No violation of Art. 8;Violation of Art. 14+8 with regard to right of access;Violation of Art. 14+8 with regard to right of appeal;Not necessary to examine Art. 14+6;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant, born in 1953, is the father of the child M., born out of wedlock on 25 January 1981. The applicant acknowledged paternity of M.

The applicant and the child’s mother lived together at the time of the child’s birth. They separated in September 1986. The child’s mother prohibited any contact between the applicant and the child. The applicant still met M. several times at school until such contact was no longer possible. Subsequently the child’s mother married Mr W., the father of her child A., born in August 1985, W. being the common family name.

On 2 October 1990 the applicant applied to the Rostock District Court for a decision granting him a right of access to his daughter. Having heard the persons concerned, the Rostock Youth Office, in comments dated 11 April 1991, advised against a right of access. The Youth Office submitted that M. had established a close relationship with Mr. W., which would be adversely affected by contact between M. and her natural father. It also stated that M., when heard in the absence of her mother, had indicated that she was not keen to see the applicant and was suffering as a result of his continuing efforts to obtain access.

On 27 June 1991 M., then ten years old, was heard by a judge of the District Court. She stated that the fact that the applicant was always standing at the fence of the schoolyard disturbed her and that she did not wish to visit the applicant even if access should be ordered by the court.

At a court hearing on 31 July 1991, the applicant and the child’s mother declared that they would attempt to settle the question of a visiting arrangement with the assistance of the Youth Office. On 30 September 1991 the Youth Office informed the District Court that no agreement had been achieved and that M. had stated that she did not wish to see the applicant.

On 12 December 1991 the court ordered that a psychological expert opinion be prepared. On 9 April 1992, in one-page submissions, the psychologist of the Rostock Health Services stated that, as contact between the applicant and M. had been disrupted for six years, no diagnosis of their current relationship appeared possible. The psychologist considered that the views which the applicant and M. had expressed on the question of future contact were very different. M. was growing up in a family unit and, unlike the applicant, was not suffering from any deficits in that respect, and did not wish to have any personal contact with the applicant. He should give her the necessary time to take up contact of her own motion. The psychologist noted that she had arranged a meeting between the applicant and M. which, however, had been cancelled by M.’s stepfather.

On 24 June 1992 the District Court judge heard the applicant and M. in the presence of the psychological expert. M. having repeatedly stated that she did not wish to have contact with the applicant, the latter affirmed that he would withdraw his request for a right of access.

The applicant withdrew his request on 1 July 1992.

On 13 September 1993 the applicant again applied to the District Court for a right of access to his daughter.

On 15 February 1994 the District Court judge heard the thirteen-year-old M., who stated that she did not wish to talk to the applicant or accept presents from him and that he should no longer bother her. She also said that she had a father whom she loved, though it was not her natural father. The court held a hearing with the applicant and the child’s mother on 26 April 1994.

On 1 June 1994 the District Court dismissed the applicant’s application.

The District Court noted the comments filed by the Rostock Youth Office on 6 January 1994 as well as the parents’ and the child’s statements in court. The Court also had regard to the comments filed by the Youth Office in April 1991 and to the statement submitted by the psychologist in April 1992, both in the context of the first set of access proceedings.

The District Court found that the applicant could not be granted access to the child. Referring to section 1711 of the Civil Code, the Court observed that the mother, having sole custody, determined the father’s access and the guardianship court could only decide to grant the father access if this was in the child’s best interest. In this respect, the court found as follows:

“On the basis of its extensive investigations, and especially its conversations with [M.] in 1992 and February 1994, this court has decided that, in the present case, access by the father to his child is by no means in her best interest.

At the age of thirteen, [M.] is certainly able to make up her own mind and has clearly rejected the idea of establishing contact with her biological father. In the court’s opinion, forcing her to see him against her will cannot be justified, since this would seriously disturb her emotional and psychological balance. Such a decision would on no account be in her best interest.

This court cannot accept the [applicant’s] sweeping statement that access is always in the child’s interest. The extent to which this is true invariably depends on circumstances. In this case, the only justifiable decision is that set out in the operative part of the judgment.

On 17 June 1994 the Rostock Regional Court dismissed the applicant’s appeal on the following grounds:

“The appeal is admissible under section 20 of the Act on Non-Contentious Proceedings, but is unfounded. The District Court was right to refuse the applicant all access to [M.], since this is not in the child’s best interest (sections 1711 and 1634 of the Civil Code). This court also takes the view that the District Court had no cause to permit exceptions for any specific area of life. It considers that the arguments advanced in the contested decision are correct. It regards it as important that the girl [M.] – who is, after all, thirteen years old – has stated clearly and for a long time that she wants no contact with her father. The applicant should accept this clearly expressed wish in his adolescent daughter’s interest and also his own. Only if he ceased to exert pressure on her might it one day be possible for them to resume contact. The court would also point out that access to [M.] on the strength of a court order could hardly be enforced against the child’s will.”

On 22 July 1994 the applicant filed a constitutional complaint with the Federal Constitutional Court.

On 19 January 1996 a panel of three judges of the Federal Constitutional Court refused to entertain the applicant’s complaint.

The statutory provisions on custody and access are to be found in the German Civil Code. They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette 1997, p. 2942), which came into force on 1 July 1998.

Section 1626 § 1 reads as follows:

“The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. The parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.”

Pursuant to section 1626a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to section 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child’s well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office authority or an association.

Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows:

Section 1634

“1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing.

The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under section 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare.

A parent not having custody who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child’s interests. The guardianship court shall rule on any dispute over the right to information.

Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.”

Section 1632 § 2 concerned the right to determine third persons’ rights of access to the child.

The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows:

Section 1705

“Custody over a minor child born out of wedlock is exercised by the child’s mother...”

Section 1711

“1. The person having custody of the child shall determine the father’s right of access to the child. Section 1634 § 1, second sentence, applies by analogy.

If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Section 1634 § 2 applies by analogy. The guardianship court can change its decision at any time.

The right to request information about the child’s personal circumstances is set out in section 1634 § 3.

Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.”

Like proceedings in other family matters, proceedings under former section 1711 § 2 of the Civil Code were governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit).

According to section 12 of that Act, the court shall, ex officio, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate.

In proceedings regarding access, the competent youth office has to be heard prior to the decision (section 49 § 1 (k)).

As regards the hearing of parents in custody proceedings, section 50a § 1 stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child’s assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard. According to paragraph 2 of section 50a, a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter.

Section 63 provides for the right to lodge a further appeal challenging the first appeal decision. Section 63a of the Act as in force at the material time excluded this right in proceedings concerning a natural father’s access to his child born out of wedlock. That provision has been repealed by the Law on Family Matters of 1997.

The human rights of children and the standards to which all governments must aspire in realising these rights for all children, are set out in the Convention on the Rights of the Child. The Convention entered into force on 2 September 1990 and has been ratified by 191 countries, including Germany.

The Convention spells out the basic human rights that children everywhere – without discrimination – have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. It further protects children’s rights by setting standards in health care, education and legal, civil and social services.

States Parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child (Article 3). Moreover, States Parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child; and that a child who is separated from one or both parents is entitled to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests (Article 9).


Preliminary objection joined to merits and rejected (non-exhaustion of domestic remedies);No violation of Art. 2 in respect of killing of applicant's relatives;Violation of Art. 2 on account of lack of effective investigation;No violation of Art. 3;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 8;No violation of Art. 14

The applicant, Ms Şemsi Önen, is a Turkish citizen, born in 1968. At the relevant time, she lived in the village Karataş near Mazıdağı (Mardin) in south-east Turkey. The application was brought by the applicant on behalf of her deceased parents and brother, on her own behalf and on behalf of her ten suriving siblings, namely Mekiye, Ishan, Ercan, Mehmet Nuri, Medine, Sultan, Sevgi, Iskender, Melek and Hamdullah. It concerns the killing of their parents and brother Orhan, allegedly by armed members of the Balpınar village guards, and the investigation thereof.

