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FOREWORD
This report deals with Kaya v. Turkey, an unlawful killing case, and Kurt v. Turkey, a disappearance case, which were decided by the European Court of Human Rights in 1998.
The proceedings under the European Convention of Human Rights took over four years in the case of Kaya and four years in the case of Kurt, from lodgement of the application to delivery of judgment by the Court. When the applicants in Kaya and Kurt filed their complaints with the European Commission of Human Rights, the Turkish Government disputed the applicants’ versions of events and denied that it had failed to observe its obligations under the Convention. The Commission therefore found it necessary to conduct investigation hearings to determine whether or not the alleged violations had occurred. Despite the Commission’s findings, in favour of the applicants in respect of a number of their complaints, the Turkish Government maintained its denials.
Lengthy legal proceedings are immensely costly in terms of money and labour, and they can also be the source of protracted emotional and mental stress for the applicants and their families. Such hardship was particularly evident in Kurt as the applicant, the Court found, had been subjected to improper pressure by the Government to withdraw her complaints. The Court’s ruling in favour of the applicants in respect of a number of their complaints was, therefore, a hard won victory for human rights.
The Kurdish Human Rights Project (KHRP) and human rights organisations and activists in Turkey1 and the United Kingdom1 2 3 have worked together in assisting individuals to bring their experiences of human rights violations to the Commission and the Court. Kaya and Kurt are two of a series of cases brought by Kurds against the State of Turkey in which the Court has handed down judgment in applications assisted by KHRP. ’ The first case was in 1996 in the matter of Akdivar v. Turkey,4 a destruction of homes case. Shortly after came the judgments in Aksoy v. Turkey5 and Aydin v. Turkey6 both concerning the use of torture by the Turkish authorities. Later in 1997, judgment was delivered in another destruction of homes case, Mentes v. Turkey7. Then followed the judgment in Kaya and the judgments in Selçuk and Asker v. Turkey8 and Gündem v. Turkey,9 further destruction of homes cases, after which the Court’s decision in Kurt was handed down. In each of these cases the Court found that Turkey had violated a number of the human rights which it undertook to respect and protect when it became a party to the Convention. Indeed the wide range and serious nature of the human rights violations to which the Kurdish inhabitants of Turkey have been subjected (particularly in the emergency region in the southeast) is being revealed as more cases are decided.
We believe that respect for human rights will improve with increased awareness of the nature of human rights abuses, and education in human rights standards. To this end, it is hoped that this report will promote general access to the decisions in Kaya and Kurt. Part I deals with the former case and Part II with the latter. The Commission’s decisions on admissibility and its Article 31 reports, as well as the Court’s judgments, are contained in the appendices to the report.
Kerim Yildiz
Executive Director
Kurdish Human Rights Project
1 For example, KHRP has worked with the Human Rights Association of Turkey (IHD) in bringing a number of cases before the European Commission of Human Rights. The IHD was established in 1986 with the stated purpose of promoting human rights and civil liberties in Turkey. It is a nongovernment organisation with approximately 16,000 members and 58 branches throughout Turkey. One of the functions of the IHD’s Diyarbakir branch was to assist individuals who have suffered a human rights violation to obtain a domestic remedy and, where this is not possible, to lodge applications under the European Convention of Human Rights. IHD staff have reportedly been arrested and intimidated for their human rights activities on a number occasions. In July 1997 the Diyarbakir branch of the IHD was closed down by the authorities. KHRP also works with the Bar Associations in Turkey as well as those in Europe.
2 KHRP has worked extensively with Professor Kevin Boyle and Ms Françoise Hampson, human rights lawyers at the Human Rights Centre, University of Essex (England).
3 To date, reports on KHRP assisted cases are: ‘Akdivar v. Turkey: The Story of Kurdish Villagers Seeking Justice in Europe’, October 1996; ‘Aksoy v. Turkey; Aydin v. Turkey: A Case Report on the Practice of Torture in Turkey’, December 1997; ‘Mentes and Others v. Turkey: A KHRP Case Report on Village Destruction in Turkey’, September 1998; ‘Gündem v. Turkey; Selçuk and Asker v. Turkey: A Case Report’, October 1998. These reports may be obtained by contacting the Kurdish Human Rights Project, Suite 319 Linen Hall, 162-168 Regent Street, London W1R 5TB. Telephone: (0171) 287 2772; facsimile: (0171) 734 4927. A publications list is also available on request.
4 Judgment of 16 September 1996.
5 Judgment of 18 December 1996.
6 Judgment of 25 September 1997.
7 Judgment of 27 November 1997.
8 Judgment of 24 April 1998.
9 Judgment of 25 May 1998.
Introduction
The case of Kaya v. Turkey arose with the killing of the applicant’s brother by the security forces in southeast Turkey. In Kurt v. Turkey the disappearance of the applicant’s son, after military operations in southeast Turkey, led to the complaint. In both cases the victims of the alleged human rights violations were Turkish nationals of Kurdish origin.
These cases have two notable features in common. First, the decision of the European Court of Human Rights (the Court) in each case emphasises the importance of national remedies. The European Convention on Human Rights (the Convention) sets out the mutual obligations of States and their citizens in relation to national remedies. Article 26 of the Convention obliges applicants to exhaust domestic remedies before bringing their complaints before the Convention organs. Article 6 provides that States must allow their citizens access to a civil court for a remedy in respect of a violation of their human rights and article 13 provides that States must ensure effective remedies for all the rights set forth in the Convention.
In both Kaya and Kurt the applicants complained that there was no effective domestic remedy, or system of remedies, available in Turkey which would establish the truth of the event in question. This raised for consideration the relation between articles 6 and 13 of the Convention. In assessing whether or not there had been a failure to provide access to a civil court for the purposes of article 6(1), the Court observed that the manner in which the investigating authorities treated the death of the applicant’s brother had had an impact on the applicant’s access to the courts. Given this situation, the Court reasoned that it was appropriate to deal with the article 6 complaint regarding the denial of access to a civil court under article 13, as the latter article imposes a more general obligation to provide an effective remedy. Thus, the Court found that Turkey’s violation in relation to domestic remedies was much wider than a straightforward denial of access to civil courts.
In examining the complaint under article 13, the Court in Kaya held that the nature of the right allegedly violated will have a bearing on the nature of the remedy which must be made available by the State. Applying this principle to unlawful killings as in Kaya, the Court held that the State must provide a thorough and effective investigation capable of leading to the identification and punishment of the perpetrators and being accessible to the relatives. Applied to disappearances as in the later case of Kurt, the Court held that the effective remedy required by article 13 was a meaningful investigation of the incident in question. In both Kaya and Kurt the Court considered that the deficiencies in the investigations and the biased approach of the investigating authorities constituted evidence of a denial of an effective remedy in contravention of article 13.
In Kaya the Court was also prepared to hold that the State had a positive duty under article 2 to conduct an effective investigation into the killing, and the failure to do so amounted to a violation of the right to life. It arrived at this conclusion despite its view that there was no evidence to establish beyond reasonable doubt that a deliberate unlawful killing had occurred.
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