CASE OF KILIÇ v. TURKEY
Violation of Art. 2 in respect of failure to protect life;Violation of Art. 2 in respect of ineffective investigation;Not necessary to examine Art. 10;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Elisabeth Palm
8. Kemal Kılıç, the applicant's brother, was a journalist working for the newspaper Özgür Gündem in Şanlıurfa. Özgür Gündem was a daily newspaper, with its main office in Istanbul. Its owners described the newspaper as seeking to reflect Turkish Kurdish opinion. It was published between 30 May 1992 and April 1994. By the time it ceased publication, numerous prosecutions had been brought against it on the grounds, inter alia, that it had published the declarations of the PKK (Workers' Party of Kurdistan) and disseminated separatist propaganda. Following a search-and-arrest operation at the Özgür Gündem office in Istanbul on 10 December 1993, charges were brought against, inter alia, the editor, the manager and the owner of the newspaper, alleging that they were members of the PKK and had assisted the PKK and made propaganda in its favour. On 2 December 1994 the Istanbul office, which had been taken over by Özgür Gündem's successor, the newspaper Özgür Ülke, was blown up by a bomb. 9. Kemal Kılıç, who was unmarried, lived with his father in the village of Külünçe, outside Şanlıurfa. Besides working as a journalist, he was a member of the Şanlıurfa Human Rights Association. 10. On 23 December 1992 Kemal Kılıç sent a press release to the governor of Şanlıurfa. This stated that death threats had been made against the United Press Distribution representative carrying out the distribution of Özgür Gündem and against the driver and owner of the taxi used for deliveries. It stated that it was known that persons working for Özgür Gündem had been attacked or killed and that those involved in the sale and distribution of the newspaper had been the victims of arson attacks and assaults. Reference was made to the fact that in other provinces in the south-east security officers were protecting the offices, employees and distributors. Kemal Kılıç requested that measures be taken to protect the safety of people working for the Şanlıurfa office, including himself, another journalist and the newspaper's distributor and driver. 11. By letter dated 30 December 1992, the governor's office replied that Kemal Kılıç's request for protection had been examined. No protection had been assigned to distributors of newspapers in any of the provinces nor had there been any attacks on, or threats to, distributors in the area. His request was refused. 12. On 11 January 1993 Kemal Kılıç issued a press release stating that attacks against persons involved in the sale and distribution of Özgür Gündem in Şanlıurfa were continuing, despite urgent requests for protective measures. Details were given of an arson attack on a news-stand on 5 January 1993 and on another news-stand on 10 January 1993. The press release criticised the governor for not ensuring the safe distribution of the newspaper and called on him and the police to fulfil their responsibilities. 13. Following a complaint by the governor, Kemal Kılıç was charged with insulting the governor through the publication and circulation of the press release. He was taken into detention at the Şanlıurfa Security Directorate on 18 January 1993 and released the same day. 14. At around 5 p.m. on 18 February 1993 Kemal Kılıç left the newspaper office in the centre of Şanlıurfa and walked to the coach station. At about 5.30, he caught the Şanlıurfa to Akçale coach from Kuyubaşı. Before the coach reached the junction of the main road with the road to Külünçe, it was overtaken by a white Renault car, which turned into the village road, turned around and parked, with its headlights off. The car was noticed at about 6.20 p.m. by Ahmet Fidan, a night watchman at a nearby construction site. Kemal Kılıç was the only passenger to leave the coach when it stopped at the junction. He walked up the road towards the village. Ahmet Fidan heard voices arguing and a cry for help, followed by two shots. 15. The incident was reported to the gendarmes who rapidly arrived on the scene. Kemal Kılıç's body was discovered with two bullet wounds in the head. The applicant and other members of his family came from the village to see what had happened. 16. Captain Kargılı, the central district gendarmerie commander, took charge of the investigation at the scene. Two cartridges were found and handed over to the public prosecutor when he arrived. The victim's mouth was found to have been covered with four strips of packaging tape and there was a rope around his neck. A piece of paper bearing the letters U and Y, stained with blood, was also discovered. A sketch map of the scene was drawn up. Captain Kargılı took photographs with his own camera and looked, unsuccessfully, for tyre marks. A statement was taken by the gendarmes from Ahmet Fidan, the night watchman, who stated that because of the darkness he had not seen the victim, the assailants or the car. 17. An examination of the body was carried out by a doctor in the presence of the public prosecutor on 19 February 1993. The report found that two bullets had entered the head and noted the mark of a blow to the right temple, a graze on the right hand, bruising on the back and a semi-circular lesion on the left hand, which resembled a bite mark. It concluded that Kemal Kılıç had died due to destruction of brain tissue and brain haemorrhage. 