ITEMID: 001-68541
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TÜRKOĞLU v. TURKEY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 2 as regards the State's alleged failure to protect the right to life;Violation of Art. 2 as regards the effectiveness of the investigation;No violation of Art. 5;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: David Thór Björgvinsson
TEXT: 9. The facts surrounding the disappearance of the applicant's husband are disputed between the parties.
10. The applicant's husband, Talat Türkoğlu, had been arrested and tried on several occasions in the past for political offences. Plain-clothes policemen used to keep him under surveillance.
11. On 29 March 1996, Talat Türkoğlu travelled by bus from Istanbul to Edirne, a city near the border with Greece, to visit relatives. During its journey to Edirne, the bus was stopped by a car and a person from this car got on the bus. Before its arrival in Edirne the same car stopped the bus once again and the person who had got on the bus earlier returned to the car. This car followed Talat Türkoğlu until he arrived at his relatives' house in Edirne.
12. On 1 April 1996 Talat Türkoğlu left Edirne for Istanbul. He did not arrive home and has been missing since. When entering her home on the fifth day after her husband's disappearance, the applicant noticed that the front door was open and that her television had been turned on. In her opinion, the persons who entered her home had done so with her husband's key.
13. The applicant filed petitions with several administrative and judicial bodies inquiring about her husband's whereabouts. On 25 April 1996, she applied to the prosecutor at the Istanbul State Security Court and, on 26 April 1996, to the Forensic Medicine Institute and, via the Istanbul Human Rights Association, to the President, the Prime Minister, the Minister of Justice and the Human Rights Commission of the Turkish Parliament. On 2 May 1996 the applicant applied to the General Security Directorate in Ankara. On 3 May 1996 she applied to the Governor's office in Istanbul, the Fatih Public Prosecutor and the National Intelligence Agency. On 6 May 1996 she further applied to the Governor's office in Edirne.
14. On 23 September 1996 the applicant applied to the Küçükçekmece public prosecutor. She complained that she was being followed by persons, whom she believed to be plain-clothes police officers. She further complained of receiving anonymous phone calls at her home by someone who swore at her and who threatened to kill her.
15. In her letters of 10 September 1997, the applicant informed the public prosecutor and the Governor in Edirne about an important statement made by a prisoner, Kasım Açık, to some other prisoners in which he gave detailed information about the killing of Talat Türkoğlu.
16. The applicant claims that Kasım Açık was a State agent who had infiltrated the MLKP (“Marksist Leninist Komünist Parti” – a prohibited left-wing organisation) in order to gather information about their activities. Prior to that, he had participated in counter-guerrilla activities and had been involved in the killing of a number of persons. He was strangled to death in prison on 18 May 1997. According to the applicant, Kasım Açık gave this statement when he was questioned after having been arrested and detained in the Gebze prison on suspicion of being a MLKP member, an offence for which he was later tried before the Istanbul State Security Court.
17. According to this statement, which was taped and later transcribed, Talat Türkoğlu was questioned in Çadırkent by a gang, whose members included police officers, soldiers and itirafçılar. He was subsequently killed by Murat Demir and Murat İpek and his body was thrown into the river Meriç, which forms part of the border between Turkey and Greece. In her letter, the applicant further stated that Kasım Açık had drawn a sketch of the place where Talat Türkoğlu had been killed and that he had given a detailed description of the clothes Talat Türkoğlu had been wearing, in particular his shoes, wallet and wrist-watch. These details were confirmed by the applicant to be accurate. The applicant finally stated that it had to be deemed certain that Talat Türkoğlu had been killed. She requested the authorities to investigate this new evidence and to show her photographs and other documentary materials concerning unidentified corpses found in the area.
18. The applicant claims that she did not receive any reaction from the administrative and judicial bodies she petitioned other than one invitation for her and her husband's mother to give a statement and one invitation for Talat Türkoğlu's brother to identify a corpse found in the area where Talat Türkoğlu had disappeared. In this respect, the applicant pointed out that, although she and her relatives had already applied to the domestic authorities in April 1996 after Talat Türkoğlu's disappearance, the documents submitted by the Government are dated May 1998.
19. Following the receipt of the petition of 15 April 1996, the Edirne public prosecutor instigated an investigation. He contacted the Edirne Security Directorate in order to find out whether Talat Türkoğlu had been taken into police custody. On 2 May 1996 he was informed that this was not the case. As the search for Talat Türkoğlu in Edirne was unsuccessful, his photograph was transmitted to all Security Directorates in Turkey.
20. Further investigations were opened by the Bursa public prosecutor, the Edirne public prosecutor and the Direction of Criminal Affairs of the Ministry of Justice, following a request of 2 May 1996 by seventeen persons detained in Bursa to elucidate the fate of Talat Türkoğlu.
21. On 24 May 1996, in reply to a request thereto, the Edirne gendarmerie command informed the public prosecutor that their custody records were being verified and that they had started identity checks in their region. On 10 June 1996, the gendarmerie authorities informed the public prosecutor that their efforts remained unsuccessful.
22. On 9 August 1996 the Edirne public prosecutor informed the Istanbul public prosecutor about the investigation and requested information as to whether Talat Türkoğlu had been taken into police custody in Istanbul. On 14 October 1996 the Istanbul Security Directorate informed the Edirne public prosecutor that Talat Türkoğlu had not been taken into detention by the Istanbul security authorities.
23. Following the receipt of the applicant's petition of 10 September 1997 for a supplementary investigation on the basis of the statement given by Kasım Açık, the Edirne public prosecutor informed the public prosecutors of respectively Enez, Meriç, İpsala and Uzunköprü of the investigation and requested information about unidentified bodies found in the area. Talat Türkoğlu's relatives were invited to identity one body from photographs. According to them, the body found was not that of Talat Türkoğlu.
24. An investigation was conducted concerning the statements given by Kasım Açık. In this connection, it was revealed that he had been killed in the Gebze prison by his co-activists in the TDP (Türkiye Devrim Partisi – a prohibited left-wing organisation). According to a press release issued by the TDP, Kasım Açık had acted as a spy and had betrayed the organisation's confidential strategy. According to this press release, Kasım Açık had been tried under the rules of the TDP and had been sentenced to death. The statement referred to by the applicant had been taken by TDP members in the context of this “trial”. According to the Government, Kasım Açık was not a State agent and had no associations with the State and affiliated agencies.
25. In fact, it was established in the criminal proceedings brought against the suspected perpetrators of the killing of Kasım Açık that he had been killed accidentally by another prisoner, Ayhan Güneş, following a fight provoked by Kasım Açık.
26. It appeared from Kasım Açık's statement that the gang which killed the applicant's husband had also kidnapped and killed persons in the Silvan and Lice districts of Diyarbakır. Therefore, an investigation was carried out in the places named by Kasım Açık. In the course of this investigation, the prosecution authorities summoned several village mayors (muhtar) in the region of Lice and took their statements.
27. On 15 April 1996 Zeyneti Türkoğlu, the mother of Talat Türkoğlu, filed a petition with the Edirne public prosecutor in which she stated that her son had come from Istanbul to visit her, that he had left her house on 1 April 1996 and that since then he was missing. She asked the public prosecutor to search for him.
28. On 25 April 1996 the applicant filed a petition with the public prosecutor at the Istanbul State Security Court. She stated that, on the basis of a statement given by a detainee in Siirt, she suspected that her husband had been arrested and possibly taken to Siirt. However, the authorities in Siirt informed her that her husband was not detained there. She requested the prosecutor to search for her husband.
29. On 26 April 1996 the applicant informed the Istanbul Institute for Forensic Medicine that her husband had disappeared on 1 April 1996. She further stated that, in the past, her husband had been arrested many times for political reasons and that he had been followed by the police before he disappeared. She asked the Institute for Forensic Medicine to obtain her husband's fingerprints from the Security Directorate, to compare them with the fingerprints of all unidentified bodies found and to provide her with information that might be helpful.
30. On the same day the Turkish Human Rights Association addressed a letter to the President of the Republic of Turkey on behalf of the applicant, informing him of the disappearance of Talat Türkoğlu and stated that the applicant had applied to various authorities. The President was requested to order a search for Talat Türkoğlu. On the same day, the Turkish Human Rights Association sent similar letters to the Prime Minister, the Minister of the Interior and the Parliamentary Commission for Human Rights.