Since the 1980s, a violent conflict has been conducted in the south-eastern region of Turkey between the security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Kurdish Workers' Party). According to the Government, one of the main terrorist activities of the PKK was the killing of people who have acted contrary to the cause of this organisation or who have misused property of the PKK. At the time of the events in issue, ten of the eleven provinces of south-east Turkey had been under emergency rule since 1987.

The facts of the case, in particular the circumstances of the killings and the efforts of the authorities to investigate the killings, are disputed.

As the village of Karataş, where the applicant and her family lived at the time of the events in issue, had refused the village guard system, tension had arisen between Karataş and its neighbouring village Balpınar. This refusal had also resulted in pressure being applied to the villagers by the gendarmes.

On or about 15 November 1992, four Balpınar village guards were killed in a clash with the PKK. On the same day, shortly after the clash, gendarmes and village guards attacked the village of Karataş. This attack lasted several hours. The following day, the Muhtar of Karataş complained to the Governor that his village was being subjected to pressure and violence from the gendarmes and village guards. No investigation of the attack took place.

Some weeks before 16 March 1993 the house of the Muhtar and the applicant's family house were both strafed by several rounds of bullets fired by Balpınar village guards. The Muhtar again complained to the Governor about the pressure exerted on his village by the Balpınar village guards and requested that steps be taken to put an end to it.

In the evening of 16 March 1993 the applicant's older brother, Orhan Önen, and her parents, Ibrahim and Mome Önen, were killed and the applicant suffered a wound to her foot as a result of a planned action by members of the Balpınar village guards to kill Orhan Önen. Before he was shot and killed, the applicant's father was able to pull the scarf from the head of one of the intruders and shouted that he recognised the gunmen as Ali Ertaş, head of the Balpınar village guards, and his nephew Orhan Ertaş, a former Balpınar village guard. The applicant's mother, who was seriously injured by a bullet, died on her way to hospital.

The Commander of the local Fosfat gendarme station, who had possibly been informed beforehand of the plan by the Balpınar village guards to kill Orhan Önen, seriously delayed the applicant's mother's access to medical treatment by refusing to provide a car to replace the defective minibus which was to transport her to a hospital and by unduly delaying the departure of this minibus for Mazıdağı.

The subsequent investigation of these killings was not only ineffective and inadequate in professional terms, but was in fact designed to cover up the involvement of the Balpınar village guards and to prevent the conviction of Ali and Orhan Ertaş. From the very beginning of the investigation, and throughout the entire subsequent proceedings, the authorities blamed the PKK for the killings and failed to keep the applicant informed of any steps taken in the investigation.

On 8 October 1992 PKK forces attacked Balpınar village guards on the slopes of the Kırmızıtepe hill close to the village of Balpınar. This clash lasted about twenty minutes. There were no casualties. To date, the perpetrators of this attack have not been found.

On 15 November 1992 PKK forces ambushed nine Balpınar village guards on a road near the village of Karataş. In the course of this clash, which lasted about fifteen minutes, four village guards were killed and four others wounded. An investigation into the clash was carried out. The Fosfat gendarme station commander, Salih Kaygusuz, took statements from the five surviving village guards during the course of the investigation. To date, the perpetrators of this attack have not been identified.

On 16 March 1993 at about 20.15 hours an armed PKK attack using rocket missiles and heavy weapons was carried out on a PTT radio link station in Mazıdağı-Kaletepe, at a distance of about one kilometre from Mazıdağı. The village guards present returned fire. The clash lasted about ten to fifteen minutes. There were no casualties. Shortly after the clash, gendarmes from the Mazıdağı Central gendarme station arrived at the scene. The next day, a land mine was found on the road leading to the PTT station. The initial investigation of this attack was carried out by Mazıdağı Central gendarme station under the responsibility of the public prosecutor at Mazıdağı.

Also in the evening of 16 March 1993 the killing of three Karataş villagers was reported to the public prosecutor in Mazıdağı. For reasons of security, the public prosecutor only arrived at the scene of the incident at 08.00 hours the next morning. He conducted an investigation, including attendance at the post mortem examination of the bodies of the victims carried out by a medical doctor.

All necessary steps were taken to investigate the killing of the applicant's parents and brother, including the collection of evidence. After having completed his preliminary investigation, the public prosecutor of Mazıdağı issued on 7 July 1993 a decision of lack of jurisdiction and the investigation was referred to the public prosecutor's office at the Diyarbakır State Security Court. This referral resulted in the institution of proceedings against Ali and Orhan Ertaş before the Diyarbakır State Security Court.

On 6 May 1994, in the context of these proceedings and on the instructions of the Diyarbakır State Security Court, further statements were taken before a judge of the Mazıdağı Criminal First Instance Court from Ali Ertaş, Mahmut Denli and Mecit Kaya. No statements were taken from the applicant and her sister Mekiye, since they no longer resided in Karataş and their new address could not be established.

On 28 December 1994 the Diyarbakır State Security Court acquitted Ali and Orhan Ertaş for lack of evidence. After this decision the investigation nevertheless continued but the perpetrators of the killing of the applicant's parents and brother have not been found.

The Government submitted that it appeared from information obtained that the PKK had provided the applicant's brother Orhan with a taxi, which he had put to his own private use. He had thus made his family a target of the PKK, a terrorist organisation which was in all likelihood responsible for the killing of the applicant's parents and brother.

On 16 March 1993 an incident report was drawn up by the gendarmes of the Mazıdağı District gendarme station stating that at around 21.30 hours that day, a group of terrorists belonging to the outlawed PKK organisation entered the home of Ibrahim Önen and opened fire. Ibrahim and Orhan Önen were shot and killed. Mome and Şemsi Önen were injured and Mome Önen died on the way to hospital. The report also referred to nine empty Kalashnikov cartridges without further specifications.

On the same date NCO Salih Kaygusuz of the Fosfat Gendarme Station drew a sketch map of the interior of the Önen family's two-room house. It indicated in one room the location of the bodies of Ibrahim and Mome Önen, two blood stains between the body of Ibrahim Önen and the front door and five empty cartridges. In the other room the location of the body of Orhan Önen and four empty cartridges was indicated. No blood stains were recorded in the room where the body of Orhan Önen was indicated. The sketch map only recorded what had been found inside the house. It did not contain any information about the immediate surroundings of the house.

According to a post mortem examination report dated 17 March 1993, due to security precautions, the team of experts only arrived on 17 March 1993 at about 08.00 hours in Karataş, acting on a report that three persons had been killed there on 16 March 1993 at 20.00 hours. This team consisted of the public prosecutor of Mazıdağı Yekta Çobanoğlu, the medical doctor Sedat İşçi of the Mazıdağı Health Centre, a clerk, an autopsy assistant and a driver. The report further indicated that Mome had died on the way to hospital and that her body had been brought back to the village. The bodies of Ibrahim, Mome and Orhan Önen had been identified by a relative, Mehmet Hadi Araç. The examination report contained information on bullet - entries and exits and concluded that the respective causes of death were haemorrhaging of the lungs, loss of blood and cessation of vital functions. Given the obvious nature of the cause of death, it was decided that there was no need to conduct an autopsy.

On 1 and 5 April 1993 statements were taken from the applicant and her sister Mekiye by the Fosfat gendarme station commander, Salih Kaygusuz, and by gendarme officer Cengiz Kesler of the Mazıdağı district gendarme station.

On 4 April 1993 Salih Kaygusuz took statements from the Balpınar village guards Ali Ertaş, son of Kasım and born in 1953, and Mecit Kaya, son of Mehmet and born in 1960, in relation to the events of 16 March 1993. Ali Ertaş stated that he was the Head of the Balpınar village guards and that on 16 March 1993 he had been on patrol duty on the Kırmızıtepe hill to the west of Balpınar. He denied any involvement in the killing of the applicant's parents and brother and stated that he felt slandered. His account was supported by Mecit Kaya who confirmed that he had been on patrol on the Kırmızıtepe hill together with Ali Ertaş until the morning of 17 March 1993. Mecit Kaya further declared that neither the village of Balpınar nor Ali Ertaş had any involvement in the killings.