18. On 19 February statements were taken by the gendarmes from the driver of the Şanlıurfa coach and his assistant. The gendarmes also took statements between 19 and 23 February from the applicant, his father, three of his brothers and two passengers on the coach. 19. On 26 February 1993 Captain Kargılı carried out a search, with a warrant, of the house where Kemal Kılıç had lived, removing, inter alia, books, newspaper cuttings, a photograph and two cassettes for further examination. 20. On 15 March 1993 Captain Kargılı informed the public prosecutor of the search, enclosing several of the items removed from the house and other documents concerning the investigation. 21. On 12 August 1993 the public prosecutor issued a decision to continue the investigation, which stated that it had not been possible to identify or apprehend the perpetrators of the killing and that the search should continue until the expiry of the twenty-year limitation period. 22. On 24 December 1993 an armed attack was carried out on the Aydın Ticaret shop in Diyarbakır. The suspected perpetrators were pursued by police and a number of persons were arrested. The police incident report dated 24 December 1993 stated that the suspect Hüseyin Güney had been seen trying to escape by running up the stairs of a block of flats and was apprehended in a breathless, perspiring state. It was understood that he was returning to recover the Czech 9 mm pistol located in front of the building. 23. A ballistics report dated 27 December 1993 reported that the Czech pistol had been used in fifteen other shooting incidents, including the killing of Kemal Kılıç. In an indictment dated 3 February 1994, also concerning sixteen other defendants, Hüseyin Güney was charged with the offence of membership of the outlawed Hizbullah organisation and carrying out activities with the intention of removing part of the country from the sovereignty of the State and forming a Kurdish State based on Islamic principles. These activities were said to include the attack on Aydın Ticaret and the fifteen incidents in which the Czech pistol had been used. 24. In the undated interrogation notes taken at the Diyarbakır Security Directorate, Hüseyin Güney was recorded as admitting his membership of the Hizbullah and his participation in the attack on Aydın Ticaret. He denied participation in the killing of Kemal Kılıç and stated that he had been given the Czech pistol by another member of the group. In his statement of 6 January 1994 to the public prosecutor, Hüseyin Güney stated that his confessions to the police had been obtained by torture and denied that he had joined the Hizbullah or that he had attacked Aydın Ticaret. 25. The trial of Hüseyin Güney, with other defendants, was conducted before the Diyarbakır National Security Court no. 3 between February 1994 and 23 March 1999. On 3 March 1994 Hüseyin Güney denied his involvement in any of the incidents. At the hearing on 27 October 1994, the police officers who had arrested him confirmed the incident report of 24 December 1993 without adding anything further. On 17 December 1996 the court issued a request for documents relating to the killing of Kemal Kılıç to be obtained. 26. In its judgment of 23 March 1999, the court convicted Hüseyin Güney of being a member of a separatist organisation, the Hizbullah. The court noted that he had been found trying to escape in the vicinity of the Czech 9 mm pistol and that, although he later denied it, he had admitted to the police that he was a member of the Hizbullah and that he had participated in the attack on the shop. It noted, however, that pistols belonging to the organisation could have been used by different individuals and that the defendants had stated that the guns had been given to them by other members of the group before the attack. It was found that although Hüseyin Güney had participated in the attack on the shop he could not be held responsible for any other actions. Hüseyin Güney was sentenced to life imprisonment. 27. Following the court's decision, the Diyarbakır National Security Court chief public prosecutor opened an investigation into the killing of Kemal Kılıç (file no. 1999/1187). By letter dated 20 December 1999, the prosecutor instructed the Şanlıurfa gendarmerie command to report to him every three months concerning any evidence obtained about the Kılıç murder. 28. The contents of the investigation file compiled by the gendarmes and public prosecutor at Şanlıurfa, as well as the minutes from the hearings in the trial of Hüseyin Güney in Diyarbakır National Security Court no. 3 from February 1994 to June 1997, were submitted to the Commission. The Government provided the Court with the judgment of the Diyarbakır National Security Court no. 3 of 23 March 1999. 29. The applicant provided the Commission with a copy of the so-called “Susurluk report”, produced at the request of the Prime Minister by Mr Kutlu Savaş, Vice-President of the Board of Inspectors within the Prime Minister's Office. After receiving the report in January 1998, the Prime Minister made it available to the public, although eleven pages and certain annexes were withheld. 