Ertak v & Timurtaş v Turkey
State Responsibility in ‘Disappearances’
Kurdish Human Rights Project
Compte d’auteur
The cases of Timurtaş v Turkey and Ertak v. Turkey highlight the problem of ‘disappearances’ which have been prevalent in Southeast Turkey during the past fifteen years of armed conflict in the region between the Turkish security forces and the PKK (Kurdistan Workers’ Party). A state of emergency declared in 1987 in five provinces still remains in place in certain areas, together with a system of State Security Courts. Brutal violations of human rights such as ‘disappearances’, torture and killings were particularly rife in the period 1993 to 1995 but stiff continue today.1
In the two cases that the subject of this report, young Kurdish men were taken into custody and never seen again by their families. In the case of Mehmet Ertak, someone who shared a cell with him testified that he had been brutally tortured. Sightings of Abdulvahap Timurta? in detention were also reported. In each case, the fathers of these men made persistent inquiries about the whereabouts and fate of their sons, but were ...
Table of Contents
Foreword / I
Introduction / 1
Part I: Timurtaş v Turkey
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 authoritie / 4
The findings of fact by the European Commission of Human Rights
(Article 31 report) / 6
The findings of fact by the European Court of Human Rights / 10
Map of the area where the incident occurred / 11
The Legal proceedings
Chronology of events, including legal proceedings / 12
How the case was brought before the European Commission and Court of Human Rights / 14
Investigation hearings under the old procedure / 14
Preliminary objections to the Court’s jurisdiction / 15
The applicant’s complaints under the European Convention on Human Rights
Article 2: Right to life / 16
Article 3: Right to freedom from torture or inhuman or degrading treatment / 19
Article 5: Right to liberty and security of person / 20
Article 13: Right to an effective remedy / 22
The Alleged practice in breach of Articles 5 and 13 / 22
Article 18: Restrictions shall only be applied for prescribed purpose / 23
Article 34: Right to individual petition / 23
Just Satisfaction: Compensation under Article 41 / 24
PART II: ERTAK v TURKEY
Summary of the case / 25
The facts
The facts as presented by the applicant / 25
The facts as presented by the Government / 26
Proceedings before the domestic authorities / 26
The findings of fact by the European Commission of Human Rights (Article 31 report) / 27
The findings of fact by the European Court of Human Rights / 31
Map of the area where the incident occurred / 32
The Legal proceedings
Chronology of events, including legal proceedings / 33
How the case was brought before the
European Commission and Court of Human Rights / 35
The investigation under the old procedure / 35
Preliminary objections to the Court’s jurisdiction / 36
The applicant’s complaints under the European Convention on Human Rights
Article 2: Right to life / 37
Article 34: Right to individual petition / 39
Just Satisfaction: Article 41 / 40
Appendices
Appendix A
Timurtaş v Turkey: Decision of European Commission of Human Rights
Appendix B
Timurtaş v Turkey: Judgment of the European Court of Human Rights
Appendix C
Timurtaş v Turkey: Written submissions by CEJIL
Appendix D
Ertak v Turkey: Decision of the European Commission of Human Rights
Appendix E
Ertak v Turkey; Judgment of the European Court of Human Rights
Appendix F
The European Court of Human Rights: System and Procedure
Appendix G
List of judgments in KHRP assisted cases in the European Court of Human Rights
FOREWORD
In May and June 2000, the European Court of Human Rights handed down its judgments in the cases of Timurtaş v Turkey and Ertak v. Turkey, two more in the series of cases brought to the Court on behalf of Kurdish applicants by the Kurdish Human Rights Project and the Human Rights Association of Turkey, Diyarbakir branch. Both cases involved the fundamental obligation on a State to protect the right to life that is guaranteed by Article 2 of the European Convention on Human Rights. Both involved Kurds who had been detained by the security forces and subsequently ‘disappeared’. In each case, the Court also found that Turkey’s failure to conduct an adequate investigation constituted a separate violation of Article 2.
Timurtaş and Ertak are but two cases in a large and ongoing litigation project that began in 1992. To date, KHRP has taken on representation of more than 450 applicants and submitted almost 300 cases to the Strasbourg system, and has obtained judgment in 33 cases.1 2 Issues raised by these cases include extra-judicial killing, torture, village destruction and freedom of expression. For those courageous applicants who bring their cases to Strasbourg, the outcome is some measure of redress for them personally, but the cases also help to bring about changes in Turkey and raise awareness within Turkey and internationally of the ways in which Turkish law and practice fall short of international human rights standards. The impact of the cases in these respects has been considerable.
