Communicated on 6 July 2020
Published on 27 July 2020
SECOND SECTION
Application no. 45942/11
Hatice UÇKUN and Others
against Turkey
lodged on 28 June 2011
SUBJECT MATTER OF THE CASE
The applicants, who are of Roma origin, complained that on the night of 5 January 2010, they had been victims of a mob attack that was organised by the residents of the Selendi District, demanding that the Roma be expelled from the district. According to the applicants, the local authorities failed to protect the Roma residents from the attack, in the course of which damage had been caused to their cars, belongings and houses. The applicants further maintained that because of this hostile attack, they had been forced to move to another district.
Following the incident, three different sets of proceedings were initiated. In so far as the complaint lodged against the District Mayor and the Deputy Security Director, on 6 January 2011 a non-prosecution decision was delivered by the Public Prosecutor and this decision was upheld by the Alaşehir Assize Court on 7 April 2011. As regards the criminal proceedings initiated against the perpetrators of the mob attack, on 23 December 2015 the Uşak Assize Court found thirty eight of the accused persons guilty as charged and convicted them for incitement to hatred and causing damage to property. The appeal proceedings are still pending before the Court of Cassation. Finally, twenty out of the seventy-five applicants initiated compensation proceedings before the Manisa Administrative Court alleging that as a result of the negligence of the domestic authorities, they had suffered both pecuniary and non-pecuniary damage. On 7 March 2014 the domestic court found it established that there had been a fault that could be attributed to the domestic authorities and stated that the district governor and the deputy security officer had been late in their intervention and had failed to act effectively in dispersing the crowd and prevent the damage that had been caused to the Roma origin citizens’ cars, houses and their belongings. The court therefore decided that the pecuniary and non-pecuniary damage suffered by the twenty applicants be compensated by the domestic authorities. The plaintiffs were accordingly each awarded 10,000 Turkish Liras (TRY) (approximately 3,300 euros (“EUR”)) in respect of compensation. Following appeal, the Manisa Regional Administrative Court upheld the decision of the Manisa Administrative Court. No individual application was filed with the Constitutional Court against the decision of the Manisa Regional Administrative Court.
The applicants solely complained about the non-prosecution decision delivered against the Selendi District Mayor and Deputy Security Director and maintained that the authorities had failed to provide protection from the attack, and the investigation had been ineffective. They also alleged that the failure of the domestic authorities to conduct an effective investigation amounted to discrimination due to their Roma origin. In respect of their complaints, the applicants relied on Articles 2, 3, 6, 8, 13 and 14 of the Convention.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, bearing in mind that the domestic authorities had refused to initiate criminal proceedings against the Government officials, can the decision delivered by the Manisa Administrative Court on 7 March 2014, be considered as an effective remedy in the circumstances of the present case?
2. Did the treatment to which the applicants were subjected, reach the threshold of Article 3 of the Convention? If so, have the authorities failed to protect the Roma residents from an attack on their homes by a mob motivated by anti-Roma sentiment, by taking all reasonable steps to expeditiously prevent the attack against the applicants?
3. Having regard to the procedural protection from ill-treatment, even when inflicted between private persons (see Beganović v. Croatia, no. 46423/06, § 71, 25 June 2009), was the investigation in the present case adequate for the purposes of Article 3 of the Convention? Furthermore, recalling that when investigating violent incidents, State authorities have an additional duty under Article 3 of the Convention to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have also played a role in the events, and that a similar obligation might also arise in cases where the treatment constituted an interference with Article 8 of the Convention, could the authorities in the circumstances of the present case, be considered to have conducted an effective investigation (see Burlya and Others v. Ukraine, no. 3289/10, §§ 169-170, 6 November 2018; Király and Dömötör v. Hungary, no. 10851/13, § 61, 17 January 2017 and R.B. v. Hungary, no. 64602/12, § 84, 12 April 2016) ?
4. Did the damage caused to the applicants’ houses and belongings constitute a grave and unjustified interference with the applicants’ right to respect for their private and family life and home, as protected by Article 8 of the Convention?
5. Having in particular regard to the relevant part (paragraphs 53-56) of the fifth report on Turkey by the European Commission against Racism and Intolerance (ECRI), adopted on 29 June 2016, have the applicants suffered discrimination on the ground of their ethnic origin, contrary to Article 14 of the Convention, read in conjunction with Articles 3 and/or 8 of the Convention? In particular, did the authorities take into consideration the racist motive of the attack when conducting the domestic investigation?
List of applicants
No.
