CASE OF KAYA v. TURKEY
No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 14+2 - Prohibition of discrimination (Article 2-1 - Life;Article 2 - Right to life);No violation of Article 14+6 - Prohibition of discrimination (Article 6 - Right to a fair trial);No violation of Article 14+13 - Prohibition of discrimination (Article 13 - Right to an effective remedy);Non-pecuniary damage - award
C. Russo
6. The applicant, Mr Mehmet Kaya, is a Turkish citizen born in 1949. At the time of the events in question (see paragraph 8 below) he was a farmer living in Dolunay village in the district of Lice which is situated in the province of Diyarbakır in south-eastern Turkey. He is currently detained in Diyarbakır E-type Prison (see paragraph 2 above). His brother, Mr Abdülmenaf Kaya, who also lived and farmed in Dolunay before his death, was killed on 25 March 1993 in the vicinity of the village in circumstances which are disputed and which have given rise to the proceedings before the Convention institutions. 7. The original application to the Commission was lodged by the applicant on his own behalf and on behalf of his deceased brother and the widow and seven children of the deceased. 8. The applicant has alleged that his brother was deliberately killed by the security forces on 25 March 1993. The Government on the contrary have contended that Mr Abdülmenaf Kaya was killed in a gun battle between members of the security forces and a group of terrorists who had engaged the security forces on the day in question. They claim that the applicant’s brother was among the assailants. The facts as presented by the parties are set out in Section A below. The applicant and the Government have defended their opposing accounts of the circumstances surrounding the death of Abdülmenaf Kaya on the basis of documentary material, which appears in Section B. The measures taken by the domestic authorities after 25 March 1993 to investigate the killing of Abdülmenaf Kaya are described in Section C. The Commission appointed delegates to take oral evidence from key witnesses at a hearing held in Diyarbakır on 9 November 1995. Having regard to the testimony of those witnesses who appeared before the two delegates and to its examination of relevant material, the Commission assessed the evidence and established its conclusions in respect of both the killing of Abdülmenaf Kaya and the adequacy of the domestic investigation into his death. These conclusions and the reasons supporting them are summarised at Section D. 9. The applicant has based his account of the events surrounding the killing of his brother on 25 March 1993 on the evidence of villagers from Çiftlibahçe village whom he alleges witnessed the incident and on the testimony of Mr Hikmet Aksoy, a villager from Dolunay whom he maintains was in the company of his brother on the day the latter was killed. The applicant was not himself an eyewitness to the events. 10. The applicant alleges that on the morning of 25 March 1993 his brother was going to the fields situated 300–400 metres from the village of Çiftlibahçe and four kilometres from his own village of Dolunay together with Hikmet Aksoy. A military operation was being conducted at the time. Hikmet Aksoy turned off the road at one point to tend to his beehives but was detained by soldiers. Seeing this, Abdülmenaf Kaya began to run away as he was frightened that he would also be taken into custody. The soldiers saw him running and opened fire. Abdülmenaf Kaya ran towards Çiftlibahçe village and hid in some bushes. The soldiers gave chase and found him. According to villagers from Çiftlibahçe who witnessed the incident the soldiers killed him, riddling his body with bullets. The soldiers then planted a weapon near his body and took photographs of the scene. The villagers requested that the body be handed over to them. At first the security forces refused but when the villagers insisted that the deceased was not a terrorist but the uncle of one of the inhabitants of a neighbouring village they relented. The villagers were verbally abused and threatened by the security forces. Hikmet Aksoy was taken into custody and held at Lice gendarmerie headquarters for six days. 11. The Government’s account of the circumstances which led to the death of the applicant’s brother is based on the statements made to the Commission’s delegates at the hearing in Diyarbakır on 9 November 1995 (see paragraph 8 above) by members of the security forces involved in the alleged clash with terrorists on 25 March 1993, namely: Alper Sır, a first lieutenant who had been in charge of the four teams of soldiers involved in the anti-terrorist operation on the day in question; Mr Ahmet Gümüs and Mr Paşa Bülbül, both senior sergeants commanding units involved in the operation; and Sergeant Altan Berk who had been in one of the units. 