CASE OF NARIN v. TURKEY
Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Alvina Gyulumyan;Elisabet Fura;Josep Casadevall;Luis López Guerra
5. The applicants were born in 1948, 1978, 1968, 1976, 1980, 1981, 1983, 1984, 1985 and 1986 respectively and live in Diyarbakır. 6. On 3 October 1992, at 10:30 a.m., clashes occurred in the district of Kulp in the province of Diyarbakır, between the PKK (the Workers' Party of Kurdistan, an illegal organisation) and the security forces, subsequent to the killing of two gendarmes and grave injury of two other gendarmes in a military vehicle by PKK militants. At that time the applicant, Hakan Narin and his father, Abduvahit Narin, were in the Narin Hotel, which belonged to them. During the clash some other individuals from the town and hotel customers joined them in the basement of the hotel to seek shelter from the clash. There were a total of thirty-five people hiding in the basement of the hotel. 7. According to the applicants' version of events, at around 4 p.m. the security forces raided the hotel and gathered the people on the ground floor. They singled out Adulvahit Narin from the crowd and took him into the hotel director's office. After a while the applicant, Hakan Narin, heard gunshots coming from the office. The security forces then allegedly poured petrol on the floor and set the hotel on fire. 8. On 4 October 1992 two incident reports describing the events in question were prepared and signed by a number of gendarme officers who took part in the clashes. According to this report, on 3 October 1992, at around 10.30 a.m., PKK militants opened fire on a military vehicle on a main street in Kulp. As a result, two gendarmes died and two were severely injured. Hearing the gunfire, security forces arrived on the scene. PKK militants also fired at them and the security forces returned fire. The clashes, which lasted until 5 p.m., caused the destruction of a number of vehicles and some buildings. It was understood that the real aim of the PKK members was to take control of the Kulp Gendarmerie Station and to seize the weapons therein. Some of the PKK militants hid in the Narin Hotel and opened fire on the security forces. When leaving the town they set the hotel and a number of other buildings on fire. When they were informed that there was a burned body at the hotel, a team of security forces arrived at the hotel in the morning of 4 October 1992. They found an unidentifiable burned body, a Kalashnikov rifle and sixty-four empty cartridges there. The security forces noted that all the furniture in the hotel had been burned, there were a number of bullet holes in the walls and gas cannisters found in the kitchen had exploded as a result of the fire and had caused massive damage to the building. A sketch map describing the state of the hotel and location of the body was also drawn up by a gendarme officer. 9. On 4 October 1992, at 3:50 p.m., the Kulp Public Prosecutor arrived at the Narin Hotel with a doctor. They conducted a classical autopsy and an on-site investigation. The on-site investigation report noted that a burned body was lying in one of the ground-floor rooms of the hotel. The report also contained Hakan Narin's testimony that two expert sergeants, whose names he did not know but whom he could identify if shown, took his father to the director's office. He then heard gunshots coming from that direction, and saw the security forces throw grenades into the room. He further stated that M.Y., A.Y., M.A., and the teachers A.A., M.Y., H.S. and F.A., who were in the hotel at the time, also witnessed the incident. The report noted that five discharged bullet cartridges were found twenty or thirty metres from the body. Neither Hakan Narin nor the deceased's wife Perinaz Narin could determine whether the burned body was that of Abdulvahit Narin. 10. The Kulp Public Prosecutor took statements from two gendarmes who were injured in the course of the clashes. They stated that they had come to Kulp from Diyarbakır Regional Gendarmerie Command in order to ensure security. When they arrived in Kulp they were attacked by members of the PKK and wounded as a result of the gunfire. 11. On 6 October 1992 the Kulp Public Prosecutor issued a decision of non-jurisdiction and referred the case to the Chief Public Prosecutor's office at the Diyarbakır State Security Court. 12. On 8 October 1992 the Diyarbakır Chief Public Prosecutor's Office issued a decision to join the investigation files concerning the killing of two gendarmes and Abdulvahit Narin, since both had occurred in the course of the events in Kulp. 13. On 25 June 1993 the public prosecutor at the State Security Court took statements from the deceased's two sons and two persons who had witnessed the events. The applicant Hakan Narin repeated the statement he had made to the public prosecutor during the on-site investigation. He further stated the following: “During the events in question, I was with the deceased (Abdulvahit Narin). The hotel was under gun and rocket fire. I locked the doors of the hotel and went down to the basement together with the customers for safety reasons. They (the soldiers) broke down the door and entered the hotel. My father was alive and holding my hand. Two expert sergeants who work in Kulp, namely N.T. and L.B., hit my hand and took my father to the director's room. I heard a sound of gunfire from the director's room. They had already locked down the basement when they took my father to the director's room. When the gunfire ended, they took us to the lounge and told us to take off our jackets. We took off our jackets. They poured petrol on us. However, they did not burn us. They then carried the jackets into the director's room. They poured petrol on my father and burned him. They left three hand grenades in the director's room. These bombs exploded one after the other. They burned everything in the hotel. The expert sergeants whom I have mentioned above caused the death of my father. There were thirty-five customers who witnessed this event. I request that criminal charges be brought against [the expert sergeants]...” 