31. By letter of 2 May 1996, the applicant informed the Ankara Security Directorate of the disappearance of her husband and stated that she had applied to various authorities. As her husband had been apprehended, detained and tried for political offences on various occasions in the past, she deemed it plausible that he had been again apprehended and detained. She also contacted the Diyarbakır public prosecutor and State Security Court as well as the anti-terror branch of the Siirt security directorate. Her husband might have been taken there since, in a statement taken previously in Siirt, a person had implicated her husband. As the Siirt authorities had informed her that her husband's name was not mentioned in their records she had also applied to the public prosecutor's office at the Istanbul State Security Court, which informed her that her husband's name was not included in their records either. She finally stated that all of her inquiries indicated that her husband, who had no previous health or family problems, was in the hands of the MIT (Milli İstihbarat Teşkilatı; National Intelligence Agency) or the JITEM (Jandarma İstihbarat ve Terörle Mücadele; Gendarmerie Intelligence and Anti-Terror Branch), or even counterguerrillas. She stated that, in the absence of any other possibility, “it was normal to conclude that a person with a political identity, opposing the State's official policy, could be in the hands of such organisations. They are responsible for many extra-judicial killings and this is acknowledged by the State authorities from time to time. Also, the fact that someone has entered my house secretly by opening the door with a key and the fact that I have been followed makes my conclusion stronger”. She asked the Ankara Security Directorate to search for her husband.
32. On 3 May 1996 the applicant sent a similar letter to the National Intelligence Service, asking whether this service held any information about her husband's disappearance.
33. On 3 May 1996 the applicant further sent a letter to the Istanbul Governor, informing the Governor that her husband had disappeared since 1 April 1996, that in the past her husband had been arrested many times for political reasons and, prior to his disappearance, her husband had been followed by the police. She further informed the Governor that she had applied to the public prosecutor, Governor and Security Directorate in Edirne, various Edirne police stations, the hospitals and morgues in Edirne. She further stated that she had applied to the Istanbul Security Directorate, the public prosecutor at the Istanbul State Security Court, prisons and the Forensic Institute. She also mentioned having applied to the Human Rights Association, Amnesty International, Helsinki Watch and other non-governmental organisations, the Prime Minister, the Ministry of the Interior and the National Security Directorate in Ankara. She asked the Governor to investigate the matter. On 6 May 1996, the applicant sent a similar letter to the Edirne Governor.
34. On 3 May 1996 the applicant filed a further petition with the Fatih public prosecutor, requesting an investigation into her husband's disappearance. She gave a description of her husband and asked the prosecutor to compare her husband's fingerprints with those of the unidentified bodies that had been or might be found within the prosecutor's jurisdiction. She stated that her husband had been arrested in the past and that the authorities should have his fingerprints on record.
35. On 23 September 1996 the applicant filed a petition with the Küçükçekmece public prosecutor, in which she stated that she had been harassed and threatened by some persons whom she believed to be State agents. The applicant requested the prosecutor to identify these persons and to prosecute them.
36. On 10 September 1997 the applicant's lawyer filed a petition on behalf of the applicant with the Edirne public prosecutor, informing him that Talat Türkoğlu was still missing and that the applicant's petitions to various authorities and institutions had not given rise to any results. In the petition, it is further stated that it had appeared from a confession made by a counterguerrilla, Kasım Açık, that Talat Turkoğlu was questioned in Çadırkent near Edirne by a gang consisting of police officers, soldiers and itirafçılar (defected members of an illegal organisation who provide the authorities with information about that organisation) and led by Mahmut Yıldırım, alias Yeşil. According to this statement, Talat Türkoğlu had been tortured and subsequently killed by Murat Demir and Murat İpek, who later threw his body in the river Meriç. A transcript of the tape-recording of this statement given by Kasım Açık as well as a sketch map, signed by Kasım Açık, of the place where Talat Türkoğlu had been killed were joined to the petition. The public prosecutor was requested to take these elements into consideration in his investigation and to provide information about the unidentified bodies found in or around the river Meriç. The public prosecutor was further informed that Murat Demir and Murat İpek were currently being held in the Metris prison in Istanbul.
37. On the same day, the applicant's lawyer sent a similar letter to the Edirne Governor. On 10 September 1997 the applicant's lawyer also requested the Edirne Institute of Forensic Medicine to compare the fingerprints of Talat Türkoğlu with those of all unidentified bodies and to provide any information that might be helpful.
38. On 15 April 1996 the Edirne public prosecutor requested the Edirne Security Directorate to take a statement from Zeyneti Türkoğlu, to search for Talat Türkoğlu and to distribute his photograph to all police stations in Turkey.
39. On 19 April 1996 the applicant gave a statement at the Ayşekadın police station in Edirne about her husband's disappearance. She declared that her husband had a business in Istanbul selling building materials, that he had no debts and that in any event debts would not prevent him from coming home, that he had no family problems and that she feared for his life. She requested the police to conduct a search for him.
40. On the same day, Zeyneti Türkoğlu gave a statement at the Ayşekadın police station in Edirne. She declared that her son had left her home on 1 April 1996 in order to return to Istanbul and that he had since disappeared. She confirmed that on 15 April 1996 she had filed a petition with the Edirne public prosecutor. The family unsuccessfully searched for her son and she feared for his life. She described Talat Türkoğlu, who was born in 1951, as being 180 cm. tall, weighing about 78 kilogrammes, having a dark complexion and a scar on his right cheek. She requested the police to conduct a search for him.
41. On 2 May 1996 the Ayşekadın police station in Edirne transmitted the statements taken on 19 April 1996 from the applicant and Zeyneti Türkoğlu to the Edirne Security Directorate, informing the latter that police officers of the Ayşekadın station had searched for Talat Türkoğlu at certain addresses and that his photograph had been distributed to all police stations in Turkey. The Edirne Security Directorate was requested to transmit the file to the public prosecutor.
42. On 6 May 1996 the Fatih public prosecutor transmitted the applicant's petition of 3 May 1996 to the Istanbul Security Directorate, requesting the latter to investigate the matter.
43. On 24 May 1996 the Edirne Provincial gendarmerie headquarters informed the Edirne public prosecutor that Talat Türkoğlu was not detained by them, that they had searched for him and that they had set up road check points. Their search remained unsuccessful, but they would continue to search for him.
44. On 30 May 1996 the Edirne Security Directorate informed the Edirne public prosecutor that Talat Türkoğlu had been arrested in 1980 in Ankara for membership of the prohibited TKP/B party (Türkiye Komünist Partisi Birlik). He was released on bail after having been detained for 13 months and 17 days. He was arrested again for the same reasons in Istanbul in 1984. He was released on bail in 1989. Without giving any dates, the letter further states that Talat Türkoğlu had been arrested in Istanbul on a third occasion, this time for membership of the prohibited TDP party. He was detained and subsequently released on bail. On 21 September 1994 Talat Türkoğlu was arrested in Havsa (near Edirne) on a fourth occasion. He was arrested together with four other persons. On the same day, Talat Türkoğlu was handed over to the Istanbul police, who brought him to Istanbul, where he was detained on remand. The letter finally states that, since 21 September 1994 Talat Türkoğlu, who had now allegedly disappeared, had not been arrested or detained in Edirne.
45. On the same day, the Istanbul Security Directorate instructed the Fatih Security Directorate to take a statement from the applicant and to search for her husband.
46. On 10 June 1996 the Edirne Provincial gendarmerie headquarters sent a letter to the Edirne public prosecutor with the same contents as the one sent on 24 May 1996.
47. On 19 June 1996 a statement was taken from the applicant at the Fatih police station. She confirmed that on 3 May 1996 she had filed a petition with the Fatih public prosecutor and repeated the contents of this petition. The applicant provided the police with a passport photograph of her husband and his physical and personal particulars. These elements and the photograph put on record included in a pro-forma document that was transmitted to the other police forces involved in the investigation.
48. On 27 June 1996 the Fatih public prosecutor sent the same instruction as the one sent on 6 May 1996 to the Istanbul Security Directorate.
49. On 2 July 1996 the Fatih Security Directorate informed the Fatih public prosecutor that they had taken a statement from the applicant and that they were searching for her husband.
50. On 10 July 1996 on the basis of the criminal complaint filed by the applicant, the Fatih public prosecutor issued a decision not to take any criminal proceedings in relation to the disappearance of Talat Türkoğlu as no suspect had been identified.
51. In his letters of 9 August and 9 September 1996 the Edirne public prosecutor asked the Istanbul public prosecutor whether Talat Türkoğlu was being detained in Istanbul.
52. On 17 January 1997, in reply to a request of 14 January 1997 for information about the stage reached in the investigation into the disappearance of Talat Türkoğlu, the Edirne public prosecutor informed the Edirne chief public prosecutor that the investigation was still ongoing.
