David Brady Thesis

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Introduction

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Introduction:

The European Convention for Human Rights developed as a response to the atrocities

committed by the Nazi regime in Europe during the Second World War. There were twin

concerns which led the Council of Europe to seize the moment in preparing the European

Convention. The first was to provide the means through which it was believed that the most

serious human rights violations which had occurred during the Second World War could be

avoided in the future.1 On 4 November 2000 the Council of Europe celebrated the half-

centenary of its Convention [...] few would have believed it possible on the day that the

Convention was signed in Rome [...] that by the turn of the century the Convention would

have become the most effective and influential international human rights instrument in the

world.2 The Convention itself is intended to guarantee not rights that are theoretical or

illusory but rights that are practical and effective.3 In practice this means that a State cannot

therefore escape its obligations by protecting a right in a superficial or self-defeating

manner.4 Where a State is alleged to have failed to fulfil its obligations, an application can

be made to bring it before the European Court of Human Rights in Strasbourg, France.

It has been considered that with its highly legalistic character and several decades ofinterpretative jurisprudence, the European Convention on Human Rights has engendered the

most sophisticated jurisprudence of any of the international judicial instruments promulgated

to protect human rights.5 The Court has delivered more than 10,000 judgments since its first

in 1960.6 Thus there has been a wealth of jurisprudential developments across Europe as

these judgments are binding on the countries concerned.

Three countries with chequered histories before the Court are the United Kingdom,

Turkey and Russia. At first glance the three would traditionally seem to have little in

1 Clare Ovey & Robin C. A. White,Jacobs & White, The European Convention on Human Rights, 4th Edition,(Oxford University Press), 2006, p22 Professor Robert Blackburn and Dr. Jrg Polakiewicz (eds.), Fundamental Rights in Europe, The EuropeanConvention on Human Rights and its Member States, 1950-2000, (Oxford University Press), 2001, ix.3Artico v Italy, Judgment of 13 May 1980, Series A, No.37; 3 EHRR 1, para.334 Karen Reid,A Practitioners Guide to the European Convention on Human Rights, 2nd Edition, (Thomson,Sweet & Maxwell), 2004, p41, I-0575

Donna Gomien, David Harris, Leo Zwaak,Law and practice of the European Convention on Human Rightsand the European Social Charter, (Council of Europe Publishing), 1996, p196 http://www.echr.coe.int/50/en/#court (Accessed 22/09/2010)


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Introduction

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common with each other, however all three have been frequent respondent States before the

Court. One alarming connection shared between all three is that the majority of the cases

decided against them stem from specific regions within the countries. In the United Kingdom,

the conflict in Northern Ireland has been at the root of a number of important judgments

affecting the development of the jurisprudence of the Court. Similarly the South-Eastern,

Kurdish region of Turkey and the Chechen region of Russia in the North Caucasus Mountains

have been the basis for a large volume of the caseloads of the European Court of Human

Rights. While the cases involving the United Kingdom pertaining to the events in Northern

Ireland seem to have ceased, in recent times Turkey and Russia have been more regular

visitors to Strasbourg with the focus of the scrutiny firmly relating to the Kurdish and

Chechen regions respectively. Indeed it has been suggested that if Turkey is the gauge of

Strasbourgs past success, Russia will measure its future. Russia is poised to overtake Turkey

as Strasbourgs whipping boy [...] Turkey accounted for the lions share of ECHR judgments

in 2005 (26 percent, as compared with 7.5 percent for Russia), but Russia accounted for the

lions share of applications (17 percent, as compared with 13 percent for Turkey).7

The main objective of this dissertation will be to examine how the European Court of

Human Rights has dealt with cases which have emerged as a result of political unrest in the

regions of Northern Ireland, South-East Turkey and Chechnya. This is a relatively new area

of jurisprudential development, particularly in relation to Article 2 of the Convention

concerning the right to life, but the decisions in the cases arising from the unrest in these

regions have also helped to shape and clarify the obligations of States in relation to other

Convention Articles. They have stemmed mainly from political unrest in these regions, with

the fight for independence and the threat of terrorist activities being common issues to all

three regions. One of the most seminal decisions was laid down in theMcCann and Others v.

United Kingdom8 case. TheMcCann case represented the first major consideration by the

European Court of Human Rights of an alleged Article 2 violation. Using this case as a

starting point for Chapter 1, this dissertation will trace the development of the jurisprudence

of the Court across the three main regions and assess the impact of these regionalised

7 Michael D. Goldhaber,A Peoples History of the European Court of Human Rights, (Rutgers University Press,New Brunswick, New Jersey and London), 2007, p1328

McCann and Others v. United Kingdom, Judgment of 27 September 1995, Series A, No. 324; (1996) 21 EHRR97


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Introduction

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conflicts with Chapter 2 concerning the Kurdish region of South-East Turkey and Chapter 3

dealing with Chechnya.


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Chapter 1: United Kingdom Northern Ireland Region

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Chapter 1:

1.1 - United Kingdom Northern Ireland Region:

Introduction:

To refer to the situation in Northern Ireland as a conflict is in itself controversial. It

has been argued that the term conflict by and large, is favoured by those who are more

sympathetic to the nationalist or republican perspective on the unrest in Northern Ireland.9

The conflict has existed for centuries but reignited in the late 1960s. It can be considered

that competing nationalisms form the base of the unrest as it is founded on the reality that a

sizeable proportion of the population living in the area would rather not be living under a

British flag but under an Irish one.10 These competing nationalisms led to resurgence in

violent activities in the region, particularly by the I.R.A.

