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Kurdish Human Rights Project: This is the legacy website of the Kurdish Human Rights Project, containing reports and news pertaining to human rights issues in the Kurdish Regions for 20 years.

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Judgment Given on 23 September 1998

Background to the case:
The case originates in a complaint by Gulten Aytekin - a Turkish citizen of Kurdish origin - that her husband Ali Riza Aytekin - was shot dead by a Turkish gendarme in an incident in Yanikkaya, south east Turkey on 24th April 1993.

Principal facts of the case:
In April 1993, Mr Aytekin, who was a partner in a building firm based in Diyarbakir, was driving a private car with several other building workers to check a construction project near the district of Sason. When passing by the Yanikkaya Gendarme station, a gendarme signalled that the vehicle should stop.

According to the applicant, her husband stopped the car by the side of the road. The gendarme then shot in the direction of the car; the bullet entered through the rear window of the car and hit her husband's head, killing him instantly. While conceding that the shot which killed Mr Aytekin was fired by the gendarme, the Turkish Government claimed that the car had failed to stop, and that the gun had been fired at the tyres of the fleeing vehicle, after a warning shot had been fired into the air.
Proceedings were commenced against the gendarme by the military authorities in Diyarbakir in September 1993. They were transferred to the Batman Criminal Court in May 1994, and in October 1997 the gendarme was convicted of unintentional homicide and sentenced to three years and four months imprisonment. At the time of the hearing before the European Court in June 1998 this decision was under appeal.

The applicant argued that despite the criminal conviction before the Turkish Court, the proceedings against the gendarme were so biased and incomplete that they did not constitute an effective or adequate remedy. The applicant also argued that the Government should have brought the Commission's attention to the domestic proceedings at an earlier stage; details of these proceedings had only come to light in October 1996.

The exact nature of the complaint:
The applicant complained to the European Commission of Human Rights of human rights violations under the European Convention of Human Rights on 22nd October 1993. The application was declared admissible by the European Commission of Human Rights on 15th May 1995. The case was referred to the European Court of Human Rights on 29th October 1997.

In particular, Mrs Aytekin complained of violations under the following articles:
Article 2 - on account of the killing of Ali Riza Aytekin and the fact that this was not fully investigated by the authorities.
Article 13 - on account of the fact that the applicant was unable to pursue an effective remedy in respect of her complaints before a national court.

The Court's Judgement:
In its judgement of 23rd September 1998, the European Court of Human Rights took into consideration the domestic proceedings which had taken place, and were continuing, in Turkey, in respect of the killing of Mr Aytekin. The Court decided (inter alia) that:

  • it could not be said that the official investigation into the killing by the Turkish authorities did not offer the applicant any reasonable prospects of success in bringing the person responsible for the death of her husband to justice.
  • in the circumstances, the applicant had reasonable prospects of successfully suing those involved for compensation.

Consequently, the Court held that the domestic remedies available to the applicant in respect of her grievances had not been exhausted. It is a pre-requisite to the consideration of the merits of the case that the applicant should exhaust all available and effective domestic remedies. In this case, therefore, the Court was unable to go on to consider the merits.