53. On 21 May 1997 the Edirne public prosecutor instructed the Edirne Security Directorate to search for Talat Türkoğlu and to inform all other police forces of this search. On the same day, he sent a similar letter to the Edirne gendarmerie command, including a request for the search of Talat Türkoğlu by the Edirne gendarmerie and to inform all other gendarme forces of this search.
54. On 26 May 1997, the head of the Edirne Security Directorate informed all police forces under its command of the investigation into the disappearance of Talat Türkoğlu, ordered them to request all police forces in Turkey to search for Talat Türkoğlu and to inform him of any findings. A notification to this effect was in fact addressed on 28 May 1997 to all police forces in Turkey.
55. In a report dated 26 June 1997 and signed by three gendarmes, it is stated that Talat Türkoğlu had not been detained by them in the past. The report further states that the gendarmerie forces had searched for Talat Türkoğlu in all villages within their jurisdiction and that they had found no one who had known anything about him. The report contains no indication of the gendarmerie station to which its authors were attached.
56. On 3 July 1997, in reply to the letter of 21 May 1997, the Edirne gendarmerie command informed the Edirne public prosecutor that Talat Türkoğlu had never been detained by the gendarmerie and that they had no clues as to his whereabouts.
57. By letter of 12 September 1997 the Edirne public prosecutor asked the Uzunköprü public prosecutor whether any unidentified bodies had been found in his jurisdiction and, if so, to provide him with details thereof. On the same day, the Edirne public prosecutor sent a similar letter to the public prosecutors of respectively Meriç, Enez, Kesan and İpsala.
58. On 18 September 1997 the Meriç public prosecutor transmitted to the Edirne public prosecutor the autopsy reports on two bodies found on 21 May 1996 and 19 June 1997 respectively in his area of jurisdiction, as well as two photographs taken of these bodies.
59. On 19 September 1997 the Enez public prosecutor informed the Edirne public prosecutor that there were no pending investigations of unidentified bodies found in his area of jurisdiction and that his department had no records on Talat Türkoğlu.
60. On 15 October 1997 the Ministry of the Interior requested the Istanbul Security Directorate to provide information on the investigation carried out as to the allegations made by the applicant in her application to the European Commission of Human Rights.
61. On 22 October 1997 the Uzunköprü public prosecutor informed the Edirne public prosecutor that no unidentified bodies had been found in his area of jurisdiction.
62. On 10 November 1997 the Edirne public prosecutor ordered the Edirne Security Directorate to summon Zeyneti Türkoğlu to his office.
63. On 11 November 1997 the International Law and Foreign Relations Department of the Ministry of Justice requested the Edirne public prosecutor to be informed of the actions undertaken so far in respect of the applicant's account of the disappearance of her husband and related incidents involving herself (the repeated intrusion of unknown persons in her apartment, and her being followed and insulted by plain-clothes policemen) as set out in her application form submitted to the European Commission of Human Rights. The Edirne public prosecutor was further requested to transmit a copy of each document in the file on the investigation.
64. On 13 November 1997, the İpsala public prosecutor transmitted to the Edirne public prosecutor autopsy reports on four unidentified bodies found in or near the river Meriç since 1 April 1996.
65. On 20 November 1997, after having examined the autopsy reports and photographs that had been sent to the Edirne public prosecutor, Hasan Türkoğlu - the brother of Talat Türkoğlu - gave a statement at the public prosecutor;s office in Edirne that he had not recognised his brother on the photographs and that the descriptions of the bodies found in the autopsy reports did not correspond to his brother's physical appearance.
66. On 24 November 1997 the Istanbul Security Directorate informed the Ministry of the Interior that Talat Türkoğlu had been arrested and detained on 21 September 1994 for membership of the TDP, and that on 5 October 1994 the prosecutor at the State Security Court had ordered his detention in custody. Since that date, no search warrant for Talat Türkoğlu had been issued. The letter further states that, following the applicant's petition of 3 May 1996, the police had been informed and that on 21 May 1996, in the absence of any satisfactory results, all police forces had been notified. Furthermore, the Istanbul chief public prosecutor and the prosecutor at the Istanbul State Security Court were informed of the case. The applicant was given detailed oral information about the investigation and was told that everything would be done to resolve the matter. The letter finally states that, during a search in the house of C.D., who had been arrested on 18 May 1997 for his activities in the TDP, press releases issued by the TDP were found stating that one of the murderers of Talat Türkoğlu, Kasım Açık, had been killed by way of punishment.
67. On 5 December 1997, in response to the request of 11 November 1997, the Edirne public prosecutor informed the Edirne chief public prosecutor that, despite all efforts made, Talat Türkoğlu could not be found and that the investigation was continuing.
68. On 19 January 1998, in reply to a letter of 5 September 1997, the Edirne gendarmerie headquarters informed the Edirne Security Directorate that in 1997 no unidentified body had been found in their area of jurisdiction.
69. On 10 February 1998 the Edirne Security Directorate informed the Edirne Security Directorate responsible for Public Order that Talat Türkoğlu had been arrested by the Edirne police on 21 September 1994 for membership of the TDP and that he had subsequently been transferred to Istanbul. Since that date, Talat Türkoğlu was not arrested or detained by the Edirne police department.
70. On 10 February 1998 the Edirne Security Directorate informed the Ministry of the Interior in Ankara that the search for Talat Türkoğlu was ongoing and that it was established that the allegations made in the applicant's letter sent to the Edirne Security Directorate were unfounded since his body had not been found in or near the river Meriç and since no unidentified bodies had been found in this river in 1996 and 1997. The letter finally states that the investigation is being pursued.
71. On 20 February 1998, the International Law and Foreign Relations Department of the Ministry of Justice informed the Ministry of Foreign Affairs that, according to a letter of 10 February 1998 from the Edirne public prosecutor, Talat Türkoğlu had not left the country after the date of his disappearance.
72. None of the documents submitted contain a reference to a petition filed by seventeen persons detained in Bursa, requesting an investigation into the disappearance of Talat Türkoğlu.
73. The statement consists of five typed pages. At the bottom of each page the name “Kasım Açık” is written by hand and is followed by an illegible signature. In this statement, Kasım Açık declares that he was born in 1979 in Çayırköy, in Ağrı and that in November 1994 he moved to Çorlu, a town close to Edirne. He found a job in a flour factory in Çorlu and met Murat İpek, Murat Demir and their friends. Together with these persons, he socialised with the police commissioner Mustafa Karagöz and the two police officers, Ersan and Ahmet. They used to go to the Ülkü Ocakları, where they met a person called Atalay.
74. Kasım Açık admitted in the statement that he had participated in the killing of a number of persons in the Edirne area in 1995, including Düzgün Tekin, whose body had been buried on a rubbish dump near Çadırkent (place near Edirne) and that he had participated in extorting money from businesses in the Edirne area. Kasım Açık and his friends used to spend the proceeds thereof with some police officers and they gave some of this money to the Ülkü Ocakları. In the statement, Kasım Açık further claims to have gone to Diyarbakır, where he and others received one week's training by the military and subsequently participated in operations in various places in south-east Turkey. He further admitted having participated in the killing of an unspecified number of persons in and near Diyarbakır.
75. Kasım Açık acknowledged that, after his return to Çorlu, he had infiltrated the MLKP and passed on information about the activities of this party to the police commissioner Mustafa Karagöz.
76. The statement also contains a detailed description of the killing of Talat Türkoğlu. The statement, insofar as relevant reads:
“We then went to Çadırkent in two cars and took Talat Türkoğlu there with us. Murat Demir and also a commander were with us. Talat was in the car in front of our car and we drove him to a place near River Meriç. There, Apo and I took him out of the [car] and they killed him. He [Talat Türkoğlu] was wearing a wrist-watch, it looked like an old style 'Seiko'. He also had a wallet and a small notebook. He was wearing a dark blue suit. After they killed him, Apo and I threw his body into the river. We then came back to Çadırkent and dropped the commander outside Çadırkent. When we took Talat Türkoğlu there he looked as if he had been tortured, his clothes were dirty.”
77. In this statement, Kasım Açık admitted having been involved, around the time of the killing of Talat Türkoğlu, in the killing of a number of other persons, including Faruk Coşkun and Tarık Ümit.
78. The sketch map drawn and signed by Kasım Açık indicates two cars, one parked behind the other, in an area with trees and what appear to be buildings. The cars are parked at a distance indicated as being about 100 metres from the river Meriç. Three persons are indicated at the left side of the car parked in front. The manner in which these three persons are drawn appears that two persons are aiming a firearm at the third person. Two further persons are indicated as standing in front of the first car watching the scene. The sketch map contains the text “sketch map of the place where we killed Talat Türkoğlu”.