Given that it has been estimated that over 3,700 people have lost their lives as a result

of the conflict in Northern Ireland from 1966 onwards, the effectiveness of the right to life

guarantee given by the European Convention under Article 211 would seem to be somewhat

of a contentious issue. A series of events which have served to add to the estrangement ofthe local communities: the allegations of police brutality in 1978 investigated by Amnesty

International [...] the supergrass trials between 1981 and 1983 in which large numbers of

suspects were convicted on the word of former accomplices; the tragic death of eleven

prisoners through a series of hunger strikes in 1981 [...] the shoot-to-kill controversy in the

early 1980s [...] made a generation of Irish people, as well as many British people

9 Brice Dickson, The European Convention on Human Rights and the Conflict in Northern Ireland, (OxfordUniversity Press), 2010, p510

Ibid.p611 Convention for the Protection of Human Rights and Fundamental FreedomsArticle 2. Right to life:1 Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save inthe execution of a sentence of a court following his conviction of a crime for which this penalty is provided bylaw.2 Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the useof force which is no more than absolutely necessary:

a) in defence of any person from unlawful violence;b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;c) in action lawfully taken for the purpose of quelling a riot or insurrection.


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irretrievably cynical about British justice.12 However, the last 15 years have proven to be of

fundamental importance in the development of the European Courts jurisprudence

surrounding right to life cases, with particular reference to the decisions from the affected

region of Northern Ireland, beginning with that ofMcCann and Others, although the case

originated in a different jurisdiction.

1.2 - McCann and Others v. United Kingdom

In early 1988 the authorities of Great Britain, Spain and Gibraltar became aware that

the Provisional I.R.A were planning a terrorist attack in Gibraltar. It appeared from the

intelligence received from observations made by the Gibraltar police that the target was to bethe assembly area south of Inces Hall where the Royal Anglican Regiment usually

assembled to carry out the changing of the guard every Tuesday at 11.00 hours.13 Three

suspected members of an Active Service Unit (ASU) were sighted in Malaga, Spain on

March 4th 1988. At a security briefing held at midnight on March 5th between the

Commissioner of Police and the Security Services, it was stated that in their opinion: the IRA

intended to attack the changing of the guard ceremony on March 8th.14 The ASU comprised

Daniel McCann (previously convicted of possessing explosives), Mairead Farrell (previouslyconvicted of causing explosions) and Sean Savage (described as an expert bomb-maker); the

attack would be by way of a car bomb; the use of radio-operated remote-control device to

detonate the bomb was thought likely...and the suspects were believed to be dangerous,

almost certainly armed and likely to use their weapons if confronted by the security forces.

On receipt of a report from a soldier who was a bomb-disposal expert, Mr. Joseph Canepa,

the Gibraltar Commissioner of Police, decided that the three alleged IRA suspects should be

arrested on suspicion of conspiracy to commit murder.15 The form which he signed

authorising the military to proceed and intercept the suspects stated: having considered the

terrorist situation in Gibraltar and having been fully briefed on the military plan with

firearms, request that you proceed with the military operation which may include the use of

12 C.A Gearty & J.A Kimbell, Terrorism and the Rule of Law, A report on the Laws relating to PoliticalViolence in Great Britain and Northern Ireland, (Civil Liberties Research Unit, Kings College London), 1995,

p15, 2.1413

Supra n 8,McCann case,para.1314Ibid, para.1715

Ibid, para.54


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lethal force for the preservation of life.16 Shortly afterwards the suspects were confronted by

the soldiers, and they made movements with their hands which was interpreted as a possible

attempt to detonate the bomb by way of a radio-controlled device. The soldiers opened fire,

and intentionally killed all three suspects at close range.17 However it was subsequently

discovered that the suspected terrorists were not armed, they did not have a remote control

detonation device nor did the suspected car contain a bomb.18 The soldiers in question

admitted that they shot to kill. They considered that it was necessary to continue to fire at

the suspects until they were rendered physically incapable of detonating a device. According

to the pathologists evidence Ms. Farrell was hit by eight bullets, Mr. McCann by five and

Mr. Savage by sixteen.19

The inquest into the deaths was held in Gibraltar. The UK government issued a

number of public interest immunity certificates which served to prevent the disclosure of

certain information relating to the training regimes of the soldiers and their previous

operational histories. The jury at the inquest found by nine votes to two that the killings had

been lawful.20 The inquest was criticized in some quarters and considered to be significantly

loaded against those who wished to challenge the official version of events[...]fair enough to

be an effective means of legitimation, and unfair enough to minimize the risk of serious

embarrassment to the Government.21 The relatives of those shot dead by the soldiers issued

writs suing the Ministry of Defence alleging the unlawful use of force, but the certificates

issued excluded the Crown from prosecution. It has been argued that this effectively

prevented the relatives from proceeding with any case either in Gibraltar or the United

Kingdom, and prompted them to apply directly to the Commission in Strasbourg.22 Although

the Commission held by eleven votes to six that there had been no violation of the right to life

as guaranteed by Article 2 of the Convention, the case was referred to the Court.