On 5 April 1993 Mr Salih Kaygusuz took a statement from Orhan Ertaş, son of Şeyhmus and born in 1969, who stated that on 16 March 1993 he had not been in Balpınar. On that day he had been loading goods onto his lorry in the province of Mersin and had driven his lorry to Istanbul. He further declared that due to his work, he never stayed very long in Balpınar.

Between 7 April and 17 May 1993 a ballistics examination was carried out. According to a ballistics report of 29 April 1993 of the forensic laboratory in Diyarbakır, the nine empty 7.62 mm calibre Kalashnikov cartridges found at the scene of the killing had been fired from three different weapons with the same calibre, i.e. six from one weapon, two from another and one from a third weapon. In a report of 17 May 1993, transmitted to the Mazıdağı prosecutor, the forensic laboratory in Diyarbakır concluded that none of the nine cartridges found at the scene of the killings matched the five empty cartridges reportedly taken from the Kalashnikov rifle of Ali Ertaş and that, therefore, the nine cartridges had not been fired from Ali Ertaş' weapon.

On 7 July 1993 the Mazıdağı public prosecutor Yekta Çobanoğlu, decided that he lacked jurisdiction to deal with the case. The decision listed Ali and Orhan Ertaş as being suspected of the offence of “politically motivated murder” of the applicant's parents and brother. It noted that, following its investigation, the District gendarme command had concluded that unidentified members of the PKK terrorist organisation had committed the killings, but that, according to the respective accounts of the applicant and her sister Mekiye, their father had recognised the perpetrators as Ali and Orhan Ertaş. Concluding that the alleged offence fell within the scope of Law No. 2845, it was decided that the Mazıdağı prosecutor's office lacked jurisdiction and that the case-file should be transmitted to the prosecutor's office at the Diyarbakır State Security Court.

On 13 September 1993, following referral of the prosecution's case file to the prosecutor at the Diyarbakır State Security Court, the prosecutor at this court, Tanju Güvendiren, took certain additional measures with respect to the ballistics examination. He enquired as to why only five empty cartridge shells had been sent for examination, whereas six such cartridges taken from Kalashnikov weapons owned by six village guards had been required for a comparison. He further instructed the gendarmerie to provide him with a list of the Karataş village guards as well as the Kalashnikov delivery receipts of these village guards and to send the Kalashnikov delivered to Ali Ertaş and all other Kalashnikovs belonging to the village guards to the forensic laboratory in Diyarbakır for a ballistics examination. In the event of there being insufficient replacement rifles, he instructed that these rifles be discharged and the empty cartridges numbered in order to identify which cartridge was fired from which weapon and to send these cartridges to the forensic laboratory for a ballistics examination.

On 19 October 1993 the Mazıdağı District gendarme command sent to the prosecutor's office at the Diyarbakır State Security Court sixty-five weapon and ammunition delivery receipts of the Balpınar village guards and sixty-five numbered empty cartridges. No information was provided as to the circumstances of the firing of the weapons. On 27 October 1994 the Regional Criminal Police Laboratory in Diyarbakır submitted to the State Security Court a ballistics examination report which concluded that none of the sixty-five empty 7.62 mm Kalashnikov cartridges matched the nine cartridges found at the place where the applicant's parents and brother had been shot.

On 6 January 1994 prosecutor Tanju Güvendiren charged Ali and Orhan Ertaş with politically motivated murder of the applicant's parents and brother Orhan, under Articles 31, 33 and 448 of the Turkish Penal Code and Article 13/2 of the Law No. 6136.

On 21 January 1994 the State Security Court instructed the Mazıdağı Court of First Instance, inter alia, to take statements from Ali and Orhan Ertaş, Mecit Kaya and Mahmut Denli, and to take evidence from Şemsi and Mekiye Önen. It adjourned its further examination until 16 March 1994. On that date it noted that the results of its instructions had not yet arrived and that it appeared from the case-file that weapons seized from the suspects had been sent to the Diyarbakır Police Laboratory for a ballistics examination.

Pending the implementation of its above-mentioned orders for the hearing of witnesses and a request for the preparation of a further forensic laboratory report, the State Security Court adjourned the proceedings several times, on the last occasion until 28 December 1994.

In the meantime, according to a statement dated 4 May 1994 and signed by the gendarmes Yusuf Kocer and Salih Günay and by the Muhtar of Karataş Muhittin Araç, the applicant and her sister Mekiye were living around Cezaevi in the Diyarbakır province, but their address could not be established. In another statement dated 4 May 1994 and signed by the same gendarmes and the Muhtar of Balpınar, Izettin Kaya, it was noted that the current whereabouts of Orhan Ertaş were unknown.

On 6 May 1994, in the presence of the Mazıdağı public prosecutor Yekta Çobanoğlu, the judge at the Mazıdağı Court of First Instance, Ayhan İstikbal, took statements from Mahmut Denli, Mecit Kaya and Ali Ertaş. It was noted that Orhan Ertaş had not appeared. Ali Ertaş stated that Orhan Ertaş had left Balpınar some time ago, that he was unaware of Orhan's whereabouts and, in any event, Orhan had not been in the village for a long time. As regards the applicant and her sister Mekiye, it was noted that they had not appeared and that the response to their summons indicated that they were not in the village and were residing in the Cezaevi neighbourhood in Diyarbakır. On 29 June 1994 the State Security Court noted that no statements had been taken from the applicant and her sister Mekiye as their address could not be established.

On 28 December 1994 the State Security Court tried the case in the absence of the defendants as well as of the applicant and her sister. The prosecution submitted that the applicant and her sister had only heard their father state the names of the accused but that there was no other evidence supporting their account. The prosecution argued that, in these circumstances, the accused should be given the benefit of the doubt and acquitted. By judgment of 28 December 1994 the State Security Court unanimously acquitted Ali and Orhan Ertaş of the charges against them.

Since the facts of the case are disputed, particularly concerning the circumstances of the killings and the adequacy of the follow-up investigation, the Commission conducted an investigation with the assistance of the parties. The Commission obtained documentary evidence, including written statements. The oral evidence of the applicant and 12 witnesses was heard by three Delegates at a hearing in Ankara on 30 March and 1 and 2 April 1998.

As regards written evidence, the Commission had particular regard to the statements of both the applicant and his sister Mekiye Önen of 1 and 5 April 1993 (taken by the Fosfat gendarme station commander Salih Kaygusuz and by gendarme officer Cengiz Kesler of the Mazıdağı district gendarme station); a statement by the applicant of 9 June 1993 (taken by Mr Yekta Çobanoğlu, the public prosecutor of Mazıdağı); an undated statement taken by Mr Sedat Aslantaş of the Diyarbakır Branch of the Human Rights Association (submitted to the Commission on 18 October 1993); a statement by the applicant's sister of 6 July 1993 (taken by Yekta Çobanoğlu); statements by village guards Ali Ertaş and Mecit Kaya taken on 4 and 5 April 1993 (at Fosfat gendarme station by Salih Kaygusuz); a statement by Mahmut Denli (taken on 5 April 1993 by gendarme Cengiz Kesler at the Mazıdağı District gendarme station); a statement of 6 July 1993 of Ali Ertaş (taken by Yekta Çobanoğlu); statements taken on 6 May 1994 from Mahmut Denli, Mecit Kaya and Ali Ertaş by judge Ayhan İstikbal of the Mazıdağı Court of First Instance upon request of the State Security Court of Diyarbakır.

The Commission also had regard to an incident report and a sketch map, both dated 16 March 1993; an ambulance record of 16 March 1993; a post mortem examination report dated 17 March 1993; correspondence of the Mazıdağı public prosecutor; forensic ballistics inquiries and examinations; Yekta Çobanoğlu's decision of lack of jurisdiction dated 7 July 1993 and a number of minutes of the proceedings before the State Security Court; as well as other documents.

The latter included gendarme reports and statements related to the investigation of the attack on Balpınar village guards on 15 November 1992, according to which a group of nine Balpınar village guards travelling by tractor on the road from Balpınar to the Fosfat gendarme station were attacked by PKK forces on 15 November 1992 at around 16.00 hours. At the time of the attack, the village guards found themselves between the villages Arısu and Karataş. Four village guards were injured, amongst whom Ramazan Ertaş, son of Kasım and born in 1955. Four others were killed, amongst whom Nesrettin Ertaş, son of Şeyhmus and born in 1965, and Davut Ertaş, son of Kasım and born in 1944.