12. The Government maintain that the security forces arrived in the vicinity of Dolunay on 25 March 1993 having received information that terrorists had been seen in the area. While they were conducting a field search in line formation they came under fire somewhere between Dolunay village and Çiftlibahçe village. The gunfire was directed at them from a rocky area, a creek and from the hills around. The security forces, numbering about sixty, took cover and returned fire using mainly G3 and A4 guns with an effective range of between 300 and 1,000 metres as well as longer range MG3 and K23 machine guns. The firing distance between the security forces and their assailants varied between 300 and 500 metres. The terrorists retreated after about thirty minutes and in the lull a search of the scene of the attack was carried out during which the security forces recovered a dead body alongside of which lay an automatic assault gun (later confirmed as Chinese-made in the ballistics report – see paragraph 32 below) bearing the serial number 59339 together with ammunition including three cartridge clips, three rounds of which were spent and three unused. During the field search considerable traces of blood were found along the route used by the terrorists to make their escape. 13. The team commander, First Lieutenant Alper Sır, secured the area and contacted the office of the public prosecutor of Lice about the incident. Two and a half hours later the public prosecutor, Mr Ekrem Yıldız, and the District Government doctor, Dr Arzu Doğru, arrived at the scene by helicopter accompanied by assistants. An on-the-spot autopsy was performed on the body by Dr Doğru and an autopsy report (see paragraphs 26–30 below) was prepared there and then. The public prosecutor drew up a burial certificate. 14. The body, which was not identified at that stage (see paragraph 15 below), was handed over to First Lieutenant Alper Sır who signed the necessary forms. First Lieutenant Alper Sır’s team subsequently advanced to the nearest village, Çiftlibahçe, where the body of the deceased was handed over to the mayor and two other villagers for burial. They signed for the body. An incident report was drawn up in a handwritten form on 25 March. It was signed by six members of the security forces, amongst whom Alper Sır, Paşa Bülbül, Ahmet Gümüs and Altan Berk (see paragraph 11 above). The report confirms the above-mentioned account of the events (see paragraphs 12 and 13 above). 15. The identity of the deceased was in fact only discovered some months after the incident. According to a handwritten report signed by three gendarmes and dated 5 May 1993, the investigation which was carried out after the incident revealed that the body was that of Abdülmenaf Kaya, a resident of Dolunay village, who was killed in a clash with security forces conducting an operation in the outskirts of Dolunay. 16. The applicant maintains that he personally confirmed the account of the events as set out above (see paragraph 10) in a statement which he made to Mr Abdullah Koç of the Diyarbakır branch of the Human Rights Association on 31 March 1993, just six days after the fatal shooting and in a supplementary statement which he made to Mr Sedat Aslantaş also of the Diyarbakır branch of the Human Rights Association on 20 September 1993. 17. In his statement the applicant declared that at around 08.00 hours on the morning of 25 March 1993 Abdülmenaf Kaya and Hikmet Aksoy were going to the fields 300–400 metres from Çiftlibahçe village and four kilometres from Dolunay village. At that time a military operation was starting in Boyunlu, Dolunay, Çiftlibahçe and Ormankaya villages. Soldiers participating in the operation took Hikmet Aksoy into custody. Seeing this, Abdülmenaf Kaya started to run whereupon the soldiers opened fire. Abdülmenaf Kaya ran the remaining 300–400 metres to Çiftlibahçe and hid there in the bushes. The soldiers found him and, according to eyewitnesses, fired over 100 bullets into his body, planted a firearm on him and took photographs. They did not want to give the body to the villagers, but the villagers insisted that the deceased was from a neighbouring village and that he was not a terrorist. The soldiers finally gave the body to the villagers. Later, the commander of the military unit threatened the inhabitants of Çiftlibahçe and Dolunay with the destruction of their villages. Most of the people who came to offer their condolences on the death of Abdülmenaf Kaya suffered abuse of various kinds. The applicant concluded in his statement that Hikmet Aksoy had been taken into custody and his whereabouts were unknown. 