a) Ergi and others v Turkey: Judgment given on 28 July 1998

b) Article 50 Judgment in the case of Azize Mentes and Others v Turkey, 24 July 1998

a) ERGI AND OTHERS v TURKEY

Background to the case:

This case originates in a complaint by Mr Muharrem Ergi - a Turkish citizen of Kurdish origin - that his sister Havva was killed by Turkish Security Forces during an attack on the village of Kesentas on 29 September 1993.

Principal facts of the case:

According to Mr Ergi, the Turkish Security Forces set up an ambush outside Kesentas on the above date, apparently in an attempt to capture members of the PKK. For about one hour, the Security Forces bombarded Kesentas, in the process killing Mr Ergi's sister. No members of the PKK were killed or captured. Although Mr Ergi complained to the local authorities, he submits that the authorities failed to carry out any meaningful investigation into the events at Kesentas village. The State Security Court in Diyarbakir with whom the responsibility for investigating the matter now lies, has so far failed to carry out any inquiries whatsoever.

The exact nature of the complaint:

Mr Ergi complained to the European Commission of Human Rights of violations of his rights under the European Convention of Human Rights. Following the submission of his application, the Anti-Terror Department of the police interviewed Mr Ergi on several occasions and intimidated and threatened him for having lodged a complaint.

In any case, Mr Ergi complained of violations of his rights under the following Articles:

Article 2 - on account of the fact that his sister had been killed by the Security Forces.
Article 8 - on account of the impact which the killing of Havva Ergi has had on the Ergi family.
Article 13 - on account of the fact that he was unable to seek redress for his complaints before a national court.
Article 14 - on account of the fact that he had been discriminated against because of his ethnic background.
Article 18 - on account of the fact that the Turkish government had restricted his human rights in a way which contravenes the European Convention on Human Rights.
Article 25 - on account of the fact that Mr Ergi was questioned and intimidated by the Turkish Anti-Terror Department of the police following his application to the Commission.

The Court's Judgement:

The Court found that 'even though it had not been established beyond reasonable doubt that the bullet which killed Havva Ergi had been fired by the security forces, the Court must consider whether the security force's operation had been planned and conducted in such a way as to avoid or minimise, to the greatest extent possible, any risk to the lives of the villagers' (para 79 of the judgement). In finding a violation of Article 2, the Court found that 'insufficient precautions had been taken to protect the lives of the civilian population' (para. 81) and that the Turkish authorities had 'failed to protect Havva Ergi's right to life on account of the defects in the planning and conduct of the security force's operatiopn and the lack of an adequate and effective investigation' (para. 86).

As concerns Article 13 of the Convention, the Court found a violation because the 'authorities had failed to carry out an effective investigation into the circumstances surrounding the death of Havva Ergi' (para. 98) and in finding a violation of Article 25 the Court found it established that the Turkish authorities had intimidated the Applicant 'in a manner which unduly interfered with his petition to the Commission' by interrogating the Applicant about the subject matter of his application (para 105).

The Court awarded the Applicant £ 1,000 and the Applicant's niece £ 5,000 in non-pecuniary damages. The Applicant was also awarded £ 12,000 in respect of costs and expenses.

Chronology of the Case:

The Application was introduced on 25 March 1994 and on 2 March 1995 the European Commission of Human Rights declared the application admissible. A Report was adopted by the Commission on 20 May 1997 pursuant to article 31 of the Convention establishing that the Turkish government had acted in contravention of Articles 2 and 25 of the European Convention. On 21 April 1998, the European Court conducted its final hearing in the above case. Judgement was given on 28 July, 1998.

b) AZIZE MENTES AND OTHERS v TURKEY

Principal facts of the case:

The background to this case was already set out in KHRP press release of 28 November 1997. Briefly, the Court found a violation of article 8 with respect to the first three applicants following the burning of the applicants' houses and their expulsion from the village of Saggoze on 24 June 1993 by soldiers. The Court also found a violation of article 13 with respect to the first three applicants on account of the lack of thorough and effective investigation by the national authorities into the applicant's allegations. As regards the fourth applicant, both the Court held that no provisions of the Convention had been breached.

The Court's judgement on the merits:

The judgment of the Court on the merits in the case of Mentes v Turkey was delivered on 28 November 1997. The Court had, at the time, reserved its judgment in respect of article 50 and the applicants' claims for pecuniary and non-pecuniary damage.

The Court's judgment (article 50):

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