Behçet AVSAR v Turkey (25657/94) (extra-judicial killing)
K. AYDIN, C. AYDIN and S. AYDIN and Others v Turkey (2893/95, 29494/95 and 30219/96) ('disappearance'/village destruction)

In two judgments handed down today at the European Court of Human Rights, Turkey is required to pay a total of £150,000 to the family of a young Kurdish man who was killed in 1994 and to a family whose village in southeastern Turkey was destroyed in 1994 during which time the family patriarch "disappeared".

The former case, Behçet Avsar v Turkey, concerns the abduction and killing of the applicant's brother, Mehmet Serif Avsar after armed men came to the Avsar’s family shop in Southeast Turkey in April 1994 and took Mehmet to the gendarme headquarters. When the family made enquiries at the headquarters, the duty guard denied any knowledge of Mehmet. Sixteen days later, Mehmet Serif Avsar's body - with two gunshots in his head - was found in a field outside Diyarbakir.

The applicant alleged that his brother had been kidnapped and killed by village guards acting with the knowledge and under the auspices of the authorities. In subsequent investigations, five of the individuals who had come to the shop on the day Mehmet Serif Avsar was taken away – all of them village guards being paid by the Turkish State – confessed to their involvement in the murder. A criminal prosecution was brought against the five village guards and an ex-member of the PKK on 5 July 1994. The proceedings culminated in the conviction of these six men by the Diyarbakir Criminal Court no.3 on 21 March 2000. However, there was a seventh person - a member of the State security forces - who had been involved in the incident who was never found.

In its 10 July 2001 judgment, the European Court noted that there was no convincing reason for entrusting the investigation of the murder to those who were implicated in the events in question; nor was there any indication from the Government of steps having been taken during the investigation with a view to identifying or locating the seventh person. The Court considered that these defects were not remedied by the investigation conducted by the Public Prosecutor and by the court where the steps taken were dilatory and half-hearted. The findings of the criminal court with regard to the responsibility of the village guards and the ex-PKK member were made in the absence of potentially significant evidence about security force involvement in the abduction and killing. A proper and effective investigation into this aspect of the case was necessary to clarify to what extent the incident was premeditated and whether, as alleged, it formed part of the unlawful activities carried out with the connivance and acquiescence of the authorities at that time in the Southeast Turkey.

Due to the State’s failure to investigate promptly or effectively the identity of the seventh person, and thereby to establish the extent of the official knowledge of or connivance in the abduction and killing of Mehmet Serif Avsar, the Court concluded that the Turkish Government was liable for his death and in breach of Article 2 in this respect.

In addition to a violation of the right to life, the Court also found Turkey to be in violation of Article 13 in that the applicant had been denied an effective remedy in respect of the death of his brother.

Under Article 41 (just satisfaction), the Court awarded a total of £60,000 in pecuniary and non-pecuniary damage to be held on behalf of Mehmet Serif Avsar’s wife and children and £2,500 in respect of the applicant himself. It also awarded a sum of £17,320 for legal costs and expenses.

The case of K. Aydin, C. Aydin and S. Aydin and Others v Turkey concerns the October 1994 destruction of the applicants’ hamlet of Dürüt in Southeast Turkey and the subsequent ‘disappearance’ of the applicants’ husband and father, Müslüm Aydin.

At the beginning of October 1994, military operations took place in Tunceli Province. On 11 October, Kasim Aydin, Müslüm Aydin’s oldest son who was living in Hozat, went to Dürüt in order to take his parents and siblings to Hozat. However, when he arrived, he found that his family home and possessions had been burned, that the family’s many goats had either been shot dead, were injured or were missing, and that his father was missing. Villagers told him that they had last seen Müslüm Aydin being taken away by soldiers.

On 14 October 1994, Kasim Aydin filed a petition with the Office of the Public Prosecutor of Hozat requesting an investigation into his father’s ‘disappearance’ and the destruction of his family home. On 25 February 1995, the Hozat Public Prosecutor concluded that he had no jurisdiction to examine the complaint concerning destruction of property and referred the case to the Hozat District Administrative Council. This council concluded on 26 April 1995 that no investigation for the complaint could be conducted since the Law on the Prosecution of Civil Servants stipulated that such investigation required the prior accurate identification for the civil servants concerned. The file relating to the ‘disappearance’ of Müslüm Aydin was transferred to different investigating authorities on a number of occasions. In 1998 an investigation, currently still pending, was opened by the Office of Public Prosecutor at the Malatya State Security Court following a decision of lack of jurisdiction taken by the prosecutor of the Gendarmerie General Command in September 1997. This decision concluded that although military operations had been conducted in the northern part of Tunceli between 29 September and 31 October 1994, only terrorist organisations could be responsible for what had happened to Müslüm Aydin and eight other persons who had either disappeared of been found dead in the Hozat region in September and October 1994

On 10 April 2001, the European Court received a declaration from the Turkish Government which offered compensation to the applicants in the amount of £68,000 for a friendly settlement of the case. In addition, the declaration stated, “The Government regret the occurrences of the actions which have led to the bringing of the present application, in particular the disappearance of Mr Müslüm Aydin and the anguish caused to his family. It is accepted that the unrecorded deprivation of liberty and insufficient investigation into the allegations of disappearance constituted violations of Articles 2, 5 and 13 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures with a view to ensuring that all deprivations of liberty are fully and accurately recorded by the authorities and that effective investigations into alleged disappearances are carried out in accordance with their obligations under the Convention.”

On 10 July 2001, the two parties agreed to a friendly settlement of the case.

NOTES FOR EDITORS:

1. The Kurdish Human Rights Project works for the promotion and protection of human rights within the Kurdish regions of Turkey, Iraq, Iran, Syria and the former Soviet Union.