops
Facts: The applicants are six women from northern Iraq, who brought the applications in their own name and on behalf of their deceased relatives. They allege that during an operation of the Turkish army in the hills surrounding their village in April 1995, whilst they were out shepherding, they came across Turkish soldiers who ill-treated them and took their husbands away. As their subsequent search for their relatives was unsuccessful, they allege to have approached, in the company of members of the Kurdistan Democratic Party (“KDP”), a Turkish military unit in the area, to request their relatives’ release. A Turkish officer denied that the shepherds had been detained. The bodies of the applicants’ relatives were found some days later with bullet wounds and mutilated. The applicants filed several petitions with the authorities of the region requesting an investigation, but to date have not been informed of any follow-up. The Government admitted that a military operation took place in northern Iraq in March-April 1995, but disputed that their forces were present in the area indicated by the applicants. The evidence submitted by the applicants contained, inter alia, a video recording of a press conference of the Governor of their region in northern Iraq denouncing the killings which had resulted from the Turkish military campaign and showing the bodies of the deceased persons. They also submitted a report by a forensic pathologist which stated that the bullet shells were of a Turkish manufacturer. The Government submitted a letter which supported their argument that the applicants had never complained to the Turkish army in northern Iraq concerning the events.
Law: The Government’s preliminary objection (jurisdiction) – As the Government had only raised the jurisdiction objection in the post-admissibility observations, the applicants contended that they should be estopped from raising it at such a late stage of the proceedings. However, the Court found that notwithstanding Rule 55 of the Rules of the Court, the Government could not be precluded from raising the jurisdiction issue at this juncture, as it was inextricably linked to the facts underlying the applicants’ allegations that the deceased shepherds were under the control and authority of Turkish armed forces in northern Iraq at the time of their killing, which the Government had at all times denied. Thus, the question must be taken to have been implicitly reserved for the merits stage, and seen as a live issue before the Court: objection dismissed.
Article 1 of the Convention – Whilst it was undisputed that Turkish armed forces had carried out military operations in northern Iraq in March and April 1995, it did not appear that Turkey had exercised effective overall control over the entire area of north Iraq. The essential question was whether at the relevant time Turkish troops had conducted operations in the area where the killings had taken place. In the light of the documentary evidence submitted by the parties, and bearing in mind that the area where the applicants’ relatives were killed was the scene of fierce fighting between PKK militants and KDP peshmergas at the time, it could not be concluded with certainty that Turkish troops had gone as far as the valleys and hills surrounding the applicants’ village. Moreover, the Court was unable to determine, on the basis of the post-mortem reports and video recording showing the bullet shells removed from the corpses, whether the gunfire had been discharged by Turkish troops. Thus, it could not be established to the required standard of proof that the Turkish armed forces had conducted operations in the specific areas where the applicants maintained that the victims had been. In the light of the above, the applicants’ relatives had not been within the “jurisdiction” of Turkey for the purposes of Article 1 of the Convention, and it was not therefore necessary to examine the applicants’ complaints under Articles 2, 3, 5, 8, 13, 14 and 18.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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