lssued by Lhe 8eglsLrar of Lhe CourL

LCP8 332 (2013)

12.11.2013
1urklsh mlllLary responslble for bomblng clvlllans ln 1994,
SLaLe musL carry ouL effecLlve crlmlnal lnvesLlgaLlon
1he case !"#$"% '#( )*+"%, -. /0%1"2 (appllcaLlon no. 23302/06) concerned Lhe appllcanLs'
allegaLlon LhaL Lhe 1urklsh mlllLary bombed Lhelr Lwo vlllages by alrcrafL ln March 1994, kllllng more
Lhan 30 of Lhelr close relaLlves, ln[urlng some of Lhe appllcanLs Lhemselves, and desLroylng mosL of
Lhe properLy and llvesLock. 1he 1urklsh governmenL clalmed LhaL Lhls aLLack was carrled ouL by Lhe
kk (1he kurdlsLan Workers arLy, an lllegal organlsaLlon).
ln Loday's Chamber [udgmenL ln Lhe case, whlch ls noL flnal
1
, Lhe Luropean CourL of Puman 8lghLs
held, unanlmously, LhaL Lhere had been:
' -345'*34# 46 7%*385" 9 :%3;+* *4 536"< of Lhe Luropean ConvenLlon on Puman 8lghLs on accounL of Lhe
deaLhs of 33 of Lhe appllcanLs' close relaLlves and Lhe ln[urles caused Lo Lhree of Lhe appllcanLs
Lhemselves,
' 60%*+"% -345'*34# 46 7%*385" 9 because of Lhe exLremely lnadequaLe lnvesLlgaLlon lnLo Lhe lncldenL,
' -345'*34# 46 7%*385" = (>%4+3?3*34# 46 3#+0@'# 4% (";%'(3#; *%"'*@"#*< because Lhe vlllagers had
been forced Lo wlLness Lhe deaLhs of Lhelr relaLlves and Lhe desLrucLlon of Lhelr homes, and Lhe
1urklsh governmenL had noL provlded even Lhe mlnlmum of humanlLarlan ald Lo deal wlLh Lhe
afLermaLh of Lhe aLLack, and,
' 6'350%" *4 84@>52 A3*+ 7%*385" =B (4?53;'*34# *4 >%4-3(" '55 #"8",,'%2 6'8353*3", 64% *+" "C'@3#'*34#
46 *+" 8',"< because Lhe CovernmenL had wlLhheld vlLal evldence, namely Lhe fllghL log of Lhe
planes whlch had carrled ouL Lhe bomblng.
8earlng ln mlnd LhaL Lhe lnvesLlgaLlon ls sLlll pendlng aL naLlonal level, Lhe CourL found ln parLlcular
LhaL Lhls was an excepLlonal case where lL was approprlaLe Lo lndlcaLe 0#("% 7%*385" DE
:3@>5"@"#*'*34# 46 F0(;@"#*,< LhaL Lhe 1urklsh governmenL should carry ouL furLher lnvesLlgaLlve
sLeps lnLo Lhe lncldenL, wlLh Lhe help of Lhe fllghL log, ln order Lo ldenLlfy and punlsh Lhose
responslble for Lhe bomblng of Lhe appllcanLs' Lwo vlllages and prevenL furLher lmpunlLy.
rlnclpal facLs
1he appllcanLs are 41 1urklsh naLlonals born beLween 1907 and 1984. 1hey clalmed LhaL, durlng Lhe
1urklsh governmenL's aLLempLs Lo combaL Lhe kk ln 1994, Lhe resldenLs of Lhe vlllages of ku;konar
and koaglll had refused Lo work for Lhe sLaLe securlLy forces and LhaL Lhe mlllLary belleved LhaL Lhey
gave asslsLance Lo Lhe kk. 1he appllcanLs alleged LhaL on 26 March 1994 a range of 1urklsh mlllLary
alrcrafL flred on and bombed Lhelr vlllages, kllllng a large number of Lhe lnhablLanLs, ln[urlng oLhers
and desLroylng mosL of Lhe properLy and llvesLock. 1hough Lhe resldenLs of Lhe vlllages heard Lhe
sound of alrcrafL prlor Lo Lhe aLLack, Lhey dld noL expecL Lhe bomblng, planes and hellcopLers had
1 under ArLlcles 43 and 44 of Lhe ConvenLlon, Lhls Chamber [udgmenL ls noL flnal. uurlng Lhe Lhree-monLh perlod followlng lLs dellvery,
any parLy may requesL LhaL Lhe case be referred Lo Lhe Crand Chamber of Lhe CourL. lf such a requesL ls made, a panel of flve [udges
conslders wheLher Lhe case deserves furLher examlnaLlon. ln LhaL evenL, Lhe Crand Chamber wlll hear Lhe case and dellver a flnal
[udgmenL. lf Lhe referral requesL ls refused, Lhe Chamber [udgmenL wlll become flnal on LhaL day.
