case of cerf v. turkey

8/17/2019 Case of Cerf v. Turkey

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SECOND SECTION

CASE OF CERF v. TURKEY

(Application no. 12938/07)

JUDGMENT

STRASBOURG

3 May 2016

This judgment will become final in the circumstances set out in Article 44 § 2 of the

Convention. It may be subject to editorial revision.


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CERF v. TURKEY JUDGMENT 1

In the case of Cerf v. Turkey,The European Court of Human Rights (Second Section), sitting as a

Chamber composed of:Julia Laffranque, President,

Işıl Karakaş,

Nebojša Vučinić,

Paul Lemmens,

Jon Fridrik Kjølbro,

Stéphanie Mourou-Vikström,

Georges Ravarani, judges,

and Abel Campos, Section Registrar,

Having deliberated in private on 29 March 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 12938/07) against the

Republic of Turkey lodged with the Court under Article 34 of the

Convention for the Protection of Human Rights and Fundamental Freedoms

(“the Convention”) by a Turkish national, Mrs Yaşar Cerf (“the applicant”),

on 15 March 2007.

2. The applicant was represented by Ms Catriona Vine, Mr Paul Troop

and Ms Saniye Karakaş, lawyers practising in London. The TurkishGovernment (“the Government”) were represented by their Agent.

3. The applicant alleged, in particular, that her husband had been killed

by either the authorities of the respondent State or by persons aided by the

respondent State, and that the national authorities had failed to carry out an

effective investigation into his killing.

4. On 5 September 2014 the application was communicated to the

Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1946 and lives in Adana. As some of the

facts are disputed by the parties, their submissions will be summarised

separately.


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2 CERF v. TURKEY JUDGMENT

A. The applicant’s submissions on the facts

6. The applicant’s husband, Mr Sefer Cerf, was the district leader andadministrative board member of the People’s Democracy Party ( Halkın

Demokrasi Partisi, hereinafter referred to as “HADEP”), a political party

which was dissolved by the Constitutional Court in 2003 (see HADEP and

Demir v. Turkey, no. 28003/03, 14 December 2010), in the town of Yüreğir,

within the administrative jurisdiction of the province of Adana. In the four

to five years prior to 1994 he and his family were often harassed,

intimidated and threatened by plainclothes police officers on account of his

political activities. On 1 October 1994 a man fired a shot at the applicant’s

11-year-old son outside their house, narrowly missing him.

7. At around 8 a.m. on 3 October 1994, the applicant ’s husband Sefer

Cerf left home to go to a café in the town centre. According to a number ofeyewitnesses, Sefer Cerf arrived at the café and sat outside on the terrace

next to his friend, R.Ç., who was also an administrative board member of

HADEP.

8. The witnesses then heard six gunshots and immediately afterwards

saw two men with pistols in their hands running away from the café. The

applicant’s husband Sefer Cerf and his friend R.Ç. were shot and Sefer Cerf

died at the scene. R.Ç. was injured and died while being taken to a hospital

by a friend, Mr Ahmet Dizman. A third person, Mr S.S., was also hit by a

ricocheting bullet and wounded in the foot.

9. On the day of the killing there were no police or anti-terrorism

officers’ vehicles in the area. This was unusual as ordinarily they wouldhave been patrolling the neighbourhood. Furthermore, it took a considerable

amount of time before the authorities attended the scene. When people tried

to call an ambulance, they found that the telephone lines had been cut.

10. Police officers who arrived at the café questioned eyewitnesses and

collected six spent bullet cases and two deformed bullets from the scene and

sent them for forensic examination. An incident scene investigation was

concluded by the prosecutor the same day.

11. Mr Sait Macir, also a board member of HADEP, was inside the café

at the time and went outside to help the two victims. He told the authorities

that he had seen the two assailants running away from the scene. Mr Macir

was taken to a police station on the pretext of giving a statement but was

instead questioned about his relationship with the applicant’s husband. His

café was closed by the police for no reason and he was subjected to

continuous harassment after the incident. On 30 December 1994 Mr Macir

was himself shot and killed outside the same café (see Macir v. Turkey

(friendly settlement), no. 28516/95, 22 April 2003). After his death,

Mr Macir ’s wife was taken to a police station where she was threatened and

questioned about her husband’s connections to the applicant’s husband and

to Mr R.Ç.


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12. A couple of days after the incident, Ahmet Dizman, who had tried to

take R.Ç. to hospital, was detained by the police. The police officers beat

him up and told him that they had seen him at the funeral of Sefer Cerf andR.Ç. the day before. They threatened him and told him that if he continued

to be involved in such activities, his end would be like those of the dead

HADEP members. As a result of that ill-treatment Mr Dizman’s jaw was

broken (see Dizman v. Turkey, no. 27309/95, §§ 12 and 15, 20 September

2005).

