 Kaya v Turkey & Kiliç v Turkey: Failure to protect victims at risk
Kurdish Human Rights Project
Compte d’auteur
The cases of Mahmut Kaya and Cemil KMq deal with the problems of ‘disappearances’ and killings that were prevalent in Southeast Turkey particularly during 1993 and 1994. In these two cases, the families concerned alleged that the security forces were either directly or indirectly responsible for the ‘disappearance’ and killing of their loved ones. In both cases the former European Commission of Human Rights held fact-finding hearings in Turkey (a feature of the Strasbourg system which has been very rarely used, other than in relation to the cases against Turkey since the mid-1990s).
The cases both concern violations of Article 2 of the Convention. Article 2 represents one of the most fundamental rights enshrined in the European Convention on Human Rights: the right to life. A number of obligations arise under Article 2. A State will be accused of violating the provision when it is proven beyond reasonable doubt that the fatality was caused by agents of the State. A further obligation arises in conjunction with the State’s general duty under Article 1 of the Convention “to secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, which implies both a duty to protect the right to life, and to carry out effective investigations of killings involving the use of force.
These cases are significant principally for two reasons. Firstly, the judgments of the European Court include an analysis of the legal system in Southeast Turkey, in the light of all available information including the Sasurluk Report6, and highlight the way in which the security forces in the region were often ... Table of Contents
Foreword / i
Introduction / 1
Part I: Mahmut Kaya v Turkey (No. 22535/93)
Summary of the case / 3
The Facts
The facts as presented by the applicant / 3
The facts as presented by the Government / 4
Proceedings before the domestic authorities / 4
The findings of fact by the European Commission of Human Rights / 4
(Article 31 report)
The findings of fact by the European Court of Human Rights / 7
Map of the area where the incident occurred / 8
The Legal Proceedings
Chronology of events, including legal proceedings / 9
How the case was brought before the European Commission and Court of Human Rights / 10
Investigation hearings under the old procedure / 10
Preliminary objections to the Court’s jurisdiction / 11
The applicant’s complaints under the European Convention on Human Rights
Article 2: Right to life / 12
Article 3: Prohibition of torture / 15
Article 6: Right to a fair trial / 16
Article 13: Right to an effective remedy / 16
Article 1- ?rohibition on discrimination / 17
Administrative Practice of Convention Breaches / 18
Article 41: Just Satisfaction / 18
Part II: Cemil Kiliç v Turkey (No. 22492/93)
Summary of the case / 19
The Facts
The facts as presented by the applicant / 19
The fa ts as presented by the Government / 20
Proceedings before the domestic authorities / 20
The findings of fact by the European Commission of Human Rights (Article 31 report)
The findings of fact by the European Court of Human Rights / 21
Map of the area where the incident occurred / 22
The Legal Proceedings
Chronology of events, including legal proceedings / 23
How the case was brought before the European Commission and Court of Human Rights / 24
The investigation under the old procedure / 24
Preliminary objections to the Court’s jurisdiction / 25
The applicant’s complaints under the European Convention on Human Rights
Article 2: Right to life / 26
Article 10: Right to freedom of expression / 29
Article 6: Right to a fair trial 30
Article 13: Right to an effective remedy / 30
Article 14: Prohibition on discrimination / 31
Article 34 (formerly Article 28(1 )(A): Individual application / 31
Article 41: Just satisfaction / 32
Appendices
Appendix A
Kaya v Turkey: Decision of European Commission of Human Rights
Appendix B
Kaya v Turkey: Judgment of the European Court of Human Rights
Appendix C
Kiliç v Turkey: Decision of European Commission of Human Rights
Appendix D
Kiliç v Turkey: Judgment of the European Court of Human Rights
Appendix E
The European Court of Human Rights: System and Procedure
Appendix F
Inadequacies of Investigations in Southeast Turkey as established in the Article 31
Reports of the European Commission of Human Rights and the Judgments of the
European Court of Human Rights.
Appendix G
List of judgments in KHRP assisted cases in the European Court of Human Rights FOREWORD
In 1993 the body of Hasan Kaya, a doctor practising in Elazig, was found under a bridge near Tunceli. He had been shot through the head. In the same year, Kemal Kiliç, a journalist with the Ozgiir Gundem newspaper in $anliurfa, was shot dead by four men on his way home from work.
