Tanrikulu v Turkey & Cakici v Turkey
Violations of the Right to Life
Kurdish Human Rights Project
Compte d’auteur
The cases of Tanrikulu v. Turkey and Cakici v. Turkey highlight the uncertainty and fear which characterise the south east area of Turkey today. Notwithstanding Turkey’s candidacy to the European Union, human rights violations as brutal as disappearances, torture and killings during unacknowledged detention still occur although they are constantly denied by the Turkish authorities. Such human rights abuses are at the core of the Tanrikulu and Cakici cases.
It should be emphasised in this context that applications to the European Court of Human Rights represent a fallback mechanism. The Strasbourg machinery exists to supervise the action of Member States by exercising a power of review, leaving the primary responsibility for the protection of human rights to Member States. This may represent an adequate system of protection in those states where human rights abuses are not widespread or in countries where individuals have adequate access to the justice system. This is not the case however, in Turkey.
A series of authoritative UN, Council of Europe and NGO reports1 and widespread allegations about the practice of torture in Turkey make it evident that there are structural and legal limitations to the effective operation of the rule of law in the country. Accountability and safeguards in the exercise of power by the authorities represent the hallmark of an effective system of justice. The practice of torture in Turkey is not simply widespread; it seems to be institutionalised.
Positive developments within the ...
Table of Contents
Foreword / i
Introduction
Part I: Tanrikulu V Turkey / 1
Summary of the case / 5
The facts / 5
The facts as presented by the applicant / 5
The facts as presented by the Government / 6
The proceedings before domestic authorities / 7
The findings of fact of the European Commission on Human Rights
(Article 31 report) / 7
The findings of fact of the European Court of Human Rights / 9
Map of the area where the incident occurred / 10
The Legal Proceedings
Chronology of events, including legal proceedings / 11
How the case was brought before the European Commission and
Court of Human Rights / 12
Investigation hearings under the old procedure / 12
Preliminary objections to the Court’s jurisdiction / 13
The applicant’s complaints under the European Convention on Human Rights
Article 2: Right to life / 15
Article 13: Right to an effective remedy / 18
Article 14: Prohibition of discrimination / 19
Article 25(1): Right of individual petition / 19
Just satisfaction: Compensation under Article 41 / 21
Part II: Cakici V Turkey
Summary of the case / 22
The facts / 22
The facts as presented by the applicant / 22
The facts as presented by the Government / 23
The proceedings before domestic authorities / 23
The findings of fact of the European Commission on Human Rights
(Article 31 report) / 24
The findings of fact of the European Court of Human Rights / 26
Map of the area where the incident occurred / 27
The Legal Proceedings
Chronology of events, including legal proceedings / 28
Preliminary objections to the Court’s jurisdiction / 30
The applicant’s complaints under the European Convention on Human Rights
Article 2: Right to life / 31
Article 3: Prohibition of torture / 32
Article 5: Right to liberty and security / 34
Article 13: Right to an effective remedy / 35
Just satisfaction: Compensation under Article 50 / 36
Appendix A: Tanrikulu 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
Amnesty International Report:
South East Turkey, the Health Professions in the Emergency Zone
The Susurluk Report (provisional English translation)
Appendix B: Cakiciv Turkey
Decision of the European Commission of Human Rights
(Article 31 Report), including the admissibility decision
Judgment of the European Court of Human Rights
FOREWORD
In mid-1999 the European Court of Human Rights delivered its judgments in the cases of Tanrikulu v. Turkey and Cakici v Turkey. Both cases involved the loss of life and the consequent obligation on the part of the State to protect such a right and to conduct effective and thorough investigations into killings associated with the security forces and the Turkish gendarmerie. In the case of Cakici the Court found that the Turkish authorities had violated both these obligations.
Tanrikulu and Cakici are but two of the numerous cases brought by Turkish citizens of Kurdish ethnic origin with the assistance of the Kurdish Human Rights Project.1 The conduct of legal proceedings before the Convention tribunals requires close cooperation of many individuals and organisations. In assisting individuals to bring applications, KHRP has, therefore, worked with human rights organisations both in Turkey2, in the United Kingdom and Europe.3 Moreover, as proceedings take 4-5 years or more from the time of registration of an application to delivery of judgment by the Court, they require long-term commitment from all individuals and organisations concerned.
KHRP aims to improve and maintain the level of awareness of the human rights abuses endured by Turkish citizens of Kurdish origin (and non-Kurdish origin), 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 Tanrikulu and Cakici have a part to play in advancing each of these aims. It is hoped that the international community, especially considering Turkey’s recent candidacy to the European Union, will monitor the implementation of these judgments and that the Turkish Government will reconsider its international human rights commitments.
The introduction to this Case Report assesses the legal aspects of the two 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’s and Court’s reasoning and findings in Tanrikulu. Part 11 deals with the very controversial case of Cakici, in which the victim “disappeared” and was killed during a period of unacknowledged detention. The Appendices contain the Susurluk Report, the Commission’s opinions, the Court’s judgments and relevant texts from Amnesty International. Outlines of the applicants’ opening speeches and verbatim records can be obtained from KHRP.
Finally, we would like to thank Deborah Russo who wrote this report, Rebecca Wood who provided valuable assistance for its publication and Philip Leach for his essential on-going assistance and profound commitment.