13. Threats against the applicant also continued after the killing of her

husband. Plainclothes police officers continuously observed their family

home, questioned their visitors and, on a number of occasions, threw notes

into the garden with messages such as “like your father, your end has

come”, addressed to the applicant’s daughter. On one occasion in 1995 the

applicant’s daughter was detained at a checkpoint on her return from workand made to wait in a police vehicle before being taken to a police station.

When her family sought to locate her, the police denied that she was in their

custody. While she was detained, the police questioned her about the death

of her father. On her release, the police threatened her and she was followed

by the police over the following days.

14. On 20 October 1994 the Adana prosecutor ’s office issued a standing

search order in relation to the killing of Sefer Cerf and R.Ç., requesting that

the perpetrators be sought as long as prosecution was not time-barred, and

that information be given to the office on a regular basis, every three

months.

15. On 4 August 1995 a number of individuals were remanded under an

indictment alleging offences including membership of Hizbullah, an illegal

organisation which was involved in the assassination of individuals with

pro-Kurdish sympathies in south-east Turkey in the early 1990s. On 25 July

1996 the Konya State Security Court acquitted the individuals previously

indicted for offences including membership of Hizbullah. That decision was

upheld by the Court of Cassation.

16. On 19 January 2000 a Mr M.D. was arrested. In his statement of

23 January 2000 M.D. admitted membership of Hizbullah, and told the

authorities that he had taken part in the killing of the applicant’s husband

and his friend R.Ç. He gave a detailed account of the assassination anddescribed the role played by his co-assassins.

17. Following M.D.’s confession, a “scene report” was drawn up on

30 January 2000. He was taken by helicopter to Adana, where he was taken

to the scene of the killing of the applicant’s husband for further questioning.

18. On 10 February 2000 Mr H.T., one of the persons implicated by

M.D. in the killing, and seven of his companions were arrested and detained

in custody. H.T. refused to answer any questions put to him regarding the

killing of Sefer Cerf and R.Ç.


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19. Subsequently A.Y., A.A. and a number of other persons were also

arrested. During his questioning A.A. described the role played in the

killing by K.G., who had been their leader and had given them their orders.20. The information obtained by the police during the investigations was

forwarded to the Adana State Security Court, which subsequently decided

that it had no jurisdiction, and sent the investigation file to the State

Security Court in Diyarbakır.

21. On 10 February 2005 the applicant applied to the Adana prosecutor ’s

office, seeking information and copies of the documents from the

investigation file. The prosecutor replied and informed the applicant in his

letter that the investigation in question not only concerned the killing of her

husband and R.Ç., but the killings of seven other persons in 1994 and 1995.

The prosecutor informed the applicant in his letter of 11 February 2005 that

on account of the confidential nature of the investigation he could not giveher a copy of the entire investigation file. The prosecutor did, however, give

the applicant copies of certain documents from the file and informed her

that five persons had been identified as possible suspects in the killing of

her husband and that criminal proceedings had been initiated against one of

those individuals before the Diyarbakır State Security Court. When the

applicant insisted on obtaining copies of all the investigation documents so

that she could make an application to the European Court of Human Rights,

the prosecutor told her that he could not give her those documents because

they would be used against Turkey.

22. In December 2006 the applicant again contacted the Diyarbakır

prosecutor ’s office, but was told that it would not provide her with

information concerning the prosecution because she had no case file

number.

23. On 5 March 2007 the applicant made a detailed submission to the

office of the Diyarbakır prosecutor and informed that prosecutor about the

actions taken by her in having her husband’s killing investigated. She also

shared with the prosecutor the evidence in her possession and informed him

of her allegations. She asked the prosecutor to reply to a number of

questions set out by her in her submission concerning the investigation. In

reply, the prosecutor informed the applicant about the actions taken in the

criminal proceedings against the suspects K.G. and A.A.24. On 27 August 2012 the applicant’s daughter applied to the

Diyarbakır Assize Court, to which the proceedings had been transferred in

the meantime, and asked for information on the proceedings against K.G.,

M.D. and A.A. She was provided with a copy of the judgment of

30 December 2009 in which K.G. and M.D. had been found guilty and

sentenced to life imprisonment. The court did not provide any information

on A.A.’s case. On 10 September 2012 the applicant asked the Diyarbakır

Assize Court for information about the whereabouts of K.G., M.D. and A.A.

However, she was not provided with any information in response.


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According to news reports obtained by the applicant, K.G. and M.D. had

been released from prison on 4 January 2011, and on 26 January 2011 the

Court of Appeal had upheld their convictions. Following their release theyhad left Turkey and fled to Syria.