18. In this statement, the applicant declared that Abdülmenaf Kaya was injured while running away and that the security forces followed him to the bushes and killed him there. The applicant stated that the security forces alone took photographs of the body and when the applicant's family received the body they had to bury it immediately. An autopsy was conducted but the applicant was not given a copy of the autopsy report although he had requested one. The applicant also declared in the statement that the witnesses who saw the body of Abdülmenaf Kaya had left the village, being frightened of the security forces and the intimidation to which they would be subjected if they spoke out publicly. He could not remember any of the names of the villagers who witnessed the killing. The applicant concluded his statement by mentioning that Hikmet Aksoy had been detained at Lice gendarmerie headquarters for six days for questioning and then released. 19. The applicant maintains that his account of the events is confirmed by statements made by Hikmet Aksoy to the authorities in circumstances which would have made it impossible for the latter to know of the content of his own statements (see paragraphs 17 and 18 above) to the Diyarbakır Human Rights Association. 20. This statement was taken following a letter dated 17 May 1994 from the public prosecutor at the Diyarbakır National Security Court (see paragraph 33 below). When Aksoy made the statement, he was detained in Lice Prison for possession of hashish. 21. Like Hikmet Aksoy, Abdülmenaf Kaya was from the village of Dolunay. On 25 March 1993 Hikmet Aksoy left his house to go and tend his beehives which were situated on a piece of land along a road between Dolunay and Çiftlibahçe. When he was leaving Dolunay village, he met Abdülmenaf Kaya who asked if he could accompany him. When he reached his beehives, he heard some people running and saw about ten soldiers approaching him. The soldiers tied up his hands and asked who he was and why he was wandering about. Two or three minutes later the soldiers noticed Abdülmenaf Kaya running away. The soldiers shouted after him to stop, but he either did not hear them or chose to ignore them as he increased his pace. The lieutenant ordered the soldiers to shoot at Abdülmenaf Kaya's feet. At that time Abdülmenaf Kaya was approximately fifty to sixty metres away. When the soldiers started shooting at his feet, Abdülmenaf Kaya began to run towards Çiftlibahçe. The soldiers chased him, taking Aksoy along with them. Abdülmenaf Kaya disappeared beyond a slope and when the soldiers reached the slope he was nowhere to be seen. They then came to the ten or so houses which are situated at a short distance from Çiftlibahçe where they encountered some other soldiers who said that they had seen Abdülmenaf Kaya. Aksoy and the soldiers waited in the street for about half an hour. He then heard shots being fired; he estimates that three cartridges were fired. About ten minutes later a helicopter landed but it was too far away from Aksoy for him to be able to see what was happening. The helicopter left again after ten minutes. Later a lieutenant approached Aksoy and told him “we have killed Menaf”. Aksoy was taken to Lice and kept in custody for fifteen days. 22. Aksoy is said to have made this statement whilst in detention following his arrest on 14 November 1995. According to the applicant the statement cannot be taken to be reliable and must be considered to have been obtained under pressure, as confirmed by Aksoy’s subsequent retraction (see paragraphs 24 and 25 below). 23. Aksoy states how from 1990 he provided food to groups of Workers’ Party of Kurdistan (“PKK”) members who came to his village of Dolunay. From 1991 he was also involved with ensuring the attendance of villagers at funerals of terrorists. In March 1992 six PKK members came to the village and told him to go and get Abdülmenaf Kaya. After Abdülmenaf Kaya had appeared, he and one of the PKK members talked to each other in a separate place. Two months later three PKK members arrived with a group of ten people. Abdülmenaf Kaya was told to organise the attendance of villagers at a funeral. Two months later the military staged an operation during which Abdülmenaf Kaya died. According to the Government, this last part of his statement is an inaccurate translation of Aksoy’s words. They maintain that Aksoy in fact related that Abdülmenaf Kaya died during an armed clash. 24. In this statement Aksoy retracted the statement of 22 November 1995 (see paragraphs 22 and 23 above), saying that he was forced to sign a statement which the police had written. 25. In the statement he denies the accusations that have been made against him, namely that he acted as a courier for the PKK. No mention is made of Abdülmenaf Kaya in the statement. 