BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF BABAT AND OTHERS v. TURKEY
(Application
no. 44936/04)
JUDGMENT
STRASBOURG
12 January 2010
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 Babat and Others v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 8 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 44936/04) 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 three Turkish nationals, Mr Aziz Babat,
Ms Azime Babat and Ms Marifet Akgün (Babat), (“the
applicants”), on 3 September 2004.
- The
applicants were represented by Mr A. Baba, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- On
21 November 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1954, 1954 and 1978 respectively and live in
Tunceli and Istanbul respectively.
- The
first and the second applicants' son and the third applicant's
brother, Önder Babat, was a fourth-year student at the Law
Faculty of Istanbul University. Önder Babat had been the subject
of disciplinary investigations at the University and at the time of
the events had criminal proceedings pending against him for
participating in an illegal demonstration. The applicants
maintained that he was Kurdish, Alawite, and had strong left-wing
political views.
- According
to the witness statements given to the public prosecutor on 22 March
2004 by Mr E.Ö., Mr B.Y. and Ms P.A., the events unfolded as
follows: On 3 March 2004 Önder Babat and his three friends went
to watch a documentary film at the French Cultural Centre at Istiklal
Street in Taksim, Istanbul. Afterwards they visited the office of the
Devrimci Hareket Dergisi (Revolutionary Movement Magazine),
a magazine with left-wing political views located in Imam Adnan
Street right next to Istiklal Street. Immediately after they left the
office, at approximately 6.50 p.m., Önder Babat suddenly
collapsed in the street bleeding heavily from the head. His friends,
with the help of other people, took him to Taksim Ilkyardım
Hospital where Önder Babat died. He was twenty-five years old.
- According
to a report drafted by two police officers and signed by Mr B.Y.,
one of Önder Babat's friends, the police received information
about the incident at 7.20 p.m. and arrived at Taksim Ilkyardım
Hospital where, after taking oral statements from Önder Babat's
friends, the police, with Mr B.Y., returned to the scene of the
incident. They noted blood trails on the ground. The police were told
by people in the vicinity that they had not witnessed anything
unusual and that the injured person had been taken to the hospital by
his friends.
- At
approximately 8.10 p.m. a second group of police officers from the
Beyoğlu police headquarters arrived at the scene of the incident
to make a preliminary investigation on behalf of the public
prosecutor, who had been notified of the incident by telephone. A
sketch was made of the scene of incident and seven sets of
photographs were taken. The police noted a 10 x 10 cm stone
on the floor approximately 1.80 metres from the blood trail. They
considered that the stone might have caused his death by falling on
his head from one of the surrounding buildings. They collected the
stone and blood samples for the criminal laboratory. In the report
drafted by the police the weapon is stated as unidentified. The
police left the scene at 9.40 p.m. The officers in charge of the
preliminary investigations issued an incident report. It was noted in
this report that a hole of 5 cm x 5 cm was found on the upper left
side of Önder Babat's head and an ecchymotic lesion of 2 cm
was observed around his right eyebrow.
- On
the same date between 8.00 p.m. and 8.40 p.m. officers from the
Beyoğlu police headquarters took statements from Önder
Babat's three friends who had been with him at the time of the
incident and from a waiter who worked at a nearby café. They
all affirmed that they had no idea what had caused Önder Babat's
injuries.
- On
4 March 2004 at 11.30 a.m. Önder Babat's cousin gave a statement
to officers from the Beyoğlu police headquarters, where he
stated that Önder Babat did not have any enemies.
- On
the same day a post-mortem examination was carried out on Önder
Babat's body. The doctor concluded that an autopsy had to be carried
out to determine the cause of death.
- On
the same date an autopsy was carried out on Önder Babat's body
on the orders of the Beyoğlu public prosecutor. In the autopsy
report drafted on 1 April 2004 and signed by four doctors from
the Forensic Medicine Institute, a bullet entry
hole was observed on the left front parietal region and a 9 mm
calibre cartridge was found in the right cerebellum. The doctors
indicated that the cause of death was a fracture of the cranium and
cerebral haemorrhage due to the gunshot wound, and that the gun had
been fired at long range.