25. It appears from the documents submitted by the Government that

during the criminal proceedings against them M.D., K.G., A.A. and M.A.O.

retracted their earlier statements, which they alleged had been extracted

from them under torture, and denied any involvement in the killing of the

applicant’s husband.

B. The Government’s submissions on the facts

26. The applicant’s husband Sefer Cerf died as a result of an armed

attack carried out on 3 October 1994. Neither Sefer Cerf nor the applicant

had lodged any complaints with the Adana prosecutor on or after 3 October

1994 or made any allegations that they had been harassed or threatened by

plainclothes police officers.

27. Immediately after the killing of her husband the prosecutor visited

the scene and prepared an incident report. The prosecutor also secured the

evidence such as the bullets, spent cartridges and the clothes worn by the

applicant’s husband on the day in question, and sent them for forensic

examination. A search of the area was also carried out. The prosecutor and

the investigating police officers took statements from witnesses and

prepared a sketch of the scene of the incident.28. A post mortem examination was conducted on the body of the

applicant’s husband the same day, and a bullet recovered from his body was

also sent for forensic examination.

29. On 20 October 1994 the prosecutor issued a standing search order

and instructed law-enforcement officials to investigate the killing until

expiry of the limitation period.

30. Starting in 2000, a number of operations were carried out against

Hizbullah. On 19 January 2000 M.D. was arrested in the course of one of

those operations.

31. On 30 January 2000 prosecutors at the Ankara and Adana State

Security Courts took M.D. to the place where the applicant’s husband had been killed. M.D. provided a detailed description of the killing of the

applicant’s husband.

32. On 14 July 2000 one of M.D.’s co-assassins, A.A., was arrested and

confessed to the killings.

33. Subsequently, the following criminal proceedings were brought

against the suspects.


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1. A.A.

34. On 9 August 2000 criminal proceedings were brought against A.A.

before the Diyarbakır State Security Court for membership of Hizbullah and

for carrying out armed attacks on behalf of that organisation, including the

killing of the applicant’s husband. In 2004 the State Security Courts were

abolished and the criminal proceedings against A.A. were taken over by the

Diyarbakır Assize Court.

35. On 12 May 2009 A.A. was found guilty and sentenced to fourteen

years’ imprisonment. His conviction was quashed by the Court of Cassation

on 1 April 2010 on the ground that at the time the offences were committed

he had been under the age of 18 and that fact had not been taken into

account by the first-instance court.

36. Criminal proceedings restarted before the Batman Assize Court in2010 and on 9 May 2013 A.A. was sentenced to a total of five years, six

months and twenty days’ imprisonment. A.A. did not appeal against his

conviction.

37. A.A. was detained in a prison between 17 July 2000 and 23 March

2006 and between 8 and 22 January 2013.

2. M.D. and K.G.

38. On 24 May 2000 M.D. was charged with the offence of attempting

to undermine the constitutional order.

39. On 6 September 2000 K.G. was charged with the offence of

“attempting to overthrow the constitutional order by arms and to replace itwith a system based on Sharia rules”.

40. In the indictments the killing of the applicant’s husband was also

included as one of the acts imputable to M.D. and K.G.

41. On 30 December 2009 the Diyarbakır Assize Court handed down its

1,153-page judgment. It appears from this judgment that separate criminal

proceedings instigated against thirty-one defendants for the killing of a total

of 181 people, including the applicant’s husband and his friend R.Ç., had

been joined in this case. The Diyarbakır Assize Court found M.D. and K.G.

guilty and sentenced them to life imprisonment. Their convictions and

sentences were upheld by the Court of Cassation on 26 January 2011.

42. M.D. and K.G. were remanded in custody on 31 January 2000 and

kept there until their conditional release was ordered on 3 January 2011 by

the Court of Cassation, which noted that they had been in custody for longer

than the ten-year period allowed by statute.

43. Following the upholding of their conviction, arrest warrants were

issued on 29 March 2011 and on 17 May 2011 for M.D. and K.G. with a

view to executing the remainder of their sentences.


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3. M.A.O.

44. M.A.O. was indicted on 11 June 2001 and charged with the offence

of membership of an outlawed organisation, namely Hizbullah, and for

carrying out illegal acts on behalf of that organisation, including the killing

of the applicant’s husband.

45. On 13 February 2008 the Diyarbakır Assize Court found him guilty

and sentenced him to life imprisonment. The conviction and the sentence

were upheld by the Court of Cassation on 29 September 2009.

46. M.A.O. who had been remanded in custody on 23 April 2001, is still

in prison serving his sentence.

4. A.Y.

47. On 26 July 2000 criminal proceedings were brought against A.Y. formembership of Hizbullah and for carrying out abductions and killings on

behalf of that organisation, including the killing of the applicant’s husband.

