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 Turkish Government (“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 and administrative 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 of eyewitnesses, 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 would have 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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      CERF v. TURKEY JUDGMENT 3

    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 and R.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 work and 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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    4 CERF v. TURKEY JUDGMENT

    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 h