Yasa v. Turkey and Tekin v. Turkey: Torture, Extra-Judicial Killing
Kurdish Human Rights Project
Compte d’auteur
This report deals with the first cases assisted by the Kurdish Human Rights Project in which it was argued before the European Court of Human Rights (the Court) that Turkey had violated its obligation to uphold the right to freedom of expression. In Yasa v. Turkey the applicant claimed that gunmen injured him in an attack on 15 November 1992 as a result of selling the newspaper Ozgur Gündem at his newspaper kiosk. He also claimed that his uncle was fatally shot on 14 June 1993 because he had taken over the management of the applicant’s newspaper kiosk. In the second case, Tekin v. Turkey, the applicant claimed that he was tortured while in police custody from 15 February 1993 because the Ozgur Gündem newspaper employed him as a journalist.
At the centre of each application is the theory that Turkey persecuted the applicants because of their association with a newspaper that espoused a political view different from that held by State authorities. In order to understand the context of the complaints it is therefore necessary to consider Ozgur Gündem’s background and its relationship with the State.
The first issue of Ozgur Gündem (meaning Free Agenda) was published on 31 May 1992. It was Kurdish owned and was written in the Turkish language; it had a predominantly left wing orientation and was pro-Kurdish in its cultural and political outlook.1
From the outset the authorities' stance towards Ozgur Gündem was hostile. Over 100 legal proceedings were brought against Ozgur Gündem and its staff during ...
Table of Contents
Foreword / i
Introduction / 1
Part 1: Yasa v. Turkey
Summary of Yasa v. Turkey / 9
The facts
The facts as presented by the applicant / 9
The facts as presented by the Government of Turkey / 10
The findings of fact of the European Commission of Human Rights (Article 31 report) / 10
The findings of fact of the European Court of Human Rights / 11
Map of the area where the incident occurred / 12
The legal proceedings
Chronology of events, including legal proceedings / 13
How the case was brought before the European Commission and Court of Human Rights / 14
Investigation hearings
(1) Under the new procedure / 14
(2) Under the old procedure / 15
Preliminary objections to the Court’s jurisdiction
(1) Was the applicant a victim? / 15
(2) The proceedings before domestic authorities / 16
The applicant’s complaints under the European Convention on Human Rights / 18
Article 2: Right to life / 18
Article 13: Right to an effective remedy / 21
A practice of infringing articles 2 and 13 of the Convention / 22
Article 10: Freedom of expression / 22
Article 14: Prohibition on discrimination / 24
Article 18: Limitation on use of restrictions on rights / 25
Just satisfaction: Compensation under Article 50 / 25
Part II: Tekin v. Turkey
Summary of Tekin v. Turkey / 28
The facts
The facts as presented by the applicant / 28
The fact as presented by the Government of Turkey / 29
The findings of fact of the European Commission of Human Rights (Article 31 report) / 29
The findings of fact of the European Court of Human Rights / 29
Map of the area where the incident occurred / 31
The legal proceedings
Chronology of events, including legal proceedings / 32
The proceedings before domestic authorities / 33
How the case was brought before the European Commission and
Court on Human Rights / 33
Investigation hearings
(1) Under the new procedure / 34
(2) Under the old procedure / 34
The applicant’s complaints under the European Convention on Human Rights / 35
Article 2: Right to life / 35
Article 3: Freedom from torture and other ill-treatment / 36
Article 10: Freedom of expression / 37
Article 13: Right to an effective remedy / 38
Article 14: Prohibition on discrimination / 39
Article 18: Limitation on use of restrictions on rights / 39
Article 50: Just satisfaction / 40
Appendix A: Yasa v Turkey
Decision of the European Commission of Human Rights (Article 31 report),
including the admissibility decision
Judgment of the European Court of Human Rights
Transcript of Applicant’s and Respondent’s Opening Speeches before the
European Court on Human Rights
Susurluk Report (provisional English translation)
Appendix B: Tekin v. Turkey
Decision of the European Commission of Human Rights (Article 31 report),
including the admissibility decision
Judgment of the European Court of Human Rights
Transcript of Applicant’s and Respondent’s Opening Speeches before the
European Court of Human Rights
FOREWORD
In 1998 the European Court of Human Rights delivered its decisions in the cases of Yasa v. Turkey and Tekin v. Turkey. In these cases the Court explores serious and controversial issues about Turkish government persecution of individuals for the expression of their political opinions, government complicity in murder, ill-treatment of detainees, the nature of the State’s duty to protect the right to life, and the content of the duty of States to investigate thoroughly complaints of human rights abuses. In each case the Court ruled that Turkey had breached its obligations under the European Convention on Human Rights to respect and uphold human rights.