48. On 20 December 2012 the Adana State Security Court found him

guilty and sentenced him to twelve years and six months’ imprisonment. On

2 June 2013 the Court of Cassation upheld that judgment.

49. While the above-mentioned criminal proceedings were pending, on

11 February 2005 the Adana prosecutor communicated to the applicant, in

response to a request made by her, copies of the documents concerning the

investigation into the killing of her husband. As the investigation did not

concern only the killing of her husband but also those of a number of other

individuals, the applicant was only provided with copies of those documentswhich concerned the killing of her husband. In this connection a decision to

classify the investigation files as confidential constituted an obstacle to the

applicant’s access to the documents in question.

50. On 5 March 2007 the applicant made representations to the

Diyarbakır prosecutor. On 21 and 27 March 2007 the applicant was

provided with replies in respect of those representations.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

51. Relying on Article 2 of the Convention the applicant complained that

her husband had been killed because of his political affiliation and by either

the respondent State’s agents or by Hizbullah, aided by the authorities.

Under the same provision the applicant also complained that the authorities

had not conducted an effective investigation into the killing. Citing

Article 13 of the Convention, the applicant complained that the


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investigation had been systematically and persistently flawed and politically

compromised. As a result, enforcement of the available domestic remedies

had been rendered ineffective.52. The Government contested the applicant’s arguments.

53. The Court considers that the applicant’s complaints should be

examined solely from the standpoint of Article 2 of the Convention, the

relevant part of which reads as follows:

“1. Everyone’s right to life shall be protected by law ... “

A. Admissibility

54. Referring to the criminal proceedings brought against the suspectsfor the killing of the applicant’s husband (see paragraphs 33-48 above), the

Government argued that the applicant had not taken part in those

proceedings and had not availed herself of the right to appeal. They invited

the Court to declare her complaints inadmissible for failure to exhaust

domestic remedies within the meaning of Article 35 § 1 of the Convention.

55. The Government also argued that the applicant had failed to comply

with the six-month rule laid down in Article 35 § 1 of the Convention.

Referring to the decisions in the cases of Hanım Han v. Turkey ((dec.),

no. 31248/09, 15 January 2013), and Seyithan Aydın v. Turkey ((dec.),

no. 71998/01, 4 March 2008), the Government submitted that there was no

justification for the thirteen years of inactivity on the part of the applicant,who took the view that the domestic trial was ineffective and who alleged

that she had not been sufficiently informed. In the opinion of the

Government, the applicant should have at least raised her objection

concerning the effectiveness of the investigation during the six-year period

between 20 October 1994 and 19 January 2000, which were respectively the

dates on which the search order had been issued (see paragraph 29 above)

and on which A.A. had been arrested (see paragraph 32 above).

56. The applicant accepted that the national legislation permitted her to

join the criminal proceedings in question as an intervening party. She

argued, however, that while that remedy might have been available in

theory, it was not reasonable to expect her to pursue it. The cases that she

might have been able to participate in were cases concerning the

involvement of a large terrorist organisation that had been supported by the

Government. Had she put herself forward as an intervening party in such a

high-profile case she would have exposed herself to serious risk, given

especially the threats made against witnesses, the applicant herself, and her

family.

57. Concerning the Government’s submissions that she had failed to

comply with the six-month time-limit by delaying introducing her


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application with the Court, the applicant considered that the two cases relied

on by the Government did not lend support to the Government’s

submissions. Unlike the applicants in those two cases, she and her familyhad been threatened and intimidated. In any event, she had clearly been

active, and had followed the proceedings closely notwithstanding her

difficulties in finding legal representation given her lack of means.

58. The applicant also argued that her case could not be compared to the

two cases relied on by the Government in which the applicants had

remained inactive for periods of fifteen and nine years. In her case the

authorities had given the appearance of engaging in a complex and

confidential investigation which identified suspects, entailing numerous

levels of the respondent State’s prosecutorial authorities that was ongoing,

albeit slowly, over a number of years. In these circumstances, also having

regard to the fates of the persons who had witnessed the killing of herhusband (see paragraphs 11-12 above), she argued that she should not be

criticised if she took a less active role than would otherwise be expected.

59. In the circumstances of the present case, before examining the

Government’s objection to the admissibility of the applicant’s complaints

because she did not participate in the criminal proceedings, the Court deems

it more appropriate to deal first with the Government’s other objection,

which concerns the applicant’s alleged failure to comply with the six-month

time-limit.

60. The Court reiterates that under Article 35 § 1 of the Convention it

can only deal with applications after all domestic remedies have been

exhausted and within a period of six months from the date on which the

final domestic decision was taken. The six-month time-limit has a number

of aims. Its primary purpose is to maintain legal certainty by ensuring that

cases raising issues under the Convention are examined within a reasonable

time, and to prevent the authorities and other persons concerned from being

kept in a state of uncertainty for a long period of time. It also affords the

prospective applicant time to consider whether to lodge an application and,

if so, to decide on the specific complaints and arguments to be raised and

facilitates the establishment of facts in a case, since with the passage of

time, any fair examination of the issues raised is rendered problematic

(Sabri Güneş v. Turkey [GC], no. 27396/06, § 39, 29 June 2012 and thecases cited therein).