- On
8 March 2004 the Istanbul provincial criminal police laboratory
carried out a ballistic examination of the cartridge found in Önder
Babat's head. The experts concluded that the
bullet had been fired from a 9 mm Parabellum-type pistol.
- On
9 March 2004 the police superintendent (Başkomiser)
at the Beyoğlu police headquarters informed the Beyoğlu
public prosecutor that the cartridge could not be matched with
bullets fired from other weapons which had been used in previous
criminal incidents involving unknown perpetrators, and that since the
bullet was not deformed it was highly unlikely that it had ricocheted
off any other target.
- On
22 March 2004 the public prosecutor heard evidence from Mr E.Ö.,
Mr B.Y. and Ms P.A. Two of them stated that they had heard a sound
which they considered to be probably the sound of Önder Babat's
collapse on the street but that they had not heard any gunshots.
- On
6 May 2004 the Beyoğlu public prosecutor put a question to the
Forensic Medicine Institute as to whether the findings of the autopsy
report could shed light on the angle and the distance of the shot.
- On
24 September 2004 the Forensic Medicine Institute drafted a report
concerning the public prosecutor's question, in which they declared
that the shot had been fired from a long distance, namely further
than 35 40 cm. They did not, however, state an opinion as
to the angle from which the shot had been fired, as such a finding
was medically impossible due to the mobile nature of the target in
question.
- In
the meantime, on 12 July 2004 the applicants lodged an application
with the Beyoğlu public prosecutor. They claimed that they had
received an anonymous call from a police officer who had alleged that
during the ballistic examination carried out at the criminal police
laboratory the cartridge found in Önder Babat's head
had been discovered to have been defaced and scraped in an attempt to
render the weapon used in the incident unidentifiable. These findings
had not however been included in the ballistic report. The applicants
requested an in-depth investigation regarding this allegation.
- On
15 December 2004 the Beyoğlu public prosecutor ordered the
Forensic Medicine Institute to examine the cartridge in accordance
with the applicants' request.
- On
5 January 2005 the Forensic Medicine Institute issued a report where
they held that the microscopic examination of the cartridge had not
revealed any traces of defacement or scrapings as alleged by the
applicants.
- In
the meantime, on 3 August 2004 the applicants lodged a criminal
complaint with the Beyoğlu public prosecutor against the
officials carrying out the preliminary investigation into Önder
Babat's death, and requested that the persons responsible be charged
with breach of duty. The applicants claimed in particular that the
authorities had attempted to cover up the real cause of Önder
Babat's death by insisting that the death had been caused by a stone
that fell on his head, that they had not drawn up a proper sketch
plan of the scene of the incident, and that they had not sought
witness statements from, or questioned persons in the vicinity of,
the crime scene. They claimed that certain officials had even gone so
far as to tell them that there was nothing suspicious in Önder
Babat's death which would necessitate informing the public prosecutor
or which would require the performance of an autopsy. The applicants
moreover alleged that the investigation had been limited to a
comparative study with evidence in other “unknown perpetrator
killings”, but no match had been attempted with any weaponry
which had been recorded as being in the possession of the law
enforcement officers or other licensed users.
- On
8 November 2004 the Beyoğlu public prosecutor, referring to the
steps undertaken in the preliminary investigation and to the fact
that the investigation was ongoing, issued a decision not to
prosecute (takipsizlik kararı)
due to a lack of evidence indicating a breach of duty.
- On
24 December 2004 the applicants objected to the public prosecutor's
decision.
- On
2 February 2005 the Istanbul Assize Court rejected the applicants'
objection.
- On
17 March 2005 the Beyoğlu public prosecutor instructed the
Beyoğlu police headquarters to pursue its investigation and to
arrest the suspects or, if it was unable to do so, to issue a
progress report every three months.
