Pressemitteilung  

Der Kanzler des Europäischen Gerichtshofs für Menschenrechte

19/09/06 Gerichtshof – Kammerurteil im Fall Halit Dinç und andere gegen die Türkei [en]

EUROPEAN COURT OF HUMAN RIGHTS

518
19.9.2006

Press release issued by the Registrar

CHAMBER JUDGMENT
HALİT DİNÇ AND OTHERS v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment¹ in the case of Halit Dinç and Others v. Turkey (application no. 32597/96).

The Court held unanimously that there had been

· a violation of Article 2 (right to life) of the European Convention on Human Rights on account of the death of the applicants’ relative;
· a violation of Article 2 (right to life) of the Convention on account of the lack of an effective investigation into his death;
· a violation of Article 13 (right to an effective remedy).

As the applicants had not submitted their claims within the time allowed, the Court considered that it was not necessary to award them a sum under Article 41 (just satisfaction) of the Convention. (The judgment is available only in French.)

1.  Principal facts

The four applicants, Halit Dinç, Nezihe Dinç, Sacide Dinç and Turgay Dinç, are Turkish nationals who were born in 1940, 1948, 1971 and 1974 respectively and live in Edirne (Turkey). They are the parents and brothers of Rıdvan Dinç, who died in 1994.

On the evening of 15 May 1994 Rıdvan Dinç, Staff Sergeant of the Kırıkhan fifth border company, and Sergeant A.A. kept watch on the border between Turkey and Syria with a view to arresting a band of smugglers.

As he suspected Rıdvan Dinç of conniving with the smugglers, Sergeant A.A. had asked some other soldiers to accompany him so that he would not be alone in the event of an attack by the smugglers and could catch his superior red-handed.

A.A. therefore took up position in a different place from the one indicated by Rıdvan Dinç. When the smugglers started coming over the border Sergeant A.A. and the three other soldiers opened fire. During the shoot-out Rıdvan Dinç and a smuggler were killed.

./..

The next day, on 16 May 1994, a criminal investigation was opened into the circumstances of Rıdvan Dinç’s death. In the course of that investigation evidence was heard from the soldiers implicated in the shooting and an autopsy was performed on the body of the deceased. 60 cartridges were found at the scene.

Sergeant A.A. was charged with causing the death of his superior. After being convicted of fatally assaulting his superior, he was initially sentenced to five years’ imprisonment and subsequently acquitted by Adana Military Court on 25 December 2001. The criminal proceedings are currently pending before the Turkish military courts.

The applicants sued the Ministry of Defence for damages. On 8 May 1996 the Supreme Military Administrative Court dismissed their claim on the ground that at the material time Rıdvan Dinç, who had collaborated with the smugglers, had been committing an offence and, accordingly, had not been acting as a State official. Consequently, the authorities could not be held responsible for his death.

2.  Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 27 July 1996 and transferred to the European Court of Human Rights on 1 November 1998. In a decision of 7 June 2005 the application was declared partly admissible.

Judgment was given by a Chamber of seven judges, composed as follows:

Nicolas Bratza (British), President,
Josep Casadevall (Andorran),
Giovanni Bonello (Maltese),
Riza Türmen (Turkish),
Stanislav Pavlovschi (Moldovan),
Ljiljana Mijović (citizen of Bosnia and Herzegovina),
Ján Šikuta (Slovakian), judges,

and also Lawrence Early, Section Registrar.

3.  Summary of the judgment²

Complaints

The applicants complained that their close relative had been killed by another soldier, either intentionally or through disproportionate use of lethal force. They further complained of the lack of an effective investigation into the circumstances surrounding his death. Lastly, they submitted that the proceedings for damages which they had brought in the Supreme Military Administrative Court had been unfairly conducted. They relied on Articles 2, 13 and 6.

Decision of the Court

Article 2

The death of Rıdvan Dinç
The Court noted that the regiment commander had given the soldiers orders to open fire without warning while on border watch duty during the night. Those orders, which had been deemed reasonable by a bench of the Court of Cassation, afforded no guarantee that death would not be inflicted arbitrarily. They formed a legal framework that fell far short of the level of protection “by the law” of the right to life required by the Convention in democratic societies in Europe.

The Court also noted that the soldiers had used their firearms without any regard for the right to life and that there was no evidence in the case to suggest that the smugglers in question had been armed.

In those circumstances the Court held that, with regard to the positive obligation to put in place an adequate legal framework, the Turkish military authorities had not done all that could reasonably be expected of them to protect people from the use of potentially lethal force and to avoid the risk to life engendered by military operations in the border zone. Furthermore, manifestly excessive force had been used in the present case.

Accordingly, the Court held that there had been a violation of Article 2 on account of the death of the applicants’ relative.

The investigation into Rıdvan Dinç’s death
The Court noted that, although the case was not at all complex, the criminal proceedings in question had lasted approximately 12 years to date. The lawfulness of the conduct of the soldiers during the night in question had been assessed by the criminal courts in the light of the orders given by the regiment commander to open fire without warning. It was obvious that orders of that kind were unlawful. No investigation into the actions of A.A.’s superiors had been made in that respect, however.

Moreover, certain obvious investigative measures had not been taken at the beginning of the investigation, such as ballistic examinations of the assault rifles, cartridges and bullets used by the soldiers. Without those examinations it had not been possible, even 12 years after the events, to establish unequivocally the identity of those responsible for Rıdvan Dinç’s death.

In those circumstances the Court held that there had been a violation of Article 2 on account of the investigation into the death of the applicants’ relative.

Articles 6 and 13

The Court decided to examine the complaint about the lack of an effective investigation only under Article 13 taken in conjunction with Article 2. It reiterated that the judicial investigation, 12 years after it had been started, had not yet provided an adequate framework by which to identify the perpetrators. Moreover, basing itself on the first conclusions of the military criminal courts, the Supreme Military Administrative Court had dismissed the applicants’ request for compensation for the authorities’ responsibility regarding Rıdvan Dinç’s death.

In those circumstances an effective investigation could not be said to have been carried out speedily in accordance with Article 13, whose requirements went further than the obligation to investigate imposed by Article 2. Accordingly, the Court held that there had been a violation of Article 13.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.