61. The Court notes that it was held in the cases of Hanım Han and

Seyithan A ydın , referred to by the Government, and in a number of other

comparable cases, that if no remedies are available or if they are judged to

be ineffective the six-month time-limit in principle runs from the date of the

act complained of. Special considerations could apply in exceptional cases

where an applicant first avails himself of a domestic remedy and only at a

later stage becomes aware, or should have become aware, of circumstances

which make that remedy ineffective. In such a situation, the six-month


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period might be calculated from the time when the applicant becomes

aware, or should have become aware, of these circumstances (see Bulut and

Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002 and the cases citedtherein; and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07

and 32431/08, §§ 258-259 and 264, ECHR 2014 (extracts)).

62. Turning to the circumstances of the present case, the applicant’s

husband was killed on 3 October 1994 and an investigation was started the

same day by the prosecutors of their own motion and without waiting for

the applicant to make an official complaint. The Court observes, however,

that the investigation seems to have run out of steam very quickly, and a

decision was taken by the prosecutor to issue a standing search order some

seventeen days after the killing, on 20 October 1994 (see paragraph 29

above). Not a single further step appears to have been taken in the

investigation before a person was arrested and confessed to the killing of theapplicant’s husband in January 2000 (see paragraph 30 above). On the other

hand, during that dormant period of five years and three months the

applicant does not appear to have taken any steps to acquaint herself with

the investigation’s progress.

63. In the light of the foregoing, the Court considers that the absence of

a meaningful investigation must have been apparent to the applicant long

before January 2000. Nevertheless, it does not appear that the applicant

exercised due diligence in determining that the criminal investigation had

become dormant (see Alkın v. Turkey, no. 75588/01, § 34, 13 October

2009).

64. The Court concludes, therefore, that the applicant’s complaints

concerning the killing of her husband and the alleged ineffectiveness of the

investigation into the killings conducted during the period up to

January 2000 have been introduced out of time and are inadmissible under

Article 35 §§ 1 and 4 of the Convention.

65. The Court considers, however, that in some cases information

purportedly casting new light on the circumstances of a killing may come

into the public domain at a later stage. The issue then arises as to whether,

and in what form, the procedural obligation to investigate is revived. To that

end, the Court considered in its judgment in the case of Brecknell v. the

United Kingdom (no. 32457/04, § 71, 27 November 2007) that, where thereis a plausible or credible allegation, the discovery of any new piece of

evidence or item of information relevant to the identification and eventual

prosecution or punishment of the perpetrator of an unlawful killing would

require the authorities to take further investigative measures. The steps

which it would be reasonable to take will vary considerably depending on

the facts of the situation. The lapse of time will, inevitably, be an obstacle as

regards, for example, the location of witnesses and the ability of witnesses

to recall events reliably. Such an investigation may in some cases


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reasonably be restricted to verifying the credibility of the source, or of the

purported new evidence.

66. The Court considers that the information provided by M.D., whowas arrested in January 2000 and who confessed to the killing of the

applicant’s husband, amounted to the kind of new evidence alluded to in the

preceding paragraph. In this connection the Court observes that a new

investigation was started into these allegations by the authorities, who

subsequently discovered new leads and information about the killing.

Subsequently, a number of other persons were also arrested and put on trial

together with M.D. for offences including, inter alia, the killing of the

applicant’s husband, and they were found guilty at the end of the

proceedings.

67. In light of the foregoing, the Court considers that the information

submitted to the authorities in January 2000 led to significant newdevelopments and that therefore the procedural obligation to investigate the

killing of the applicant’s husband was revived after that date (see Gasyak

and Others v. Turkey, no. 27872/03, §§ 60-63, 13 October 2009; see also

Sayğı v. Turkey, no. 37715/11, § 50, 27 January 2015).

68. It follows that the Government’s objection to the admissibility of the

complaint under Article 2 of the Convention, in so far as it concerns the

effectiveness of the investigation and the trial carried out after

January 2000, must be dismissed.

69. The Court has also examined the Government’s arguments that the

applicant failed to exhaust domestic remedies within the meaning of

Article 35 § 1 of the Convention by not joining the criminal trials as an

intervening party and by not lodging appeals against the judgments. It notes

that it has already examined and rejected similar arguments raised by the

same respondent State in comparable cases (see, inter alia, Abdurrahman

Orak v. Turkey, no. 31889/96, §§ 56-59 and 87, 14 February 2002; and Erat

and Sa ğ lam v. Turkey (dec.), no. 30492/96, 15 May 2001). In the instant

case the Court does not see any particular reason to depart from those

findings, and it rejects the Government’s objection to the admissibility of

this complaint based on exhaustion of domestic remedies.