- According
to the information in the case file, the investigation into
Önder Babat's death is still pending. The case file reveals
much correspondence between the prosecutor and the police regarding
the investigation.
THE LAW
I. ADMISSIBILITY
- The Government asked the Court to dismiss the
application as being inadmissible for failure to comply with the
six-month rule (Article 35 § 1 of the Convention) because the
applicants had failed to lodge their application within six
months of the date on which the
Istanbul Assize Court had rendered its decision.
- The
applicants did not specifically comment on this point.
- Having
regard to the subject matter of the case before the Istanbul Assize
Court and the applicants' complaints submitted before it, the Court
considers that the decision of the Istanbul Assize Court of
2 February 2005 cannot be held to be a decision on the merits of
the applicants' complaints so as to be considered a final decision in
the process of exhaustion of domestic remedies within the meaning of
Article 35 § 1 of the Convention. In any event, the Court would
point out that the applicants had lodged their application with the
Court on 3 September 2004, prior to the above decision referred to by
the Government. It therefore rejects the Government's objection under
this head.
- Moreover,
the applicants' complaint under this head is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. The Court notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE
CONVENTION
- The
applicants complained that Önder Babat had been killed by State
agents or with their connivance and that no effective investigation
had been conducted into his death, in breach of Articles 2 and 13 of
the Convention.
- The
Court considers that the applicants' complaint falls to be examined
under Article 2 alone, the relevant part of which provides as
follows:
“Everyone's right to life shall be protected by
law.”
A. The parties' submissions
- The
Government maintained, firstly, that there was no State involvement
in the killing of Önder Babat and, secondly, that the
authorities could not have known the latter would be a victim of a
bullet while walking down the street. Moreover, referring to the
steps taken with regard to the investigation into Önder Babat's
death, they considered that an effective investigation had been
conducted in the present case and that the authorities were still
actively pursing their investigation to catch those responsible for
the killing.
- The
applicants maintained that Önder Babat's death was politically
motivated and was perpetrated within the context of psychological
warfare by some units of the Turkish security forces, namely JITEM
(the Gendarmerie Anti Terrorist Intelligence Branch). In this
connection, they submitted that, even if the State had not directly
committed the crime, they had done nothing to stop the activities and
crimes of these semi-official organisations.
The applicants pointed out that a number of killings perpetrated by
unknown assailants had taken place in various parts of Turkey in the
same week as Önder Babat's death. As regards the investigation,
the applicants noted that, despite heavy media coverage and written
inquiries submitted by 23 members of parliament to the Turkish Grand
National Assembly, the prosecutor remained inactive and the
investigation conducted into the incident was full of flaws and
omissions.
B. The Court's assessment
- The Court reiterates the basic principles laid down in
its judgments concerning a State's obligations under Article 2 of the
Convention under both its substantive and procedural limbs (see, in
particular, McCann and Others v. the United Kingdom, 27
September 1995, §§ 146-147, Series A no. 324;
Buldan v. Turkey, no. 28298/95, §§ 73-75, 20 April
2004; Ülkü Ekinci v. Turkey, no. 27602/95, §§
135-136, 16 July 2002; Shanaghan v. the United Kingdom,
no. 37715/97, §§ 85-92, 4 May 2001; Finucane v. the
United Kingdom, no. 29178/95, §§ 67-71, ECHR
2003 VIII; Ramsahai and Others v. the Netherlands [GC],
no. 52391/99, § 321, ECHR 2007 ..., and Dölek v.
Turkey, no. 39541/98, §§ 70-75, 2 October 2007). It
will examine the present case in the light of those principles and in
the light of the documentary evidence adduced by the parties, in
particular the documents furnished by the parties in respect of the
judicial investigations carried out into the impugned incident, and
the parties' written observations on the merits.
- As
regards the killing of Önder Babat, the Court observes that the
applicants made serious allegations about involvement of State agents
in his death. In this connection, the applicants pointed out the
existence of semi official organisations in Turkey which were
known to commit extra judicial killings to suit their own
purposes. They considered that Önder Babat was a victim of such
a killing. The Court, having regard to the undisputed information
provided by the applicants that a number of unknown perpetrator
killings had taken place in various parts of Turkey the very week
Önder Babat was killed, does not find that the applicants'
claims under this head are completely untenable.