In July 2000 the European Court of Human Rights delivered its judgments in the cases of Mahmut Kaya v Turkey and Cemil Kilig v Tukey. Both cases involved the right to life as protected by Article 2 of the European Convention on Human Rights. The Court found that the right to life included positive obligations on the part of the State to protect such a right and to conduct an effective and thorough investigation into the circumstances of killings associated with the security forces and the gendarmerie. In the cases of Mahmut Kaya and Cemil Kilig the Court found violations of both obligations. In the case of Mahmut Kaya, the Court also found that the victim, Hasan Kaya, had suffered inhuman and degrading treatment prior to his death, in violation of Article 3 of the Convention.
Mahmut Kaya and Cemil Kilig are only two of the numerous cases brought by Turkish citizens of Kurdish ethnic origin with the assistance of the Kurdish Human Rights Project (KHRP)1. The conduct of legal proceedings before the European Court of Human Rights requires close co-operation of many individuals and organisations. In assisting individuals to bring applications, KHRP has worked with human rights organisations in Turkey1 2, the United Kingdom3 and in Europe4. Due to the length of proceedings in the European Court of Human Rights, usually at least five years, a long-term commitment is required from all who are involved in the case.
KHRP aims to improve the level of awareness of the human rights abuses endured by Kurdish people in Turkey, to provide education on international human rights standards and to promote the rule of law in the Kurdish regions (including Turkey, Syria, Iran, Iraq and parts of the former Soviet Union). General knowledge of, and access to, the decisions in Mahmut Kaya and Cemil Kilig and other cases have an important part to play in advancing these aims.
Since 1998 Turkey has been included within the formal European Union enlargement process. The EU membership criteria (often referred to as the Copenhagen Criteria) were designated by the EU Member States in 1993. Membership requires that the candidate country has achieved, amongst other things,
"stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”
Since 1998 the European Commission has submitted regular reports on Turkey’s progress towards accession. Their most recent report was published in November 20005. In this report, the European Commission gives consideration to the judgments adopted by the European Court of Human Rights on individual cases involving Turkey. Furthermore, progress in civil and political rights is measured by reference to the need to bring domestic legal procedures in Turkey into line with the provisions of the European Convention on Human Rights and the relevant case law of the Court.
It is clear that bringing individual applications such as those of Mahmut Kaya and Cemil Kilig before the Court are essential to highlight the continuing violations of human rights in Turkey that must be addressed before Turkey is permitted to accede to the European Union. The individual cases brought against Turkey with the assistance of the Kurdish Human Rights Project ensure that the pressure upon the Turkish Government to improve their human rights record remains strong.
The Introduction to this Case Report assesses the legal aspects of the cases of Mahmut Kaya and Cemil Kilig. Part I outlines the legal procedure, the legal arguments submitted and the Commission's and the Court’s reasoning and findings in Mahmut Kaya. Part II deals with the case of Cemil Kilig. The Appendices contain the decisions of the former European Commission of Human Rights, the Court judgments and a report entitled ‘'Inadequacies of Investigations in Southeast Turkey as established in the Article 31 Reports of the European Commission of Human Rights and the Judgments of the European Court of Human Rights’ (1 December 1999). A summary guide to the system and procedure under the European Convention on Human Rights is also included in the Appendices. Outlines of the applicants’ opening speeches and verbatim records can be obtained from KHRP.
KHRP would like to thank Andrea Hopkins who wrote this report, Philip Leach for his essential on-going hard work and commitment to the legal work of KHRP, and the lawyers in both the UK and Turkey who represented the applicants with us.
Kerim Yildiz
Executive Director
Kurdish Human Rights Project
London
June 2001
1 Akdivar and Others v Turkey (merits) judgment 16 September 1996; Aksoy v Turkey judgment 18 December 1996; Aydin r Turkey judgment 25 September 1997; Mentes and Others (merits) v Turkey judgment 27 November 1997; Mehmet Kaya v Turkey judgment 19 February 1998; Selcuk and Asker v Ti/rA-ey judgment 24 April 1998; Gundem v An’Acy judgment 25 May 1998; Kurt v Turkey judgment 25 May 1998 ; Tekin v Turkey judgment 9 June 1998; £?gj v 7i/rAey judgment 28 July 1998; Yasa v Turkey judgment 2 September 1998; Aytekin v Turkey judgment 23 September 1998 ; Tanrikulu v Turkey judgment 8 July 1999; Cakici v Turkey judgment 8 July 1999; Ozgur Gundem v Turkey judgment 16 March 2000; Kaya v Turkey judgment 28 March 2000; Kilig v Turkey 28 March 2000; Ertak v Turkey judgment 9 May 2000; Timurtas v Turkey judgment 13 June 2000; Salman v Turkey judgment 26 June 2000; llhan v 7nrAey judgment 26 June 2000; Aksoy v Turkey judgment 10 October 2000; Akkoq v Turkey 10 October 2000; Ta$ v Tz/rAey judgment 14 November 2000; Bilgin v Turkey judgment 16 November 2000; Gul v Turkey judgment 14 December 2000; Dulas v Turkey judgment 30th January 2001; Qigek v 7h/Aey judgment 27 Feb 2001; Berktay v Turkey judgment 1 March 2001; Tanli v Turkey judgment 10 April 2001, Sarli v Turkey judgment 22 May 2001, Akdeniz v Turkey judgment 31 May 2001.