30. The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups. 31. The report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that have been formed as a result, particularly in the drug-trafficking sphere. The passages from the report that concern certain matters affecting radical periodicals distributed in the region are reproduced below. “... In his confession to the Diyarbakır Crime Squad, ... Mr G. ... had stated that Ahmet Demir[] [p. 35] would say from time to time that he had planned and procured the murder of Behçet Cantürk[] and other partisans from the mafia and the PKK who had been killed in the same way ... The murder of ... Musa Anter[] had also been planned and carried out by A. Demir [p. 37]. ... Summary information on the antecedents of Behçet Cantürk, who was of Armenian origin, are set out below [p. 72]. ... As of 1992 he was one of the financiers of the newspaper Özgür Gündem. ... Although it was obvious who Cantürk was and what he did, the State was unable to cope with him. Because legal remedies were inadequate Özgür Gündem was blown up with plastic explosives and when Cantürk started to set up a new undertaking, when he was expected to submit to the State, the Turkish Security Organisation decided that he should be killed and that decision was carried out [p. 73]. ... All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms. ... The sole disagreement we have with what was done relates to the form of the procedure and its results. It has been established that there was regret at the murder of Musa Anter, even among those who approved of all the incidents. It is said that Musa Anter was not involved in any armed action, that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake. (Information about these people is to be found in Appendix 9[]). Other journalists have also been murdered [p. 74][].” 32. The report concludes with numerous recommendations, such as improving co-ordination and communication between the different branches of the security, police and intelligence departments; identifying and dismissing security-force personnel implicated in illegal activities; limiting the use of “confessors”; reducing the number of village guards; terminating the use of the Special Operations Bureau outside the south-east region and incorporating it into the police outside that area; opening investigations into various incidents; taking steps to suppress gang and drug-smuggling activities; and recommending that the results of the Grand National Assembly Susurluk inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken. 33. The applicant provided this 1993 report into extra-judicial or “unknown perpetrator” killings by a Parliamentary Investigation Commission of the Turkish Grand National Assembly. The report referred to 908 unsolved killings, of which nine involved journalists. It commented on the public lack of confidence in the authorities in south-east Turkey on and referred to information that the Hizbullah had a camp in the Batman region where they received political and military training and assistance from the security forces. It concluded that there was a lack of accountability in the region and that some groups with official roles might be implicated in the killings. 34. A delegation from the Commission heard evidence from four witnesses: the applicant, Captain Cengiz Kargılı, the gendarme in charge of the investigation into the killing of Kemal Kılıç, Mr Cafer Tüfekçi, public prosecutor at the Diyarbakır National Security Court who had initiated the proceedings against Hüseyin Güney, and Mr Mustafa Çetin Yağlı, public prosecutor at the Diyarbakır National Security Court who had acted in the trial against Hüseyin Güney. 35. Three other witnesses did not appear. Ahmet Fidan, the night watchman, could not be traced. Mr Hüseyin Fidanboy, the Şanlıurfa public prosecutor, was due to attend but his flight to Ankara was cancelled due to snow. Mr Ziyaeddin Akbulut, the governor of Şanlıurfa at the material time, was asked to attend the hearings on 4 February and 4 July 1997 but did not appear. After the first hearing, the Agent of the Government provided the explanation that Mr Akbulut had been taking his annual leave. Regarding the second hearing, the Agent submitted a letter from Mr Akbulut which stated that he could not remember being petitioned by Kemal Kılıç, that the allegations made were false and that he could not attend due to his annual leave. 36. The principles and procedures relating to liability for acts against the law may be summarised as follows. 37. Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 38. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey. 39. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court. 40. By virtue of Article 4, paragraph (i), of Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 39 above) also applies to members of the security forces who come under the governor's authority. 41. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person's life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 37 above) or with the offender's superior. 42. 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 from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 43. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions 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.” That provision establishes 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 show a tortious 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. 44. Article 8 of Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 43 above), provides: “No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 45. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations).