JUDGMENT IN THE CASE OF AYTEKIN V TURKEY BY THE EUROPEAN COURT OF HUMAN RIGHTS
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.
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,
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