CASE OF BOZKIR AND OTHERS V. TURKEY

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24589/04 | 26.02.2013No violation of Article 2 (disappearance of the applicants’ close relatives)Violation of Article 2 (investigation)Violation of Article 13

Transcript of CASE OF BOZKIR AND OTHERS V. TURKEY

SECOND SECTION

CASE OF BOZKIR AND OTHERS v. TURKEY (Application no. 24589/04)

JUDGMENT

STRASBOURG 26 February 2013

This judgment will become final in the circumstances set out in Article 44 2 of the Convention. It may be subject to editorial revision.

BOZKIR AND OTHERS v. TURKEY JUDGMENT

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In the case of Bozkr and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President, Danut Joien, Peer Lorenzen, Andrs Saj, Il Karaka, Neboja Vuini, Helen Keller, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 29 January 2013, Delivers the following judgment, which was adopted on that date:

PROCEDURE1. The case originated in an application (no. 24589/04) against the Republic of Turkey lodged with the Court on 16 May 2004 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) by eighteen Turkish nationals who live in Hakkari and whose particulars are set out in the attached table. 2. The applicants, who had been granted legal aid, were represented by Mr Mikail Demirolu, a lawyer practising in Hakkari. The Turkish Government (the Government) were represented by their Agent. 3. The applicants alleged, in particular, that following their detention by soldiers, their relatives Ahmet Bozkr, Selahattin Akan, Sleyman Tekin, Lokman Kaya and Halit Ertu had disappeared in circumstances engaging the responsibility of the respondent State under Articles 2, 3, 5, and 13 of the Convention. Details of the applicants relationship to the five disappeared men are set out in the attached table. 4. On 7 July 2008 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 1).

THE FACTSTHE CIRCUMSTANCES OF THE CASE 5. The following information emerges from the submissions of the parties and from the documents submitted by the parties.

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6. The applicants relatives, Ahmet Bozkr, Selahattin Akan, Sleyman Tekin, Lokman Kaya and Halit Ertu, worked as shepherds in the valleys and mountains surrounding their village of Otluca, which is located within the administrative jurisdiction of the province of Hakkari, in south-east Turkey. 7. On 24 August 1996 an armed clash took place between members of the PKK1 and soldiers from the Hakkari Mountain and Commando Brigade (Hakkari Da ve Komando Tugay Komutanl) in the proximity of Otluca. Two non-commissioned officers and four soldiers were killed. 8. On 26 August 1996 a military operation was initiated by the Brigade commanders office in the area surrounding Otluca. After the operation the five shepherds, who had been in a nearby meadow grazing their sheep, went missing and nothing has been heard from them since that day. 9. On 6 September 1996 relatives of Ahmet Bozkr, Selahattin Akan, Lokman Kaya and Halit Ertu petitioned the Hakkari prosecutors office. They maintained that during the military operation there had been largescale arrests in their village. They further submitted that on 5 September 1996 the villagers, with the permission of the Hakkari Brigade commander, had conducted an unsuccessful search in the meadow to find the shepherds. The petitioners asked the prosecutors office to initiate an investigation into the disappearance of their relatives. 10. The same day the Brigade commanders office informed the Governor of Hakkari in writing that they had not arrested or detained the applicants missing relatives. In the opinion of the commander, the applicants relatives might have joined the PKK. 11. On 10 September 1996 the Hakkari prosecutor asked the Hakkari police headquarters and the Gendarmerie Command whether the shepherds had been detained. 12. On 16 and 30 September 1996 the police headquarters and the Gendarmerie Command informed the prosecutor that the applicants relatives had not been arrested or detained by them. 13. On an unspecified date the Hakkari prosecutor requested the Hakkari Mountain and Commando Brigade commanders office to provide information as to the whereabouts of the applicants relatives. 14. On 11 October 1996 a colonel from the Hakkari Mountain and Commando Brigade commanders office sent a letter to the Hakkari prosecutor in which he informed the prosecutor that the military forces did not have any information regarding the shepherds whereabouts. The colonel further noted that the shepherds might have joined the PKK. According to the letter, four other shepherds, F.A., A.Y., A.A. and F.A., had been arrested on suspicion of aiding members of the PKK during the same operation.1

The Kurdistan Workers Party, an illegal organisation.