79. On 9 March 1998 the International Law and Foreign Relations Department of the Ministry of Justice informed the Ministry of Foreign Affairs that it appeared from a document in the investigation file of the Edirne public prosecutor that Kasım Açık's whereabouts had not yet been established, but that his record had been obtained. The letter further states that, on 24 February 1998 the Edirne Magistrate's Court was requested to issue a warrant for the arrest of Kasım Açık. This request was rejected by the Magistrate and an appeal against this decision was pending.
80. On 5 May 1998 the International Law and Foreign Relations Department of the Ministry of Justice informed the Diyarbakır public prosecutor of the nature of the applicant's case before the European Commission of Human Rights and of the statement given by Kasım Açık. The Diyarbakır public prosecutor was requested to investigate the accuracy of the account given by Kasım Açık in his statement.
81. In a letter of 29 May 1998 the Çorlu public prosecutor informed the Tekirdağ public prosecutor that an investigation had been carried out of Kasım Açık's allegation that a gang had killed two persons named Cengiz and Faruk. The place where these two persons had allegedly been buried had been excavated but no bodies had been found. Local records had been verified and local people had been questioned, but without any results. An investigation of the activities of Kasım Açık and nine others had been carried out in 1996 and the file on this investigation had been sent to the Istanbul State Security Court. The letter further states that Murat Demir, who - according to Kasım Açık - killed Talat Türkoğlu, used to live in Çorlu and that in 1996 an investigation against Murat Demir and Musa Şahin, an NCO, was carried out in relation to a murder. This investigation file was sent to the public prosecutor in Tekirdağ.
82. On 4 June 1998 the International Law and Foreign Relations Department of the Ministry of Justice informed the Ministry of Foreign Affairs that Kasım Açık had been charged with membership of the Çorlu branch of the prohibited MLKP/EHB, with having thrown Molotov cocktails and having distributed propaganda leaflets. He was placed in pretrial detention on 28 January 1997 and, on 20 February 1997, was transferred to Gebze Prison, where he was strangled to death on 18 May 1997. This letter further states that the fact that his confessional statement was made during his imprisonment cast doubts on its authenticity.
83. On 16 June 1998 the Ankara Security Directorate informed the Research, Planning and Co-ordination Board of the Ministry of the Interior that Kasım Açık had been searched on suspicion of having been involved in the commission of arson and involvement in bombing incidents. He was apprehended on 28 January 1997 and killed in prison on 18 May 1997. The letter further states that, after the arrest of C.D., the police conducted a search of the house of this person where they found documents published by the TDP stating that “Kasım Açık, one of the murderers of Talat Türkoğlu, has been punished by death”. C.D. was released on 24 May 1998 upon instructions of the public prosecutor. No action was taken against him in relation to the documents found at his home.
84. On 16 June 1998 the Lice chief public prosecutor issued a decision of non-prosecution in relation to the crimes alleged to have been committed by Kasım Açık. The public prosecutor noted in his decision that, in his confession statements, Kasım Açık had not given the names of the victims, their village or the places where they had been buried. He pointed out that, according to the records of May-August 1995, no offence of abduction, murder or ill-treatment has been reported to the police, gendarmerie or judicial authorities within the district. The public prosecutor further noted that he had taken statements from fifty-one muhtars (mayors) of the villages and neighbourhoods of the Lice district. The muhtars all stated no one in their village or neighbourhood had disappeared or killed in June and July 1995, contrary to what was alleged by Kasım Açık. The public prosecutor concluded that there was no reason to continue the investigation into the alleged crimes given the fact that Kasım Açık has died and that therefore it was impossible to question him in relation to his allegations.
85. On 17 June 1998, with reference to the letter of 5 May 1998 from the International Law and Foreign Relations Department of the Ministry of Justice Minister and the letter of 6 May 1998 from the Diyarbakır public prosecutor, the Lice public prosecutor informed the Diyarbakir public prosecutor that his investigation had been completed. He transmitted a copy of each document in the investigation file.
86. By a letter of 23 June 1998 the Silvan Public Prosecutor informed the Diyarbakır chief public prosecutor's office that no evidence could be obtained in relation to the alleged crimes committed by Kasım Açık given the fact that, in his confession statements, the latter had not specified in which crimes he had been involved.
87. On 26 June 1998 the Diyarbakır public prosecutor informed the International Law and Foreign Relations Department of the Ministry of Justice that the investigations conducted by the public prosecutors of, respectively, Lice and Silvan in relation to the alleged incidents as related in the statement of Kasım Açık had been completed. He transmitted a copy of each document in those investigation files.
88. On 16 September 1998 the Diyarbakır chief public prosecutor issued a decision of non-prosecution in relation to Kasım Açık as a result of the death of the latter.
89. In 2001 an examination was carried out into the authenticity of the documents allegedly signed by Kasım Açık. In this connection, the arrest and body search protocols and the documents containing Kasım Açık's confession statements were examined at the Criminal Laboratory of the General Security Directorate. Graphological comparison test of the handwriting and signature on the documents indicated that the said documents had been signed by two different persons. The experts were of the opinion that the arrest and body search protocols were signed by one person and the confession statements were signed by another person. However, they could not reach a certain conclusion as the documents in question were not the original copies.
90. On 3 July 1997 the Gebze public prosecutor requested the Kartal public prosecutor to open a criminal investigation against Ayhan Güneş and eighteen others in respect of the killing of Kasım Açık.
91. On 8 July 1997 Ayhan Güneş and four other prisoners were charged with the killing of Kasım Açık and summoned to appear before the Kartal High Criminal Court (Ağır Ceza Mahkemesi). Ayhan Güneş was detained on remand in the Gebze prison awaiting the outcome of his trial on charges of membership of the MLKP.
92. During the hearing before Kartal High Criminal Court on 19 March 1998 Ayhan Güneş admitted that he had strangled Kasım Açık with a piece of rope. He contended that Kasım Açık had suffered from psychological problems, that he had been very anti-social and that not been liked by any of the other inmates. On the day he was killed, Kasım Açık had provoked Ayhan Güneş by criticising the book that the latter had been reading. Ayhan Güneş finally stated that he had acted alone and that no other inmate had been involved in the killing.
93. On 11 June 1998, the public prosecutor requested the court to drop the charges against the four co-accused for lack of evidence and the fact that Ayhan Güneş had admitted killing Kasım Açık. The public prosecutor sought the conviction of Ayhan Güneş for murder.
94. On 1 March 1999 the Kartal Assize Court convicted Ayhan Güneş of murder and sentenced him to fifteen years' imprisonment.
95. On 19 July 2001 the Court of Cassation upheld the above conviction but mitigated the sentence to ten years' imprisonment.
96. By letter of 15 November 1996, the Ministry of Foreign Affairs informed the International Law and Foreign Relations Department of the Ministry of Justice that the applicant had visited Australia, where she had given an interview. This interview had been reported in an article in Yorum, a newspaper published in Sydney. According to this article, the applicant had stated that her husband had disappeared on 1 April 1996 and that human rights violations and atrocities continued to occur in Turkey. During the applicant's stay in Australia, she visited Alevite and Kurdish organisations, and had meetings with Australian Parliamentarians and members of Amnesty International. She further organised a demonstration on 26 October 1996 in Sydney in support of the “Saturday Mothers”, which demonstration was attended by, inter alia, Australian-based Alevite and Turkish-Kurdish organisations. During this demonstration, it was stated that human rights violations continued to occur in Turkey.
97. According to an undated press release issued by the TDP, Kasım Açık had acted as a spy and had betrayed the organisation's confidential strategy. According to this press release, Kasım Açık had been tried under the rules of the TDP and had been sentenced to death for the murder of Talat Türkoğlu.
98. On 19 May 1997 the International Committee Against Disappearance (ICAD), an organisation in Turkey, issued a press statement and condemned the abduction and killing of Talat Türkoğlu.
99. For the relevant domestic law and background information, the Court refers to the judgments of Ülkü Ekinci v. Turkey (no. 27602/95, §§ 111-18, 16 July 2002) and Tepe v. Turkey (no. 27224/95, §§ 115-22, 9 May 2003).
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 2
5


ITEMID: 001-60171
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF DICHAND AND OTHERS v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The first applicant, an Austrian citizen born in 1921 and residing in Vienna, is the chief editor and publisher of the newspaper “Neue KronenZeitung”. The second applicant, a limited partnership (Kommanditgesellschaft) is the owner of this newspaper. The third applicant is a limited company, the general partner (Komplementär) of the second applicant. The second and third applicants have their places of business in Vienna.