16Supra n8,McCann case, para.5417Ibid,paras.60-6418Ibid, para.19819Ibidpara.19920Supra n9,Dickson, (2010),p25521 June Tweedie and Tony Ward, The Gibraltar Shootings and the Politics of Inquests, Journal of Law and

Society, Vol. 16, No.4 (Winter, 1989), p464-476, at 46522 Brice Dickson,Northern Ireland and the European Convention, in Brice Dickson (ed),Human Rights and theEuropean Convention, (Sweet and Maxwell, London), 1997, p153


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TheMcCann case was the first before the Court from any jurisdiction to examine

Article 2 in detail23 and therefore how the article was interpreted would prove to be of

extreme significance.24 The applicants alleged that the Government have not shown beyond

reasonable doubt that the planning and execution of the operation was in accordance with

Article 2 para.2 (art.2-2) of the Convention. Accordingly, the killings were not absolutely

necessary within the meaning of this provision.25 The Courts initial statements regarding

Article 2 confirmed its importance and standing as one of the most important of the

Convention provisions stating that as a provision which not only safeguards the right to life

but sets out the circumstances when the deprivation of life may be justified, Article 2 ranks as

one of the most fundamental provisions in the Convention[...]as such, its provisions must be

strictly construed,26[...]Article 2 read as a whole demonstrates that paragraph 2 does not

primarily define instances where it is permitted to intentionally kill an individual, but

describes the situations where it is permitted to use force which may result, as an

unintended outcome, in the deprivation of life,27[...]the use of the term absolutely

necessary[...]indicates that a stricter and more compelling test of necessity must be

employed from that normally applicable when determining whether State action is necessary

in a democratic society,28[...]the Court must, in making its assessment, subject deprivations

of life to the most careful scrutiny, particularly where deliberate force is used, taking into

consideration not only the actions of the agents of the State[...]but also the surrounding

circumstances including such matters as the planning and control of the actions.29

As Dickson notes, the phrase everyones right to life shall be protected by law is

in one sense more positive than those used in other articles of the Convention, (meaning) that

Article 2 expressly requires States to use the law to protect the right. A State cannot simply

do nothing and then provide a remedy when the right is violated.30 This can be interpreted to

mean that the State is under a positive obligation to protect the right to life and the Court

identified this noting that a general legal prohibition of arbitrary killing by the agents of the

23Supra n9,Dickson, (2010), p256, fn180, It had indirectly considered Art. 2 in Soering v UK(1989) 11 EHRR439 and Open Door Counselling and Dublin Well Woman Centre v Ireland(1992) 15 EHRR 24424Supra n22,Dickson, (1997),p15325Supra n8,McCann case, para.14426Ibid, para.14727 Ibid, para.14828

Ibid, para.14929Ibid,para.15030Supra n9,Dickson, (2010) p227


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State would be ineffective, in practice, if there existed no procedure for reviewing the

lawfulness of the use of lethal force by State authorities. The obligation to protect the right to

life under this provision, read in conjunction with the State's general duty under Article 131 of

the Convention, requires by implication that there should be some form of effective official

investigation when individuals have been killed as a result ofthe use of force by, inter alios,agents of the State.32

The alleged shortcomings of the inquest, (as highlighted by Amnesty International

and BritishIrish Rights Watch who complained that no independent police investigation

took place of any aspect of the operation leading to the shootings; that normal scene-of-crime

procedures were not followed; that not all eyewitnesses were traced or interviewed by the

police; that the Coroner sat with a jury which was drawn from a "garrison" town with close

ties to the military; that the Coroner refused to allow the jury to be screened to exclude

members who were Crown servants; that the public interest certificates issued by the relevant

Government authorities effectively curtailed an examination of the overall operation33) were

not in themselves found to have breached Article 2 of the Convention. Nor did they find any

breach in relation to the actions of the soldiers who admitted that they shot to kill.34 The

Court accepted that the soldiers honestly believed, in light of the information that they had

been given[...]that it was necessary to shoot the suspects in order to prevent them from

detonating a bomb and causing serious loss of life[...]the use of force by agents of the State

in pursuit of one of the aims[...]of Article 2-2 of the Convention may be justified[...]where it

is based on an honest belief which is perceived[...]to be valid at the time but subsequently

turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the

State.35

However, the Court ultimately found a breach of Article 2, by the narrowest

majority of ten votes to nine that having regard to the decision not to prevent the suspects

31Convention for the Protection of Human Rights and Fundamental FreedomsArticle 1. Obligation to respect human rights:

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms definedin Section I of this Convention.32Supra n8,McCann case, para.16133

Ibid, para.15734Ibid, para.19935Ibid, para.200


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from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances

for the possibility that their intelligence assessments might[...]be erroneous and to the

automatic recourse to lethal force when the soldiers opened fire, the Court is not persuaded

that the killing of the three terrorists constituted the use of force which was no more than

absolutely necessary in defence of persons from unlawful violence within the meaning of

Article 2 para.2 (a) of the Convention.36 The nine judges who dissented from the majority

opinion, who included President Ryssdal and the three most senior members of the court

issued a joint opinion in which they fundamentally disagreed with the majoritys evaluation

of the control and organisation of the operation. They opined that in undertaking any

evaluation of the way in which the operation was organised and controlled, the Court should

studiously resist the temptations offered by the benefit of hindsight.37 Furthermore the

accusation of a breach by a State of its obligation under Article 2 of the Convention [...] is of

the utmost seriousness [...] we would ourselves follow the reasoning and conclusion of the

Commission in its comprehensive, painstaking and notably realistic report. Like the

