CASE OF SAKİNE EPÖZDEMİR AND OTHERS v. TURKEY
No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect)
Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
5. The applicants were born in 1947, 1966 and 1968, respectively, and live in Istanbul. The first applicant is the wife and the second and third applicants are the sons of Mr Şevket Epözdemir. 6. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 7. The deceased was a lawyer and the chairman of the Tatvan provincial branch of a pro-Kurdish political party, the Democracy Party (“DEP”). 8. The applicants submitted that between August and December 1993, DEP party buildings were bombed and ten of its members and administrators were killed. The applicants also alleged that during a meeting with political party representatives, General K.T., who was the commander of the Tatvan 6th Armoured Brigade, had threatened their relative, Şevket Epözdemir, and one of his colleagues, the chairman of DEP’s Bitlis provincial branch, Mr İshak Tepe. The General had told the two men that “they would meet their deaths very soon”. Subsequently, Mr Tepe’s son had been abducted and killed. 9. On the morning of 25 November 1993 Mr Epözdemir left his house to go to his office, which was nearby. At around 8 p.m. the same day Mr Epözdemir telephoned his wife, the first applicant, and told her that he was leaving his office to come home. When he failed to arrive the family became concerned and contacted the authorities. 10. At midday the following day the first applicant went to the police station in Tatvan, where she asked the police officers to find her husband. She told the police officers that when her husband had failed to come home the previous evening she had telephoned the local prosecutor and asked him whether her husband had been arrested. After the prosecutor had told her that her husband had not been arrested, she had informed members of her family about her husband’s disappearance, and then waited up all night. 11. Unbeknown to the first applicant, some half an hour before she went to the police station the body of her husband had been found by soldiers in the vicinity of the nearby town of Güroymak, in a ditch at the side of a road which connected the town of Tatvan to the city of Bitlis. He was blindfolded and there was a gunshot wound on his face. The police officers who subsequently arrived at the scene informed the soldiers that it could be the body of Şevket Epözdemir, whose disappearance had been reported to them by his family. 12. The local prosecutor arrived at the scene at 1.45 p.m. on the same day and gave instructions for the deceased’s body to be taken to the hospital in Bitlis, where it was formally identified by Mr Epözdemir’s brother, Şakir Epözdemir, who also informed the prosecutor that after his brother had failed to come home the previous evening the family had telephoned the local police at 9.30 p.m. because they feared that he might have been abducted. He added that his deceased brother had been a prominent figure in the town of Tatvan and that that had been the reason for the family’s suspicions that he might have been abducted. 13. On the same day Mr Epözdemir’s body was examined by two doctors, who noted that there was a bullet entry hole on the face and a corresponding exit hole on the back of the head. The doctors also noted the existence of widespread injuries on many parts of the face and the body which, according to the doctors, had been caused by physical trauma. The doctors, who established the cause of death as cerebrovascular haemorrhagic shock caused by the gunshot wound, did not consider it necessary to carry out a full autopsy. 14. On the same day the Tatvan prosecutor opened an investigation file into the killing and informed the Ministry of Justice. 15. On 27 November 1993 the Tatvan police headquarters sent a letter to the governor’s office in the town of Güroymak, in whose administrative jurisdiction the body had been found, and asked the governor whether the applicants’ relative had been in Güroymak on 25 November 1993 and whether they had any information about anyone in Güroymak who might have harboured hostile feelings towards Mr Epözdemir. 16. On 29 November 1993 the second applicant asked the Tatvan prosecutor whether there had been an outstanding arrest warrant in respect of his father. On the same day the prosecutor informed the second applicant that no such warrant had been issued. 17. On 6 December 1993 the Bitlis prosecutor decided that he did not have the requisite jurisdiction ratione materiae to investigate the case and forwarded the investigation file to the prosecutor’s office at the Diyarbakır State Security Court, which did have jurisdiction to investigate such offences. 18. On 21 December 1993 the prosecutor at the Diyarbakır State Security Court sent a letter to the Bitlis prosecutor and asked him to resume his investigation into the killing and to inform him every three months about developments. 19. On 5 June 2003 the applicants sent letters to the offices of the Van and Tatvan prosecutors and asked to be provided with information regarding the steps taken in the investigation over the course of the previous ten years. 20. On 26 June 2003 the Van prosecutor’s office decided that it had no jurisdiction ratione loci to investigate the incident and forwarded the applicants’ letter (mentioned in the preceding paragraph) to the office of the prosecutor in Tatvan. On 30 June 2003 the Tatvan prosecutor decided that his office did not have jurisdiction ratione loci either and sent the letter to the prosecutor’s office in Güroymak. On 24 July 2003 the Güroymak prosecutor took a decision of non-jurisdiction ratione materiae and sent the letter to the prosecutor’s office at the Van State Security Court. 21. On 14 August 2003 the prosecutor at the Van State Security Court replied to the applicants’ letter of 5 June 2003 and informed them that the investigation was still continuing. On the same day the prosecutor also issued a standing search order and asked the Güroymak prosecutor to continue to search for the perpetrators and to inform his office every three months about developments. 