CASE OF GÜLBAHAR ÖZER AND YUSUF ÖZER v. TURKEY
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
5. The applicants were born in 1963 and 1965 respectively and live in İzmir. They are brother and sister. Their respective children, Sibel Sartık and Nergiz Özer, aged 24 and 15 respectively, were killed by soldiers on 19 January 2005 in south-east Turkey. During the same incident the soldiers also killed three other young people, aged 13, 16 and 22 (see Gülbahar Özer and Others v. Turkey, no. 44125/06, 2 July 2013). The bodies of those three individuals were subsequently handed over to their families, who buried them in Diyarbakır. 6. On 23 January 2005 the prosecutor ordered the release of the bodies of the applicants’ two children. The applicants took the bodies from the morgue in order to take them to the city of Siirt, where they wanted to bury them and where their graves had already been prepared with the help of the municipal officials. 7. On the same date the governor of Siirt issued a decision stating that crowds had gathered at the cemetery in Siirt and had attacked the municipal workers who were preparing the graves. Subsequently, the incidents at the cemetery had escalated and turned into “unlawful demonstrations”. Therefore, “in order to prevent any unwanted consequences”, the governor decided to order the burial of the applicants’ children in the two villages named in the respective birth register records of the two deceased. 8. While the applicants, together with the coffins of their two children, were on their way to Siirt, their vehicles were stopped by gendarme soldiers who told the applicants that they were not allowed to bury their children in Siirt. The soldiers told the applicants that, in accordance with the decision taken by the Siirt governor, the bodies would be buried in two other villages. The applicants told the soldiers that they had no connection with the two villages in question which, in any event, had been evacuated by soldiers in the 1990s. They stated that they wanted to bury their children side by side in their family cemetery in Siirt. Despite their objections, the bodies of the two children were confiscated and taken away by the soldiers. 9. The same day the second applicant made an official request to the office of the governor and asked for permission to bury the children in the city of Batman instead. This request was refused but the governor amended his decision so that the applicants’ children could be buried in the same cemetery in the town of Eruh, instead of being buried in two separate villages as he had previously ordered. In accordance with that decision, the applicants’ children were buried by the authorities in the municipal cemetery in Eruh at 1.45 a.m. on 24 January 2005 without any religious ceremony. 10. On 11 March 2005 the applicants brought a case before the Diyarbakır Administrative Court and asked for the Siirt governor’s decision to be annulled. They also requested that the Administrative Court issue an interim measure allowing them to exhume the bodies before they decomposed, and to bury them in a cemetery of their choice. The applicants agreed, in particular, that it was important and necessary to maintain public order. However, they argued that the governor’s decision had completely disregarded the moral values of their society and had aroused anger. The news that their children would not be buried in Siirt and that their bodies had been confiscated by the soldiers had caused an upsurge of emotion in the people waiting at the cemetery in Siirt and as a result they had attacked members of the security forces and local shops with sticks and stones. When the security forces responded to those attacks heavy handedly, scores of people had been injured and more than a hundred people had been arrested. All of that unrest had been caused by the governor’s unlawful decision. No such incidents had taken place during the burial of the three other individuals who had been killed at the same time as their children. In their complaint the applicants also referred to their rights under Articles 8 and 9 of the Convention. 11. On 30 March 2006 the Diyarbakır Administrative Court rejected the case. It noted that the governor’s decision had been based on section 11/C of the Law on the Administration of Provinces, which provided that the governor had a duty to maintain peace and public order in the province under his responsibility. The decision had been taken because the people who had gathered at the cemetery in Siirt and who were waiting for the bodies to arrive had thrown stones at municipal workers and members of the security forces. The decision to bury the bodies in the town of Eruh had therefore been taken with a view to maintaining public order. The Administrative Court considered that, although the applicants had the right to bury their children in a cemetery of their choice, the refusal to permit them to do so had been in compliance with the restrictions set out in the second paragraphs of Articles 8 and 9 of the Convention and in section 13 of the Turkish Constitution. 12. The applicants appealed against the decision and maintained that the incidents at the cemetery referred to by the Administrative Court had only occurred after the crowds had found out about the authorities’ refusal to allow them to bury their children in Siirt. They repeated their argument that the three others killed by the soldiers at the same time as their children had been buried by their families in Diyarbakır without incident. The applicants also reiterated their request for an interim measure. 13. The request for an interim measure was rejected by the Supreme Administrative Court on 13 December 2006. In a decision of 24 October 2008 the Supreme Administrative Court also rejected the appeal lodged by the applicants against the decision of the Diyarbakır Administrative Court. In reaching its conclusion the Supreme Administrative Court stated that the incidents at the Siirt Cemetery had begun when the people who had gathered there had insisted that the applicants’ two children be buried next to the graves of members of the PKK. 14. The decision of the Supreme Administrative Court was communicated to the applicants on 19 March 2009.