14. Azattin Narin, who is another of the sons of the deceased, stated that he had been in Istanbul at the time of the events. He had also heard that two expert sergeants, N.T. and L.B., had caused the death of his father. Mehmet Yıldırım and Aladdin Yıldırım, who were customers at the Narin Hotel at the time of the events, gave statements in line with Hakan Narin's. They added that the security forces took them to the station after the incident, but released them without taking statements from them. 15. In addition to the above statements, the applicants' representative submitted to the Court statements given by another witness, Nihat Ezer, on 13 August 2001. According to this witness, who sought shelter in the Narin Hotel during the clashes, Abdulvahit Narin was separated from the rest of the group and taken to the director's room in the hotel. The witness then heard gunshots coming from that room. The soldiers threw three hand grenades and the hotel caught fire. The witness was taken to the gendarme station together with other people and released afterwards. 16. On 12 May 1994 and 10 June 1994 the Diyarbakır Public Prosecutor took statements from N.T. and L.B. in relation to the allegations concerning the killing of Abdulvahit Narin. N.T. and L.B. denied the allegations that they had been involved in the killing of Abdulvahit Narin and claimed that they had taken part in the clashes against the PKK in order to ensure security in Kulp. They had seen that the Narin Hotel and a number of other buildings had caught fire and stated that they had gone back to their barracks when the clashes were over. 17. In a letter dated 28 July 1994 the Kulp Public Prosecutor requested the Gendarmerie Command in Kulp to provide information concerning the location of and duties assigned L.B. and N.T. on 3 October 1992. 18. In a report dated 14 November 1994, signed by a gendarme sergeant and two gendarmes, it was stated that the location of and duties assigned to L.B. and N.T. on 3 October 1992 were unknown, since there was no record. 19. It transpires from the documents submitted by the parties that since 1994 no further steps have been taken to identify the perpetrators of the killing of Abdulvahit Narin. 20. On 24 November 1992, one of the sons of Abdulvahit Narin applied to the Kulp Civil Court of First Instance for an assessment report of the damage caused to the hotel in order to lodge actions for compensation. 21. On 28 September 1993 the applicants applied to the Ministry of the Interior (“the Ministry”) for compensation for the loss they had suffered as a result of the death of their relative and the damage done to the hotel. The Ministry rejected the request. 22. On 4 April 1994 the applicants brought an action for compensation in the Diyarbakır Administrative Court against the Ministry, for the damage they had suffered in respect of the death of their relative (“first set of proceedings”). In their application to the court the applicants noted that the perpetrators of the killing of Abdulvahit Narin were unknown. Although the officials claimed that he had been killed and that his hotel had been burned down by members of the PKK during the clashes, the witnesses stated Abdulvahit Narin had been killed by the security forces. Notwithstanding who killed the victim, the State was responsible for the death of the victim and was obliged to compensate for the damage resulting from his death and the destruction of the hotel. 23. On 12 July 1994 the applicants brought a second action against the Ministry, claiming compensation in respect of the material damage caused to the hotel (“second set of proceedings”). 24. By decisions of 17 November and 20 November 1995 the Diyarbakır Administrative Court decided that it had no jurisdiction over the cases. 25. On 6 November 1997 and 4 December 1997 the Supreme Administrative Court set aside the Diyarbakır Administrative Court's decisions of non-jurisdiction and remitted the cases to it for examination. 26. On 18 June 1999 the Diyarbakır Administrative Court partly accepted the applicants' request and awarded them 523,200,000 Turkish liras (TRL, approximately 1,223 euros (EUR) at the material time) in compensation for the pecuniary damage caused to the hotel. 27. On 21 June 2000 the Diyarbakır Administrative Court, relying on the State's strict liability and “the social risk theory”, awarded the applicants a further TRL 738,107,475 (approximately EUR 1,264 at the material time) in compensation for the pecuniary and non-pecuniary damage they had suffered in respect of the death of their relative. This judgment was upheld by the Supreme Administrative Court on 13 December 2001. 28. On 16 June 2001 the Supreme Administrative Court upheld the judgment of the Diyarbakır Administrative Court concerning the damage caused to the hotel. 29. On 18 January 2002, the administration paid the applicants the sum of TRL 2,091,892,880 (approximately EUR 1,732 at the material time) in compensation for the death of their relative and damage done to the hotel. 30. In March 2002, the applicants applied to the Public Prosecutor's office at the Diyarbakır State Security Court requesting information about the outcome of the criminal investigation into the death of their relative. 31. On 11 March 2002 the Public Prosecutor informed the applicants that the investigation was still pending. Following this response, on 9 April 2002 the applicants lodged their application with the European Court. 32. According to the Diyarbakır Chief Public Prosecutor's report of 28 October 2008, the investigation into the killing of Abdulvahit Narin and the two gendarmes is still pending. 33. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation. If the claim is rejected in whole or in part, or if no reply is received within six days, the victim may bring administrative proceedings. 34. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decision of the authorities are subject to judicial review... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” 35. That provision established the State's strict liability, which comes into play if it is shown that, in the circumstances of a particular case, the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to prove a tortuous act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.