Account was also taken of letters of various dates between 30 June 1995 and 25 March 1998, from the Commander of the Mazıdağı District gendarme station to the office of the public prosecutor in Mazıdağı in which he informed the public prosecutor that the identities of the PKK members who had killed the applicant's parents and brother had not yet been established. A number of these letters, including one sent on 25 March 1998, stated that the investigation of the matter was still ongoing.

The oral evidence included statements by the applicant herself, Mekiye Önen, Ercan Önen, Muhittin Araç, Tahir Önen, Mehmet Hadi Araç, Salih Kaygusuz, Mahmut Denli, Mecit Kaya, Yekta Çobanoğlu, Sedat İşçi, Cengiz Kesler and Tanju Güvendiren.

The verbatim record of the hearing held on 30 March 1998 contained the following passages of relevance to the Government's preliminary objection as to the authenticity of the application (see paragraph 71 below):

“Mr RESS: Did you make two statements at the station, and did you sign them?

Miss Şemsi ÖNEN: Yes. I went there a few times. They asked me questions. I answered them. They wrote them down. I put my fingerprint as I don't know how to write. But I don't know what they wrote. I answered the questions just as I'm doing here now. My brother was with me. I put my fingerprint to the statements.

Mr. RESS: Since you cannot read, I will only show you your fingerprint, and you will say whether it's yours or not.

A document is shown to the applicant.

Miss Şemsi ÖNEN: Yes, it's mine. That's how I put my fingerprint.”

In relation to the oral evidence, the Commission was aware of the difficulties in assessing evidence obtained orally through interpreters: it therefore paid careful attention to the meaning and significance to be attributed to the statements made by the witnesses appearing before its Delegates. The Commission was aware that the cultural context of the applicant and witnesses rendered it inevitable that there would be a certain degree of imprecision with regard to dates and other details. However it did not consider that this by itself detracted from the credibility of the testimony.

In a case where there were contradictory and conflicting factual accounts of events, the Commission was acutely aware of its own limitations as a first instance tribunal of fact. The problems of language were adverted to above; there was also an inevitable lack of detailed and direct familiarity with the conditions in the region. In addition, the Commission had no powers to take specific measures to compel witnesses to give oral or written evidence. In the present case, despite the Commission's specific request, the Government failed to submit certain relevant documents. The Commission was therefore faced with the difficult task of determining events on the basis of incomplete evidence.

The Commission's findings can be summarised as follows.

The villages of Balpınar and Karataş were situated in an area which was subjected to significant PKK activity in the early 1990's. It was undisputed that, prior to the events at issue, village guards from Balpınar had been attacked on two occasions by PKK forces and that, on 16 March 1993, PKK forces attacked a nearby PTT radio link installation.

The inhabitants of Karataş, Balpınar and about forty other villages belonged to the “Metina” clan. It appeared that, at the relevant time, all villages belonging to this clan, with the exception of the village of Karataş and one other village, had village guards and that pressure was exerted to join the village guard system. A number of witnesses stated that the refusal of Karataş to join the village guard system had resulted in tension between Karataş and Balpınar. Other witnesses denied such tension. The public prosecutor at Mazıdağı confirmed that he had heard rumours that the inhabitants of Karataş opposed the Turkish State and, therefore, the village guards were their enemies. The Balpınar village guards were not authorised to act on their own initiative. They received their orders from and had to report to the Commander of the nearby Fosfat gendarme station.

Although it could not make any definite findings on this point, the Commission did not consider it to be implausible that Karataş' refusal to join the village guard system during a period of significant PKK activity in the area, had resulted in tension between the village guards of Balpınar and the inhabitants of Karataş.

The Commission was satisfied from the evidence given by the applicant and her sister, that in the evening of 16 March 1993 after having introduced themselves as soldiers knowing that the Muhtar was absent from Karataş and wishing to conduct a house search, two armed and masked men entered their family home. One of the men immediately shot and killed their brother Orhan. In the course of their struggle with the intruders, the applicant's father was shot and killed by one of the intruders and the applicant's mother was seriously injured by a shot fired by the other intruder. There was no reason to doubt that both the applicant and her sister heard their father call out the names of the two perpetrators whom he had recognised as Ali and Orhan Ertaş from Balpınar.

The killings in question were the result of a premeditated plan to kill the applicant's brother. As to the possible motive for the killing it could not be excluded that there were tensions between the inhabitants of Karataş and the Balpınar village guards at the relevant time which had already resulted in armed attacks on houses in Karataş. Nor could it be excluded that Orhan Önen may have been a particular target because of his suspected involvement in the PKK killing of village guards from Balpınar. On the other hand, the Government's contention that the PKK had a motive for killing Orhan Önen because they had provided him with a vehicle which he had used for his own benefit rather than for services required by the PKK had not only remained unsubstantiated but was, moreover, contradicted by substantial evidence submitted by the applicant.

As to the circumstances of the killing itself, the Commission found it established that the killers were aware that the Muhtar of Karataş was absent from the village and that the applicant and her sister heard their father call out the names of the perpetrators, identifying them as Ali and Orhan Ertaş. Moreover, the evidence of Mahmut Denli and Mecit Kaya that the Balpınar village guards, including Ali Ertaş, had been on guard duty throughout the night of 16 March 1993 was at least open to question. In addition, the suspicion of the involvement of Balpınar village guards was reinforced by the identification of Ali and Orhan Ertaş by the applicant and her sister at the Mazıdağı gendarme station. Nevertheless, while the evidence was sufficient to give rise to suspicion as to the identity of the killers, it had not been established to the required standard of proof beyond reasonable doubt that the applicant's brother, father and mother were killed by agents of the State.

In this connection, the Commission noted that the applicant had given the Delegates a description of the two men: the one who shot her brother Orhan and her mother had been described as a person with long fair hair, hazel eyes and a fair complexion, whilst the man who shot their father was described as having a moustache and black eyes. Her sister, Mekiye, confirmed that the man who shot Orhan had hazel eyes but stated that she had not seen the second intruder. The applicant had further given evidence that, on 5 April 1993, when she subsequently attended the Mazıdağı gendarme station, she saw Ali and Orhan Ertaş and recognised them as the same two men. This was confirmed by Mekiye in that, on the same occasion, she had recognised Orhan Ertaş as one of the killers from his height, build, hazel eyes, nose and complexion.

The Commission considered that this evidence should be treated with caution. In the circumstances of the sudden and traumatic events of that night, it was at least doubtful whether either the applicant or her sister would have had an opportunity to form a clear and accurate impression of the features of either man. In particular, Mekiye appeared only fleetingly to have seen her brother's killer, whose face had been masked with a scarf. The Commission noted that the description given by them of Orhan and Ali was contradicted by Muhittin Araç, who knew both men and who described Orhan as being lean with a dark complexion and black hair and Ali as being a more bulky man of the same height with a light complexion and chestnut brown hair.

As to the evidence of the subsequent identification of these two men, the Commission found no reason to doubt that the applicant and her sister did see Ali and Orhan Ertaş at the Mazıdağı gendarme station on 5 April 1993. What was, however, more doubtful was whether the identification of the two men was entirely spontaneous or whether the applicant and her sister were made aware that the men were Ali and Orhan, whose names had been called out by their father.

Finally, it had not been established that Salih Kaygusuz, the Commander of the Fosfat gendarme station, had considerably delayed the provision of medical treatment to the applicant's injured mother or that the gendarme forces failed to offer her available assistance. In this connection, the Commission had regard to its findings as regards the time of the armed attack and the moment at which the applicant's mother received medical care in Mazıdağı.

From the evidence of Salih Kaygusuz it appeared that, after the minibus transporting the applicant's mother had left for Mazıdağı, he reported the incident in Karataş to his superiors at the District gendarme station in Mazıdağı and stated that he suspected that the PKK was responsible for the killings. He was told that, for reasons of security, the public prosecutor would only come to Karataş the next morning. He then ordered a first gendarme team to secure the area around Karataş. A second team, led by himself, joined the first team some time later. Thereupon, he and one gendarme team went to Karataş. They arrived sometime after midnight and found the bodies of the three victims inside the applicant's house.