Yasa and Tekin are two of a number of cases brought by Kurds against the State of Turkey with the assistance of the Kurdish Human Rights Project (KHRP).1 The conduct of legal proceedings before the Convention tribunals requires the close cooperation of many individuals and organisations. In assisting individuals to bring applications, KHRP has therefore worked with human rights organisations and activists both in Turkey1 2 and in Europe.3 Furthermore, as proceedings take an average of four years from the time of registration of an application to delivery of judgment by the Court, they require long-term commitment from all concerned. These cases would not have been possible without the hard work of the Human Rights Association of Turkey. Such commitment was particularly demanded of the applicants in the Yasa and Tekin cases. Indeed, over many years - after being subjected to the worst kind of physical and verbal violence, and then official indifference - they maintained their dignity and found the fortitude to insist that their grievances be dealt with according to the law.
KHRP aims to improve and maintain the level of awareness of the nature of human rights abuses, provide education on international human rights standards, and 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 iri Yasa and Tekin have a part to play in advancing each of these aims. It is hoped that the international community will monitor the implementation of these judgments and that the State of Turkey will reconsider its international human rights commitments.
The introduction to this Case Report discusses the legal aspects of the cases in the socio-political context operating in Turkey at the time of the incidents giving rise to the applications. Part I outlines the legal procedure, the legal arguments submitted, and the Commission and Court reasoning and findings in Yasa. Part II deals with Tekin’s case. Appendices contain outlines of the applicants’ opening speeches to the Court, the Susurluk Report, the Commission’s opinions, and the Court’s judgments.
Finally, we would like to thank Carla Buckley who wrote this report, Alice Faure Walker who provided valuable assistance with its publication, and KHRP’s legal team - Kevin Boyle and Françoise Hampson who represented the applicants together with Osman Baydemir, Mahmut Saker, and Metin Kilavuz.
Kerim Yildiz
Executive Director
Kurdish Human Rights Project
Hans Branscheidt
Director, medico international
1 Other KHRP cases which have been decided by the Court to date are: Akdivar v. Turkey, (1997) 23 E.H.R.R. 143, see KHRP Case Report: Akdivar v. Turkey: The Story of Kurdish Villagers Seeking Justice in Europe (London 1996); Aksoy v. Turkey (1996) 23 E.H.R.R. 553; Aydin v. Turkey, Judgment of 25 September 1997, see KHRP Case Report, Aksoy v. Turkey: Aydin v. Turkey’: A Case Report on the Practise of Torture in Turkey (London 1997); Mentes and Ors v. Turkey, Judgment of 28 November 1997, see KHRP Case Report: Mentes and Ors v. Turkey: A KHRP Case Report on Village Destruction in Turkey (London 1998); Gündem r. Turkey, Judgment of 25 May 1998; Selçuk and Asker v. Turkey, Judgment of 24 April 1998, see KHRP Case Report: Gündem v. Turkey; Selçuk and Asker v. Turkey: A Case Report (London 1998); Kurt v. Turkey, Judgment of 25 May 1998; Kaya v. Turkey, Judgment of 19 February 1998, see KHRP Case Report: Kurt v. Turkey; Kaya v. Turkey: A Case Report (London 1999); Ergi v. Turkey, Judgment of 28 July 1998; Aytekin v. Turkey, Judgment of 23 September 1998.