26. This report was drawn up by Dr Arzu Doğru who had been flown to the scene of the fatal shooting to perform the field autopsy. It was prepared on-the-spot (see paragraph 13 above). 27. The report states that following a telephone call from the district gendarmerie headquarters on 25 March 1993 to the effect that the body of a person belonging to the PKK terrorist organisation had been captured during a clash, the public prosecutor Ekrem Yıldız and the District Government doctor Arzu Doğru set out by military helicopter, accompanied by a gendarme staff sergeant who was to act as clerk. On arrival at the scene the body was found to be lying on its back in the bushes on the bank of a creek. It was moved to a flat piece of ground. Beside the body there was a Kalashnikov rifle with serial number 8125298 and one round of ammunition containing three full and six empty cartridges. The body is described as being that of a 35–40 year-old man with grey hair and dressed in blue and grey trousers with a cummerbund round the waist, a sleeveless black vest and a striped winter shirt, wearing rubber shoes but no socks. Since there was no one at the scene of the incident who could identify the body, the security forces took photographs from several angles. 28. A large number of bullet entry and exit holes were found in the neck of the body, in the throat, above the heart, in the upper left area of the abdomen, around the navel and around the groin, in the left hip and in the femur of both legs. The bones of the legs were broken as a result of the blows received. 29. The report subsequently mentions that the medical examiner was brought over, that the body was handed over to him and that he made the following statement: “I established the above findings together with the public prosecutor, and I agree that the findings are as described above. As the result of these findings, the cause of death is clear. There is no need to carry out a classical autopsy. The conditions in the field combined with the fact that we do not have sufficient security or instruments are in any case an impediment to performing a full classical autopsy. From the above findings I have come to the conclusion that the deceased died from cardiovascular insufficiency as a result of the wounds caused by firearms. That is my definite opinion.” 30. The report further states that the rifle and the ammunition were seized for safekeeping as corpus delicti. It concludes by stating that the forensic examination of the body and the autopsy procedure had been completed. The report is signed by, inter alia, First Lieutenant Alper Sır as the person receiving the body. 31. Following the events of 25 March 1993 and the identification of the body as that of Abdülmenaf Kaya (see paragraph 15 above), a decision of non-jurisdiction was issued on 20 July 1993 by Ekrem Yıldız, public prosecutor at Lice, and the file was transferred to the public prosecutor at the Diyarbakır National Security Court. In his decision, the public prosecutor stated that “the preliminary documents have been examined” in respect of a crime committed by Abdülmenaf Kaya who, together with other PKK terrorists, took part on 25 March 1993 in an armed clash with the security forces The decision describes how the body of the deceased was recovered by the security forces after the clash together with an assault rifle and spent ammunition. The decision notes that the ballistics report on the weapon was not yet available. The public prosecutor concluded that, having regard to the aims of the terrorists and to the fact that the attack took place in an area subject to emergency rule, the investigation should be carried out by the prosecuting authorities of the National Security Court on account of the fact that he lacked jurisdiction in the matter. The National Security Court in turn transmitted the file to the Lice District Administrative Council for investigation. 32. An expert report on the weapon and ammunition found beside Abdülmenaf Kaya’s body was drawn up by the Diyarbakır police forensic laboratory on 23 June 1993. The report, which was not available at the time the public prosecutor issued his decision of non-jurisdiction (see paragraph 31 above), stated that the weapon was a Chinese-made Kalashnikov automatic rifle serial no. 8125298/59339 and that the three spent bullets examined had been fired from the rifle “which was found with the dead terrorist”. 33. On 17 June 1994 a public prosecutor, apparently at the request of the Principal Public Prosecutor at the Diyarbakır National Security Court, took a statement in relation to the death of Abdülmenaf Kaya from Hikmet Aksoy while the latter was detained at Lice (see paragraphs 20 and 21 above). 