- However, for the Court,
the required
evidentiary
standard of
proof for
the purposes
of the Convention
is that of
“beyond
reasonable
doubt”,
and such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted
presumptions of fact (see, among other authorities, Cennet
Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, §
79, 27 June 2006). In the instant case, apart from a newspaper
article where allusions are made to the possibility that a certain
Hakan Saraylıoğlu might have killed Önder Babat, there
is no cogent evidence before the Court concerning the supposed
identity of the gunman who shot and killed Önder Babat.
Moreover, aside from a police superintendent's affirmation that the
bullet had not ricocheted off any other target (see paragraph 14
above), there is also no evidence to conclude with certainty that
Önder Babat was the ultimate target or that his killing was
politically motivated. In this connection, the Court observes that,
while it transpires from the case file that Önder Babat
was a politically active student and had criminal proceedings pending
against him, there is also no indication that he was a prominent
figure or, more decisively, that he had been threatened by anyone, or
had reason to believe that his life was at risk prior to his death.
- In
view of the above, the Court considers that the material in the case
file does not enable it to conclude beyond all reasonable doubt that
Önder Babat was killed by any State agent or person acting on
behalf of the State authorities. It follows that there has been no
violation of Article 2 on that account.
- As
to the investigation into the circumstances surrounding Önder
Babat's death, the Court reiterates that the nature and degree of
scrutiny which satisfies the minimum threshold of an investigation's
effectiveness depends on the circumstances of each particular case.
It must be assessed on the basis of all relevant facts and with
regard to the practical realities of investigation work (see Velikova
v. Bulgaria, no. 41488/98, § 80, ECHR 2000 VI, and Ülkü
Ekinci, cited above, § 144). It further
repeats that a State's procedural obligation under Article 2 of the
Convention is not an obligation of result, but of means (see among
others Gongadze v. Ukraine, no. 34056/02, §
176, ECHR 2005 XI). In this connection, it is undisputed that a
number of steps were taken by the investigating authorities in order
to ascertain the circumstances surrounding Önder Babat's death.
Moreover, the Court admits that the manner in which Önder Babat
was killed – a single gun shot by an unknown perpetrator –
and the place of the killing – a very popular and busy street
in Istanbul – must have adversely affected the investigation
into his killing and have presented the authorities with a particular
difficult task in ascertaining the circumstances in which the
incident took place and of trying to establish the identity of those
responsible.
- Nonetheless,
after having examined the scarce documentation contained in the case
file, the Court is not persuaded that, in the instant case, the
authorities have taken all reasonable steps to secure the evidence
concerning the incident. On the contrary, it finds that the
investigative authorities could be construed as having displayed a
somewhat passive attitude in this respect. For example, the Court
observes that the search for evidence at the scene of incident took
place only once and at a time when the police had had no idea as to
the cause of Önder Babat's collapse on the street. The next day,
however, it became clear that he had been killed by a gunshot.
Despite this new development, the prosecutor never asked the police
to revisit the scene of the incident in order to reconstruct the
events with a view to establishing where the shooter could have been
positioned and, although the Court does not rule out that the scene
was most likely contaminated in the meantime, at least to attempt to
find additional forensic evidence, if any. More decisively, however,
the prosecutor was content to hear evidence only from Önder
Babat's friends and a waiter who was present at the scene of the
incident. No attempts were made to secure the testimonies of locals
who worked or resided on that street. Nor were any calls made to the
public to come forward if they had witnessed the incident that day.
Finally, the Court observes that no significant steps have been taken
in the investigation since January 2005.
- In
the light of the foregoing, the Court concludes that the State
authorities did not take all the measures which could be reasonably
expected of them to carry out an effective investigation into the
facts surrounding the killing of Önder Babat and that therefore
the State was in breach of its procedural obligations to protect the
right to life.