Although the local gendarmes only arrived in Karataş at least three hours after the killings occurred, the Commission accepted that this delay had been caused by the fact that on the same evening an armed attack on a nearby radio link installation had taken place. However, once in Karataş, the gendarmes only secured the scene of the crime and, in the absence of any instructions, passively awaited the arrival of the competent investigation authorities, in the instant case the public prosecutor at Mazıdağı.

According to Salih Kaygusuz, the villagers present were unwilling to provide the first team of gendarmes with any information about the killings. After having secured the scene of the killings, he and the other gendarmes merely awaited the arrival of the prosecutor since they had not been ordered to take any investigative steps.

In the morning of 17 March 1993 an investigation team consisting of the public prosecutor of Mazıdağı, Yekta Çobanoğlu, and, amongst others, Dr. Sedat İşçi left Mazıdağı for Karataş.

After the investigation team had arrived in Karataş and before attending the post mortem examination of the victims' bodies, the public prosecutor briefly inspected the scene of the killings and ordered Salih Kaygusuz to draw a sketch map of the scene of the killings and to collect the empty cartridges lying there. Without having been numbered and without having recorded the exact location of each cartridge, the nine empty cartridges found were put together in a bag and handed to the public prosecutor. No photographs of the scene of the killings were taken by or on behalf of the investigation team.

The information recorded on the sketch map of the scene of the killings appeared to be incomplete. In contrast to a remark in the post mortem body examination report and the testimony of Dr. Sedat İşçi, the sketch map did not indicate a large blood stain on the spot where the body of Orhan Önen had been found. Furthermore, although both Salih Kaygusuz, who drew the sketch map, and Yekta Çobanoğlu were aware that the body of the applicant's mother had been moved, this fact had not been recorded on the sketch map. Although the Commission accepted that, at the time this sketch map was drawn, the members of the investigation team may have been unaware of the fact that the body of the applicant's father had also been moved from the outside of the house, the subsequent investigation could not have been assisted by the fact that the scope of the sketch map was confined to the inside of the house and did not contain any information about the immediate surroundings.

The Commission noted that, according to the post mortem examination report, the applicant's brother, lying in bed, was hit by numerous bullets in his face, by one bullet in his chest and by another bullet in his knee. The Commission found this recorded observation difficult to reconcile with the fact that, according to the sketch map, only four empty cartridges were found in the room where Orhan Önen was shot and with the evidence that not a single bullet had been found in that room. Furthermore, although there was strong evidence suggesting that the applicant's father had been shot and killed outside the house, the sketch map only contained information on what had been found inside the house. Although this was denied by Salih Kaygusuz, the Commission could not exclude that more than the nine recorded empty cartridges were in fact found and collected, including empty cartridges found outside the house.

After having conducted the examination of the bodies and released the victims' remains for burial, the investigation team left Karataş. Although the public prosecutor was aware that both the applicant and her sister were present in Karataş during the visit of the investigation team, neither the public prosecutor nor any other official took any statement's from them or any of the other inhabitants of Karataş on that day.

As early as 17 March 1993 the public prosecutor suspected that the PKK was responsible for the killings and, in a telegram sent the same day, informed the office of the public prosecutor at the State Security Court in Diyarbakır accordingly. Although in his evidence to the Commission's Delegates, Yekta Çobanoğlu stressed that this had only been a provisional opinion, his respective requests dated 17 March 1993 to the Census Directorate in Mazıdağı to issue death certificates in respect of the applicant's parents and brother simply state that they “were murdered by fire-armed members of the outlawed PKK terrorist organisation” and, consequently, their deaths were officially recorded as having been caused by the PKK terrorist organisation.

It was only on 1 April 1993 that the applicant and her sister Mekiye gave a statement about the events of 16 March 1993 to the commander of the Fosfat gendarme station Salih Kaygusuz. The applicant stated that she had heard her father call out the names of the intruders and she further gave a description of the intruders' physical appearance. Mekiye stated that she had heard her father call out only one name and did not give any description of the intruders' physical features. According to Salih Kaygusuz, this was the first time that he heard the allegation that Ali and Orhan Ertaş had committed the killings.

In his testimony to the Delegates, Salih Kaygusuz had a firm recollection that he had also taken statements from Muhittin Araç, Tahir Önen and Mahmut Denli. In reply to the request of the Commission's Delegates to submit these statements, the Government stated by letter of 21 January 1999 that Salih Kaygusuz had not participated in the interrogation of these three persons. The Commission further noted that its case-file did not contain any statement given by any of these three persons at the Fosfat gendarme station.

The Commission further found it established that Yekta Çobanoğlu, from the outset, had a rather firm conviction that PKK forces had committed the killings. Although he stressed that this had only been a provisional opinion inspired by views expressed by the gendarmes and his own experience, the Commission found no support for the asserted provisional nature of this suspicion. In fact, it appeared from the contents of his written communications of 17 March 1993 that he had firm ideas about the identity of the perpetrators. This element, taken together with his failure to try to talk to the applicant and her sister on 17 March 1993, resulted in a loss of time in the initial phase of the investigation.

As regards the encounter on 5 April 1993 between the applicant and her sister and Ali and Orhan Ertaş in the Mazıdağı District gendarme station, the Commission found that it could not be excluded that this encounter was in fact the result of a coincidence since Yekta Çobanoğlu had not ordered a confrontation. It did not appear from the evidence that the applicant and her sister had been invited by the investigation authorities to identify the perpetrators either from a collection of photographs or at an identity parade. The Commission found that no photographs of Ali and Orhan Ertaş had ever been shown to the applicant and her sister and that at no point in time had a formal confrontation been ordered.

The Commission further noted from the evidence submitted that, apart from the statement taken from Orhan Ertaş at the Fosfat gendarme station on 5 April 1993, hardly any attempts were made or seriously pursued to obtain any further evidence from him. Nor did it seem that any attempt had been made to verify his alibi by, for instance, checking his whereabouts on 16 and 17 March 1993 by seeking confirmation from those persons present when he was allegedly loading goods in Mersin or from those to whom he had delivered these goods. It did not appear from the statement he gave at the Fosfat gendarme station that he was in fact asked to give the names of persons who had seen him on 16 and 17 March 1993.

As regards the alibi advanced by Ali Ertaş, the Commission noted that his presence on Kırmızıtepe hill at the time of the killings was in fact only supported by the statements of Mecit Kaya and Mahmut Denli, whereas the latter had stated to the Commission's Delegates that he had not in fact been in the presence of Ali Ertaş at the time of the killings, but had only seen him shortly afterwards. Given the evidence that there were, in total, 65 village guards in Balpınar who were organised in teams of 12-14 persons, the Commission found it remarkable that, apart from Mecit Kaya, no evidence was taken from the other village guards who were on duty in the same team as Ali Ertaş at the relevant time in order to verify the respective positions of each team member on Kırmızıtepe hill that evening.

After having received the case-file, Tanju Güvendiren, the public prosecutor at the State Security Court noted that the investigation had been incomplete. In order to complete the investigation, he issued a number of instructions to the Mazıdağı District gendarme station by letter of 13 September 1993 including that comparison cartridges be taken from the weapons held by the village guards from Karataş. On 19 October 1993 the Commander of the Mazıdağı District gendarme station transmitted 65 weapon delivery receipts and 65 empty cartridges taken from the Balpınar village guards to the office of the public prosecutor at the State Security Court. This letter contained no information as to when and in which manner these cartridges were obtained.

Although Tanju Güvendiren considered that there was no concrete evidence in support of the accusations made against Ali and Orhan Ertaş and was convinced that the PKK was responsible for the killings, he nevertheless brought proceedings against Ali and Orhan Ertaş on charges of politically motivated murder and indicted them on 6 January 1994 before the State Security Court, which had jurisdiction to determine murder charges linked to terrorism. He did not find it necessary to take any further statements or to order the arrest or pre-trial detention of the accused. In his opinion, it was excluded that the security forces would cover up a crime committed by village guards.