Commission we are satisfied that no failings have been shown in the organisation and control

of the operation by the authorities which could justify a conclusion that force was used

against the suspects disproportionately to the purpose of defending innocent persons from

unlawful violence. We consider the use of lethal force in this case [...] did not exceed what as,

in the circumstances [...] absolutely necessary for that purpose and did not amount to a

breach by the United Kingdom of its obligations under the Convention.38

Following the decision Dickson noted that theMcCann decision is a startling one,

although because it is confined to its particular facts it is unlikely to have any significant legal

effect beyond requiring a rethink of the (still officially unpublished) firing instructions issued

by the Ministry of Defence to its soldiers.39 However in a later work he highlighted that the

importance of the Gibraltar case lies in the standards it lays down for the control and

organization of operations that result in deaths.40 This serves to reinforce Mowbrays point

that whilst not expressly adopting the applicants language of a positive duty both the

majority and minority of the Court inMcCann scrutinised the authorities organisation and

36Supra n8, McCann case, para.21337Ibid, Joint Dissenting Opinions para.838

Ibid, para.2539Supra n22,Dickson, (1997), p15440Supra n9,Dickson, (2010), p258


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control of the challenged anti-terrorist operation as a fundamental element in assessing

whether Article 2 had been complied with. Therefore, this case represents the foundation of

the Courts willingness to scrutinise the care taken by member states relevant authorities in

implementing security forces operations.41

1.3 - Article 2 cases concerning Northern Ireland:

Article 2 does not require that prosecutions be brought in respect of each and every

use of force [...] but where force is resorted to it imposes an obligation to conduct a full,

effective, and open investigation into the circumstances surrounding the use of force and any

resulting loss of life.42 Following theMcCann case, a number of applications were lodged

before the Court in Strasbourg relating to a number of incidents in Northern Ireland, some

dating back to the early 1980s and four of these judgments were delivered on one day, May

4th 2001. These were the McKerr v United Kingdom,43 Kelly and others v United Kingdom44,

Shanaghan v United Kingdom 45and Hugh Jordan v United Kingdom46cases. (Often

collectively known asJordan et al.) As N Aolin notes inquests in Northern Ireland have

been inexorably linked to the controversy surrounding many lethal force deaths. The reason

for this is a simple one. Most lethal force killings have not been subject to criminal

prosecution, and there have rarely been public inquiries into these deaths. In theMcCann case

the European Court declined to outline the form that an investigation into a lethal force death

should take [...] in a swift change of tactics the European Court was quite prepared in the

joined cases to assess the adequacy and form of the investigation. The result was a

particularly harsh assessment of inquests.47

McKerrarose as a result of the killing of Gervaise McKerr, along with two other

men, by police officers in Lurgan, Northern Ireland in 1982 and the allegation that he had

41 Alastair Mowbray, The Development of Positive Obligations under the European Convention on HumanRights by the European Court of Human Rights, (Hart Publishing, Oxford-Portland Oregon), 2004, p942 Gordon Anthony and Paul Mageean,Habits of Mind and Truth Telling: Article 2 ECHR in Post-ConflictNorthern Ireland, in John Morison, Kieran McEvoy and Gordon Anthony (eds.),Judges, Transition andHuman Rights, (Oxford University Press), 2007, p18443McKerr v United Kingdom, Judgment of 4 May 2001, (2002) 34 EHRR 2044Kelly and Others v United Kingdom, Judgment of 4 May 200145Shanaghan v United Kingdom, Judgment of 4 May 200146

Hugh Jordan v United Kingdom, Judgment of 4 May 2001, (2003) 37 EHHR 247 Fionnuala N Aolin, Truth Telling, Accountability and the Right to Life in Northern Ireland, EuropeanHuman Rights Law Review, Vol.5, 2002, p572-590, at p584


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been unjustifiably killed and that there had been no effective investigation into the

circumstances of his death.48 Following the death of Gervaise McKerr and the two other

men, the RUC commenced an investigation. Based on that investigation, the DPP decided to

prosecute three officers who were subsequently acquitted at a criminal trial. An independent

police inquiry was launched to investigate suspicions of obstruction in the police

investigations of this and two other incidents. An inquest was opened on 4th June 1984 and

abandoned on 8th September 1994, without reaching any conclusion.49

The Court identified that in Northern Ireland [...] investigations into deaths may

also be conducted by inquests. Inquests are public hearings conducted by coroners

independent judicial officers normally sitting with a jury, to determine the facts surrounding

a suspicious death. InMcCann and Others the Court found that the inquest held into the

deaths of the three IRA suspects shot by the SAS in Gibraltar satisfied the procedural

obligation contained in Article 2, as it provided a detailed review of the events surrounding

the killings and provided the relatives of the deceased with the opportunity to examine and

cross-examine witnesses involved in the operation.50

The Court considered whether the inquest that was conducted in theMcKerrcase

was effective but found that while the inquest was indeed public it was not effective.51 One

of the key issues raised was that in inquests in Northern Ireland, a person suspected of

causing death may not be compelled to give evidence (Rule 9(2) of the 1963 Coroners

Rules52). In practice, in inquests involving the use of lethal force by members of the security

forces in Northern Ireland, the police officers or soldiers concerned do not attend. Instead,

written statements or transcripts of interviews are admitted in evidence. In the inquest in this

case, the police officers involved in the shooting were not required to appear at the inquest

and declined to do so [...] (They) were therefore not subjected to examination concerning

their account of events. Their statements were made available to the coroner instead. This did

48Supra n43,McKerr case, para.9949Ibid, para.12250Ibid, para.14251Ibid.52

Coroners (Practice and Procedure) Rules (NI) 1963: Rule 9(2) Where a person is suspected of causing thedeath, or has been charged or is likely to be charged with an offence relating to the death, he shall not becompelled to give evidence at the inquest.