10. The applicants belong to a large media group which at the relevant time was in strong competition with another media group represented by Mr Michael Graff, a lawyer practising in Vienna. Besides his profession as a lawyer, Mr Graff was from 1982 to 1987 secretary general of the Austrian People’s Party (Österreichische Volkspartei) and, from 1983 to 1995, a Member of Parliament for that party. Between 1987 and 1995 he was the Chairman of the Parliament’s Legislative Committee (Justizausschuß). From 1989 to July 1995 he represented the applicants’ competitor in several proceedings concerning unfair competition against companies belonging to the applicants’ media group.
11. In 1989 several Austrian laws were amended by the Extended Pecuniary Limits Amendment Act (Erweiterte Wertgrenzen-Novelle). The Government Bill (Regierungsvorlage) had also provided for an amendment to Section 359 § 1 of the Enforcement Act (Exekutionsordnung), a section which is of particular relevance for the enforcement of injunctions. The Government Bill had envisaged raising the fines that could be imposed for non-compliance with injunctions from ATS 50,000 per enforcement order to ATS 80,000 per enforcement order.
12. Under the chairmanship of Mr Graff, the Legislative Committee dealing with the Government Bill proposed a different version, namely that a maximum fine of AS 80,000 could be imposed for each request for enforcement (Exekutionsantrag) instead of for each enforcement order issued by the Enforcement Court. In its report of June 1989, the Legislative Committee pointed out that the fine had to be multiplied by the number of requests for enforcement, if only one decision combining several requests was taken. This proposal was adopted by Parliament on 29 June 1989 and published as Article XI of the Extended Pecuniary Limits Amendment Act, Federal Law Gazette 1989/343 (Erweiterte Wertgrenzen-Novelle 1989, BGBl. 1989/343).
13. Four years later, in June 1993, the following article written by the first applicant under the pseudonym “Cato” was published in the “Neue Kronen-Zeitung”:
“Moral 93
Before Roland Dumas became the French Minister for Foreign Affairs, he was one of Europe’s most famous and most successful lawyers. He administered the gigantic estate of Picasso; he represented Kreisky and an Austrian Minister for Foreign Affairs when the latter found himself in a bad situation. Dumas took it for granted that he had to give up his law firm when he became a member of the government. In every democracy of the world this course of action is followed. Only Mr Graff, who is obviously thick-skinned, does not intend to comply with these moral concepts.
It so happened that at the time when Mr Graff was presiding Parliament’s Legislative Committee, a law was amended which brought about big advantages for the newspaper publishers whom Mr Graff represented as a lawyer. In order to ensure that in such cases no suspicion, not even one that has no objective justification, can arise, there exists the wise rule of incompatibility; a lawyer is not allowed to take part in the adoption of laws which lead to advantages for his clients.
Also the Austrian People’s Party thought that way and they decided to appeal to Mr Graff’s conscience. In vain! It is very telling for the present situation of the Austrian People’s Party that it cannot convince Mr Graff. The other parties will be only too pleased, when it becomes so flagrantly evident how powerless the Austrian People’s Party is vis-a-vis one of their officials who has his own moral concepts. Mr Graff was even allowed to present his disreputable attitude on our monopoly-television. Mr Graff thought that it would be a sign of fear to the ‘Kronen Zeitung’ if he had to resign from the Legislative Committee.
The People’s Party does not have to fear the ‘Krone’ but its voters, who will continue turning away from it if the party shows itself incapable of establishing order within its own ranks; how could one then possibly trust that it would succeed in doing this in the State ... Cato.”
<German>
“Moral 93
Roland Dumas war, bevor er Frankreich’s Außenminister wurde, einer der bekanntesten und erfolgreichsten Rechtsanwälte Europas. Er verwaltete zum Beispiel das gigantische Erbe Picassos, vertrat Kreisky und einen österreichischen Außenminister, als dieser in eine arge Affäre geraten war. Für Dumas war es ganz selbstverständlich, daß er sein Rechtsanwaltsbüro aufgeben mußte, als er in die Regierung eintrat. Überall in der Welt wird dies in Demokratien so gehalten. Nur der offenbar mit einer Büffelhaut ausgestattete Rechtsanwalt Dr. Graff denkt nicht daran, sich nach solchen Moralbegriffen zu richten.
So kam es, während er im Justizausschuß des Parlaments den Vorsitz hatte, zur Veränderung eines Gesetzes, wodurch der Zeitungsverlag, den Graff rechtsanwaltlich vertritt, große Vorteile hatte. Damit in solchen Fällen nicht ein bestimmter Verdacht entstehen kann, der keineswegs begründet sein muß, gibt es eben die weise Regel der Unvereinbarkeit; ein Anwalt darf nicht an der Entstehung von Gesetzen beteiligt sein, die seinen Mandanten Vorteile bringen.
Das dachte man auch in der ÖVP, und man entschloß sich, Graff ins Gewissen zu reden. Vergeblich! Es sagt einiges über den Zustand der ÖVP aus, daß sie sich gegen Graff nicht durchsetzen konnte. Den anderen Parteien kann es nur recht sein, wenn sich in so brutaler Offenheit zeigt, wie ohnmächtig die Volkspartei gegenüber einem Funktionär ist, der seine eigene Moral hat. Sogar in unserem Monopol-Fernsehen durfte er seine anrüchige Haltung vertreten. Graff meinte, es würde nur Angst vor der ‘Kronen Zeitung’ signalisieren, berufe man ihn im Justizausschuß ab.
Nicht vor der ‘Krone’ braucht die ÖVP Angst zu haben, sondern vor ihren Wählern, die sich weiter von ihr abwenden werden, wenn sie sich als unfähig erweist, in der eigenen Partei Ordnung zu machen; wie sollte man da das Vertrauen haben, es könne ihr im Staat gelingen ... Cato.”
14. On 7 June 1993 Mr Graff brought injunction proceedings under Section 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) against the three applicants before the Vienna Commercial Court (Handelsgericht). He requested that the applicants be prohibited from stating or repeating that he “does not intend to comply with moral concepts existing in democracies all over the world, namely that one has to give up one’s law firm if one becomes a member of the government, (M.G. had never been a member of the government), and/or that he has taken part in the adoption of laws which have brought about advantages for his clients, and/or that he has been allowed to present his disreputable opinion on television”. He also requested that the statement be retracted and that this retraction be published in the “Neue Kronen-Zeitung”.
15. On 9 July 1993 the Vienna Commercial Court issued a preliminary injunction (einstweilige Verfügung) against the applicants prohibiting them from reiterating the impugned statements. The applicants’ appeal against this decision was to no avail.
16. On 9 September 1994 the Vienna Commercial Court granted a permanent injunction. It ordered the applicants not to repeat the impugned statements and to retract the statements in one edition of the “Neue KronenZeitung”. It found that the applicants’ statements amounted to an insult and therefore fell to be considered not only under Section 1330 § 2 of the Austrian Civil Code, but also under the first paragraph of Section 1330. In that case the onus of proof shifted to the applicants who had to prove the truth of the impugned statements. The court pointed out that all the statements contained in the article were statements of fact which the applicants had failed to prove.
17. The court found that the statement contained in the first paragraph of the newspaper article was an insult, within the meaning of Section 1330 § 1 of the Civil Code, because Mr Graff was accused of ignoring or neglecting moral, democratic standards and had therefore acted immorally. This statement contained the implicit allegation that Mr Graff had become a member of the government. However, the allegation was untrue because Mr Graff had never been a member of the government.
18. The court further considered that the statement in the second paragraph of the newspaper article expressed the suspicion that Mr Graff had abused his position as a Member of Parliament. The proposed evidence that should prove the truth of this allegation, namely the amendment of Section 359 § 1 of the Enforcement Act, was insufficient because the applicants had not even contended before the court that the amendment served the exclusive interest of Mr Graff’s client. In fact this amendment had an objective basis, concerned both competing media groups and had no distorting effect on competition.
19. In respect of the third statement according to which Mr Graff’s attitude was disreputable, the court found that this statement again contained the allegation that Mr Graff had acted immorally because he had exercised two incompatible activities. The court therefore concluded that the applicants could not successfully rely on Article 10 of the Convention, because the interference with the applicants’ rights under this provision was justified in order to protect Mr Graff’s good reputation, which could be prejudiced by such untruthful statements.