Cnce a [udgmenL becomes flnal, lL ls LransmlLLed Lo Lhe CommlLLee of MlnlsLers of Lhe Councll of Lurope for supervlslon of lLs execuLlon.
lurLher lnformaLlon abouL Lhe execuLlon process can be found here: [Link]/L/dghl/monlLorlng/execuLlon
2
ofLen been heard ln Lhe area conducLlng reconnalssance and bomblng mlsslons agalnsL Lhe kk ln
Lhe nearby mounLalns, buL Lhey had never aLLacked Lhe vlllages. As Lhe ma[orlLy of Lhe men from Lhe
vlllages were ouL worklng ln Lhe flelds, mosL of Lhe vlcLlms were chlldren, women or Lhe elderly. 1he
appllcanLs clalmed LhaL no members of Lhe kk were ln Lhe vlllages aL Lhe Llme.
1he 1urklsh governmenL malnLalned LhaL Lhe aLLack was noL conducLed by 1urklsh mlllLary alrcrafL,
buL was lnsLead carrled ouL by Lhe kk because Lhe vlllages had refused Lo celebraLe newroz, Lhe
LradlLlonal kurdlsh new year fesLlval. lL alleged LhaL Lhere was no evldence of sLaLe lnvolvemenL.
ComplalnLs, procedure and composlLlon of Lhe CourL
8elylng on ArLlcle 2 (rlghL Lo llfe) and ArLlcle 13 (rlghL Lo an effecLlve remedy), Lhe appllcanLs
complalned of Lhe kllllng of Lhelr relaLlves and Lhe ln[urles caused Lo some of Lhem durlng Lhe aLLack,
and LhaL Lhere had been no effecLlve lnvesLlgaLlon. 1hey also relled on ArLlcle 3 (prohlblLlon of
lnhuman or degradlng LreaLmenL) Lo complaln of Lhe Lerror caused by Lhe bomblng, and Lhe fallure
of Lhe naLlonal auLhorlLles Lo help Lhe vlllages ln Lhe afLermaLh.
1he appllcaLlon was lodged wlLh Lhe Luropean CourL of Puman 8lghLs on 26 May 2006.
!udgmenL was glven by a Chamber of seven [udges, composed as follows:
Culdo G'3@4#(3 (lLaly), !"#$%&#'(,
uanuLe Ioc|ene (LlLhuanla),
uragol[ub opov|c (Serbla),
Andrs H'FI (Pungary),
l;il karaka (1urkey),
aulo J3#*4 (" 75?0K0"%K0" (orLugal),
Pelen L"55"% (SwlLzerland),
and also SLanley M'3,@3*+, )#*(%+' -#.%$("/"0
ueclslon of Lhe CourL
AdmlsslblllLy
As Lhe complalnLs of Lhree of Lhe appllcanLs were dlsmlssed ln Lhelr enLlreLy, Lhe subsequenL
concluslons of Lhe CourL only concerned 38 of Lhe 41 appllcanLs.
ArLlcle 38 (obllgaLlon Lo provlde all necessary faclllLles for Lhe examlnaLlon of Lhe case)
1he CourL noLed LhaL, alLhough Lhe 1urklsh governmenL had been asked Lo provlde a full copy of Lhe
case flle ln 2009, lL had noL supplled Lhe relevanL fllghL log. 1hls was supplled Lo Lhe CourL by Lhe
appllcanLs ln !une 2012, afLer Lhe governmenL had already submlLLed lLs observaLlons on Lhe case.
1he 1urklsh governmenL dld noL dlspuLe Lhe auLhenLlclLy of Lhe fllghL log, argue LhaL lL was unaware
of lLs exlsLence, or provlde any explanaLlon as Lo why lL had noL prevlously been supplled Lo Lhe
CourL. 8earlng ln mlnd Lhe lmporLance of a CovernmenL's co-operaLlon ln ConvenLlon proceedlngs,
Lhe CourL held LhaL Lhe fallure Lo provlde Lhe fllghL log had amounLed Lo a fallure of Lhe 1urklsh
governmenL Lo comply wlLh lLs obllgaLlons under ArLlcle 38 Lo provlde all necessary faclllLles Lo Lhe
CourL ln lLs Lask of esLabllshlng Lhe facLs.
