CASE OF YAŞA v. TURKEY
Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 2;Violation of Art. 2 (effective investigation);Violation of Art. 13;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Not necessary to examine Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
R. Pekkanen
6. Mr Eşref Yaşa, a Turkish citizen, was born in 1962 and currently lives in Diyarbakır. His uncle, Mr Haşim Yaşa, was born in 1956 and also lived in Diyarbakır. He was killed on 14 June 1993. 7. The applicant lodged an application with the Commission “on his own behalf and on behalf of his deceased uncle” (see paragraph 56 below), in which he complained that they had been victims of armed attacks because they sold the newspaper Özgür Gündem. The attacks were part of a campaign orchestrated against that and other pro-Kurdish newspapers with the connivance or even the direct participation of State agents. Some of the events that led to the application being made are disputed. 8. At the material time the applicant rented a newspaper kiosk, known as the Bulvar Buffet, in the town of Diyarbakır. In October 1992 he began to receive death threats from the police because he sold certain newspapers, in particular the pro-Kurdish paper Özgür Gündem. 9. In the early hours of 15 November 1992 the applicant’s kiosk was set on fire and destroyed. The applicant estimated the damage at 70,000,000 Turkish liras. 10. About a week before that incident, the applicant had been visited by two police officers, one of whom was Superintendent Kemal Fidan of the Diyarbakır Security Branch. The applicant did not know the other officer’s name. They had threatened to burn down his kiosk because of the newspapers he sold. 11. After the applicant’s kiosk had been burnt down, other newsagents had decided to stage a one-day protest strike and refused to sell anything. 12. At 7.15 a.m. on 15 January 1993 shots had been fired at the applicant while he was in Turistik Street in the Mardinkapı district of Diyarbakır. He had been riding his bicycle from home to the kiosk with his son Diren on the back, when he noticed two suspicious-looking men, one tall and the other of average height, aged about 20–25. Fearing their intentions were hostile, the applicant had attempted to steer his bicycle away but had been struck by a taxi. He and his son had fallen to the ground. At that moment one of the two men had started to shoot at him. In self-defence, the applicant had drawn a pistol from his waist and fired six shots back, none of which had hit the two men. The applicant, however, had been hit by eight bullets fired by the assailant. Three had grazed his back and one his right leg. One had entered his right arm and one his left wrist. One bullet had lodged between the forefinger and middle finger of his left hand and one had gone through his right buttock into his abdomen. 13. The applicant was taken by taxi to Diyarbakır Hospital. He had asked the driver to deliver his pistol to one of his relatives. The driver had given it instead to another taxi driver who knew the applicant’s kiosk. He had put the pistol in a scrap-box tin under the counter of the kiosk. 14. The operation to remove the bullets from the applicant’s body, which was performed in the intensive care unit of Diyarbakır Hospital, was held up for two hours by the police. His relatives were later subjected to insults and received death threats at the hospital. 15. The applicant spent eleven days in hospital. He still had health problems as a result of the attack. He suffered pain in his left arm and several fingers of his left hand and there was continuing discomfort from the scars. In addition, he had stomach pains caused by an infection contracted following the operation. 16. While in hospital the applicant had made a statement to the police in which he claimed that his assailants were police officers. At no stage had the public prosecutor’s office asked him to make a statement about the attack. 17. After coming out of hospital he was prosecuted for carrying an unlicensed firearm. On 24 May 1993 he was convicted and sentenced to one year’s imprisonment, later converted by the court to a fine of 1,633,333 Turkish liras, to be paid in instalments over four months. His appeal against the conviction and sentence was dismissed. 18. At about 7.30 a.m. on 14 June 1993 the applicant’s uncle, Haşim Yaşa, who had been running the applicant’s kiosk since March 1993, was shot in the head and killed by an unknown assailant while walking along Sunay Avenue in Diyarbakır. Haşim Yaşa’s seven-year old son, Aziz, was the only witness to the shooting. On the same day, the applicant was arrested, assaulted and threatened with death by the police, who told him that they had carried out the shooting and that he had been the intended target. 19. On 10 October 1993 the applicant’s younger brother, Yalçın Yaşa, aged 13, who had been looking after the kiosk following the attacks on the applicant and his uncle, was killed by an unknown assailant near his home. Another of the applicant’s brothers, Yahya Yaşa, aged 16, was seriously injured during the attack. 20. Following that attack the applicant was forced to sell his business because there was no one left in his family to manage the kiosk. 21. The applicant alleged that he and his uncle had been shot because of their involvement in the distribution of the newspaper Özgür Gündem. The incidents had been part of a campaign of persecution and attacks against people engaged in the publication and distribution of that and other pro-Kurdish newspapers. To support that claim, the applicant referred to the following incidents. 22. Publication of the Özgür Gündem had ceased in April 1994 as a result of a wave of prosecutions brought against it by the State. Since first appearing in May 1992, the newspaper had been the subject of several prosecutions, confiscation orders and temporary closure orders. While the newspaper had never been officially banned from sale, there had been periods when confiscation and closure orders had affected its publication and distribution. The Özgür Ülke, the successor to the Özgür Gündem, was forced to close in February 1995 and the Yeni Politika, which replaced it, ceased publication in August 1995. 