20. On 20 October 1994 the applicants appealed. They submitted that the Commercial Court had not sufficiently taken into account a written statement by E.S., an employee of the second applicant, which the applicants had submitted. According to this written statement, Mr Graff had requested the amendment to the Enforcement Act in order to impose a fine for each request for execution, thus exploiting one of the applicants’ weak points. The applicants were the owners of several monthly magazines. Unlike daily newspapers, these magazines were therefore usually on the market longer. If one of the applicants’ magazines, for instance, had violated the Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb), Mr Graff, as the legal representative of the competitors, had immediately obtained a preliminary injunction and had filed almost daily requests for enforcement. He had counted on the fact that the applicants could, in the long run, not afford to pay the fines, or that they could not afford the cost of withdrawing the relevant issue of the monthly magazine from distribution. Under the previous legal situation, several requests for enforcement would be combined in one decision, and the applicants had only had to pay one fine of AS 50,000 for them. Under Section 359 § 1 of the Enforcement Act in its amended form, however, the fines were multiplied by the number of requests and, consequently, increased dramatically.
21. Furthermore, the applicants complained that the Commercial Court had failed to take sufficient account of a written statement by their lawyer, S.R., and had refused to hear this person as a witness. He would have given evidence of a telephone conversation on 12 June 1989 between himself and Mr Graff in which the latter had complained that his requests for enforcement had not been successful and had not reaped the expected fines. He continued that this would require changes in the pecuniary limits and the system of fines. The applicants also submitted that the impugned article constituted a criticism of Mr Graff’s behaviour as a politician and was therefore protected by the freedom of expression guaranteed by Article 10 of the Convention.
22. On 15 December 1994 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicants’ appeal. It found that the Commercial Court had correctly taken the necessary evidence and assessed the relevant facts. The applicants had not even argued before the Commercial Court that Mr Graff had been a member of the government or that the amendment of the Enforcement Act had served the exclusive interests of Mr Graff’s client. Instead they had merely argued that Mr Graff, in his function as Chairman of the Legislative Committee, had been involved in the making of laws which created advantages for his client. The applicants therefore should have proved that Mr Graff had been a member of the government and that he had manipulated the enactment of laws to the exclusive advantage of his client. The evidence proposed by the applicants, however, had been insufficient to prove such allegations. Moreover, the contested statements were not value judgments, but (political) criticism based on alleged facts. Such criticism was only acceptable if the underlying facts were true. Since the applicants had failed to prove the truth of these facts, they could not rely on Article 10 of the Convention.
23. On 9 March 1995 the Supreme Court rejected as inadmissible the applicants’ extraordinary appeal on points of law (außerordentliche Revision). Referring to its previous case-law, the court pointed out that disparagement by means of untrue statements, even if made in the course of political debate, went beyond acceptable (political) criticism and could not be justified by a weighing of interests or by invoking the right to freedom of expression. This decision was served on the applicants on 10 April 1995.
24. Section 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows:
“(1) Everyone who has suffered material damage or loss of profit because of an insult may claim compensation.
(2) The same applies if anyone disseminates statements of fact which jeopardise another person’s credit, gain or livelihood and if the untruth of the statement was known or must have been known to him. In such a case the retraction of the statement and the publication thereof may also be requested ....”
VIOLATED_ARTICLES: 10


ITEMID: 001-91534
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ALİ KEMAL UĞUR AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 3. The applicants' ancestors emigrated to Anatolia from the Caucasus during the Ottoman-Russian War of 1877-1878. In 1920 the authorities gave them usufructuary rights to a piece of land located within the administrative division of the town of Kadirli, near Adana. Although they were able to use the land, they were not able to buy it. In 1926, when the Civil Code of the then newly founded Turkish Republic entered into force, it became possible for private individuals to own property.
4. Between 1924 and 1929 a Mr Ali Saip Ursavaş, who had been an army commander, a member of Parliament and a judge, forced the applicants' ancestors and a number of other villagers living in the same area of their land and registered the land in his own name and that of his wife.
5. A court case was brought in 1950s to challenge the registration of the land in the name of the Ursavaş family. In 1965 the applicants' ancestors applied to the Kadirli Title Deeds Registration Court (hereafter “the Kadirli Court”) and asked to be given permission to join the proceedings as interveners. This request was rejected on 7 April 1967.
6. An appeal lodged by the applicants' ancestors against the decision of the Kadirli Court was upheld by the Court of Cassation and the decision of 7 April 1967 was thus quashed.
7. The proceedings, which recommenced before the Kadirli Court in 1969, ended 14 years later with a decision of 21 July 1983. The Kadirli Court found in favour of the applicants' ancestors (as, by that date, some of the applicants had started taking part in the proceedings themselves, for practical reasons those applicants as well as the ancestors of the younger applicants will hereafter be referred to as “the applicants”) and ordered the registration of the land in their names in the Land Register.
8. An appeal lodged by the Treasury and the heirs of Ali Saip Ursavaş against the decision of 21 July 1983 was upheld by the Court of Cassation on 13 November 1984. The decision of 21 July 1983 was thus quashed. A revision request made by the applicants was also rejected.
9. Proceedings recommenced before the Kadirli Land Registry Court in 1987. These proceedings continued for nine years and ended on 4 March 1996. In its decision the Kadirli Land Registry Court rejected the applicants' claims in respect of plots nos. 1-3, and severed the proceedings in so far as they concerned plots nos. 4-6.
10. In the meantime, on 10 May 1994 five of the applicants, namely Gülşen Başdoğan, Akif Ugur, Salih Ugur, Mahmut Nedim Ugur and Cevriye Ugur, gave a power of attorney to Hanifi Ugur to represent them in all proceedings in Turkey.
11. On 18 July 1997 the applicants appealed against the decision of 4 March 1996 in so far as that decision concerned their entitlement to plots nos. 13. This appeal was rejected by the Court of Cassation on 6 July 1999. The Court of Cassation upheld the requests made by a number of other persons who were also participating in the proceedings in respect of plots nos. 13 and quashed the decision of 4 March 1996 in so far as it concerned those persons' claims. A new set of proceedings in respect of those persons' entitlement to plots nos. 1-3 began.
12. A request made by the applicants on 8 November 1999 for a revision of the decision was rejected on 6 June 2001 and the decision of 4 March 1996 thus became final in so far as it concerned the applicants' entitlement to plots nos. 1-3. The proceedings concerning other persons' entitlement to plots nos. 1-3 continued.
13. In 1996 new proceedings started before the Kadirli Land Registry Court in respect of plots nos. 4-6. These proceedings ended on 24 June 1997 with a decision in which the applicants' claims in respect of plot no. 4 were rejected. The applicants appealed on 23 February 1998.
14. On 9 October 2000 the Court of Cassation quashed the decision of 24 June 1997 and decided that the proceedings concerning plots nos. 46 should be joined to the other pending proceedings which concern other persons' entitlement to plots nos. 1-3.
15. The proceedings concerning both sets of plots were thus joined and they are still continuing with the participation of several hundred heirs of the original plaintiffs and of the Ursavaş family.
16. The names of only two of the applicants - Mr Ali Kemal Ugur and Mr Ömer Lutfi Ugur - feature in the petitions submitted to the domestic courts and in the decisions rendered by those courts.
VIOLATED_ARTICLES: 6


ITEMID: 001-22752
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: JOHANSEN v. NORWAY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Mrs Adele Johansen, is a Norwegian national, who was born in 1960 and lives in Skive, Denmark. She is represented before the Court by Mr G. Kvande, a lawyer practising in Oslo.
The present proceedings concern essentially the Norwegian authorities’ decision on 19 November 1997 to authorise, without the applicant’s consent, the adoption of her daughter S. by her foster parents and their refusal to grant the applicant a right to regular access. They are a sequel to the case which the Court decided in its judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III (hereinafter referred to as “Johansen I”). That case concerned in the main the compulsory taking into care by the Norwegian authorities of the applicant’s daughter S. shortly after her birth in December 1989, their subsequent refusal to terminate the care order and the deprivation of the mother’s parental rights and access. In its judgment the Court held, inter alia, unanimously that neither the care order nor the fact that it remained effective gave rise to a breach of Article 8 of the Convention; and by eight votes to one that the local Client and Patient Committee of Røa’s (“the Committee”) decision of 3 May 1990, in so far as it deprived the applicant of her access and parental rights in respect of her daughter, constituted a violation of Article 8. As regards the case now under consideration it is important to note that the finding of a violation was confined to that decision and that the Court did not express an opinion on the question of S.’s adoption by her foster parents, which had not yet been decided by the national authorities.
For the background to this case the Court refers firstly to Part I of Johansen I (pp. 985-996, §§ 9-29).
