European Court of Human Rights

 

 

 

FORMER SECOND SECTION

 

 

 

 

 

 

CASE OF BENZER AND OTHERS v. TURKEY

 

(Application no. 23502/06)

 

 

 

 

 

 

 

JUDGMENT

(Revision)

 

 

 

STRASBOURG

 

13 January 2015

 

 

 

 

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 Benzer and Others v. Turkey, (request for revision of the judgment of 12 November 2013),

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Guido Raimondi, President,
          Işıl Karakaş,
          Dragoljub Popović,
          András Sajó,
          Paulo Pinto de Albuquerque,
          Helen Keller,
          Jon Fridrik Kjølbro, judges,
and Abel Campos, Deputy Section Registrar,

Having deliberated in private on 2 December 2014,

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

PROCEDURE

1.  The case originated in an application (no. 23502/06) 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 41 Turkish nationals (“the applicants”), on 26 May 2006.

2.  In a judgment delivered on 12 November 2013, the Court held unanimously that there had been a violation of Article 2 of the Convention in its substantive aspect on account of the killing of 33 relatives of 35 of the applicants and the injuring of three other applicants during the aerial bombardment of the applicants’ two villages by fighter jets belonging to the Air Force of the respondent State. In respect of those 38 applicants the Court also held unanimously that there had been a violation of Article 2 of the Convention in its procedural aspect on account of the national authorities’ failure to carry out an effective investigation and a violation of Article 3 of the Convention on account of the circumstances surrounding the aerial bombardment of the villages. It decided to award the 38 applicants the total sum of 2,305,000 euros (EUR) for non-pecuniary damage, and EUR 5,700 for costs and expenses and dismissed the remainder of the claims for just satisfaction. The complaints made by the remaining three applicants were declared inadmissible.

3.  On 20 May 2014 the applicants’ legal representative informed the Court that two of the applicants, Mr Mahmut Erdin and Mr Yusuf Bengi, had died in 2009 and 2012 respectively, and that their heirs wished to pursue the application. He accordingly requested revision of the judgment within the meaning of Rule 80 of the Rules of Court.

4.  On 2 September 2014 the Court considered the request for revision and decided to give the Government six weeks in which to submit any observations. Those observations were received on 17 September 2014. On 30 October 2014 the applicants submitted to the Court their observations in reply.

THE LAW

THE REQUEST FOR REVISION

5.  The applicants’ representative requested revision of the judgment of 12 November 2013, which he had been unable to have executed because two of the applicants, Mr Mahmut Erdin and Mr Yusuf Bengi, had died before the judgment had been adopted.

6.  Relying on official documentation, the legal representative informed the Court that Lali Erdin, Emin Erdin, İsmail Erdin, Ayşe Erdin, Asiye Erdin, Hatice Erdin, Fatma Bayı, Zeynep Erdin and Sariye Metin were the heirs of the deceased applicant Mr Mahmut Erdin, and requested that they receive the sum of compensation awarded to Mr Mahmut Erdin for non-pecuniary damage.

7.  Referring to official documentation, the legal representative also informed the Court that Mehmet Bengi, Sitti Turgun, Mustafa Bengi, Adil Bengi, Abdurrahman Bengi, Reşit Bengi, Ahmet Bengi, İsmail Bengi, Zeynep Bengi, Emine Salgın, Abdulaziz Bengi, Fatma Bengi and Emine Bengi were the heirs of the deceased applicant Mr Yusuf Bengi, and requested that they receive the sum of compensation awarded to Mr Yusuf Bengi for non-pecuniary damage.

8.  The Government stated that the applicant Mr Mahmut Erdin had been dead for over four years, and the applicant Mr Yusuf Bengi had died approximately one year before the judgment was adopted by the Court but that neither of these two applicants’ heirs or their legal representative had informed the Court about their demise. They referred to the parties’ duty to cooperate fully with the Court in the conduct of the proceedings (see Rule 44A of the Rules of Court), and asked the Court to draw “the necessary conclusions” within the meaning of Rule 44C of the Rules of Court.

9.  The applicants’ legal representative responded by submitting that after the deaths of the two applicants it had taken a long time to bring together the large number of applicants who were living in different parts of the country, obtain the necessary documentation from the Register Office and the necessary inheritance decrees from the national courts, and to prepare the powers of attorney. The legal representative stated that the twenty-two heirs referred to above, who had personally been victims of the events on account of which the Court had found violations, wished to pursue the application.