70. The Court notes that the applicant’s complaint concerning the

effectiveness of the investigation and the trial conducted after January 2000is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the

Convention. It further notes that it is not inadmissible on any other grounds.

It must therefore be declared admissible.

B. Merits

71. The applicant expressed serious concerns about the effectiveness of

the investigation and the trial and alleged that the focus of the investigation

had been primarily on establishing that the suspects were members of


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Hizbullah rather than on scrutinising the offences that they may have carried

out as members of that organisation. The applicant considered it noteworthy

that the only significant evidence revealed by the respondent State had beenthe confessions of those convicted; there was precious little other evidence

linking those individuals with the death of her husband. In the opinion of

the applicant, the confessions themselves seemed of dubious value, given

that those convicted had subsequently retracted their claims, alleging that

they had been tortured and forced to confess. The applicant alleged that the

authorities had used those statements to obscure the truth concerning the

death of her husband.

72. Taking into account the credible suspicion of links between the

respondent State’s authorities and Hizbullah, it was incumbent on the

authorities to undertake a comprehensive investigation capable of

determining the truth of these allegations. Given the victims’ politicalaffiliation, the modus operandi of the assassins, the lack of a security

presence on the day of the killing and the extensive circumstantial evidence

linking the respondent State’s security forces and Hizbullah, any credible

investigation should have investigated the potential involvement of the

security services in the killing. There was no evidence that such

investigation had been pursued.

73. Although contemporaneous descriptions of the perpetrators had been

given by eyewitnesses to the killing, there was no evidence that those

witnesses were given an opportunity to identify the individuals whom the

respondent State claimed were responsible for the murders. By contrast,

S.S., who had been injured by a ricocheting bullet, was asked to identify the

suspects, but was unable to.

74. The applicant also complained that there had been unexplained,

unjustifiable and continuing delays in the proceedings before the national

authorities. The proceedings against the various suspects had been

transferred between the State Security Courts at Adana, Ankara and

Diyarbakır for a number of years. Those delays had inevitably led to

information being withheld, misplaced or not communicated between the

various State agencies involved in the investigation.

75. The Government argued that the investigating authorities had shown

due diligence in order to establish the whereabouts and the identities of the perpetrators. Subsequently those perpetrators had been found guilty and

sentenced to various terms of imprisonment.

76. The Government “took the lengthy proceedings into account” and

left it to the Court’s discretion to decide on the applicant’s complaint

regarding the delays in the criminal proceedings. In that connection they

submitted that a large number of previously unsolved murders and assaults

had now been solved, and a large number of individuals had been

prosecuted in the course of those related criminal proceedings.


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77. The Court reiterates that the obligation to protect the right to life

under Article 2 of the Convention, read in conjunction with the State’s

general duty under Article 1 of the Convention to ‘secure to everyone within[its] jurisdiction the rights and freedoms defined in [the] Convention’,

requires by implication that there should be some form of effective official

investigation when individuals have been killed as a result of the use of

force. The investigation must be, inter alia, thorough, impartial and careful

(see McCann and Others v. the United Kingdom, 27 September 1995,

§§ 161-63, Series A no. 324). In that connection, the Court points out that

this obligation is not confined to cases where it is apparent that the killing

was caused by an agent of the State (see Salman v. Turkey [GC],

no. 21986/93, § 105, ECHR 2000-VII). A requirement of promptness and

reasonable expedition is implicit in this context. It must be accepted that

there may be obstacles or difficulties which prevent progress in aninvestigation in a particular situation. However, a prompt response by the

authorities in investigating a use of lethal force may generally be regarded

as essential in maintaining public confidence in their adherence to the rule

of law and in preventing any appearance of collusion in or tolerance of

unlawful acts (see McKerr v. the United Kingdom, no. 28883/95, § 114,

ECHR 2001-III and the cases cited therein; see also Mocanu and Others

v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, §§ 316-325,

ECHR 2014 (extracts); and Mustafa Tunç and Fecire Tunç v. Turkey [GC],

no. 24014/05, §§ 169-182, 14 April 2015).

78. The Court reiterates that in the normal course of events a criminal

trial, with an adversarial procedure before an independent and impartial

judge, must be regarded as furnishing the strongest safeguards of an

effective procedure for the finding of facts and the attribution of criminal

responsibility (ibid., § 134). In the present case, a number of suspects were

prosecuted and five of them were subsequently convicted of offences

including, inter alia, the killing of the applicant’s husband; they were

sentenced to various terms of imprisonment. The Court cannot, contrary to

the applicant’s submissions, find that the preliminary investigations

conducted after January 2000 and the subsequent trials proved incapable of

identifying and prosecuting the perpetrators of the killings (see, mutatis

mutandis, Acar and Others v. Turkey, nos. 36088/97 and 38417/97, § 90,24 May 2005).