34. During the proceedings before the Commission, the Government were requested to supply the photographs which were allegedly appended to the autopsy report (see paragraph 27 above). The authorities have so far been unable to retrieve the photographs. 35. At the hearing held before two Commission delegates in Diyarbakır on 9 November 1995 oral evidence was taken from five witnesses: (i) Dr Arzu Doğru, who conducted the field autopsy on the deceased; (ii) First Lieutenant Alper Sır; (iii) Senior Sergeant Ahmet Gümüs; (iv) Senior Sergeant Paşa Bülbül; and (v) Sergeant Altan Berk. 36. The applicant did not attend the hearing. He notified the Commission on 1 November 1995 that he feared reprisals if he were to give evidence at the hearing. The nature of his fears was not specified. Nor did Mr Hikmet Aksoy appear. In a letter dated 8 November 1995 Mr Aksoy, through the intermediary of the Diyarbakır Human Rights Association, informed the Commission that he and his family had been subjected to pressure by the police in order to prevent him from giving evidence at the hearing and he would not therefore be attending. 37. Moreover, although summoned to give evidence, neither the Lice public prosecutor, Mr Ekrem Yıldız, nor the public prosecutor attached to the Diyarbakır National Security Court attended the hearing. The former was unavailable on account of other commitments and the latter had taken the view that he would be unable to give any relevant information to the delegates on the pursuit of the investigation into Abdülmenaf Kaya’s death since he had only become involved in the investigation after jurisdiction had been transferred to the Diyarbakır National Security Court. 38. The Commission assessed the documentary and oral evidence before it on the basis of the evidentiary standard of proof beyond reasonable doubt, taking into account the fact that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this respect it noted that the failure of the applicant and of Mr Hikmet Aksoy as well as of the two public prosecutors to give evidence at the hearing in Diyarbakır had a considerable impact on the determination of whether the evidentiary standard had been attained. The Commission noted however that the applicant was not a direct witness to the events and his testimony would therefore have been of limited evidentiary value. On the other hand, the presence of Hikmet Aksoy would have been valuable since he claimed to be an eyewitness and his failure to attend meant that he could not be cross-examined with a view to assessing his credibility and the probative value of his evidence. Further, the absence of any detailed investigation at the domestic level into the circumstances surrounding the death of the applicant’s brother (see paragraphs 31–34 above) meant that the Commission had to reach its conclusions on the basis of the oral and documentary evidence which it itself had collected in accordance with its powers under Article 28 § 1 (a) of the Convention. 39. The Commission’s assessment of the evidence concerning the death of Abdülmenaf Kaya can be summarised as follows: (i) The only clear and undisputed facts were that on 25 March 1993 the body of Abdülmenaf Kaya was found lying in the bushes on the bank of a creek near the village of Dolunay. The body was dressed in blue and grey trousers with a cummerbund round the waist, a sleeveless black vest and a striped winter shirt, wearing rubber shoes but not socks. A large number of bullet entry and exit holes were found in the neck of the body, in the throat, above the heart, in the upper left area of the abdomen, around the navel and the groin, in the left hip and in the femur of both legs. The bones of the legs were broken as a result of the impact of the bullets. The total number of bullet wounds is not recorded in the autopsy report but was estimated by Dr Arzu Doğru in his oral evidence to the delegates as seven or eight. It was also not in dispute that an autopsy, consisting only of an external examination, was carried out on the body by Dr Doğru at or near the site of the killing and that subsequently the body was handed over on the instructions of First Lieutenant Alper Sır to three villagers from the nearby Çiftlibahçe village. (ii) The accounts of the clash given by the soldiers whose evidence was heard (see paragraph 35 above), while deficient in detail, were broadly consistent and in line with the Government’s version of the events (see paragraphs 11–15 above). (iii) There were however a number of factors which gave reason to doubt the Government’s account of the events: there was only one casualty despite the number of soldiers (50–60) and PKK terrorists (20–35) engaged in the gun battle which reportedly lasted between thirty and sixty minutes; the extent and severity of the bullet wounds to the deceased’s body having regard to the range of the soldiers’ weapons (400–600 metres) and the firing distance between the soldiers and their attackers (300–1,000 metres); the fact that there were bullet wounds to all parts of the body suggested that the deceased must have been fully exposed to gunfire whereas neither he nor any of the other terrorists had actually been seen during the clash; the deceased’s clothing was not typical of PKK mountain apparel; the body was handed over to three unknown villagers even though he was considered to have been an active terrorist; and the absence of any forensic evidence linking the deceased to the weapon found beside his body. 40. While the Commission took the view that the matters referred to above (see paragraph 39 (iii)) gave rise to concern and were difficult to reconcile with the undisputed facts, it could not be concluded on the basis of a general assessment of the written and oral evidence that it was proved beyond reasonable doubt that Abdülmenaf Kaya was deliberately killed by soldiers in the circumstances alleged by the applicant. 41. The Commission’s assessment of the inquiries and investigation into the death of Abdülmenaf Kaya was made in the absence of any detailed investigation by the authorities into the events of 25 March 1993 and without the delegates having had the benefit of the oral evidence of the key public prosecutors responsible at various stages for the investigation (see paragraph 37 above). The Commission considered the reasons given for their non-attendance at the delegates’ hearing unconvincing. The Commission found that the autopsy performed on the body was defective and incomplete. In the first place, no attempt had been made to record the number of bullets which struck the deceased or the distance from which the bullets had been fired and the autopsy report was imprecise as regards the location of the entry and exit wounds. Secondly, no tests for fingerprints or gunpowder traces on the deceased’s clothes or body were made at the scene. While acknowledging that the autopsy and the forensic examination may have been carried out under difficult field conditions in view of the security situation, the Commission found it remarkable that the body was not flown to a place where further analyses could have been made of, for example, the bullets lodged in the body. The handing over of the body to the villagers precluded any further examination. Thirdly, it appeared to the Commission that the authorities took it for granted that the deceased was a PKK terrorist and they did not consider it necessary to examine seriously the possibility that he had been killed in circumstances engaging the responsibility of the security forces. In this respect, the Commission had regard to the mention made in the autopsy report that the deceased was a PKK terrorist, to the wording of the non-jurisdiction decision issued by the public prosecutor, Mr Ekrem Yıldız, (see paragraph 31 above) and to the apparent failure of the public prosecutor attached to the Diyarbakır National Security Court to put any questions to Hikmet Aksoy about the deceased’s possible involvement with the PKK (see paragraphs 20 and 21 above). 42. The Government submitted before the Commission and the Court that the following domestic law is relevant to the case. 43. Pursuant to Article 23 of Decree no. 285 (instituting the state of emergency), security forces, special forces on duty and members of the armed forces are, in the circumstances stipulated in the relevant Act, empowered to use their weapons when carrying out their duties. The security forces thus empowered may open fire and shoot at a person if a command to surrender is not accepted, is disobeyed or met with counter-fire or if they have to act in self-defence. 44. The plea of self-defence is enacted in Article 49 of the Turkish Criminal Code which, in so far as relevant, provides: “No punishment shall be imposed if the perpetrator acted ... 2. in immediate necessity to repel an unjust assault against his own or another's person or chastity.” 45. The Criminal Code contains provisions dealing with unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450). In respect of these offences, complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them (Article 153), the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings (Article 165). 