(Application no. 30742/03)
6 October 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Seyfettin Acar and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having deliberated in private on 15 September 2009,
Delivers the following judgment, which was adopted on that date:
THE CIRCUMSTANCES OF THE CASE
“In view of the autopsy reports, there is no question as to the cause of death of the villagers. Instead, the question to be resolved is whether those who fired on the villagers were the accused village guards.
It is not possible to rely solely on the witness statements as they are contradictory on several points. However the witness statements given during the preliminary investigation seem to be, in general, objective. Relying on these initial statements it is established that the persons who had fired had their faces covered in order not to be recognised.
Furthermore, in the court's opinion, what a military commander should normally do when he is notified of an incident is to go to the scene of the incident as soon as possible. However in the present case, the fact that the non-commissioned officer Ali Kılıç checked all twenty-seven weapons one by one, without taking any action, is incomprehensible. Moreover the court notes that the Midyat Public Prosecutor maintained that the soldiers were not collecting the empty cartridges to help him and that he had to personally collect the empty cartridges which were near the dead bodies. In view of the above, the court concludes that Ali Kılıç, Kazım Demirbaş and Arif Güner were trying to defend the accused who were working with them to fight against terrorism, and therefore it does not find their statements reliable.
Considering the Midyat Public Prosecutor's statements, in which he said that there was a smell of gunpowder, the court comes to the conclusion that the allegation concerning the placing of empty cartridges at the scene of the incident in order to implicate the village guards in the crime is not corroborated in any persuasive manner by eyewitnesses or other evidence.
Moreover, the fact that three of the sixty-six cartridges were not fired from the village guards' weapons cannot be taken as a proof of their innocence. It is possible that one of the village guards had a weapon that had not been seized by the authorities after the incident.
In conclusion, relying on the findings of the ballistic report and the statements of the Midyat Public Prosecutor, who had an impartial position in the present case, the court decides that ten of the accused village guards are responsible for the wounding and killing of the villagers whom they considered to be PKK supporters.”
I. ALLEGED VIOLATIONS OF ARTICLES 2, 6 AND 13 OF THE CONVENTION
“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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) EUR 25,000 to the fifth applicant Narinci Acar and her nine children;
(b) EUR 24,000 to the sixth applicant Mrs Hasbiye Acar and her seven children;
(c) EUR 10,000 to the third applicant Yusuf Acar; and
(d) EUR 10,000 to the fourth applicant Süleyman Acar.
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts plus any tax that may be chargeable, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros) to the first applicant Mr Seyfettin Acar in respect of non-pecuniary damage;
(ii) EUR 5,000 (five thousand euros) to the second applicant Mr Talat Acar in respect of non-pecuniary damage;
(iii) EUR 10,000 (ten thousand euros) to the third applicant Mr Yusuf Acar in respect of pecuniary and EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage;
(iv) EUR 10,000 (ten thousand euros) to the fourth applicant Mr Süleyman Acar in respect of pecuniary and EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage;
(v) EUR 25,000 (twenty-five thousand euros) to the fifth applicant Mrs Narinci Acar in respect of pecuniary and EUR 30,000 (thirty thousand euros) in respect of non-pecuniary damage
(vi) EUR 24,000 (twenty-four thousand euros) to the sixth applicant Mrs Hasbiye Acar in respect of pecuniary and EUR 30,000 (thirty thousand euros) in respect of non-pecuniary damage; and
(b) that the respondent State is to pay the applicants, within the same three month period EUR 4,150 (four thousand one hundred and fifty euros) to the six applicants jointly in respect of costs and expenses, plus any tax that may be chargeable to the applicants;
(c) 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;
Done in English, and notified in writing on 6 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
1 Village guards are villagers employed by the State to assist security forces in the fight against terrorism in south-east Turkey.
2 There are two persons with the name Süleyman Acar; Süleyman Acar (who was born in 1957, was the sixth applicant’s husband and the first applicant’s brother) who died in the incident, and Süleyman Acar (who was born in 1953, the fourth applicant) who was wounded in the incident.
3 PKK – the Kurdistan Workers’ Party, an illegal organisation.