In the subsequent proceedings before it, the State Security Court in Diyarbakır requested, inter alia, that statements be taken from Ali and Orhan Ertaş, from the applicant and her sister Mekiye, and from Mecit Kaya and Mahmut Denli. They were all summoned to appear on 6 May 1994 before a judge of the Mazıdağı Court of First Instance in order to give statements, but only Ali Ertaş, Mecit Kaya and Mahmut Denli in fact did so. As the whereabouts of Orhan Ertaş, the applicant and her sister were not established, their summonses were returned to the State Security Court and, consequently, no further statements were taken from them.

The Commission noted that, although the gendarmes and the State Security Court were informed that the applicant and her sister were residing in the Cezaevi neighbourhood in Diyarbakır, it did not appear that any attempts were made or ordered to locate them. Nor did it seem that any further attempts were made or ordered to find Orhan Ertaş. The Commission noted that the Muhtar of Karataş, Muhittin Araç, testified that he had been aware of the exact address of the applicant and her sister in Diyarbakır, but that he had never been asked to provide the local gendarmes with this address. He explained his signature on a document dated 4 May 1994 by stating that it had been normal practice in the area for gendarmes to require Muhtars to sign blank documents for future use. No further clarification on this point could be obtained from Salih Kaygusuz, as he had left the Fosfat gendarme station in August 1993. In these circumstances, it was impossible for the Commission to make any findings in this respect. What was clear, however, was that the State Security Court was informed that the applicant and her sister were residing at that time in the Cezaevi neighbourhood of Diyarbakır. In this connection, the Commission had also regard to the evidence of the applicant's brother that, since their departure from Karataş and to date, the Önen family had always lived at the same address in Diyarbakır.

The Commission accepted that the supplementary investigation measures ordered by the public prosecutor at the State Security Court, Tanju Güvendiren, in order to mend certain deficiencies in the preliminary investigation, were appropriate, although it was open to doubt whether, given the passage of time since the killings, these measures were as effective as they might have been in the initial phase of the proceedings. Moreover, he testified that he was convinced at the outset that the PKK was responsible for the killings, which might explain why he decided to indict Ali and Orhan Ertaş before the State Security Court, rather than referring the case to a court competent to try common crimes. This was supported by the fact that, apart from Ali Ertaş, none of the other vital witnesses gave evidence to the State Security Court.

The principles and procedures relating to liability for acts contrary to the law may be summarised as follows.

Under the Turkish Criminal Code (TPC) all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutor's offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).

By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment.

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure).

In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey.

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.

An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court.

By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 61 above) also applies to members of the security forces who come under the governor's authority.

If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353).

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person's life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 59 above) or with the offender's superior.

Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.

Article 125 §§ 1 and 7 of the Constitution provides:

“All acts or decisions of the authorities are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures.”

That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.

Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 66 above), provides:

“No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”

Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53).

However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations).


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano

The applicant, Mr A.A.S., is a Finnish national, who was born in 1972. The President of the Section decided of his own motion to grant the applicant anonymity (Rule 47 § 3 of the Rules of Court) and confidentiality of the case file documents (Rule 33 of the Rules of Court). He was represented before the Court by Ms Heini Kotamäki, a lawyer practising in Vantaa.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1999 the applicant started dating the future mother of his child. They were engaged and moved in together. Their cohabitation broke down in November 2000, before the child was born in April 2001. The mother did not allow the applicant to visit his daughter.

On 24 February 2004 the applicant’s paternity was confirmed by the District Court (käräjäoikeus, tingsrätten). The applicant contacted the child welfare authorities in order to have contact with the mother and the child, but in vain.

On 26 April 2004 the applicant requested the District Court to grant him visiting rights to his daughter.

On 27 April and 7 May 2004 the child’s mother and her current husband requested that a restraining order be issued against the applicant.

On 17 May 2004 the applicant attempted to murder the husband of the child’s mother.

On 24 June 2004 the District Court issued a restraining order against the applicant. He was not allowed to approach the child, the mother of the child or her husband. This judgment was final.

On 16 May 2005 the District Court refused the applicant’s application for visiting rights. It found that the applicant had never met his daughter, who was by then four years old. However, the applicant had had his paternity confirmed and had also tried to establish contact with his daughter. On the basis of these circumstances, visiting rights could be granted to the applicant. As the daughter did not know her father, the meetings needed to be conducted in the presence of the mother. The applicant being detained, these meetings would have to take place in prison, which could not be regarded as a suitable place for initiating the meetings. Considering the existence of the restraining order, the mother could not be obliged to take the child to prison to meet the father. There were thus no grounds for granting visiting rights to the applicant at that moment. Such rights could be granted later when the applicant was released from prison.

The applicant did not appeal against this decision.

On 14 November 2007 the applicant requested the District Court to change the previous decision so that the daughter would have the right to visit and to maintain contact with her father first under supervision and later unsupervised. The mother opposed such visiting rights.

On 17 January 2008 the District Court refused the applicant’s application. It noted that the applicant had been found guilty of the attempted murder of the current husband of his child’s mother. Although a prison sentence as such did not prevent visits from taking place, the applicant had committed the criminal act in a state of diminished responsibility and, while in prison, he had seriously threatened the life of the child’s mother. It was not in the best interest of the child to meet her father, even under supervision.

By letter dated 18 February 2008 the applicant appealed against the decision of 17 January 2008 to the Court of Appeal (hovioikeus, hovrätten), reiterating the grounds already presented before the District Court.

On 25 February 2008 the applicant was released from prison.

On 16 October 2008 the Court of Appeal, after having held an oral hearing on 16 September 2008, rejected his appeal. It found that the child was at the time seven years old. Even though the applicant’s circumstances had improved since his release from prison, the child’s mother still had grounds to fear for her life and the life of the child. Moreover, the applicant had been diagnosed as suffering from mental problems which also gave an additional reason to fear for the child’s safety. In such a situation, the best interest of the child required that the applicant was not granted visiting rights.

By letter dated 15 December 2008 the applicant further appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Court of Appeal.

On 27 April 2009 the Supreme Court refused the applicant leave to appeal.

According to sections 9 and 10 of the Child Custody and Right of Access Act (laki lapsen huollosta ja tapaamisoikeudesta, lagen angående vårdnad om barn och umgängesrätt, Act no. 361/1983), a child has a right to maintain contact with and visit the parent with whom he or she does not live. Custody and right of access must be decided in the best interest of the child.


The applicants, Mr Vladimir Ivanovich Lazarev and Mr Pavel Vladimirovich Lazarev, are Russian nationals who were born in 1955 and 1992 respectively and live in Moscow. The first applicant is the father and legal representative of the second applicant. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

Both applicants live, together with the second applicant’s mother and his elder brother Vladimir (born in 1983), in a flat in Moscow which is not the subject of the present application (“the old flat”). Under the terms of a private ownership certificate dated 26 October 1998, the second applicant is the sole legal owner of the old flat.

In March 1999 the first applicant invested money in the construction of a block of flats in Moscow. Once the work was completed, the first applicant registered title to a flat in that block (“the new flat”) in his own name and those of his two sons, Pavel (the second applicant) and Vladimir, in equal shares.

In 2001 the applicant decided to sell the new flat and applied for clearance of the transaction to the guardianship and wardship department of Lefortovo District Council in south-eastern Moscow (отдел опеки и попечительства районной управы «Лефортово» ЮВАО г. Москвы, “the guardianship authority”).

On 9 January 2002 a deputy head of Lefortovo District Council informed the applicant that clearance would not be given because the sale “would result in a reduction of your underage son’s property” and it would therefore be “not in the interests of the minor”. The applicant appealed to a court.

On 17 April 2002 the Lefortovskiy District Court of Moscow gave judgment. It found that Article 60 § 3 of the Family Code did not apply because the new flat had not been (formally) donated to the second applicant, nor had it been inherited by him or acquired at his expense. The new flat had been purchased by the first applicant, who had invested his and his wife’s savings. Having regard to the fact that the second applicant was also the legal owner of the flat where the applicants’ family lived, the court found that the refusal by the guardianship authority had not been justified.