2 For example, the Human Rights Association of Turkey (IHD) and the Bar Associations in Turkey.
3 For example, the Human Rights Centre at Essex University, the Law Society of England and Wales and the Bar Human Rights Committee of England and Wales.
4 The Human Rights Committee of the Norwegian Bar Association.
5 2000 Regular Report from the Commission on Turkey’s Progress Towards Accession, 8 November 2000. Available on www.europa.eu.int/com/enlargment.
Introduction
The cases of Mahmut Kaya and Cemil KMq deal with the problems of ‘disappearances’ and killings that were prevalent in Southeast Turkey particularly during 1993 and 1994. In these two cases, the families concerned alleged that the security forces were either directly or indirectly responsible for the ‘disappearance’ and killing of their loved ones. In both cases the former European Commission of Human Rights held fact-finding hearings in Turkey (a feature of the Strasbourg system which has been very rarely used, other than in relation to the cases against Turkey since the mid-1990s).
The cases both concern violations of Article 2 of the Convention. Article 2 represents one of the most fundamental rights enshrined in the European Convention on Human Rights: the right to life. A number of obligations arise under Article 2. A State will be accused of violating the provision when it is proven beyond reasonable doubt that the fatality was caused by agents of the State. A further obligation arises in conjunction with the State’s general duty under Article 1 of the Convention “to secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, which implies both a duty to protect the right to life, and to carry out effective investigations of killings involving the use of force.
These cases are significant principally for two reasons. Firstly, the judgments of the European Court include an analysis of the legal system in Southeast Turkey, in the light of all available information including the Sasurluk Report6, and highlight the way in which the security forces in the region were often unaccountable for their actions during this period.
Secondly, even though the Court found there was insufficient evidence to prove the involvement of State agents in the killings, Mahmut Kaya and Cemil KMq are important examples of cases that reinforce the principle that the State has a duty to take positive steps to protect individuals whose lives the authorities know, or ought to know, are at risk. The judgments of the Court in these two cases recognise that certain groups were known to be at risk from criminal elements acting with the authority, connivance or acquiescence of the state authorities in Southeast Turkey at this time. Hasan Kaya, as a doctor suspected of treating wounded members of the PKK, and Kemal Kiliq, as a journalist at a ‘pro-Kurdish’ newspaper, were both considered to be at risk. Yet despite this knowledge, and having measures available which could have been taken to protect them, the Turkish authorities did nothing.
It remains disappointing, however, that both the Commission and the Court appear reluctant to go further and find the State responsible for a killing where the evidence is circumstantial and where the victim was not a detainee of the State.
Notwithstanding Turkey’s candidacy to the European Union and the recent Progress Report of the European Commission7, human rights violations as brutal as kidnappings, inhuman and degrading treatment and killings still occur, although they are constantly denied by the Turkish authorities. Such human rights abuses are at the core of the Mahmut Kaya and Kiliç cases.
…..
6 See note 8 below
7 See note 5 above. Kurdish Human Rights Project
Kaya v Turkey Kiliç v Turkey
Failure to protect victims at risk
Compte d’auteur
Compte d’auteur
Kaya v Turkey Kiliç v Turkey
Failure to protect victims at risk
A case report
June 2001
ISBN: 1 900175 38 X
Published by the Kurdish Human Rights Project, London (June 2001)
This report was written by Andrea Hopkins and edited by the
Kurdish Human Rights Project.
Editorial Team
Kerim Yildiz
Fiona McKay
Philip Leach
Sally Eberhardt
For further information on the cases, please contact the
Kurdish Human Rights Project, Suite 319,
Linen Hall, 162-168 Regent Street, London W1B 5TG, England.
Telephone: +44 20 7287 2772 Facsimile: +44 20 7734 4927
E-mail: klirp@klirp.demom.co.uk
Website: http://www.khrp.org
We wish to acknowledge that the Commission’s Article 31
Reports and the Court’s judgments contained in this report,
were produced in their original form by the European Commission of Human Rights,
Council of Europe, F-67075 Strasbourg Cedex, France.
Website: http//www.dhcour.coe.fr
The price of this publication (£10) covers printing and other
costs associated with its production and distribution. | 