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not enable any satisfactory assessment to be made of either their reliability or credibility on

crucial factual issues. It detracted from the inquests capacity to establish the facts relevant to

the death, and thereby to achieve one of the purposes required by Article 2 of the

Convention.53 Furthermore it noted that the right of the family of the deceased whose death

is under investigation to participate in the proceedings requires that the procedures adopted

ensure the requisite protection of their interests, which may be in direct conflict with those of

the police or security forces implicated in the events. The Court is not persuaded that the

applicants interests as next-of-kin were fairly or adequately protected in this respect.54

These issues, along with some others, contributed to the Courts unanimous finding that there

had been a failure to comply with the procedural oBlifations iMposed by Articl% 2 and thus

the provision had been violated.

The subs4ance of the other judgments delivered against the United Kingdom in the

Kelly, Shanaghan andJordan cases essentially mirrored the decision inMcKerr. The facts of

each case differed and as such some elements of the judgments were specific to each

individual case. TheKelly case concerned the killing of nine of the applicants relatives

by the SAS during an ambush of a terrorist attack on a police station at Loughg`ll, NortheRn

Ireland in May 1987. The court was unanimous in finding a breach of the obligation to hold

an effectave inveqtigation into the killings.

Ond of the key issues was the del!y in the commencement of an inquest into the

events. The inquest openEd on 30 May 1995, more than eight years after the deaths occurred

[...] once it opened, it concluded within a matter of days, on 2 June 1995.55 Although the

Court identified that the applicants contributed sigfificantly to the delay in the inquest being

opened56 [...] these adjournments gere requested by, or consented to, by the appdicantc.

They relat%d principally to legal challenges to procedural aspects of the inquest which they

considered essential to their ability to participate in particular as regards access to

documentS.57 Furthermore a lack of independence was found as the court identified that

53Supra n43,McKerr case, para.14454Ibid, para.14855

Supra n44,Kelly case, para.13056 Ibid,para.13257

Ibid, para.131


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whila the investigating officers did not appear to be connected structurally or factual,y with

the soldiers under investigation, tHe operation at Loughgall was nojetheless conducted jointly

with local police officers, some of whom were injured, aNd with the co-operation and

knowledge of the RUC in that area. Even though it also appears that, as required b9 law, this

investigation was supervised by the ICPC, an independent police monitoring authority, this

cannot provide a sufficient safeguard where the investigation itself has been for all practical

purposes conducted bq police officers connected, albeit indirectly, with the operation under

investigation.58 Ultimately, similar toMcKerr, the Court found that there were a number of

shortcomings in the proceedings employed in the investigation of the use of lethal force by

the security forces in this instance leading to a violation of the procedural aspect of Article 2.

These included: lack of independence of the investigating officers from the security forces

involved; non-disclosure of witness statements prior to witnesses appearance at the inquests

prejudiced the applicants participation in the inquest and contributed to long adjournments;

(and that) the inquest proceedings did not commence promptly and were not pursued with

reasonable expedition.59

The Shanaghan case is very interesting in relation to the development of Article 2

jurisprudence as the application did not arise as a result of a killing by members of state

security forces. In this case there was an alleged collusion between the security forces and

loyalist paramilitaries leading to the death of Patrick Shanaghan in August 1991. The RUC

warned Patrick Shanaghan twice that he was under potential threat from loyalist paramilitary

groups. On 10 December 1990, a RUC detective informed him that security force

documentation containing information about him, including a photographic montage, had

accidentally fallen out of the back of an army vehicle. He was advised to take measures for

his personal safety as there was a risk that the material had come into the hands of loyalist

paramilitaries.60 The court noted that Patrick Shanaghan was shot and killed after

photographs identifying him fell off the back of an army lorry. It is a situation which, to

borrow the words of the domestic courts, cries out for an explanation. The applicant was

however not informed of why the incident was regarded as not disclosing any problems of

58

Supra n44, Kelly case, para.11459Ibid, para.13660Supra n45, Shanaghan case, para.18


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collusion. There was no reasoned decision available to reassure a concerned public that the

rule of law had been respected.61

One of the recurring issues in the cases relates directly to the failings of the inquest

procedure in Northern Ireland in the ability to pronounce a verdict in proceedings.62 This was

again highlighted in Shanaghan where the Court contrasted the procedure as employed in

Gibraltar in theMcCann case with that employed in Northern Ireland. Unlike the McCann

inquest, the jury's verdict in this case could only give the identity of the deceased and the

date, place and cause of death. In England and Wales, as in Gibraltar, the jury is able to reach

a number of verdicts, including unlawful death [...] where an inquest jury gives such a

verdict in England and Wales, the DPP is required to reconsider any decision not to prosecute

and to give reasons which are amenable to challenge in the courts. In this case, the only

relevance the inquest may have to a possible prosecution is that the Coroner may send a

written report to the DPP if he considers that a criminal offence may have been committed.63

Furthermore, the Court considered that Notwithstanding the useful fact finding function that

an inquest may fulfil in some cases [...] in this case it could play no effective role in the

identification or prosecution of any criminal offences which might have occurred and, in that

respect, fell short of the requirements of Article 2.64

Thus the Court held unanimously thatthe scope of examination of the inquest excluded the concerns of collusion by security force

personnel in the targeting and killing of Patrick Shanaghan; and; the inquest procedure did

not allow for any verdict or findings which could play an effective role in securing a

prosecution in respect of any criminal offence which might have been disclosed.65

Finally, theHugh Jordan case arose following the death of the applicants son,

Pearse, at the hands of RUC security forces in Belfast, Northern Ireland in November 1992.