The conduct of cases before the European Court of Human Rights also represents many years of work and commitment by numerous individuals and organisations in Turkey, the UK and the rest of Europe. In particular, KHRP’s close collaboration over many years with the Diyarbakir branch of the Human Rights Association of Turkey has been both fruitful and crucial to the success of the litigation project.
In addition to the litigation project, KHRP also carries out other activities aimed at raising awareness of human rights violations against Kurds in all the Kurdish regions, including Turkey, Syria, Iran, Iraq and parts of the former Soviet Union. To this end we carry out research, conduct fact-finding missions and trial observations and publish reports aimed at Governments and international organisations as well as lawyers, academics and a wider constituency. We also carry out a proactive media strategy and produce a regular newsletter, Newsline, as well as maintaining a website.
The publication of case reports forms part of our ongoing activities aimed at raising awareness of Turkey’s violation of its human rights obligations. The introduction to this Case Report assesses the legal aspects of the two cases, and sets them in the socio-political context existing in Turkey. The first section outlines the facts as presented by the different parties and the findings of both the Commission and the Court on the facts (both cases were brought under the old pre-Protocol 11 system, pursuant to which the former European Commission on Human Rights examined the facts). The legal proceedings are then summarised, followed by a review of the applicant’s complaints including the legal arguments submitted, and the Commission and Court’s reasoning and findings. The reports of the Commission and the judgments of the Court are appended, together with written submissions from CEJIL (the Center for Justice and International Law) in the case of Timurtaş. Finally, a summary guide to the system and procedure under the European Convention on Human Rights is included.
KHRP would like to thank Joanna Evans who drafted this report, Reza Ispahani for assisting in its preparation while interning with us this summer, and above all the lawyers in both the UK and Turkey who represented the applicants in their cases both before the Turkish authorities and the European Court.
Kerim Yildiz
Executive Director
Kurdish Human Rights Project
London, June 2001
1 A list of the judgments can be found in Appendix G.
2 For example, the University of Essex, the Bar Human Rights Committee of England and Wales, the Law Society of England and Wales and the Human Rights Committee of the Norwegian Bar Association.
INTRODUCTION
The cases of Timurta§ v Turkey and Ertak v. Turkey highlight the problem of ‘disappearances’ which have been prevalent in Southeast Turkey during the past fifteen years of armed conflict in the region between the Turkish security forces and the PKK (Kurdistan Workers’ Party). A state of emergency declared in 1987 in five provinces still remains in place in certain areas, together with a system of State Security Courts. Brutal violations of human rights such as ‘disappearances’, torture and killings were particularly rife in the period 1993 to 1995 but stiff continue today.1
In the two cases that the subject of this report, young Kurdish men were taken into custody and never seen again by their families. In the case of Mehmet Ertak, someone who shared a cell with him testified that he had been brutally tortured. Sightings of Abdulvahap Timurta? in detention were also reported. In each case, the fathers of these men made persistent inquiries about the whereabouts and fate of their sons, but were met with denials, inadequate investigations and failure to launch prosecutions against those responsible.
The European Court of Human Rights held, in both cases, that the applicants’ sons must be presumed dead following unacknowledged detention by the security forces, and that therefore the responsibility of the State was engaged. Since the State had not provided any explanation, nor sought to justify the use of lethal force,, it must be held liable for the deaths.
In both cases the Court went on to find that the inadequacies in the investigations carried out by the authorities constituted a separate violation of Article 2 of the Convention. This was based on the procedural obligations imposed on a member State under Article 1 of the Convention “to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention ”, which required by implication that there be an effective investigation where individuals are killed as a result of the use of force.
This is not the first time that the Court has ruled that Turkey has been responsible for violations of the Convention in relation to ‘disappearances’, in cases brought by KHRP. However these two cases do mark a significant development in the Court’s case law. In particular, they raise the question of how it can be established that a loss of life caused by the State took place where a person ‘disappears’. In particular, what evidence is required and where does the burden of proof lie.