2 For example, the Human Rights Association of Turkey (IHD) and the Bar Associations in Turkey.
3 For example, the Law Society of England and Wales, the Bar Human Rights Committee of England and Wales, and the Human rights Committee of the Norwegian Bar Association.
Introduction
This report deals with the first cases assisted by the Kurdish Human Rights Project in which it was argued before the European Court of Human Rights (the Court) that Turkey had violated its obligation to uphold the right to freedom of expression. In Yasa v. Turkey the applicant claimed that gunmen injured him in an attack on 15 November 1992 as a result of selling the newspaper Ozgur Gündem at his newspaper kiosk. He also claimed that his uncle was fatally shot on 14 June 1993 because he had taken over the management of the applicant’s newspaper kiosk. In the second case, Tekin v. Turkey, the applicant claimed that he was tortured while in police custody from 15 February 1993 because the Ozgur Gündem newspaper employed him as a journalist.
At the centre of each application is the theory that Turkey persecuted the applicants because of their association with a newspaper that espoused a political view different from that held by State authorities. In order to understand the context of the complaints it is therefore necessary to consider Ozgur Gündem’s background and its relationship with the State.
The first issue of Ozgur Gündem (meaning Free Agenda) was published on 31 May 1992. It was Kurdish owned and was written in the Turkish language; it had a predominantly left wing orientation and was pro-Kurdish in its cultural and political outlook.1
From the outset the authorities' stance towards Ozgur Gündem was hostile. Over 100 legal proceedings were brought against Ozgur Gündem and its staff during the newspaper’s lifetime.1 2 In these proceedings the authorities sought confiscation orders, prison sentences and fines, and orders for closure of the newspaper. For example, between May 1992 and April 1993, out of 228 issues of the newspaper, 39 issues were confiscated by the authorities.3 Between April and July 1993 a further 41 issues were confiscated. In upholding the confiscation decisions, the State Security Court4 ruled that Ozgur Gündem …
1 See Muller M., Censorship and the Rule of Law in Turkey: Violations of Press Freedom and Attacks on Ozgur Gündem, Article 19, the Kurdish Human Rights Project, the Bar Human Rights Committee (UK) and medico international, (London 1994), para. 1.2; Poulton H., State Before Freedom: Media Repression in Turkey, Article 19 and the Kurdish Human Rights Project, (London 1998), para.6.1.2.
2 Muller M., Op cit., para.3.1. See also Amnesty International, Turkey: A Policy’ of Denial - Update 1, February 1995, AI Index EUR 44/24/95, pp.5-6.
3 Under the Press Law (as amended) a public prosecutor may, without obtaining a court order, stop distribution of a newspaper or magazine. The decision may be confirmed by a State Security Court. Under article 28 of the Constitution publication of "any news or articles which threaten the internal or external security of the State with its territory and nation" is forbidden. This article permits, by Court order, the seizure and temporary suspension of publications that endanger or contravene the "indivisible integrity of the State".
4 The State Security Courts (DGMs) are established under article 143 of the Turkish Constitution "to deal with offences against the Republic which are contrary to the democratic order enunciated in the Constitution, and offences which undermine the internal or external security of the State". In Incal v. Turkey (Judgment of 9 June 1998), the European Court of Human Rights held that the requirement that one of the three members …
Kurdish Human Rights Project
Yasa v. Turkey and Tekin v. Turkey:
Torture, Extra-Judicial Killing and
Freedom of Expression in Turkey
Compte d’auteur
Compte d’auteur
Yasa v. Turkey and Tekin v. Turkey:
Torture, Extra-Judicial Killing and
Freedom of Expression in Turkey
A Case Report
by Carla Buckley
April 1999
Kurdish Human Rights Project
Medico International
KHRP Suite 319, Linen Hall,
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ISBN: 1 900175 24 X
Published by the Kurdish Human Rights Project,
Jointly with medico international,
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For further information on the cases please contact:
The Kurdish Human Rights Project, Suite 319,
Linen Hall, 162-168 Regent St.,
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Telephone: +44 171 287 2772
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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 the printing costs and other costs associated
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