Concerning the procedural obligations under Article 2 of the Convention the Court noted that

following the death of Pearse Jordan66, an investigation was commenced by the RUC. On

61Supra n45, Shanaghan case, para.10862McKerr case, paras. 142-145,Kelly case, paras.119-12363Shanaghan case,para.11264Ibid, para.11365

Ibid, para.12266 Supra n9 Dickson, p286 at fn245 No death in Northern Ireland has led to such extensive litigation as this one(including a decision by the European Court, another by the House of Lords, and several by the Court of Appeal


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the basis of that investigation, there was a decision by the DPP not to prosecute any officer.

An inquest was opened on 4 January 1995 and is still pending.67 Again, similar to the

findings in the above cases, the court held that the shortcomings in transparency and

effectiveness identified above run counter to the purpose identified by the domestic courts of

allaying suspicions and rumours. Proper procedures for ensuring the accountability of agents

of the State are indispensable in maintaining public confidence and meeting the legitimate

concerns that might arise from the use of lethal force.68

and High Court of Northern Ireland), but still the full truth of what happened on the day of the killing does notseem to have emerged. At the time of writing the inquest into the death is still incomplete. (It is anticipated thata preliminary hearing scheduled for 24th September may give an insight into a proposed start date.) See

appendix.67Supra n46,Hugh Jordan case, para.11668Ibid, para.144


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1.4 - Summary:

The inquest procedures in Northern Ireland have been greatly criticised by judges and

commentators alike for their failure to comply with the obligations imposed by Article 2 of

the Convention. Following these groundbreaking judgments the question remained as to how

they would be implemented by the government. Although there have been some positive

developments in this area, it still remains open to criticism, scrutiny and debate. For example,

in 2000 the office of the Police Ombudsman for Northern Ireland was created. Its powers

include the ability to conduct completely independent investigations where complaints have

been made about the police. However, as Connolly identifies Although the Ombudsman is

structurally separate from the PSNI, and therefore capable of carrying out independent

investigations of the police, its mandate does not cover situations where the army is

responsible for the deaths in question. According to the British government, such incidents

will be investigated by the PSNI [...] while this issue is less likely to arise in future cases

given the limited role currently played by the British Army in Northern Ireland, the PSNIs

lack of independence poses a significant problem for investigations of lethal force incidents

that occurred during the past conflict.69

The incorporation of the Convention into the domestic law of Northern Ireland by

virtue of the Human Rights Act 1998 can also be seen to be a positive development, although

the House of Lords found (inRe McKerr70) that it could not apply retrospectively to deaths

occurring prior to 2nd October 2000. Thus, as Bell and Keenan have noted that while it has

not delivered new investigations, Article 2's procedural aspect has, in cases where state actors

have been involved, given families of these victims some leverage on a victims debate which

has often relegated them to a low place in a `hierarchy of victims', and refused to recognize a

discrete set of needs as regards information and accountability relating to state

involvement.71 This seems to represent the view that Hegarty took in criticizing the

implementation of Article 2 of the Convention with respect to the decisions of theMcCann

andJordan et al. cases and the shortcomings identified in the domestic procedure for inquests

and investigations into deaths involving state actors, where she states that it is necessary to

69 Christopher K. Connolly, Seeking the Final Court of Justice. The European Court of Human Rights andAccountability for State Violence in Northern Ireland, San Diego International Law Journal, Vol. 9, 2007-2008,p81-134, at p108-10970

Re McKerr(Northern Ireland) [2004] 1 W.L.R. 80771 Christine Bell and Johanna Keenan,Lost on the Way Home? The Right to Life in Northern Ireland, Journal ofLaw and Society, Vol.32, No.1, March 2005. p68-89, at p87


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establish some form of independent investigatory process that is capable of uncovering and

reporting the truth and allocating responsibility for the events complained of....The difficulty

may be that no inquiry, public or otherwise, which is set up by the UK, is capable of

satisfying this standard, because any such inquiry is likely to be controlled in its material

aspects by sections of the State who have most to lose from reporting the truth.72

Inquest procedures in Northern Ireland are inexorably linked to the controversy

surrounding many disputed deaths. The reason for this is a simple one most disputed

killings have not been subject to a criminal prosecution and there have rarely been any public

enquiries into these deaths.73 The legacy of these failings have been identified by the

European Court of Human Rights in many high profile cases which have emerged from the

conflict and these have contributed to the development of the Courts jurisprudence and the

implementation of Article 2. As it has been stated, Perhaps the single most important

development in European human rights standards attributable to applications resulting from

the conflict in Northern Ireland is that relating to the investigation of killings.74

72 Angela Hegarty, TheGovernment of Memory: Public Inquiries and the Limits of Justice in Northern Ireland,Fordham International Law Journal, Vol.23 (2002-2003), p1148-1192, at p115673

Fionnuala N Aolin, The Politics of Force, Conflict Management and State Violence in Northern Ireland,(Blackstaff Press, Belfast), 2000, p13574Supra n9,Dickson, (2010), p268


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Chapter 2: Turkey SouthEast Region

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Chapter 2:

2.1 - Turkey - South-East Region:

Introduction:

Turkeys Kurds receive less attention than Iraqs Kurds, although they are perhaps

three times as numerous. They receive less attention than the Northern Irish, although their

conflict was ten times bloodier...An armed conflict raged between Kurdish separatists and

Turkish state forces in South-Eastern Turkey from 1984-1998. At its height in the early

1990s, the conflict rose to the level of a full-scale war. Thirty thousand people were killed,

and more than a million dislocated.75 As Gross notes for some time now, cases before the

Court and Commission have alleged ongoing human rights violations by Turkish security

forces. The complaints submitted...have been, for the most part, concentrated geographically

and ethnically. Most come from the South-Eastern provinces and involve victims of Kurdish

origin or suspected supporters of the Kurdish cause.76 The intense violence between the

Turkish state and the insurgent elements of the PKK (Kurdistan Workers Party) has thus

proved to be quite an obstacle in the attempt to guarantee human rights in the conflicted area.