46. The applicant has drawn attention to the provisions of Article 4 § 1 of Decree no. 285 which requires a public prosecutor to transfer authority for the investigation of allegations against the security forces to local administrative boards or councils. According to the applicant this provision is immune from judicial challenge, being contained in a decree having the force of law. An identical provision in section 15(3) of Law no. 3713 (the Prevention of Terrorism Act 1981) was in fact declared unconstitutional by the Supreme Court in a decision of 31 March 1992. The applicant contends that the administrative boards, which are composed of appointed civil servants with no legal training, lack independence and entrust investigations into alleged wrongdoing by members of the security forces to a senior member of the security forces. The investigator makes a recommendation as to whether or not a prosecution should be initiated and this recommendation is endorsed by the administrative board whose decisions are subject to review by the Supreme Administrative Court. 47. The Government have provided the Court with a description of the relationship between criminal and civil liability under Turkish law. When a civil court decides on whether a person was at fault in respect of the commission of a particular act it is not bound by criminal-law considerations. The judge in a civil case is not bound by the rules of the criminal law on liability nor by the decision of a criminal court to acquit a person of the wrongdoing which forms the object of civil-law proceedings. It follows from Article 53 of the Turkish Code on Obligations that the judge in civil matters does not need to adopt the findings of a criminal court as regards either the absence of fault or the existence and degree of fault. Article 53 provides: “The court is not bound by the provisions of the penal laws concerning criminal responsibility nor by an acquittal by a criminal court in deciding questions of fault or capacity to act.” 48. Under Turkish law, considerations of crime and fault are not the same as in civil law. Criminal liability comprises the imposition of sanctions whereas civil law is only concerned with the payment of compensation to a plaintiff who can establish fault on the part of the defendant. Liabilities in criminal and civil-law proceedings are determined at different levels and in accordance with different criteria. Under the criminal law, intent on the part of the accused has to be established; in principle it does not consider negligence as a fault in terms of criminal liability. The position is different under civil law. 49. The criminal court may decide the criminal aspects of a case as well as its civil aspects if requested by the aggrieved party under the Law on Criminal Procedure. Thus, the criminal court may make an award of damages. In such a case the criminal court’s decision on the payment of compensation is binding. 50. A civil court dealing with a claim for compensation against a defendant does not need to await a preliminary ruling from a criminal court hearing the criminal-law aspects of the case. It is only where a criminal court has ruled that an accused has committed an act amounting to an offence that a civil court would be bound by that finding. However if the criminal court has acquitted an accused person on the ground that the evidence against him was not sufficient to sustain a conviction, the civil court would not be bound by that decision if the act of which he was accused formed the object of civil litigation. The issue of civil-law liability would be determined in accordance with civil rules and procedures. On this latter point a court of appeal ruled in 1971 that: “The fact that the criminal proceedings resulted in the acquittal of the suspect or the fact that the wrongful act had been committed by many people [and] it is not possible to determine who committed it shall not bind the civil court judge in a compensation case opened afterwards.” 51. In his application to the Commission (no. 22729/93) introduced on 23 September 1993, the applicant complained that his brother, Abdülmenaf Kaya, was unlawfully killed by the security forces on 25 March 1993 and that the circumstances surrounding his killing had not been adequately investigated by the authorities. The applicant alleged violations of Articles 2, 3, 6, 13 and 14 of the Convention. 52. The Commission declared the application admissible on 20 February 1995. In its report of 24 October 1996 (Article 31), it expressed the opinion by twenty-seven votes to three that there had been a violation of Article 2 of the Convention on account of the inadequacy of the investigation conducted by the authorities into the death of the applicant’s brother; unanimously, that there had been no violation of Article 3 of the Convention; by twenty-seven votes to three that there had been a violation of Article 6 of the Convention; by twenty-eight votes to two that no separate issue arose under Article 13 of the Convention; and, unanimously, that there had been no violation of Article 14 of the Convention. The full text of the Commission's opinion and of the five separate opinions contained in the report is reproduced as an annex to this judgment.