23. The applicant has supplied lists detailing cases of attacks on, illtreatment or detention of and threats against staff and distributors of the Özgür Gündem and similar newspapers in 1992, 1993 and early 1994. He maintained that those incidents clearly established that there was a pattern of targeting persons working for the Özgür Gündem. 24. The applicant stated that at least seven journalists, including Musa Anter, working for the Özgür Gündem had been killed, while others had been injured in attacks. Numerous other journalists had been detained and, in some instances, subjected to ill-treatment. 25. There had been numerous prosecutions of the owners, editors and journalists of the Özgür Gündem on the basis, inter alia, of the provision under the Prevention of Terrorism Act prohibiting propaganda against the indivisible unity of the State. In addition, Behçet Cantürk, one of the principal financiers of the Özgür Gündem, was murdered (see paragraph 46 below). 26. The applicant stated that several newspaper kiosks were attacked for selling the Özgür Gündem. In addition, on 3 December 1994 the headquarters of the Özgür Gündem in Istanbul and its office in Ankara were bombed. One person was killed and eighteen injured. 27. There had also been numerous incidents in which persons and vehicles involved in the distribution of the Özgür Gündem had been attacked. The applicant stated that at least eleven vendors or distributors have been killed, including Yalçın Yaşa (see paragraph 19 above) and Haşim Yaşa (see paragraph 18 above). Several others had been beaten or severely injured, while many more had been threatened with violence if they did not stop selling or distributing the newspaper. 28. To support his assertions the applicant referred to various publications containing information and expressing concerns about infringements of freedom of expression in Turkey, including, “What happened to the press in 1993”, published by the Özgür Gündem, extracts from 1993 Info-Türk (E.208-7, E.209-6, E.212-8/9), the United States’ State Department Report for Turkey 1994 and “L’intimidation – rapport sur les meurtres de journalistes et les pressions sur la presse turque” by Reporters sans frontières (January 1993). 29. The Government confirmed that the applicant had been shot and his uncle killed on 15 January 1993 and 14 June 1993 respectively. In their memorial they referred to the investigations of the public prosecutors, which commenced on the same day as the attacks (see paragraphs 35 and 41 below). Those investigations, which were being conducted in accordance with the applicable provisions of the Turkish Code of Criminal Procedure (see paragraph 48 below), were still pending. 30. The Government maintained that there was no evidence to support the applicant’s contention that members of the security forces were responsible for the attacks on the applicant and his uncle. In addition, they denied all allegations of ill-treatment by the State authorities. They said that the applicant had never officially complained to the relevant authorities that his attackers were agents of the State. Moreover, there was no evidence to support the applicant’s allegation that a police officer had told him that it was in fact he who had been the target of his uncle’s killers. 31. The Government refuted any allegation that there had been official intimidation of persons in any way connected with the sale of newspapers. They said that such newspapers were sold in hundreds of kiosks and were freely available throughout Turkey. The Government acknowledged that on certain occasions particular editions of those newspapers had been confiscated (see paragraph 22 above). However, the measures, which were neither arbitrary nor repressive, were always made on the basis of judicial decisions. 32. Noting that the allegations were of a width and character that would not be easily amenable to clarification from oral testimony, the Commission decided, after consulting the parties, to examine the allegations on the basis of the written materials submitted by the parties. The findings of the Commission can be summarised as follows. 33. The Commission observed that the facts at the heart of the application were not disputed. The applicant was shot at and seriously injured in an attack by two men on 15 January 1993. His uncle, Haşim Yaşa, was shot and killed by a gunman on 14 June 1993. 34. The Commission found that there was no evidence before it that proved beyond reasonable doubt that agents of the security forces or police were involved in the shooting of either the applicant or his uncle. It also found that the applicant’s complaints concerning police obstruction at the hospital and ill-treatment in custody following his uncle’s funeral had not been substantiated. However, having regard to “appeals made for protection and protests made by Mr Yaşar Kaya, [a] journalist and [the] owner of the Özgür Gündem, at ministerial level and to the considerable number of attacks on persons connected with that newspaper”, the Commission found that the Government had or ought to have been aware that those involved in its publication and distribution feared that they were falling victim to a concerted campaign tolerated, if not approved, by State agents (see paragraph 104 of the Commission’s report) . 35. According to a police report dated 15 January 1993 the shooting took place at about 7.15 a.m. in Turistik Street. Fifteen empty cartridges and two bullet shells were taken for forensic examination, and a plan of the scene was drawn up. On the day of the shooting the police recovered the applicant’s pistol from his kiosk. They arrested Ş. Altunhan at the kiosk and two taxi drivers, one being the driver to whom the applicant had entrusted the pistol and the other being the driver who had taken it to the kiosk (see paragraph 13 above). The police had then taken detailed statements from them. 36. In response to an enquiry of 15 January 1993 from the security police, the hospital doctor recorded the following injuries to the applicant: one bullet entry to the left gluteal region, one bullet entry and exit to the middle left forearm, one bullet scratch to the left index finger, one bullet entry and exit on the middle front upper right arm between the elbow and axillary region and a bullet track slightly below the skin tissue, surfacing under the arm. 37. On 17 January 1993, in the presence of his lawyer, the applicant had given a statement to the police in which he had described the attack. He stated that the assailants had intended to murder him because he ran a newspaper kiosk that mainly sold left-wing newspapers. He explained that, as there had been previous attacks on newsagents selling such papers, he had bought the pistol and had been carrying it with him for three or four days before the attack (see paragraph 16 above). 