10.  The Court notes from the documents submitted to it that Lali Erdin was the wife, and Emin Erdin, İsmail Erdin, Ayşe Erdin, Asiye Erdin, Hatice Erdin, Fatma Bayı, Zeynep Erdin and Sariye Metin are the children of the deceased applicant Mr Mahmut Erdin. They were, therefore, respectively the mother and the siblings of Mahmut Erdin’s one-year old daughter Asiye Erdin in respect of whose killing during the aerial bombardment the Court found a violation of Article 2 of the Convention (see Benzer and Others v. Turkey, no. 23502/06, §§ 92, 185 and 198, 12 November 2013).

11.  The Court also observes from the documents submitted to it that, Mehmet Bengi, Sitti Turgun, Mustafa Bengi, Adil Bengi, Abdurrahman Bengi, Reşit Bengi, Ahmet Bengi, İsmail Bengi, Zeynep Bengi, Emine Salgın, Abdulaziz Bengi, Fatma Bengi and Emine Bengi are the children of the deceased applicant Mr Yusuf Bengi. In its judgment the Court found that Mr Yusuf Bengi’s wife Ayşe Bengi, who is the mother of ten of the above-mentioned heirs and the stepmother of the remaining three, had been killed in circumstances in breach of Article 2 of the Convention (ibid.).

12.  In the light of the foregoing, the Court considers that these twenty-two heirs have standing to pursue the application in their two deceased relatives’ stead (see, most recently, Gülbahar Özer and Others v. Turkey (revision), no. 44125/06, § 8, 10 June 2014, and the cases cited therein). It observes that they have expressed their intention to do so and requested that the judgment be revised.

13.  As for the Government’s reference to Rule 44A and C of the Rules of Court, the Court observes that it has already examined and rejected a similar argument raised by the same respondent Government in a comparable case (ibid. § 9). The Court finds no particular circumstances in the instant case which would require it to depart from its finding in that case. It finds it unnecessary, therefore, to draw any inferences from the failure to inform the Court at an earlier stage about the demise of two of the applicants.

14.  In the light of the above, the Court considers that the judgment of 12 November 2013 should be revised pursuant to Rule 80 of the Rules of Court, the relevant parts of which provide:

“A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court ... to revise that judgment.

...”

15.  It accordingly decides to award Lali Erdin, Emin Erdin, İsmail Erdin, Ayşe Erdin, Asiye Erdin, Hatice Erdin, Fatma Bayı, Zeynep Erdin and Sariye Metin, jointly, the amount it previously awarded to their deceased relative Mr Mahmut Erdin, namely EUR 80,000, for non-pecuniary damage (see Benzer and Others, cited above, § 245).

16.  It also decides to award Mehmet Bengi, Sitti Turgun, Mustafa Bengi, Adil Bengi, Abdurrahman Bengi, Reşit Bengi, Ahmet Bengi, İsmail Bengi, Zeynep Bengi, Emine Salgın, Abdulaziz Bengi, Fatma Bengi and Emine Bengi, jointly, the amount it previously awarded to their deceased relative Mr Yusuf Bengi, namely EUR 25,000, for non-pecuniary damage (see Benzer and Others, cited above, § 240).

17.  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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to revise its judgment of 12 November 2013 in so far as it concerns the claims made by the deceased applicants Mr Mahmut Erdin and Mr Yusuf Bengi under Article 41 of the Convention,

 

      and accordingly,

 

2.  Holds

(a)  that the respondent State is to pay jointly to the heirs of Mr Mahmut Erdin, namely Lali Erdin, Emin Erdin, İsmail Erdin, Ayşe Erdin, Asiye Erdin, Hatice Erdin, Fatma Bayı, Zeynep Erdin and Sariye Metin, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 80,000 (eighty thousand euros) 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, plus any tax that may be chargeable;

(b)  that the respondent State is to pay jointly to the heirs of Mr Yusuf Bengi, namely Mehmet Bengi, Sitti Turgun, Mustafa Bengi, Adil Bengi, Abdurrahman Bengi, Reşit Bengi, Ahmet Bengi, İsmail Bengi, Zeynep Bengi, Emine Salgın, Abdulaziz Bengi, Fatma Bengi and Emine Bengi, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 25,000 (twenty-five thousand euros) 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, plus any tax that may be chargeable;

(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 13 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Abel Campos                                                                    Guido Raimondi
Deputy Registrar                                                                       President