22. On 10 May 2010 the Güroymak prosecutor instructed the local gendarmerie to search for the perpetrators until 26 November 2013 (the date of the expiry of the time-limit prescribed by the statute of limitations). On 1 December 2010 and 24 March 2011 a number of gendarmes visited the place where the body had been found in 1993 and noted that there was no evidence there to help solve the killing. 23. In the meantime, on 10 January 1995 the applicants brought compensation proceedings against the Ministry of the Interior. In their petition the applicants argued that the perpetrators of the killing had not been found, despite the fact that more than one year had elapsed since the incident. They submitted that their relative had been a well-liked person in Tatvan and that he had never had any problems with anyone. The applicants argued that States were responsible for protecting their citizens’ lives and that in the event that they failed to do so, they had a duty to find and punish the perpetrators of any resultant unlawful death; otherwise they themselves should be held responsible for such loss of life. The applicants also submitted that, because of the failure to find and punish the perpetrators of the killing of Şevket Epözdemir, they had suffered immeasurable pain and stress and the State had thus an obligation to compensate them for the damage that they had sustained. They argued that the State’s liability arose from its failure to protect the deceased’s life. In any event, even if no such failure could be said to have occurred, they further argued that the State nevertheless had an “absolute liability” to compensate them. 24. On 10 June 1996 the Bitlis police headquarters informed the Van Administrative Court, in response to an apparent query from the latter, that the applicants’ relative, Şevket Epözdemir, had never requested protection from the authorities. 25. On 16 December 1997 the Van Administrative Court decided to award compensation to the applicants, in accordance with Article 125 of the Constitution (see paragraphs 32-34 below). It held that when carrying out their duties the public authorities had an obligation to take the necessary measures and to show due diligence in doing so. In the present case the public authorities had failed to comply with that obligation. 26. The Ministry of the Interior appealed, arguing that it had not failed in that obligation because the reason for the killing and the identity of its perpetrators had not yet been established. 27. The applicants did not submit any observations in reply to those of the Ministry of the Interior. 28. In its decision of 6 November 2000 the Supreme Administrative Court quashed the decision of the Van Administrative Court because it considered that, given that the reason for the killing had not been established and the perpetrators had not been identified, no causal link could be said to exist between the damage caused by the killing and any actions on the part of the public authorities. It added that for the public authorities to be said to have failed in their obligation, it was necessary to establish that they had either not performed their duties at all, or had failed to perform them in a timely manner, or had performed them in an unsatisfactory fashion. The Supreme Administrative Court further held that the lack of the above-mentioned causal link also prevented the courts from awarding compensation to the family on the basis of the public authorities’ “absolute liability” because the sole fact that the deceased had been a “member of society” was not sufficient. For it to be able to award compensation on the basis of the “social risk doctrine” it was a precondition for the damage to have arisen in a setting within which public servants were carrying out their duties. 29. On 15 May 2001 the Van Administrative Court re-examined the case in the light of the Supreme Administrative Court’s decision and decided to reject the applicants’ claim for compensation. In reaching its conclusion, the administrative court noted that the investigation into the killing was still ongoing and, in any event, the deceased had never sought protection from the State. It thus held that the public authorities had not acted in breach of their duties. It further held that, as the conditions of the “social risk doctrine” had not been satisfied, it was not possible to award compensation to the family on the basis of the State’s “absolute liability”. 30. The applicants lodged an appeal with the Supreme Administrative Court against the decision and argued that a citizen need not officially seek protection from the authorities in order to trigger the State’s obligation to protect such a citizen’s life. To argue otherwise would be at odds with the Constitution and the international treaties to which Turkey was a party. The applicants also submitted that at the time of the killing, a state of emergency had been declared in their part of the country; this had created a climate that was conducive to the perpetration of such crimes. The fact that some eight years after the killing the perpetrators had still not been identified was an indication that the public authorities had failed in their duties. The applicants maintained that the authorities had failed to take the necessary steps to prevent the attack on their relative and to find the perpetrators. The Ministry was therefore responsible for the pecuniary and non-pecuniary damage arising from the failures on its part. 31. The appeal lodged by the applicants was rejected by the Supreme Administrative Court on 17 April 2003. A request made by the applicants for the Supreme Administrative Court’s decision to be rectified was also rejected, on 14 November 2005. The final decision was served on the applicants on 3 January 2006.