The facts of the case, as presented by the applicant, may be summarised as follows.
Pending the outcome of the aforementioned proceedings before the Court in the Johansen I case, the County Governor (fylkesmannen) of Oslo and Akershus suspended the processing of an application for the adoption of S. that had been made by her foster parents on 31 January 1992.
Following the Court’s judgment of 7 August 1996, the applicant was informed in October that the adoption proceedings would resume. A psychologist, Ms Karin Hassel, was commissioned to carry out an investigation. On the basis of her report of February 1997, a request for authorisation to adopt was submitted to the Akershus County Social Welfare Board (fylkesnemndea- hereinafter “the County Board”). The matter was discussed in April 1997 and again in October 1997, before a differently composed Board. Before the Board the applicant recognised that S. was in a good foster home and that would grow up there but opposed adoption. She said that she wished to have contact with her daughter and feared that, in the event of adoption, the decision would be left to the foster parents. She was not confident that they would allow her the necessary contact and so requested access.
On 19 November 1997 the County Board decided to authorise adoption of the child by her foster parents. It found no reason to take any decision on the applicant’s access to S. until after the adoption, which was to be arranged as soon as possible.
Under section 4-20 of the 1992 Child Welfare Services Act (lov om barneverntjenester), where a child had been taken into compulsory care and where the parents had been deprived of their parental responsibilities for it, the County Board was empowered to authorise adoption if (1) it was likely that the parents would be permanently unable to provide suitable care or (2) the child had become so attached to persons and his or her environment that serious difficulties would result if he or she were to be removed, provided that adoption was in the child’s best interests and the foster parents had shown that they were able to raise the child as their own.
In the absence of an updated assessment of the applicant’s suitability as a carer, the County Board proceeded on the assumption that she was not permanently unable to provide care. It focused its consideration of the adoption issue on the criterion mentioned under item (2) above, that is to say whether S.’s attachment to persons in her current environment meant that her removal would lead to serious difficulties for her.
The County Board was satisfied that the foster parents were clearly suitable as carers for S. It emphasised that S., who was then 8 years old, had lived in the foster home practically all her life. She was old enough to be fully conscious of her foster parents being her only parents and of her own growth; which suggested that she should live with the foster parents until she reached maturity. While there were no social ties between S. and the applicant, there were clear ties between her and the foster parents whom she perceived as her psychological parents. If she were to leave the foster home, it was most uncertain that she would be able to establish basic ties with new carers, as such ties normally developed before the age of three. Removing her from the foster home was likely to entail serious difficulties for her, with an acute separation crisis, and traumatic despair and insecurity. Thus the County Board considered that the second ground for adoption was fulfilled and the applicant did not dispute that. Nor did she request that S. be returned to her. What she did not seem to accept was the definitive character of an adoption, which suggested that she might wish to seek to be reunited with the child later.
Adoption would moreover be in S.’s best interests. S did not consider herself a foster child and thus had a very strong attachment to her foster parents. However, the fact that she had not yet been adopted seemed to have caused a feeling of insecurity, both on her own part and on the part of the foster parents. As pointed out by the experts, the need for security was a weighty argument for preferring adoption to continued foster care. A lifelong attachment to her foster family would offer a number of advantages to S. later in life.
The Board did not reject the applicant’s wish to have access. It emphasised that the child would soon need to become familiar with and have contact with her biological mother. This was a process that needed to take place over time but should start immediately. For the time being it was not advisable to arrange for regular access. The experience of the first contact would necessarily be an important guide for determining how access should be arranged in the future. While S. would probably enjoy having contact with her biological mother and half-siblings, that contact could in no way compensate for a loss of a sense of belonging to the foster family. The County Board was confident that the foster parents would exercise appropriate discretion in facilitating access once the child was ready to meet the applicant and would seek the assistance of the child care authorities. Adoption clearly was in the child’s best interests, which outweighed the mother’s interest in enjoying a right of access.
On 8 January 1998 the applicant instituted proceedings before the Oslo City Court (byrett), requesting it to set aside the County Board’s administrative decision as being unlawful. On 13 January 1998 the County Governor authorised adoption but the matter was subsequently suspended pending the outcome of the judicial proceedings.
The first meeting between S. and the applicant took place on 30 October 1999. During the meeting, the applicant did not call S. by her current Christian name but by the name she had given her at birth. The applicant told her that her brothers and sisters missed her and asked her to come to live with them in Denmark. She gave S. a letter from her younger brothers and sisters in which they also asked her to come to live with them and which enclosed one half of a piece of jewellery that would be joined together with the other half and hung up on the wall when she came home to her mother in Denmark.
Later the foster parents noted that S. experienced nightmares in which she dreamed of losing her mummy and daddy (the foster parents). She frequently complained of headaches, which she had not done previously.
In February 2000 S.’s feelings of insecurity were reinforced when the applicant was observed in the company of another person near S.’s school and home asking pupils at the school if they knew where she was. The applicant had also rung the doorbell of S.’s foster father’s house, but no one had been at home. The applicant had been observed by a neighbour who had recognised her from a television interview she had given the day before in connection with questions that had been put in relation to the case during question time in the Parliament (Storting). Following that incident, S. had said that she was frightened that the applicant might come and take her away. During the school breaks she no longer dared to be outside. She refused to go to bed at night unless one of her foster parents sat with her, she had frequent nightmares and was afraid of falling asleep.
During the winter of 2000, S. expressed the wish to meet her younger half-siblings and her older half-brother, D, on her mother’s side. She was particularly interested in meeting D., but did not wish to meet her biological mother again. The meeting took place on 2 May 2000. D was not present. S. was not told beforehand that he would be absent, but the meeting with the half-siblings was held nevertheless. S. accepted the applicant’s presence on condition that a psychologist of the child care services, Sissel Unger, accompanied her. The meeting itself took place at a preventive centre, “Midtimellom” and went well, except that S. was still called by her former name and the half-siblings persisted in asking her to come to their home in Denmark.
TV2 had secretly filmed the children outside afterwards, having been informed of the event by a person acting on behalf of the applicant. S. had not been aware of this and was very upset when the recording was shown on television that evening.
By a judgment of 19 July 2000 the City Court: (1) upheld the County Board’s decision of 19 November 1997 to authorise adoption and to refuse access pending a final decision on adoption; (2) dismissed the applicant’s requests for a declaratory judgment (fastsettelsesdom) that she had parental responsibility for S. and rights of access, for an order restoring parental responsibility and care to her and for the case to be transferred to another child welfare office.
By a further decision of 19 July 2000 the City Court also dismissed a petition by the applicant for a provisional grant of access and for a stay of execution of the County Board’s decision of 19 November 1997.
On 24 August 2000 the applicant appealed against the above judgment and decision to the High Court. On 22 February 2001 it dismissed the applicant’s appeal against the City Court’s dismissal of her claims under item (2) above, but allowed the remainder of the appeal to be heard, including the issue whether the applicant should have access in the event that adoption was refused.
Subsequently, the applicant brought various proceedings, notably before the City Court on 11 June 2001 claiming that the parental responsibilities for S. were vested in her and that she was entitled to access. On 21 August 2001 the City Court dismissed the latter application but agreed to hear the former. In addition, the applicant made an unsuccessful attempt to discontinue the appeal proceedings before the High Court.
In the appeal against the Board’s decision of 19 November 1997 the High Court, sitting with three professional judges, two expert lay judges and two other lay judges, held an oral hearing between 3 and 14 September 2001. The applicant and S.’s father, who were both represented by counsel, were heard, as were the social authorities. A senior child-welfare officer, Vibeke Bonne Øyri, appeared as an expert witness. Twenty-two other witnesses were heard and documentary evidence was adduced, including a revised report by the psychologist Ms Hassel of July 1999. In a separate room the judges took a statement from S. A record was made available to the parties.
In its judgment of 12 October 2001 the High Court upheld by six votes to one the City Court’s judgment regarding adoption and unanimously decided not to take any decision on access pending a final decision on adoption.
The High Court first interpreted the Court’s Johansen I judgment and noted that the finding of violation concerned only the Committee’s decision of 3 May 1990 to deprive the applicant of access and parental responsibilities and did not encompass subsequent decisions by the national authorities on the subject. The High Court proceeded on the assumption that the deprivation of parental responsibilities was lawful.
It then went on to examine whether the other conditions for adoption under section 4-20 of the Child Welfare Act were fulfilled, pointing out that the assessment ought to be based on the situation obtaining at the time of the judgment and what would be in the child’s best interests in the long run. In that regard, the High Court, supported by expert evidence, made inter alia the following observations:
“ It is not disputed that as at today [the applicant] is capable of caring for her child. Consent to adoption may however be granted if consideration of the best interests of the child so indicates.