79. Concerning the promptness of the criminal proceedings conducted

after 2000, the Court reiterates that Article 2 of the Convention requires

investigations to begin promptly and to proceed with reasonable expedition,

and that this is required quite apart from any question of whether the delay

actually impacted on the effectiveness of the investigation (see McCaughey

and Others v. the United Kingdom, no. 43098/09, § 130, ECHR 2013).

80. The Court notes that the criminal proceedings against the defendants

were instituted on various dates in 2000 and were not concluded until 2009


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and 2013 (see paragraphs 34 and 48 above). Although, as the Government

pointed out, the proceedings were complex, the Government have not

sought to justify those delays, and have not argued that the delays were justifiable vis-à-vis the procedural obligation under Article 2 of the

Convention.

81. The Court considers that the above-mentioned delays in the criminal

proceedings cannot be regarded as compatible with the State’s obligation

under Article 2 of the Convention to ensure the effectiveness of

investigations into suspicious deaths, in the sense that the investigative

process, however it is organised under national law, must be commenced

promptly and carried out with reasonable expedition. To this extent, the

foregoing finding of excessive delay in the investigation of itself entails the

conclusion that the investigation was ineffective for the purposes of

Article 2 of the Convention. There has, accordingly, been a violation ofArticle 2 of the Convention under its procedural aspect (ibid. § 140).

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

82. Lastly, relying on Article 14 of the Convention, the applicant alleged

that her husband had been killed on account of his Kurdish origin and his

political activities. In support of this complaint the applicant referred to the

killing of her husband’s friend Sait Macir and the ill-treatment of Ahmet

Dizman referred to above, both of whom had also been HADEP members.

Finally, under the same provision she also alleged that the prosecutor hadnot carried out an effective investigation because her husband was Kurdish.

83. Having regard to the documents in its possession, the Court finds

that this part of the application does not disclose any appearance of a

violation of the Convention’s provisions. It follows that this part of the

application is manifestly ill-founded and should be rejected, in accordance

with Article 35 § 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

84. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols

thereto, and if the internal law of the High Contracting Party concerned allows only

partial reparation to be made, the Court shall, if necessary, afford just satisfaction to

the injured party.”

A. Damage

85. The applicant claimed 1,907,200 Turkish liras (TRY, approximately

635,750 euros (EUR)) in respect of pecuniary and 62,000 pounds sterling

(GBP, approximately EUR 86,800) in respect of non-pecuniary damage.


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86. The Government argued that there was no causal link between the

claim for pecuniary violation and the alleged violations of the applicant ’s

rights under the Convention. They also considered that the applicant’s claimfor non-pecuniary damage was excessive.

87. The Court does not discern any causal link between the violation

found and the pecuniary damage alleged; it therefore rejects this claim. On

the other hand, it awards the applicant EUR 20,000 in respect of

non-pecuniary damage.

B. Costs and expenses

88. The applicant also claimed the total sum of GBP 21,962.59

(approximately EUR 31,200) for the costs and expenses incurred before the

domestic courts and for those incurred before the Court. GBP 20,422.50 of

that sum was requested in respect of the legal representatives ’ fees and the

remaining GBP 1,540.09 for administrative costs and expenses such as

translation, telephone and postage. In support of her claims for the fees of

her legal representatives the applicant submitted a time-sheet showing the

hours spent by her representatives on the case. In support of her claim for

administrative costs and expenses the applicant submitted several

documents. The applicant requested the Court to order that the award in

respect of the costs and expenses be paid directly into her legal

representatives’ bank account in the United Kingdom.

89. The Government considered the claims for costs and expenses to beexcessive and unsupported by documentary evidence.

90. According to the Court’s case-law, an applicant is entitled to the

reimbursement of costs and expenses only in so far as it has been shown

that these have been actually and necessarily incurred and are reasonable as

to quantum. In the present case, regard being had to the documents in its

possession and the above criteria, the Court considers it reasonable to award

the applicant the sum of EUR 3,000 covering costs under all heads, to be

paid in pounds sterling into her representatives’ bank account in the United

Kingdom.

C. Default interest

91. The Court considers it appropriate that the default interest rate

should be based on the marginal lending rate of the European Central Bank,

to which should be added three percentage points.