ArLlcle 2 (kllllng of Lhe appllcanLs' relaLlves and lnvesLlgaLlon)
1he CourL began by examlnlng Lhe CovernmenL's argumenLs Lo supporL lLs clalm LhaL Lhe kk had
been responslble for Lhe aLLack on Lhe vlllage. lL noLed LhaL Lhe CovernmenL relled only on wlLness
sLaLemenLs wrlLLen ln 2008, and Lhe lnvesLlgaLlons of 1urklsh prosecuLors ln 1994, 1996 and 2006
3
whlch had found LhaL Lhe kk had carrled ouL Lhe aLLack. ln regard Lo Lhe wlLness sLaLemenLs, all buL
one of Lhese had been wrlLLen by people, who were noL resldenL ln elLher of Lhe appllcanLs' Lwo
vlllages and who had noL been presenL aL Lhe lncldenL, and were Lherefore merely hearsay.
Moreover, mosL of Lhose vlllagers had been quesLloned by members of Lhe mlllLary and noL by an
lndependenL [udlclal auLhorlLy. 1he only sLaLemenL LhaL had been wrlLLen by a wlLness Lo Lhe evenL
was auLhored by a vlllage guard employed by Lhe SLaLe, and Lhe CourL Lherefore held LhaL lLs
lndependence and lmparLlallLy was also quesLlonable. ln regard Lo Lhe lnvesLlgaLlons, Lhe CourL
noLed LhaL Lhe flles of Lhose whlch had been conducLed ln 1994 and 1996 conLalned absoluLely no
evldence LhaL Lhe kk had been lnvolved, and Lhe concluslons reached by Lhe prosecuLors LhaL Lhe
kk were responslble were Lherefore baseless. 1he lnvesLlgaLlon ln 2006 was based on evldence LhaL
was now clearly unLenable, and lnvolved reasonlng LhaL was llloglcal.
ln regard Lo Lhe appllcanLs' allegaLlon LhaL Lhe aLLack had been carrled ouL by governmenL alrcrafL,
Lhe CourL noLed LhaL Lhe appllcanLs had conslsLenLly malnLalned Lhls accounL over a number of
years. lurLher lnvesLlgaLlons by Lhe prosecuLlng auLhorlLles conducLed ln 2004 and 2003 based on
eyewlLness LesLlmonles had concluded LhaL Lhe vlllage was bombed by alrcrafL and noL Lhe kk, and
fllghL logs drawn up by Lhe Clvll AvlaLlon ulrecLoraLe esLabllshed LhaL mlsslons had been flown Lo Lhe
vlllages' locaLlons aL Lhe Llme LhaL Lhe appllcanLs clalm Lhe aLLack had occurred. ln Lhe llghL of Lhls
evldence, Lhe CourL concluded LhaL Lhe 1urklsh governmenL had conducLed an aerlal aLLack kllllng 33
of Lhe appllcanLs' relaLlves and ln[urlng Lhree of Lhe appllcanLs Lhemselves, ln vlolaLlon of ArLlcle 2.
1he CourL also found LhaL 1urkey had vlolaLed ArLlcle 2 by falllng Lo properly lnvesLlgaLe Lhe aLLack.
ln parLlcular, lL found LhaL almosL no sLeps had been Laken lmmedlaLely afLer Lhe bomblng Lo
lnvesLlgaLe whaL had happened, and when Lhe lncldenL had acLually been looked lnLo Lhe
lnvesLlgaLors were noL lndependenL, formed baseless concluslons on exLremely mlnlmal
lnvesLlgaLlons, and aLLempLed Lo wlLhhold Lhe lnvesLlgaLlon documenLs from Lhe appllcanLs. 1he
prosecuLors' concluslons demonsLraLed LhaL none of Lhem had an open mlnd as Lo whaL could have
happened ln Lhe appllcanLs' vlllages, as was generally Lhe case ln souLh-easL 1urkey aL Lhe Llme, Lhey
hasLlly blamed Lhe kllllngs on Lhe kk wlLhouL any basls. MosL cruclally, no lnvesLlgaLlon was
apparenLly carrled ouL lnLo Lhe Lhe fllghL log, Lhe key elemenL for Lhe posslble ldenLlflcaLlon and
prosecuLlon of Lhose responslble. lndeed, glven Lhe abundance of lnformaLlon and evldence LhaL Lhe
appllcanLs' vlllages had been bombed by Lhe 1urklsh Alr lorce, Lhe CourL could only come Lo one
concluslon, namely LhaL Lhe lnadequacy of Lhe lnvesLlgaLlon had been Lhe resulL of Lhe naLlonal
lnvesLlgaLlng auLhorlLles' unwllllngness Lo offlclally esLabllsh Lhe LruLh and punlsh Lhose responslble.