38. A summary incident report dated 17 January 1993 on the shooting, entitled “crime record no. 1993/C-14”, referred to the applicant as an injured suspect and stated that the other (unidentified) suspects were at large. 39. On 20 January and 14 April 1993 the Diyarbakır public prosecutor had requested the relevant security branch to investigate the attack on the applicant and to apprehend the suspects. On the latter date the public prosecutor had also requested that the Principal Public Prosecutor’s Office be kept informed of the progress of the inquiries every three months until the end of the statutory prescription period, namely 15 January 1998. 40. An expert ballistics report from the Diyarbakır regional criminal police laboratory dated 11 February 1993 indicated that the cartridges found by the police at the scene of the shooting showed traces and marks identical to those in the shooting of two other people in Diyarbakır on 3 November 1992 and 11 February 1993 respectively. 41. A preliminary investigation file no. 1993/2248 had been opened into the killing of Haşim Yaşa. According to an autopsy report dated 14 June 1993, four bullet entry wounds had been found on Haşim Yaşa’s body, two of which were fatal. 42. Following the shooting, the police had prepared a sketch of the scene of the incident and had taken statements on 14 June 1993 from two witnesses. According to V. Şimşek, after hearing the shots, he had seen someone, whom he was unable to identify, running behind the people gathering in the street. R. Orhan, who ran a stall in the street, had heard but not seen the shooting. On reaching the scene, he had helped Haşim Yaşa, who was lying on the ground, get into a taxi so that he could be taken to hospital. 43. The record made by the police on questioning Haşim Yaşa’s son had indicated that although the boy had seen the assailant he had not recognised him. He said that the assailant – aged 20 to 25 and approximately 1.70 m tall – had continued to fire at his father even though the latter had fallen to the ground after the first shot. The attacker had then made his escape. 44. An expert ballistics report dated 21 June 1993 indicated that the bullet shells retrieved from the scene were too deformed for useful examination. 45. No other information concerning any investigative measures taken in relation to those incidents was included with the documents from the investigation file provided to the Commission. However, appended to the Government’s written observations before the Commission was a letter which the public prosecutor attached to the Diyarbakır National Security Court had sent on 2 November 1995 to the Minister of Justice in which he said: “[The] allegation ... is wholly untrue. There are no gunmen working for the State in south-east Anatolia. In [that] region there are armed conflicts between armed organisations and conflicts arising out of the settling of scores within such organisations. The allegation that these incidents are attributable to the State and gunmen acting on its behalf is outrageous...” 46. Before the Court, the applicant has produced a copy of a recent report by the Board of Inspectors within the Prime Minister’s office. That confidential report (“the Susurluk report”) was initially intended to be only for the Prime Minister, who had commissioned it on 13 August 1997. After receiving the report in January 1998, it would appear that the Prime Minister then made it available to the public, although eleven pages from the body of the report and its appendices were withheld. The report continued to be the centre of attention in Turkey while the Court was considering the case. 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 that had occurred mainly in south-east Turkey which tended to confirm the existence of a tripartite relation involving unlawful dealings between political figures, government institutions and clandestine groups. 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 had 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 (page 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 (page 37). ... Summary information on the antecedents of Behçet Cantürk, who was of Armenian origin, are set out below (page 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 the 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 (page 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 (page 74).” 47. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows. 48. 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 members of the security forces as well as to the 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 course of his duty shall be 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). 49. 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, 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. 50. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of the state of emergency region, the 1914 Law (see paragraph 49 above) also applies to members of the security forces who come under the governor’s authority. 51. 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 9–14 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 48 above) or with the offender’s superior. 52. 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. 53. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities shall be 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. 54. Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 53 above), provides: “No criminal, financial or legal liability may be asserted against … the governor of the state of emergency region or 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 Legislative-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.” 55. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages for pecuniary loss (Articles 41–46) 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).