Applicant’s Name
Birth year
Nationality
Place of residence
1
Hatice UÇKUN
1948
Turkish
MANİSA
2
Dilek BAYIR
1992
Turkish
MANİSA
3
Hakkı ÇELİK
1980
Turkish
MANİSA
4
Cansel ÇELİK
1984
Turkish
MANİSA
5
Mustafa ÇELİK
1999
Turkish
MANİSA
6
Yağmur ÇELİK
2002
Turkish
MANİSA
7
Dilay ÇETİN
1984
Turkish
MANİSA
8
Erdal ÇETİN
1976
Turkish
MANİSA
9
Gökhan ÇETİN
2000
Turkish
MANİSA
10
Naim ÇETİN
2003
Turkish
MANİSA
11
Fadime DEMİRCİ
1941
Turkish
MANİSA
12
Ali Rıza GÜVEN
1964
Turkish
MANİSA
13
Nuran GÜVEN
1974
Turkish
MANİSA
14
Oğuz GÜVEN
2002
Turkish
MANİSA
15
Yücel GÜVEN
2002
Turkish
MANİSA
16
Ali KOCA
2001
Turkish
MANİSA
17
Arda KOCA
2009
Turkish
MANİSA
18
Asi KOCA
2008
Turkish
MANİSA
19
Berivan KOCA
2003
Turkish
MANİSA
20
Cemal KOCA
1976
Turkish
MANİSA
21
Cemile KOCA
1984
Turkish
MANİSA
22
Ercan KOCA
1979
Turkish
MANİSA
23
Gaye KOCA
2002
Turkish
MANİSA
24
Hakan KOCA
2004
Turkish
MANİSA
25
Hüseyin KOCA
1984
Turkish
MANİSA
26
Mehmet KOCA
1974
Turkish
MANİSA
27
Nevin KOCA
2003
Turkish
MANİSA
28
Nevrigül KOCA
1955
Turkish
MANİSA
29
Nevrigül KOCA
2001
Turkish
MANİSA
30
Nurcan KOCA
1979
Turkish
MANİSA
31
Süleyman KOCA
1954
Turkish
MANİSA
32
Sultan KOCA
1983
Turkish
MANİSA
33
Sümbül KOCA
1987
Turkish
MANİSA
34
Tayfur KOCA
2000
Turkish
MANİSA
35
Tuncay KOCA
1976
Turkish
MANİSA
36
Yaşar KOCA
1974
Turkish
MANİSA
37
Abdurrahman Namık ÖZER
2007
Turkish
MANİSA
38
Alper ÖZER
2003
Turkish
MANİSA
39
Aşkın ÖZER
1983
Turkish
MANİSA
40
Bülent ÖZER
1980
Turkish
MANİSA
41
Dilek ÖZER
1981
Turkish
MANİSA
42
Gamze ÖZER
1997
Turkish
MANİSA
43
Gülizar ÖZER
1956
Turkish
MANİSA
44
Muhammet ÖZER
2006
Turkish
MANİSA
45
Polat ÖZER
2006
Turkish
MANİSA
46
Selma ÖZER
1983
Turkish
MANİSA
47
Seyfettin ÖZER
1999
Turkish
MANİSA
48
Barış SEPETÇİ
1991
Turkish
MANİSA
49
Gülhanım SEPETÇİ
1959
Turkish
MANİSA
50
Gülhanım SEPETÇİ
2009
Turkish
MANİSA
51
Hediye SEPETÇİ
1988
Turkish
MANİSA
52
Hüseyin SEPETÇİ
1970
Turkish
MANİSA
53
Yaşar SEPETÇİ
1983
Turkish
MANİSA
54
Seyfettin SEPETÇİ
1959
Turkish
MANİSA
55
Seyfettin SEPETÇİ
2008
Turkish
MANİSA
56
Serpil TURHAN
1975
Turkish
MANİSA
57
Caner UÇKUN
2006
Turkish
ANTALYA
58
Ahmet UÇKUN
1961
Turkish
MANİSA
59
Ayşe UÇKUN
1985
Turkish
ANTALYA
60
Birgül UÇKUN
1974
Turkish
MANİSA
61
Burhan UÇKUN
1977
Turkish
MANİSA
62
Erdal UÇKUN
1971
Turkish
MANİSA
63
Gizem UÇKUN
2009
Turkish
ANTALYA
64
Gökhan UÇKUN
1996
Turkish
MANİSA
65
Gonca UÇKUN
1993
Turkish
MANİSA
66
Hamza UÇKUN
2004
Turkish
ANTALYA
67
Memati UÇKUN
2005
Turkish
MANİSA
68
Nurten UÇKUN
1980
Turkish
MANİSA
69
Özkan UÇKUN
2002
Turkish
MANİSA
70
Pınar UÇKUN
2006
Turkish
MANİSA
71
Sedat UÇKUN
2009
Turkish
MANİSA
72
Selcan UÇKUN
1991
Turkish
MANİSA
73
Sevittin UÇKUN
1960
Turkish
MANİSA
74
Sibel UÇKUN
1994
Turkish
MANİSA
75
Yılmaz UÇKUN
1975
Turkish
ANTALYA
Full & Egal Universal Law Academy