S. is nearly 12 years old. For over 11 years she has lived with her foster parents. She is naturally strongly attached to them and to their family, and is fond of them. S. regards the foster parents as her parents and there can be no doubt that they are her psychological parents. S. states clearly that she wishes to continue living with her parents. The High Court considers it completely inappropriate to move S. to [the applicant] against S.’s will. [The applicant] also seems to accept this. The High Court also finds it extremely unlikely that S. would wish to move from her foster parents to Denmark before she reaches the age of majority. The child’s attachment to her foster parents, their family and the environment she knows in Norway is too strong for that, in addition to which she currently has feelings of antagonism against her biological mother. On the basis of the extensive evidence that has been presented, the High Court is in no doubt that these are S.’s own feelings and that she has not been influenced to feel this way. ...
The High Court finds no reason to doubt that S.’s foster parents have proved well suitable to bring up S. as their own child. On the basis of the case documents and testimonies from, among others, the child welfare authorities and the expert witnesses who have had contact with the foster parents, the High Court is confident that the foster parents have provided S. with a secure and caring upbringing. This impression was strengthened through the examination of the foster parents in court and through the Court’s conversation with S.
The foster parents have lived in separate houses since the start of 1999. The High Court finds that they are still in frequent contact with each other, and that they see each other several times a week. The Court finds furthermore that they sometimes stay overnight in each others’ homes, have contact with each others’ families and spend holidays and weekend excursions together. They both say that they are fond of each other but that, partly owing to the strain that the case has been for them, have felt a need to be alone. They are unsure about the future. They report that they have attempted to make permanent arrangement as to where S. is to live, but have gradually abandoned such arrangements. S. now moves freely between the houses and stays the night where it is most convenient for everyone. Neither the foster parents nor S. have said that this gives rise to any problems.
A rupture between parents usually creates problems for the children. However, the amount of strain involved is usually dependent on how the parents handle the situation in relation to the children and on whether there is a high level of conflict between the parents. ... S. reacted negatively to the situation at first. ... However, as a result of the way the parents tackled the problems and the apparent lack of conflict, as well as the close contact that the parents still have between themselves and together with S., she seems no longer to regard this as a major problem today. She hopes, naturally enough, that the foster parents will move together again, which she demonstrates, for example, by insisting on moving out of her mother’s room and leaving the double bed to her father when he stays the night there. The High Court finds that S. does not currently regard the fact that the parents live apart as a major problem, but that it is an arrangement she would prefer to be otherwise.
In the assessment of the High Court, the way the foster parents have tackled the care of S. in the situation to date indicates that they would also be suitable to bring up S. in the future, even if they should decide for a permanent separation possibly involving new partners.
The foster parents are not separated. The High Court finds it to be clear that the foster parents, in the sense intended by the Adoption Act, are to be regarded as a married couple. Their formal relationship should thus, pursuant to the Adoption Act, not preclude their joint adoption of S....
By means of its brief conversation with S., the High Court has received confirmation of the impression given by the remaining evidence in the case of a girl who, during the last year or two, has developed considerable personal problems. She expresses insecurity and fear, and begs to be listened to. She wishes to be a normal girl. She wants no more court cases. She wants to continue living with her foster parents and feels encroached upon by [the applicant] and her children. S. has no clear understanding of what adoption really entails. When she has stated that this is what she wants, in the High Court’s assessment, this is an expression of her perception of adoption as an arrangement that would ensure that she be allowed to continue living with her foster parents without needing to fear that [the applicant] can demand that she move to Denmark. She perceives adoption as a guarantee of peace and quiet, allowing her once to live like a normal child.
The High Court finds that it is S.’s relationship to her biological mother and the judicial proceedings which are the cause of her problems today. The emergence of [the applicant] has given S. a feeling of insecurity that she has difficulty in tackling. S. was at first curious to meet her biological mother. For some time, she had accustomed herself to the idea that her foster mother was not her biological mother. This process seems to have been supported and encouraged in a constructive way. The foster parents knew that this situation would arise and had already made contact with specialists to obtain advice about how best to handle it. Naturally enough, S. was motivated by her interest and curiosity to see the mother who had given birth to her. In the view of the High Court, S. had no idea that this meeting might manifest itself as a threat to the life she lived with the people she regarded as her parents and their family, her home, school, friends, etc....
The [first] meeting [held on 30 October 1999] must have been difficult for both parties, and [the applicant]’s actions can be explained by the loss she had felt for a number of years and by the fact that she had been informed only a few hours before the meeting that the daughter [bore a different Christian name]. However, the Court is in no doubt that the meeting was unfavourable for the relations between mother and daughter. S. was unprepared for the discovery that her mother did not want her to continue living with the foster parents and that she was apparently not accepted as S. The Court does not find it difficult to understand that S. was polite to [the applicant] during the meeting and said that she would like to visit her in Denmark. The girl was barely 10 years old. She was alone with her mother for the first time and, in this situation, would hardly want to hurt her mother’s feelings or oppose her directly.
[The applicant] has explained that, in her struggle for her daughter, she has been obliged to use all means at her disposal, including the media, to promote her case. This may explain her way of acting but, in the view of the High Court, also shows her lack of ability or willingness to understand that the media coverage had a negative and stressing effect on S., who was recognised by fellow-pupils, neighbours etc., and who was reminded of what she experiences as an insecure situation. The media coverage was the main reason why S. changed schools in January 2001. Thus, [the applicant]’s struggle for what she regards as fair treatment has caused S. to suffer. [The applicant] fails to acknowledge that S. reacts negatively to this.
[The applicant] has clearly stated that her aim is that S. shall come to live with her in Denmark and has demonstrated that she intends to employ all procedural means available in order to achieve this. In the High Court’s assessment, S. will be the loser in this process. She feels that her whole identity and existence are threatened and challenged, which makes her frightened, unhappy and insecure. S. is nearly 12 years old and is entering puberty. The High Court is convinced that she will suffer if the proceedings around her and [the applicant’s] struggle to get her back with her to Denmark do not end.
In the further assessment, the High Court is divided into a majority [all three professional judges, both expert lay members and one lay member] and a minority [one lay member].
The majority [six to one] holds the view that new actions must be expected from [the applicant] unless adoption is authorised. A typical example is the civil action that has now been brought before City Court in which [the applicant] claimed that she holds parental responsibility. In addition, claims for access, etc. must be expected. Consent to adoption will put a stop to this development. Orderly conditions can only be achieved by allowing the foster parents to adopt S. The legal proceedings for S.’s return will then be discontinued...
The majority holds furthermore the view that adoption would best ensure continued contact between S. and [the applicant] and her half-siblings. The foster parents have stated that they regard it as important for S. that such contact be maintained and developed. However, their condition is that it should take places on S.’s own terms. The majority perceives that the foster parents sincerely mean this, and that they feel it is in S.’s best interests to have such contact. They have themselves expressed the view that any hindrance to contact them would have a negative effect on S.’s relations with them in the long term. As an adoptive child, S. will have nothing to fear from [the applicant]. She will then know that it has been decided that she shall live with her adoptive parents, and that [the applicant] cannot do anything about it. The majority of the High Court regards it as natural and probable that S., within this framework, will gradually come to want more contact with her family in Denmark. If, on the other hand, consent to adoption is not granted, S. would continue to regard [the applicant] as a threat to her own existence and life situation and would be unwilling to have further contact with her. ...
On the basis of an overall assessment, the majority of the High Court considers that it will clearly be better for S. to be adopted by her foster parents than to grow up as a foster child.
On the basis of the majority’s assessment, the City Court’s judgment, in so far as it applies to consent to adoption, is upheld.
Affirmation of the City Court’s judgment entails that the High Court shall not decide on access.
A unanimous High Court holds the view that access should not be decided until a legally enforceable judgment has been passed. S. does not wish access arrangements to be made with [the applicant] at present. She has major problems and needs to be left in peace. In the assessment of the High Court, forced access with [the applicant] in such an interim period would have a disturbing effect on S. and reinforce the insecurity she feels as a result of the court cases. Access during the period until a legally enforceable judgment is passed is thus not regarded as being in S.’s best interests.”
The applicant sought to appeal against the above judgment to the Supreme Court, requesting a declaration that the County Board’s decision of 19 November 1997 was null and void and an order granting her regular access. On 29 January 2002 the Appeals Selection Committee of the Supreme Court refused the applicant leave to appeal, holding that the appeal manifestly had no prospects of success.