In the case of Kurt v. Turkey, the Court issued its judgment in May 1998, finding a violation of Articles 5, 3, 13 and 25(1), though not of Article 2 itself. Although accepting that the applicant’s son had been taken into detention, the Court found that the absence of evidence regarding his treatment or fate subsequent to that …
1 The case of two missing members of HADEP (the People’s Democracy Party) from Silopi in Southeast Turkey who were last seen entering a Gendarmerie base in January 2001 has still not been resolved.
facts). The legal proceedings are then summarised, followed by a review of the applicant’s complaints including the legal arguments submitted, and the Commission and Court’s reasoning and findings. The reports of the Commission and the judgments of the Court are appended, together with written submissions from CEJIL (the Center for Justice and International Law) in the case of Timurta§. Finally, a summary guide to the system and procedure under the European Convention on Human Rights is included.
KHRP would like to thank Joanna Evans who drafted this report, Reza Ispahani for assisting in its preparation while interning with us this summer, and above all the lawyers in both the UK and Turkey who represented the applicants in their cases both before the Turkish authorities and the European Court.
Kerim Yildiz
Executive Director
Kurdish Human Rights Project
London, June 2001
1 A list of the judgments can be found in Appendix G.
2 For example, the University of Essex, the Bar Human Rights Committee of England and Wales, the Law Society of England and Wales and the Human Rights Committee of the Norwegian Bar Association.
INTRODUCTION
The cases of Timurta§ v Turkey and Ertak v. Turkey highlight the problem of ‘disappearances’ which have been prevalent in Southeast Turkey during the past fifteen years of armed conflict in the region between the Turkish security forces and the PKK (Kurdistan Workers’ Party). A state of emergency declared in 1987 in five provinces still remains in place in certain areas, together with a system of State Security Courts. Brutal violations of human rights such as ‘disappearances’, torture and killings were particularly rife in the period 1993 to 1995 but stffl continue today.1
In the two cases that the subject of this report, young Kurdish men were taken into custody and never seen again by their families. In the case of Mehmet Ertak, someone who shared a cell with him testified that he had been brutally tortured. Sightings of Abdulvahap Timurta? in detention were also reported. In each case, the fathers of these men made persistent inquiries about the whereabouts and fate of their sons, but were met with denials, inadequate investigations and failure to launch prosecutions against those responsible.
The European Court of Human Rights held, in both cases, that the applicants’ sons must be presumed dead following unacknowledged detention by the security forces, and that therefore the responsibility of the State was engaged. Since the State had not provided any explanation, nor sought to justify the use of lethal force,, it must be held liable for the deaths.
In both cases the Court went on to find that the inadequacies in the investigations carried out by the authorities constituted a separate violation of Article 2 of the Convention. This was based on the procedural obligations imposed on a member State under Article 1 of the Convention "to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention ”, which required by implication that there be an effective investigation where individuals are killed as a result of the use of force.
This is not the first time that the Court has ruled that Turkey has been responsible for violations of the Convention in relation to ‘disappearances’, in cases brought by KHRP. However these two cases do mark a significant development in the Court’s case law. In particular, they raise the question of how it can be established that a loss of life caused by the State took place where a person ‘disappears’. In particular, what evidence is required and where does the burden of proof lie.
In the case of Kurt v. Turkey, the Court issued its judgment in May 1998, finding a violation of Articles 5, 3, 13 and 25(1), though not of Article 2 itself. Although accepting that the applicant’s son had been taken into detention, the Court found that the absence of evidence regarding his treatment or fate subsequent to that …
1 The case of two missing members of HADEP (the People’s Democracy Party) from Silopi in Southeast Turkey who were last seen entering a Gendarmerie base in January 2001 has still not been resolved.
Kurdish Human Rights Project
State Responsibility in ‘Disappearances
Compte d’auteur
Compte d’auteur
Ertak v & Timurtaş v Turkey
State Responsibility in ‘Disappearances’
A case report
Kurdish Human Rights Project
Part of a series of cases brought to the
European Court of Human Rights by the
Kurdish Human Rights Project and the
Human Rights Association of Turkey
Kurdish Human Rights Project
June 2001
ISBN: 1 900175 371
Published by the Kurdish Human Rights Project,
London (June 2001)
This report was written by Joanna Evans 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: khrp@khrp.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.