It has been identified that Another obstacle to achieving an acceptable level of respect for

human rights in Turkey has been the poor implementation of European Court of Human

Rights (ECtHR) case law. The Turkish constitution requires that the judgements of the

ECtHR supervene over the decisions of national judicial bodies. This should be an extremely

important tool for transforming the jurisprudence of Turkish courts and the policies of the

Turkish government; however, to date this has not been the case.77

The applications to the European Court of Human Rights emanating from the

Kurdish region have covered a diverse range of issues but perhaps the most important

developments have come in respect of Freedom from Torture as guaranteed by the provisions

75Supra n7, Goldhaber, (2007), p12376 Oren Gross, Once more unto the Breach: The Systemic Failure of Applying the European Convention ofHuman Rights to Entrenched Emergencies, The Yale Journal of International Law, Vol.23, 1997, p437-501, atp48477 Fifth International Conference on the EU, Turkey and The Kurds, European Parliament Brussels, 28th-29th

January 2009, (Kurdish Human Rights Project, London), 2010, p44 See http://www.khrp.org/khrp-news/human-rights-documents/doc_download/243-fifth-international-conference-on-the-eu-turkey-and-the-kurds.html(Accessed 20/09/2010)


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of Article 378 and also further developments from theMcCann principles in relation to Article

2. One of the most important judgments in the history of the Court is that ofAksoy v.

Turkey,79the consideration of which will form the starting point for my examination of the

cases concerning the conflicted Kurdish region of South-East Turkey.

2.2 - Aksoy v. Turkey

Zeki Aksoy was a Turkish national born in 1963 and lived in the Kurdish region of

South-East Turkey. He was alleged to have been involved with the PKK and subsequently

identified by an informant. Based on this information he was taken into custody by

approximately twenty policemen where he was held for fourteen days. According to the

applicant, on the second day of his detention he was stripped naked, his hands were tied

behind his back and he was strung up by his arms in the form of torture known as

Palestinian hanging. While he was hanging, the police connected electrodes to his genitals

and threw water over him while they electrocuted him. He was blindfolded during this torture

[...] during the next two days he was allegedly beaten repeatedly at intervals of two hours or

half an hour.80 Aksoy requested to see a doctor but this request was denied. Following his

release, after which no criminal charges were brought against him, he was admitted to

hospital where he was diagnosed as suffering from paralysis of both arms caused by nerve

damage in the upper arms, consistent with the practice of Palestinian hanging.

Aksoy complained to the Commission that he had been subjected to treatment

contrary to Article 3 of the Convention during his detention in police custody, and [...] during

the course of his detention, he was not brought before a judge or other authorised officer in

violation of Article 5 para.381.82 The application that was lodged to the Commission was

78Convention for the Protection of Human Rights and Fundamental FreedomsArticle 3. Prohibition of Torture:No one shall be subjected to torture or to inhuman or degrading treatment or punishment.79Aksoy v. Turkey, Judgment of 18 December 1996; (1997) 23 EHRR 55380Ibid, para.1481Convention for the Protection of Human Rights and Fundamental FreedomsArticle 5 Right to Liberty and Security:3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be

brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be

entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees toappear for trial.82Aksoy case, para.34


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alleged to have been the motivation for the killing with his representatives stating that he

had been threatened with death in order to make him withdraw his application [...] and his

murder was a direct result of his persistence with his application. The Government, however,

submitted that his killing was a settling of scores between quarrelling PKK factions.83

The importance of Article 3 can be highlighted by the fact that there is no

derogation permitted as per Article 15 para.2.84 This arguably creates a hierarchy of rights

and can be seen to place those non-derogable provisions on a higher footing. Article 3

enshrines one of the most fundamental values of democratic society. Even in the most

difficult of circumstances, such as the fight against terrorism and crime, the Convention

prohibits in absolute terms torture or inhuman or degrading treatment or punishment.85 The

implications of a violation of Article 3 are therefore quite profound as the Court found by

eight votes to one that, in addition to the severe pain which it must have caused at the time,

the medical evidence shows that it led to a paralysis of both arms which lasted for some time

[...] this treatment was of such a serious and cruel nature that it can only be described as

torture.86 Indeed as Evans notes the ECHR organs have adopted [...] a vertical approach to

Article 3, which is seen as comprising three separate elements, each representing a

progression of seriousness, in which one moves progressively from forms off ill-treatment

which are degrading to those which are inhuman and then to torture. The distinctions

between them is based on the severity involved, with torture at the apex.87

The case ofAksoy v. Turkey was an important legal landmark in a number of respects.