On 10 May 2002 the Moscow City Court, on an appeal by the guardianship authority, quashed the judgment and remitted the case to the District Court. It pointed out that an interest in the new flat had been duly registered in the second applicant’s name and that the District Court had failed to verify what compensation would be made available to the second applicant following the sale of his share.

On 21 October 2002 the Lefortovskiy District Court of Moscow delivered a new judgment and dismissed the complaint on the following grounds:

“[The first applicant] confirmed before the court that onethird of [the new flat] had been transferred to [the second applicant] voluntarily. Accordingly, the sale of the flat, including [the second applicant’s share], would result in a reduction of his property.

The court cannot take into account the [first applicant’s] argument that the sale of [the new flat] would not impair the minor’s rights because the minor is the legal owner of the [old flat]. The minor had acquired the right of ownership over the [old flat] in 1998, and in 2000 he acquired the right of ownership to onethird of the [new flat]. As by that time he already had title to the [old flat], the sale of onethird of the [new flat] would entail a reduction of the minor’s property, which is not permitted under the applicable legislation. Pursuant to Article 37 of the Civil Code and Article 60 of the Family Code, the underage child’s property may be disposed of only in his interests.

Pursuant to letter no. 244/26-5 sent by the Ministry of Education (on 9 June 1999), the sale of residential premises must in all cases be accompanied by the purchase of residential premises in the minor’s name, if he is to lose his share of the property. [The first applicant] did not produce any evidence showing how [the second applicant] would be compensated for the loss of onethird of the [new flat].”

On 18 November 2002 the Moscow City Court upheld the judgment of 21 October 2002. It endorsed the same line of reasoning: the transaction would result in a reduction in the minor’s property and was therefore not in the minor’s interests.

Article 60 § 3 provides that a child acquires title to, inter alia, the property donated to him, inherited by him or acquired at his expense. The child’s rights to dispose of his property are governed by Articles 26 and 28 of the Civil Code. The parents may dispose of the child’s property in accordance with the rules set out in Article 37 of the Civil Code.

Article 60 § 4 provides that the child’s parents have no title to the child’s property.

Article 26 provides that, with certain exceptions concerning smallscale, routine transactions, transactions entered into by minors aged 14 to 18 are valid only if approved by their legal representatives, in other words their parents, adoptive parents or guardians.

Article 28 provides that transactions on behalf of a minor under fourteen years of age must be carried out by his or her parents, adoptive parents or guardians. Transactions carried out by legal representatives of the minor in respect of the minor’s property are governed by Article 37 §§ 2 and 3.

Article 37 § 2 provides that a guardian may not alienate his charge’s property or perform any transaction resulting in a reduction of the charge’s property without obtaining preliminary clearance of the planned transaction from the guardianship and wardship authority. Article 34 § 1 designates the local self-government bodies which are responsible for guardianship and wardship matters.

On 9 June 1999 the Ministry of Education of the Russian Federation sent a letter (no. 244/26-5) entitled “On additional measures for the protection of minors’ right to housing” to all guardianship and wardship departments. The relevant part of the letter reads as follows:

“If a guardianship and wardship authority issues advance clearance of a transaction which involves the sale of a flat followed by the subsequent purchase of a flat, the operative part of the clearance (resolution) must either specify that the transaction is to be carried out subject to the condition that the new flat will be purchased in the minor’s name if the minor loses his interest in the [sold] property, or indicate the address where the minor is to live if the minor is simply a member of the legal owner’s family.”


Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)

Anatoly Kovler;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicants were born in 1983 and 1981 respectively and live in Moscow.

On 14 September 2000 the first applicant was arrested on suspicion of having hijacked a car together with the second applicant and a Mr F., and was brought to Fili-Davydkovo police station. According to the first applicant, three police officers beat him severely, kicking him in the head and back, to force him to confess to twenty-five hijacking incidents which had occurred in that district of Moscow. After his resistance had worn down, the first applicant wrote a statement, prompted by the police officers, confessing to a car theft. The record of his arrest was drawn up at 3 p.m.

On the same day police officers arrested the second applicant. The second applicant submitted that on his arrest he had been placed in the boot of a car and had been brought to Fili-Davydkovo police station, where police officers had beaten him up and had forced him to confess to a car theft.

On 15 September 2000 the acting Kuntsevo district prosecutor questioned the applicants about their participation in hijacking incidents and authorised their release on their own recognisance. According to the Government, the applicants did not complain to the prosecutor about any police brutality.

On 16 and 18 September 2000 the applicants were examined in hospital no. 79 in Moscow. The first applicant was diagnosed with a compression fracture of the bodies of the 1st and 2nd vertebrae and the second applicant was diagnosed with injuries to the right side of the chest and neck. The first applicant was suffering from severe back pain, for which he was prescribed treatment and given a medical corset. For approximately four months he wore the corset and underwent medical treatment.

The applicants complained to the Kuntsevo district prosecutor that they had been ill-treated in the police station after their arrest. In November 2000 the Kuntsevo district prosecutor’s office initiated an inquiry into the applicants’ complaints.

On 22 January 2001 a senior assistant of the Kuntsevo district prosecutor declined to institute criminal proceedings against the police officers, finding no criminal conduct in their actions (Article 5 § 2 of the Code of Criminal Procedure). The decision read as follows:

“On 16 and 18 September 2000 the Fili-Davydkovo [police department] was informed by hospital no. 79 in Moscow that on those dates Mr F., [the second applicant] and [the first applicant] had on their own initiative requested medical assistance at hospital no. 79, where Mr F.... was diagnosed with..., [the second applicant] was diagnosed with an injury to the neck and the right side of the chest and [the first applicant] was diagnosed with a compression fracture of the 1st and 2nd vertebrae. Mr F., [the second applicant] and [the first applicant] explained that on 14 September 2000 they had been beaten up by police officers in Fili-Davydkovo police station.

[The first applicant], a minor, questioned in the presence of his mother, stated that on the night on 14 September 2000 he, Mr F. and [the second applicant] had hijacked two cars...; he had been arrested by police officers and brought to the duty unit of Fili-Davydkovo police station; after his arrest, on 14 September 2000 at approximately 8.30 a.m. a police officer, whom [the first applicant] could not name, had entered the duty unit of Fili-Davydkovo police station and had taken [the first applicant] to his office on the second floor. In the course of the interview the police officer had urged [the first applicant] to confess to having committed a crime, kicked him several times in the small of the back and at the same time demanded that [the first applicant] confess to several other hijackings which he had not committed. Other police officers in plain clothes had entered the office where [the first applicant] was being questioned; they had hit [the first applicant] in different parts of his body and had demanded that he name the persons with whom he had committed criminal offences on 14 September 2000 and indicate their addresses. After his written confession ... had been obtained, he had been brought back to the duty unit of FiliDavydkovo police station. On 15 September 2000, after a measure of restraint in the form of a written undertaking had been imposed, [the first applicant] had been sent home. On 18 September 2000 he had sought medical assistance at hospital no. 79, where he had been diagnosed with a compression fracture of the 1st and 2nd vertebrae and had undergone treatment until 19 December 2000.

According to forensic medical report no. 7867/17801 of the Bureau of Forensic Medicine, when [the first applicant] requested a medical examination no injuries were recorded on his body and the diagnosis of ‘an injury of the lumbar spine’ was not confirmed by objective clinical data and could not be subjected to forensic medical identification.

When questioned on 15 September 2000 by the acting Kuntsevo district prosecutor, [the first applicant] stated that on 14 September 2000 he had been arrested by police officers on suspicion of having stolen cars in the district under the jurisdiction of the Fili-Davydkovo police department. He did not complain about the conduct of the police officers, stating that the police officers had not used force or any other pressure against him.