Kerim Yildiz
Executive Director
Kurdish Human Rights Project
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 Practice of Torture in Turkey (London 1997); Mentes and Others v. Turkey, Judgment of 28 November 1997, see KHRP Case Report: Mentes and Others v. Turkey: A KHRP Case Report on Village Destruction in Turkey (London 1998); Gundem v. Turkey, Judgment of 25 May 1998, Selcuk and Asker v. Turkey, Judgment of 24 April 1998, see KHRP Case Report: Gundem v. Turkey; Selcuk 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); Yasa v. Turkey, Judgment of 2 September 1998; Tekin v. Turkey, Judgment of 9 June 1998, see KHRP Case Report: Yasa v. Turkey and Tekin v.Turkey: Torture, Extra-Judicial Killing and Freedom of Expression in Turkey - A Case Report (London 1999); Ergi v. Turkey, Judgment of 28 July 1998, Aytekin v. Turkey, Judgment of 23 September 1998, see KHRP Case Report: Ergi v. Turkey; Aytekin v. Turkey: Human Rights and Armed Conflict in Turkey (London 1999), Cakici v. Turkey (23657/94) and Tanrikulu v. Turkey (1YI6'ii9iY) both decided on 8 July 1999.
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
The cases of Tanrikulu v. Turkey and Cakici v. Turkey highlight the uncertainty and fear which characterise the south east area of Turkey today. Notwithstanding Turkey’s candidacy to the European Union, human rights violations as brutal as disappearances, torture and killings during unacknowledged detention still occur although they are constantly denied by the Turkish authorities. Such human rights abuses are at the core of the Tanrikulu and Cakici cases.
It should be emphasised in this context that applications to the European Court of Human Rights represent a fallback mechanism. The Strasbourg machinery exists to supervise the action of Member States by exercising a power of review, leaving the primary responsibility for the protection of human rights to Member States. This may represent an adequate system of protection in those states where human rights abuses are not widespread or in countries where individuals have adequate access to the justice system. This is not the case however, in Turkey.
A series of authoritative UN, Council of Europe and NGO reports1 and widespread allegations about the practice of torture in Turkey make it evident that there are structural and legal limitations to the effective operation of the rule of law in the country. Accountability and safeguards in the exercise of power by the authorities represent the hallmark of an effective system of justice. The practice of torture in Turkey is not simply widespread; it seems to be institutionalised.
Positive developments within the Council of Europe's Committee of Ministers however, have recently taken place. On 9 June 1999 the Committee issued an Interim Resolution1 2 calling on the Turkish government to pursue its efforts to reorganise the training of the security forces in order to ensure respect of human rights in the performance of their duties. The Committee also decided to continue the examination of a number of cases3 until measures have been adopted which will effectively prevent new violations of the Convention.
Changes however, need to be accompanied by a change in attitudes, as they cannot in themselves improve the human rights situation. Compliance with human rights standards is therefore closely linked with human rights awareness and education. Arguably both of these elements are lacking in Turkey. Although Turkey opted for the liberal democratic system back in 1923 with the establishment of the Turkish …
1 The Committee on the Prevention on Torture (CPT) issued a Public Statement on Turkey, adopted on 15 December 1992, stating “... the practice of torture and other forms of ill treatment of persons in custody remains widespread in Turkey”. In its subsequent visit on 6 December 1996, the CPT claimed "... delegations have once again found clear evidence of the practice of torture and other forms of ill treatment by the Turkish police”. In 1997 the CPT issued a further report of a visit carried out from 5 to 17 October 1997 to a number of prisons and reformatories. The report included numerous recommendations, comments and requests for information. Also note the Report of the Special Rapporteur on Torture, Sir Nigel S. Rodley, “Visit by the Special Rapporteur to Turkey of 27 January 1999”, in which issues concerning the situation in police and gendarmerie stations and prisons, the protection of detainees against torture, the role of prison doctors are addressed.
2 Interim Resolution DH (99) 434, 672nd meeting (DH), 9 June 1999.
3 Akdivar and Others v Turkey, Aksoy v Turkey, Cetin v Turkey, Aydin v Turkey, Mentes and Others v Turkey, Kay a v Turkey, Yilmaz and Others v Turkey, Selcuk and Asker v Turkey, Kurt v Turkey, Tekinv Turkey, Gulec v Turkey, Ergi v Turkey, Yasa v Turkey.
Kurdish Human Rights Project
Tanrikulu v. Turkey & Cakici v Turkey
Violations of the Right to Life
Compte d’auteur
Compte d’auteur
Tanrikulu v. Turkey & Cakici v Turkey
Violations of the Right to Life
May 2000
Kurdish Huirian Rights Project
KHRP
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Tel: +44 20 7287 2772
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A registered charity (no. 1037236) and
a company limited by guarantee registered in England (No. 292210 8)
ISBN: 1 900175 32 0
Published by the Kurdish Human Rights Project, London (May 2000)
This report was written by Deborah Russo.
Edited by Kerim Yildiz, KHRP Executive Director,
and Philip Leach, KHRP Legal Director.
For further information on the cases please contact the
Kurdish Human Rights Project,
Suite 319, Linen Hall, 162-168 Regent Street,
London W1R 5TB, England,
Telephone: +44 20 7287
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.
