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|Publication:||[not yet received]|
|Title:||Adali v. Turkey|
|Date of reference by Commission:|
|Date of reference by State:|
|Date of Judgment:||31-03-2005|
|Conclusion:||Violation of article 2|
No violation of article 3
No violation of article 8
No violation of article 14
Violation of article 13
No violation of article 10
Violation of article 11
No violation of article 34
|Keywords:||LIFE / INHUMAN TREATMENT OR PUNISHMENT / FAIR TRIAL / RESPECT FOR FAMILY LIFE / FREEDOM OF EXPRESSION / FREEDOM OF ASSOCIATION / EFFECTIVE REMEDY / DISCRIMINATION / PETITION|
The applicant is Ilkay Adali, a Turkish national, born in 1944 and living in Lefkosa, in northern Cyprus, "Turkish Republic of Northern Cyprus" ("TRNC"). The applicant is the wife of Kutlu Adali, who was shot dead in front of their home in the "Turkish Republic of Northern Cyprus" ("TRNC") on 6 July 1996. Mr Adali was a well-known writer who had written and published articles strongly criticising the policies and practices of the Turkish Government and the "TRNC" authorities. He argued that Cyprus should not be divided and that Turkish and Greek Cypriots should live in a united republic based on a pluralist democratic system. The applicant contended that her husband had received several death threats because of his articles and political opinions.
The applicant alleged that Turkish and or "TRNC" agents were involved in her husband's murder and that the investigation launched by the "TRNC" authorities into his death was inadequate. She further complained that, following the death of her husband, she was subjected to harassment, intimidation and discrimination by the "TRNC" authorities. For example, she claimed that she was followed by plain-clothes policemen, that her telephone calls and correspondence were monitored, that she received threatening phone calls and that her telephone and fax lines were sometimes disconnected. She also alleged that a former State agent, a Professor Çaglar, had warned her that she would be assassinated if she won her case before the European Court of Human Rights. She further complained that she was refused a permit to attend a meeting held on 20 June 1997 in southern Cyprus. In addition, she submitted that, because of the failure to conduct a prompt, thorough, impartial and effective investigation of the circumstances of her husband's murder, she was denied effective access to the courts to determine her civil right to compensation for her husband's murder. She maintained that the courts in the "TRNC" were not sufficiently independent from Government influence to make it likely that they would act independently and impartially considering the particular circumstances of her case.
The Turkish Government denied all allegations concerning the murder of Kutlu Adali. They claimed that the "TRNC" authorities had immediately commenced an investigation into his death, and that they had conducted a thorough investigation. However, the perpetrators of the crime had not yet been identified. The Government also rejected the applicant's allegations of harassment.
The applicant alleged, in particular, that her husband was killed by the Turkish and/or "TRNC" agents and that the authorities had failed to carry out an adequate investigation into his death. She further contended that, following the death of her husband, she had been subjected to harassment, intimidation and discrimination by the "TRNC" authorities. She relied on Articles 2, 3, 6, 8, 10, 11, 13, 14 and 34 of the Convention.
The killing of Kutlu Adali:
The Court noted that there were no eyewitnesses to the murder of the applicant's husband. The witnesses referred to by the applicant had remained anonymous and had failed to give evidence for various reasons. A forensic examination of two bullet shells extracted from the body of Mr Adali resulted in a finding that they did not match with any other cartridges or bullet shells found within the territory of the "TRNC" or recorded in the files on murders by unknown assailants. Those named by the applicant as suspects vigorously denied the allegations of their involvement in the murder of Mr Adali and the investigation conducted by the authorities into the alleged involvement of Abdullah Çatli in the killing of Mr Adali did not yield any result.
Furthermore, the applicant failed to substantiate her allegations relating to the circumstances surrounding the killing of her husband.
The Court observed that the allegations concerning the circumstances in which the applicant's husband met his death did not go beyond speculation and assumption. It considered therefore that the material in the case file did not enable it to conclude beyond all reasonable doubt that the applicant's husband was killed by or with the connivance of any State agent or person acting on behalf of the State authorities in the circumstances alleged by the applicant.
The Court therefore held, unanimously that there had been no violation of Article 2 on account of the killing of the applicant's husband.
The investigation into the killing:
Concerning the investigation into the killing, the Court noted, among other things, that:
· there was no real coordination or monitoring of the scene of the incident by the investigating authorities,
· the ballistic examination carried out by the authorities was insufficient, and
· the investigating authorities failed to take statements from some key witnesses.