The mother of the minor, [the first applicant], Ms A., who was questioned in the presence of Ms L., a lawyer from no. 10 Bar Association, stated that on 14 September 2000 at approximately 6 p.m. she had received a phone call from Fili-Davydkovo police station and had been informed that her son had been arrested on suspicion of a crime and had been kept in Fili-Davydkovo police station. On 14 September 2000 at approximately 7.30 p.m., Ms A. arrived at Fili-Davydkovo police station. From a conversation with an investigator she learned that her son had been arrested for having committed a hijacking in the district under the jurisdiction of the Fili-Davydkovo police department. The investigator allowed her to see and give food to her son. During a conversation in Fili-Davydkovo police station on 14 September 2000 her son did not complain about the state of his health and did not say anything about being beaten by police officers. On 15 September 2000 at 5.50 p.m. Ms A. took her son home... On 16 September 2000 her son complained to her of pain in his back and claimed that he had been beaten up by police officers in Fili-Davydkovo police station. Ms A. did not attribute sufficient weight to her son’s complaints and decided to treat him herself. On 18 September 2000 she and her son sought medical assistance at hospital no. 79, where he was diagnosed with a compression fracture of the 1st and 2nd vertebrae. Her son underwent treatment and was on sick leave from 18 September to 19 December 2000.

[The second applicant] gave similar explanations, asserting that on 16 September 2000 he had sought medical assistance at hospital no. 79, where he had been diagnosed with an injury to the neck and [an injury] to the right side of the chest; he had not requested sick leave. He did not make any claims in respect of the police officers.

An investigator from the Fili-Davydkovo police department, ... Mr E., stated that on 14 September 2000, ... [the first applicant] had been arrested at 3 p.m. ... and [the second applicant] at 9 p.m.; they had been questioned as suspects in relation to criminal case no. 6533 ... in the presence of a lawyer, Mr M. In the course of the interview the arrested persons did not make any complaints in respect of the police officers and did not complain about the state of their health; after a measure of restraint in the form of a written undertaking had been imposed, they were released on 15 September 2000.

Mr L., a police officer at Fili-Davydkovo police station, explained during questioning that ... he had not questioned [the first and second applicants], the arrested persons, and had not obtained any written statements from them; he had not used any physical or psychological pressure against them.

Another police officer, Mr Sh., stated during questioning that on 15 September 2000 he had been in his office, no. 23. An arrested person ([the first applicant], as it transpired later) suspected of having committed a hijacking had been there. The police officers, whose last names he did not know because he had worked in the police station for only about two months, had questioned [the first applicant]. The police officers asked [the first applicant] questions pertaining to car thefts; they had not used any physical, psychological or other pressure against [the first applicant].

A junior police officer of the Fili-Davydkovo police department, Mr Ma., gave a similar statement, asserting at the same time that when [the second applicant] had been brought from [his] place of residence he had not put him under any physical, psychological or other pressure. The arrestees had voluntarily, without duress, given statements pertaining to hijackings committed in the district under the jurisdiction of the Fili-Davydkovo police department.

Another police officer, Mr A., stated when questioned that on 14 September 2000 he had had a conversation with [the first applicant], who had informed him that he, Mr F. and [the second applicant] had stolen cars in the district covered by the police department. When he had talked to [the first applicant], he had not used any physical or other pressure against [him]. Moreover, he, Mr A., had been involved in [the second applicant’s] transfer [to the police station]. During the transfer Mr A. and the other police officers had not used any force or other pressure against the arrestees. After [the second applicant] and Mr F. had been brought to the police station, Mr A. had talked to them in his office about car thefts committed by them. Mr F. and [the second applicant] had voluntarily, without duress, confessed to two hijackings in the district of the police department. Mr A. had not used physical, psychological or other pressure against the arrestees.

Hence, no objective data and evidence confirming the use of physical or other pressure by the police officers against [the first and second applicants] ...was gathered during the inquiry.

In view of the above, [I] conclude that there is no indication of a criminal offence ... in the police officers’ actions.

However, the inquiry established that a minor, [the first applicant], had been held for a protracted period in Fili-Davydkovo police station before an investigator took the decision to detain [the applicants] ... Following [the first applicant’s arrest] at 3 p.m.... and [the second applicant’s] arrest at 9 p.m., they were held in the duty unit of Fili-Davydkovo police station and were not transferred to the detention unit at Krylatskoye police station. On discovering these violations of the law the prosecutor’s office issued a decision addressed to the head of the Fili-Davydkovo police department.”

The decision of 22 January 2001 was not served on the applicants.

The applicants were committed to stand trial before the Kuntsevo District Court of Moscow (“the District Court”). On 9 February 2001 the District Court, composed of the presiding judge B. and two lay assessors P. and F., remitted the criminal case for additional investigation and dismissed the request for release of the second applicant, who had been remanded in custody on 22 November 2000. The District Court held that “the defendants had committed serious criminal offences” and that there were no grounds for releasing the second applicant. The lawyer for the first applicant, Ms Moskalenko, appealed against that decision, but later withdrew her statement of appeal.

On 24 May 2001 the applicants’ lawyers complained to the Kuntsevo District Court about the beating in the police station. They noted that a similar complaint about police brutality had been raised before the Kuntsevo district prosecutor’s office. The lawyers insisted that the results of the prosecutor’s inquiry were unknown to them and their clients and asked the District Court to request the materials from the inquiry.

On 25 May 2001 the trial began. The District Court was composed of the presiding judge B. and two lay assessors, B. and G. The applicants’ lawyers, relying on Articles 59 § 3 and 61 of the Code of Criminal Procedure, unsuccessfully sought the removal of the presiding judge, alleging her personal bias against the applicants. The applicants and their lawyers, referring to the hospital reports recording the applicants’ injuries, further complained to the District Court about the illtreatment occurring in the police station on 14 September 2000.

On 28 May 2001 the Kuntsevo District Court found the applicants guilty of aggravated car theft and sentenced them to three years’ imprisonment. As regards the allegations of police brutality, the District Court noted that the investigating authority had conducted an inquiry into the applicants’ complaints about the beatings and had decided not to institute criminal proceedings because the allegations had not been proven.

The applicants and their lawyers appealed. In their statements of appeal they complained, inter alia, that the applicants’ conviction contravened the principle of the presumption of innocence, as the presiding judge B. had already found them guilty in her decision of 9 February 2001, that the District Court had not examined their ill-treatment complaints thoroughly, that it had not asked the investigating authorities to produce the case file relating to the inquiry into the allegations of police brutality, and that they had learnt about the prosecutor’s decision of 22 January 2001 only during the trial proceedings.

On 17 July 2001 the Moscow City Court upheld the conviction, reduced the applicants’ sentence to two years’ imprisonment and ordered the first applicant’s conditional release, noting that his injury, namely a compression fracture of the 1st and 2nd vertebrae, warranted his release. The City Court held that the applicants’ complaints about the beatings had been “unfounded because these allegations were examined by the prosecutor’s office and then by the [District] Court, and were correctly dismissed because they had not been proven”. It further stated that the District Court had not committed any violations of criminal procedural law.

The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities’ own initiative, where there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for overall supervision of the investigation (Articles 210 and 211). He could order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction (Article 113).

An appeal against a decision of a first-instance court (including an order authorising or extending pre-trial detention) lies to a higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against a judgment on the merits (Article 331 of the CCrP).

Under Article 59 § 3 of the CCrP a judge should not sit in a case if there are any grounds to conclude that he/she has a direct or indirect personal interest in the case. In such circumstances the judge should withdraw from the case; failing this, a party has the right to lodge a motion to challenge the judge (Article 60).


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient

The applicant was born in 1936 and lives in Izmir.

On 11 February 1993 the General Directorate of National Roads and Highways, expropriated plots of land belonging to the applicant in Balçova, Izmir. A committee of experts assessed the value of the plots of land belonging to the applicant and compensation was paid to him when the expropriation took place.

Following the applicant’s request for increased compensation, the Izmir First Instance Court awarded him additional compensation at the statutory rate of 30% per annum, namely the rate applicable at the date of the court’s decision. The date 4 August 1995 was fixed by the domestic court for the running of the statutory rate of interest. On 28 December 1998, on the General Directorate’s appeal, the Court of Cassation upheld the decision of the first instance court. On 17 May 2000 the administration paid the applicant 3,919,570,000 Turkish Liras as the additional compensation awarded to him together with interest.

The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).