- It
follows that there has been a violation of Article 2 under its
procedural limb.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicants alleged that both Önder Babat's death and the
ineffectiveness of the ensuing investigation had been motivated by
the fact that he was Kurdish and had strong left-wing political
views. They relied on Article 14 of the Convention, which
provides as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- Having regard to the facts of the case, the
submissions of the parties and its finding of a violation of Article
2 under its procedural limb above, the Court considers that it has
examined the main legal question raised in the present application.
It concludes, therefore, that there is no need to give a separate
ruling on the applicant's remaining complaint under Article 14 of the
Convention (see, for example, Kamil Uzun v. Turkey,
no. 37410/97, § 64, 10 May 2007, and Abdullah
Yılmaz v. Turkey, no. 21899/02, § 77,
17 June 2008).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“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. Damage
- The
first and the second applicants, who are the parents of the deceased
and live in an impoverished village in Tunceli, claimed 9,000 euros
(EUR) and EUR 11,500 respectively for pecuniary damages. The third
applicant, who is the sister of the deceased and who supported her
brother's education by providing shelter and assuming related costs,
claimed EUR 8,500 in respect of pecuniary damages. The above
sums corresponded to the financial support the applicants considered
that they would have been expected to receive from Önder Babat
until the latter's retirement from a legal profession at the age of
sixty-five had he not been unlawfully killed.
- The
first and the second applicants each claimed EUR 20,000 in
respect of non-pecuniary damage. The third applicant claimed
EUR 15,000 for non-pecuniary damage.
- The
Government contested the amounts. In particular, they found the
applicants' pecuniary damage claims unsubstantiated.
- As
regards pecuniary damages, the Court reiterates that there must be a
clear causal connection between the damage claimed by the applicant
and the violation of the Convention and that this may, in appropriate
cases, include compensation in respect of loss of earnings (see,
among other authorities, Tanış and Others v. Turkey,
no. 65899/01, § 231, ECHR 2005 VIII). However, the Court
finds no causal link between the matters held to constitute violation
of the Convention – the absence of an effective investigation –
and the pecuniary damage alleged by the applicants (see, for example,
Toğcu v. Turkey, no. 27601/95, § 155, 31 May 2005).
Consequently, it dismisses the applicants' claim under this head.
- As
to non-pecuniary damage sustained by the applicants, the Court notes
that it has found a violation of Article 2 of the Convention under
its procedural limb. Having regard to the circumstances of the case
and ruling on an equitable basis, the Court awards, jointly, EUR
15,000 to Mr Aziz Babat and Ms Azime Babat, and EUR 5,000 to Ms
Marifet Akgün (Babat).
B. Costs and expenses
- The
applicants also claimed 2,500 Turkish liras (approximately EUR 1,183)
in respect of legal fees due to their lawyer for the proceedings
before the Court. In this connection, they referred to the Turkish
Bar Association's scale of fees.
- The
Government contested the amount.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the Court observes
that the applicants did no more than refer to the Turkish Bar
Association's scale of fees and failed to submit any supporting
documents in support of their claim. The Court therefore makes no
award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the application admissible;
- Holds that there has been no violation of
Article 2 of the Convention on account of the killing of Önder
Babat;
- Holds that there has been a violation of Article
2 of the Convention on account of the ineffectiveness of the criminal
investigation into Önder Babat's death;
- Holds that there is no need to examine
separately the complaint under Article 14 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months of
the date on which the judgment becomes final according to Article 44
§ 2 of the Convention, the following amounts to be converted
into Turkish liras at the rate applicable at the date of settlement:
(i) EUR
15,000 (fifteen thousand euros), jointly, to Mr Aziz Babat and Ms
Azime Babat, and EUR 5,000 (five thousand euros) to Ms Marifet
Akgün (Babat) in respect of non-pecuniary damage;
(ii) any
tax that may be chargeable on the above amounts;
(b) 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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 12 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
