THE EUROPEAN COURT OF HUMAN RIGHTS GIVES JUDGEMENTS IN TWO MORE KHRP CASES
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):
Regarding pecuniary damage, the Court awarded £12,000 to the first applicant
(Azize Mentes), £18,000 to the second applicant (Mahile Turhalli), and
£16,000 to the third applicant, Sulhiye Turhalli, for the destruction
of the applicants' houses, livestock, agricultural tools, household property
and loss of land. It also awarded Azize Mentes £6,000 and both Mahile
and Sulhiye Turhalli £8,000 each for loss of income and cost of alternative
accommodation. The total for pecuniary damage awarded by the Court is thus
£18,000 for the first applicant, £26,000 for the second and £24,000
for the third. In addition, all three applicants were awarded £8,000
each in respect of non-pecuniary damage. Given the difficulties the applicants
were faced with when trying to substantiate their claims, the Court's assessment
was based on the awards of damages previously awarded in the leading article
50 judgment in the Akdivar v Turkey case (see KHRP press release of 22 April
1998), an assessment which in the Court's own words, 'inevitably involves
a degree of speculation.'
For further information please contact: Kerim Yildiz,
Executive Director / Fiona McKay, Deputy Director / Sally Eberhardt, Public
Relations Officer Kurdish Human Rights Project on the address below.
Please e-mail KHRP at khrp@khrp.org,
to be placed on our Press Release mailing list.