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FOR THESE REASONS, THE COURT,

1. Declares, unanimously, the complaint under Article 2 of the Conventionconcerning the effectiveness of the criminal proceedings conducted

between 2000 and 2013 admissible;

2. Declares, by six votes to one, the remainder of the application

inadmissible;

3. Holds, unanimously, that there has been a violation of Article 2 of the

Convention in its procedural aspect;

4. Holds, unanimously,

(a) that the respondent State is to pay the applicant, within three monthsfrom the date on which the judgment becomes final in accordance with

Article 44 § 2 of the Convention, the following amounts:

(i) EUR 20,000 (twenty thousand euros), plus any tax that may be

chargeable, in respect of non-pecuniary damage, to be converted

into the currency of the respondent State at the rate applicable at the

date of settlement;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be

chargeable to the applicant, in respect of costs and expenses, to be

converted into pounds sterling at the rate applicable at the date of

settlement and paid into her representatives’ bank account in the

United Kingdom;

(b) that from the expiry of the above-mentioned three months until

settlement simple interest shall be payable on the above amounts at a

rate equal to the marginal lending rate of the European Central Bank

during the default period plus three percentage points;

5. Dismisses, unanimously, the remainder of the applicant’s claim for just

satisfaction.


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Done in English, and notified in writing on 3 May 2016, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Julia Laffranque

Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of

the Rules of Court, the separate opinion of Judge Lemmens is annexed to

this judgment.

J.L.A.C.


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18 CERF v. TURKEY JUDGMENT – SEPARATE OPINION

PARTLY DISSENTING AND PARTLY CONCURRINGOPINION OF JUDGE LEMMENS

1. To my regret, I cannot fully agree with the reasoning adopted in the

judgment.

2. As summarised in paragraph 51 of the judgment, the applicant

complains in the first place about the killing of her husband, either by the

respondent State’s agents or by a non-governmental group (Hizbullah) aided

by the authorities. She also complains of the ineffectiveness of the

investigation.

When it comes to the examination of the merits of the complaint, the

majority examines only the second aspect (the procedural limb of Article 2),

not the first one (the substantive limb of Article 2). Hence, it does not look

into what is undoubtedly the main aspect of the applicant ’s complaint,

namely the alleged direct or indirect involvement of the State in the killing

of her husband.

The reason for disregarding the main issue in this way is to be found in

paragraph 64 of the judgment. There, the majority holds that the applicant’s

complaint about the killing of her husband – like her complaint relating to

the alleged ineffectiveness of the investigation up to January 2000 – is

inadmissible because it was lodged out of time.

While I agree that the complaint relating to the first stage of the

investigation is inadmissible for the reason stated, I respectfully disagree

with the inadmissibility of the complaint in so far as it relates to the killingof the applicant’s husband. As acknowledged by my colleagues, since there

were significant new developments in January 2000, the procedural

obligation to investigate the husband’s killing was revived after that date,

with the result that the complaint relating to the ineffectiveness of the

investigation thereafter cannot be declared inadmissible as being lodged out

of time (see paragraphs 67 to 68 of the judgment). In my opinion, the fact

that the applicant is entitled to complain that the investigation as resumed

after January 2000 was ineffective should result in the admissibility of her

complaint relating to the specific object of that investigation, namely the

killing of her husband. The applicant should have been able in principle to

await the outcome of the resumed investigation to see whether it producedevidence of the State’s implication in the killing of her husband, and then to

refer to the results of the investigation (or the lack of meaningful results) in

support of her argument that the State was in fact involved.

3. With respect to the merits of the applicant’s complaint relating to the

ineffectiveness of the investigation after it was resumed, it is again clear

from her submissions that she is primarily concerned with the absence of an

investigation into the possible involvement of the security services in the

killing of her husband (see paragraph 72 of the judgment). According to the

applicant, far from shedding light on the circumstances surrounding the


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CERF v. TURKEY JUDGMENT - SEPARATE OPINION 19

death of her husband, the investigation was an attempt to obscure the truth

concerning his death (see paragraph 71 of the judgment).

The majority does not give a direct answer to that complaint. Withrespect to the adequacy of the investigation, it limits itself to finding that the

investigation was capable of identifying and prosecuting the perpetrators of

the killing, that is, the members of Hizbullah who had confessed to carrying

out the operation which resulted in the killing of the applicant ’s husband

(see paragraph 78 of the judgment). To my regret, I consider that this is a

very incomplete answer. The Court should have examined whether there

was reason for the investigation to look into the possible involvement of the

State security forces, as alleged by the applicant, and if so, whether an

investigation into that aspect was actually undertaken.

By holding that the investigation was ineffective because of the delays

incurred (see paragraphs 79 to 81 of the judgment), the majority is able tofind a violation of Article 2. I concur with that result, but consider it to be a

very meagre one.

4. I am left with the unpleasant feeling that not only the domestic

investigation, but also the examination of the case by our Court, failed to

contribute to disclosing the truth about what really happened when the

applicant’s husband was killed.

case of cerf v. turkey

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