BOZKIR AND OTHERS v. TURKEY JUDGMENT

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15. On 15 October 1996 the applicant, Gli Tekin, also submitted a petition to the Hakkari prosecutors office and asked the prosecutor to search for her husband, Sleyman Tekin. 16. The Hakkari prosecutor instructed the Hakkari police headquarters on 24 December 1996 to instigate a country-wide search for the missing men. 17. On 14 and 28 May 1997 Yaar Ertu and Hasan Kaya lodged further petitions with the Hakkari prosecutors office on behalf of the families of the missing shepherds, and requested information about the investigation. 18. On 28 May 1997 the Hakkari prosecutor took statements from Hasan Kaya, who maintained that three other shepherds, A.S., H.S. and A.A., had been arrested by soldiers during the military operation and had subsequently been released. Hasan Kaya told the prosecutor that those shepherds could provide information regarding the missing persons. 19. Subsequently, on 30 May 1997 the Hakkari prosecutor heard A.S., H.S. and A.A., who stated that they had not seen the applicants relatives while they were in the custody of the military. 20. On 10 June 1997 the prosecutor took statements from F.A. and A.Y. (see paragraph 14 above), who contended that they had not seen the applicants relatives while they were in custody. 21. On 9 July 1997 Yaar Ertu lodged a petition with the Hakkari prosecutors office and requested that H.O., a non-commissioned officer from the Elaz Gendarmerie Command, be heard by the prosecutor, since that person had stated before the Turkish Parliamentary (Susurluk) Investigation Commission that during the military operation initiated on 26 August 1996, five shepherds had been killed by soldiers. 22. Following the request of the Hakkari prosecutor, a prosecutor in Izmir took a statement from H.O. on 8 December 1997. H.O. maintained that a non-commissioned officer, Y.Y., had told him that five shepherds had been killed during the operation in August 1996. 23. On 26 January 1998 the Hakkari prosecutor heard Y.Y., who stated that he had not told H.O. anything about the killing of the shepherds and that he had no knowledge of their whereabouts. 24. On 23 March 1998 Hasan Ertu made statements to the Hakkari prosecutor. He maintained that when they had searched the meadow following the disappearance of the shepherds, they had found the shepherds rugs and other personal belongings in the sheepfold. He stated that the rugs were still in his possession and told the prosecutor that he could hand them over to him. 25. On 26 March 1998 Hasan Ertu gave the rugs to the Hakkari prosecutor, who observed that they bore no traces of blood or bullet holes. 26. Between March and July 1998 the prosecutor questioned a number of villagers who had been arrested during the incidents in August 1996 and

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subsequently released. They told the prosecutor that they had not seen the applicants relatives in custody. 27. In July 1998 Hasan Kaya, Yaar Ertu and Mehmet Bozkr filed further petitions with the Hakkari prosecutors office, repeating their request for a more in-depth investigation into their relatives disappearance. 28. On 13 August 1998 Hasan Ertu, Hasan Kaya and Ahmet Bozkrs father, M.B., informed the Hakkari prosecutor that the owner of the sheep that Ahmet Bozkr kept, A.K., had told them that he had seen the missing shepherds when he had been detained in custody by the military in Hakkari. 29. In April and May 1999 the applicants submitted further petitions to the prosecutor and asked for their relatives to be found. The prosecutor contacted the military authorities and asked them to carry out further investigations. 30. On 22 September 1999 Narin Kaya lodged a petition with the prosecutors office requesting that her son, Lokman Kaya, be found. In her petition she noted that an army captain named Yusuf had told the villagers that the missing shepherds had been taken into custody during the operation in August 1996, as the soldiers needed guides in the area. She also maintained that a certain A.. had been told by a member of the PKK, K.B., that her son had been taken into custody by the military after the operation. 31. The same day the prosecutor asked the military authorities to find Captain Yusuf. The military authorities subsequently informed the prosecutor that no captain with the name of Yusuf had worked for them. 32. On 29 September 1999 A.. told the prosecutor that he had no knowledge of the shepherds whereabouts and did not know Narin Kaya. 33. On 30 November 1999 K.B. maintained before the prosecutor that he had not seen the missing shepherds while he had been in military custody. 34. On 29 March 2001 Hasan Kaya once again asked the Hakkari prosecutors office to carry out further investigations. 35. On 26 December 2002 the Hakkari prosecutor asked the Hakkari Gendarmerie Command whether it had any information regarding the missing shepherds whereabouts. 36. On the same day, the Hakkari prosecutor asked the police headquarters to find the owner of the sheep, A.K. (see paragraph 28 above). 37. On 31 Dece