ArLlcle 3 (lnhuman or degradlng LreaLmenL)
1he CourL noLed LhaL Lhe bomblng had been ordered and carrled ouL wlLhouL Lhe sllghLesL concern
for human llfe by Lhe plloLs or by Lhelr superlors, whlch Lhey had Lhen Lrled Lo cover up by refuslng
Lo hand over Lhe fllghL log. lurLhermore, a number of appllcanLs had had Lo wlLness Lhe kllllng of
Lhelr relaLlves (or Lhe lmmedlaLe afLermaLh) and Lhe desLrucLlon of Lhelr homes, and had been
forced Lo deal wlLh Lhe afLer-effecLs of Lhe lncldenL wlLhouL even Lhe mlnlmum of humanlLarlan
asslsLance from Lhe 1urklsh auLhorlLles. ln parLlcular, ln Lhe afLermaLh of Lhelr relaLlves' deaLhs, Lhe
appllcanLs had had Lo personally collecL whaL was lefL of Lhe bodles and Lake Lhem Lo nearby vlllages
for burlal, some of Lhem from ku;konar vlllage even havlng Lo place Lhe bodles ln plasLlc bags for
burlal ln a mass grave. 1he Lhree appllcanLs who were crlLlcally ln[ured had Lo be Laken Lo hosplLal on
LracLors by nelghbourlng vlllagers. 1he CourL consldered LhaL Lhe angulsh and dlsLress suffered by
Lhe appllcanLs had been sufflclenLly severe as Lo be caLegorlsed as lnhuman and degradlng.
ConsequenLly, Lhe CourL held LhaL Lhere had been a vlolaLlon of ArLlcle 3.
ArLlcle 46 (lmplemenLaLlon of [udgmenLs)
ln excepLlonal clrcumsLances, Lhe CourL wlll lndlcaLe Lhe Lype of measure LhaL musL be Laken by a
member SLaLe afLer a vlolaLlon has been found agalnsL lL. ln Lhls case, havlng regard Lo Lhe facL LhaL
4
Lhe lnvesLlgaLlon flle was sLlll open aL Lhe naLlonal level, and havlng furLher regard Lo Lhe documenLs
ln lLs possesslon, Lhe CourL consldered LhaL new lnvesLlgaLory sLeps should be Laken under Lhe
supervlslon of Lhe CommlLLee of MlnlsLers. lL held, ln parLlcular, LhaL Lhe sLeps Lo be Laken by Lhe
naLlonal auLhorlLles ln order Lo prevenL lmpunlLy should lnclude Lhe carrylng ouL of an effecLlve
crlmlnal lnvesLlgaLlon, wlLh Lhe help of Lhe fllghL log, wlLh a vlew Lo ldenLlfylng and punlshlng Lhose
responslble for Lhe bomblng of Lhe appllcanLs' vlllages.
ArLlcle 41 ([usL saLlsfacLlon)
1he CourL held LhaL 1urkey was Lo pay Lhe 38 appllcanLs whose appllcaLlons were admlsslble a LoLal
of 2,303,000 euros (Lu8) of non-pecunlary damage, and Lu8 3,700 [olnLly ln respecL of cosLs and
expenses.
12# 34&.5#'( %$ /6/%7/87# +'79 %' :'.7%$20
1hls press release ls a documenL produced by Lhe 8eglsLry. lL does noL blnd Lhe CourL. ueclslons,
[udgmenLs and furLher lnformaLlon abouL Lhe CourL can be found on [Link]. 1o recelve
Lhe CourL's press releases, please subscrlbe here: [Link]/8SS/en or follow us on 1wlLLer
[LCP8press.
J%",, 84#*'8*,
echrpress[[Link] | Lel: +33 3 90 21 42 08
1racey 1urner-1reLz (Lel: + 33 3 88 41 33 30)
nlna Salomon (Lel: + 33 3 90 21 49 79)
uenls LamberL (Lel: + 33 3 90 21 41 09)
!ean ConLe (Lel: + 33 3 90 21 38 77)
/+" N0%4>"'# O40%* 46 P0@'# G3;+*, was seL up ln SLrasbourg by Lhe Councll of Lurope Member
SLaLes ln 1939 Lo deal wlLh alleged vlolaLlons of Lhe 1930 Luropean ConvenLlon on Puman 8lghLs.