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Kaya v Turkey (1999) 28 EHRR 1
This case was heard before the first section of the European Court of Human Rights. It concerned the following articles of the Convention:
- Article 2 (Right to Life);
- Article 3 (Prohibition on Torture and Inhuman Treatment);
- Article 13 (Effective Remedies);
- Article 14 (Discrimination).1
In essence, the court was tasked with deciding (a) whether an individual had been unlawfully killed by state action, and (b) whether the failure to bring the perpetrator(s) to justice breached Article 13 as a consequence of discrimination against Kurds.
The deceased, Dr Hasan Kaya, practiced medicine in South-east Turkey. He would often treat Kurdish PKK activists who had been injured in clashes with the Turkish security forces. It is alleged that the Turkish authorities had harassed Dr Kaya and his associates on numerous occasions. This led Dr Kaya to fear that his life was in danger, suspecting that “the police were making reports on him and keeping him under surveillance.”2
On 23rd February 1993 an anonymous source tipped off Dr Kaya and his friend Metin Can (a human rights lawyer) about an injured PKK fighter who was hiding on the outskirts of town. They left to tend to him. They did not return. Later that evening, an anonymous phone call was received saying that both had been killed. The caller was said to sound like one of the men who gave the tip-off. Four days later, Kaya and Can’s bodies were found underneath a bridge. An autopsy confirmed that Kaya had been shot in the head while his hands were tied behind his back. There was clear evidence that Can had been tortured.
Investigations began to suggest State involvement in the deaths. Witnesses indicated that the police had intercepted Kaya and Can. The men would have needed to traverse eight official checkpoints to get to where their bodies were discovered. Local sources identified “contra-guerillas paid by the state” as the perpetrators.3 All of this was denied by the local police.4 However, they repeatedly failed to follow up on investigative leads. Further discrepancies in the information began to emerge (including a TV investigation), which further alluded to Gendarme (military police) involvement in the deaths. An official report for the Turkish Prime Minister, the ‘Susurluk Report’, seemed to reach the same conclusion. However, despite investigations and named suspects, no one was ever brought to account for the killings.
The applicant submitted that Dr Kaya was killed “either by undercover agents of the State or by persons acting under their express or implied instructions, and to whom the State gave support, including training and equipment.”5 They relied upon the Susulruk report as evidence to support this assertion.6 Kaya was at risk from violence, the State were aware of this, and as such, they could have taken steps to protect him. They also criticised the investigation, including the failure to complete adequate autopsies and forensic examinations, and the failure to follow up leads and locate possible suspects.7
The Turkish State rejected this, pointing out the Susurluk report was not an investigative document, serving purely to inform the Prime Ministers Office of events.8 They also pointed out that the State was dealing with a “high level of terrorist violence” that had killed over 30,000 Turkish citizens. With such “widespread intimidation and violence …. all state officials such as doctors could be said to be at risk, not only Hasan Kaya”.9 They defended the investigation, describing it as robust and pointing out that it would remain open until either solved, or twenty-years pass.10
The Court found a violation of Article 2, 3 and 13 “in respect of failure to protect life and ineffective investigation.” It deemed it not necessary to investigate Article 14.11
The Court observed that Article 2 “enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.”12 Although it could not be established beyond reasonable doubt that the State was directly responsible for the killing, the Court concluded that “strong inferences could be drawn on the facts of the case that the perpetrators were known to the authorities”. It also attached significance to the Susurluk report, which “took the position that the murder of Kaya was one of extra-judicial execution carried out with the knowledge of the authorities.”13
The court acknowledged the high number of conflict related fatalities, but noted the high number of “unknown perpetrator killings” of prominent Kurdish figures which had alleged contra-guerrila involvement. As a doctor “suspected of aiding and abetting the PKK”, the State should have known that he was at “real and immediate” risk of death.14
The case was significant in helping to explain and apply the complicated, contradictory reasoning in Osman v UK.15 In Osman, the ECtHR ruled that under Article 6 of the Convention, the police have a duty to adequately investigate killings. This means that the State potentially owes a duty of care towards citizens who are known to be at risk from dangerous people.16 However, the Court declined to find that this amounted to a breach of the Article 2 right to life.
In Kaya, the Court was prepared to take this extra step. Even though Kaya had not explicitly requested protection from the State, he was well known as a doctor offering support for a Kurdish minority in a volatile part of the country. Previous incidents meant that Dr Kaya was an identifiable individual who could reasonably of expected State protection.17 As a consequence, the States failure to adequately investigate and bring those responsible to justice meant that it failed to prevent the death and prevent any potential repetition, therefore breaching Article 2.18
The case enshrines a duty to investigate deaths as vital component of the right to life,19 and proved influential on cases involving Russian action in Chechnya.20
1 Kaya v Turkey (1999) 28 EHRR 1, para 1;
2 ibid, para 11
3 ibid, para 35
4 ibid, para 30-31
5 ibid, para 73
6 ibid, para 79
7 ibid, para 81
8 ibid, para 82
9 ibid, para 83
10 ibid, para 84
11 ibid, Case Details
12 ibid, para 85
13 ibid, para 87
14 ibid, para 89
15 1998 EHRR 101
16 Gearty, (2001), ‘Unraveling Osman’ MLR 64159-190
17 Xenos, The Positive Obligations of the State Under the European Convention of Human Rights (2012), p89
18 Seibert-Fohr, Prosecuting Serious Human Rights Violations (2009), p145
19 Woods, ‘Shooting by unidentified persons – right to life – positive obligations – effective investigation’ (2000) BYBIL 74 475-477
20 e.g., Zourbekova v Russia (2012) 55 EHRR 10
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