The Turkish Government had provided the Court with a supplementary investigation file containing witness statements and reports from October 2002, almost six years and seven months after the death of the applicant's husband. It was striking that that investigation, which included key witnesses whose evidence could have shed light on the killing, was conducted only after the applicant's case before the European Court had been communicated to the Turkish Government and subsequent to two hearings having been held in Strasbourg.
The Court did not find the applicant's allegation that the killing of her husband was related to his activities as a journalist implausible. It considered, however, that the authorities failed to inquire sufficiently into the motives behind the killing of Mr Adali. Thus it was not established that any adequate steps were taken to investigate the possibility that the murder was politically motivated or had any link with his work as a journalist. On the contrary it appeared that the responsible authorities had, at an early stage of the investigation and on an insufficient basis, ruled out that possibility.
The Court was also concerned about the lack of public scrutiny of the investigation carried out by the authorities and of the lack of information provided to the deceased's family. It noted that the investigation file was inaccessible to the applicant, who had no means of learning about the conduct of or the progress made in the investigation. She was not given a copy of the post-mortem and ballistic reports until after her application was communicated to the Turkish Government and she was not invited to take part in the Coroner's inquest. The Court emphasised the importance of involving the families of the deceased or their legal representatives in the investigation and of providing them with information as well as enabling them to present other evidence.
Considering that the national authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the killing of the applicant's husband, the Court held, by six votes to one, that there had been a violation of Article 2.
Articles 3, 8 and 14
The Court observed that a number of facts raised doubts as to whether the applicant suffered harassment, intimidation and discrimination, as alleged. In the absence of any concrete evidence to the contrary, and having regard to the requisite standard of proof for establishing the existence of acts of harassment, intimidation and discrimination against the applicant, the Court concluded, unanimously, that there had been no breach of Articles 3, 8 and 14.
Articles 6 and 13
The Court noted that the applicant made no attempt to seek compensation before the "TRNC" courts. It was therefore not possible to determine whether those courts would have been able to adjudicate on her claims. The Court considered that the applicant's complaint of lack of access to a court was bound up with her more general complaint concerning the manner in which the investigating authorities dealt with the killing of her husband and the repercussions this had on her access to effective remedies. The Court therefore decided to examine the complaint in relation to the more general obligation under Article 13 to provide an effective remedy in respect of alleged violations of the Convention.
The killing of Kutlu Adali:
The Court recalled that the authorities had an obligation to carry out an effective investigation into the circumstances of the killing of the applicant's husband. However, no effective criminal investigation could be considered to have been conducted in accordance with the requirements of Article 13. The Court therefore found that the applicant had been denied an effective remedy in respect of the death of her husband and thereby access to any other remedies at her disposal, including a claim for compensation. The Court therefore held, by six votes to one, that there had been a violation of Article 13
Allegations of harassment, intimidation and discrimination:
Having regard to its findings under Articles 3, 8 and 14, the Court could not conclude that the applicant had laid the basis of a prima facie case of harassment, intimidation and discrimination on the part of the "TRNC" authorities. The Court therefore held, unanimously, that there had been no violation of Article 13 in this respect.
The Court noted that the applicant's allegations under Article 10 arose out of the same facts as those examined under Article 2. It therefore did not consider it necessary to examine the complaint separately.
The Court noted that the applicant was refused a permit to attend a meeting held on 20 June 1997 in southern Cyprus. That being so, the refusal of the authorities to grant a permit to the applicant barred her participation in a bi-communal meeting there, preventing her consequently from engaging in peaceful assembly with people from both communities. There had therefore been an interference with the applicant's right to freedom of assembly guaranteed by Article 11.
The Court also found that there seemed to be no law applicable in the applicant's case regulating the issuing of permits to Turkish Cypriots living in northern Cyprus to cross the "green line" into southern Cyprus in order to engage in peaceful assembly with Greek Cypriots. Therefore, the manner in which restrictions were imposed on the applicant's exercise of her freedom of assembly was not "prescribed by law" within the meaning of Article 11 § 2. The court therefore held, unanimously, that there had been a violation of Article 11.
The Court observed that there was no indication that Professor Çaglar was acting on behalf of the Turkish Government at the material time. It also appeared that Professor Çaglar's aim had been to represent the applicant before the Court rather than to discourage her from pursuing her application. For those reasons, the Court considered that the alleged behaviour of Professor Çaglar could not be attributed to the Turkish Government. The Court therefore held, unanimously, that there had been no violation of Article 34.
Under Article 41 (just satisfaction), the Court awarded the applicant 20,000 euros (EUR) for non-pecuniary damage and EUR 75,000 for costs and expenses (less EUR 7,236.74 ). (The judgment is available only in English.)
|Last Modified: 13-01-2014 16:18:19 (Documentation SIM)