In tandem with theAkdivar v. Turkey88 case it was the first case involving the Kurdish

conflict to be admitted. In a broader perspective theAksoy judgment was the first finding by

the European Court of Human Rights of an incident of treatment against an individual which

83Supra n79,Aksoy case, para.2284 Convention for the Protection of Human Rights and Fundamental FreedomsArticle 15 Derogation in Times of Emergency:No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3,4 (paragraph 1) and 7 shall be made under this provision.85Aksoy case, para.6286Ibid, para.6487

Malcolm D. Evans, Getting to Grips With Torture, International and Comparative Law Quarterly, Vol. 51,2002, p365-383, at p37088Akdivar v. Turkey, Judgment of 16 September 1996, (1997) 23 EHRR 147


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amounted to torture against a State. In addition to this it established that the doctrinal burden

of proof for torture be placed with the State.89 This also reinforced the position inAkdivar,

where applications can be made directly to Strasbourg where domestic remedies are

inadequate or ineffective, there is [...] no obligation to have recourse to remedies which are

inadequate or ineffective [...] there may be special circumstances which absolve the applicant

from the obligation to exhaust the domestic remedies at his disposal.90 The principles it laid

down as regards what constitutes treatment amounting to torture were developed further in

some important Turkish cases, particularlyAydin v. Turkey.91 This case concerned the arrest

and detention of a seventeen year old girl by the security forces. While in custody the

applicant was taken alone to a room, stripped, beaten, spun round in a car tyre, sprayed with

cold water and raped by a man in military uniform. In finding a violation of Article 3 the

Court was satisfied that the accumulation of acts of physical and mental violence inflicted

on the applicant and the especially cruel act of rape to which she was subjected amounted to

torture in breach of Article 3 of the Convention.92 Indeed a very interesting aspect if the

judgment was that the Court would have reached this conclusion on either of these grounds

taken separately.93 As Cullen notes if the ill-treatment results from incidental neglect, such

as forgetting to feed prisoners, then it does not constitute torture. It may be possible for such

acts to be characterised as cruel, inhuman or degrading treatment. However, if an act is to be

characterised as torture, a necessary ingredient is the perpetrator's deliberate intention to

inflict pain or suffering.94 This seems to broaden the scope of what conduct can constitute

torture and when taken in conjunction with theAkdivarandAksoy principles marks a

significant development of the Courts jurisprudence as emerging from the conflicted

Kurdish region.

Furthermore,Aksoy proved to be of significant importance in respect of the length

of time that a suspect may be detained by the authorities even the State have derogated from

their responsibilities under Article 5 of the Convention. Therefore despite the serious

89Supra n79,Aksoy case , para.61 Where an individual is taken into police custody in good health but is found

to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to thecausing of the injury, failing which a clear issue arises under Article 3 of the Convention.90Supra n88,Akdivar case, para.6791Aydin v. Turkey, Judgment of 25 September 1997, (1997) 25 EHRR 25192Ibid, para.8693

Ibid.94 Anthony Cullen,Defining Torture in International Law, California Western International Law Journal, Vol.34, 2003-2004, p29-46, at p33


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terrorist threat in South-East Turkey, the measure which allowed the applicant to be detained

for at least fourteen days without being brought before a judge or other officer exercising

judicial functions exceeded the Governments margin of appreciation and could not be said to

be strictly required by the exigencies of the situation.95 This judgment marked an affirmation

of theBrogan and Others v. United Kingdom96case, where four days and six hours of

detention fell outside of the strict time constraints permitted by Article 5 para. 3, and was

subsequently endorsed in respect of another application from Turkey in the Sakik and Others

v. Turkey97judgment where the applicants were held in police custody for twelve and

fourteen days without judicial intervention.98 In this case a valid derogation was in place in

respect of Article 5, but this did not apply to Ankara where the violations took place. While

this case did not emanate from the South-East region, it is directly linked to it, such that the

derogation which the Government sought to rely on was confined to the conflicted Kurdish

region, thus the Court would be working against the object and purpose of Article 15 if,

when assessing the territorial scope of the derogation concerned, it were to extend its effects

to a part of the Turkish territory not explicitly named in the notice of the derogation.99

Hartman notes that derogation articles embody an uneasy compromise between the

protection of individual rights and the protection of national needs in times of crisis.

Overlaying this strain is the tension between the international protection of human rights and

states control over domestic affairs.100

2.3 - Article 2 Cases concerning South-East Turkey:

As regards Article 2 cases concerning the right to life, the judgments emerging as a

result of the conflict in the Kurdish region of South-East Turkey are equally as important as

those concerning Article 3. The principles as established in theMcCann case were elaborated

by the Court inKaya v. Turkey.101 This case concerned an application by the brother of a man

who was found dead, riddled with bullets in a field near his village in South-East Turkey. The

95Supra n79, Aksoy case, para.8196Brogan and Others v. United Kingdom, Judgment of 29 November 1988, (1988) 11 EHRR 117, para.6297Sakik and Others v. Turkey, Judgment of 26 November 1997, (1998) 26 EHRR 66298Ibid, para.4599Ibid, para.39100 Joan F. Hartman,Derogation from Human Rights Treaties in Public Emergencies Critique of

Implementation by the European Commission and Court of Human Rights and the Human Rights Commissionof the United Nations, Harvard International Law Journal, Vol.22 No.1 Winter 1981, p1-52, at p2101Kaya v. Turkey, Judgment of 19 February 1998, (1998) 28 EHRR 1


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Government contended that the man was a terrorist and was killed in a violent clash with

security forces. Citing the McCann case, the Court noted that Article 2, read in conjunction

with Article 1, requires by implication that there should be some form of effective official

investigation when individuals have been killed as a result of the use of force by [...] agents

of the State.102 The Court was not satisfied by the actions of the public prosecutor who

seemed to accept at face value the information given by the military [...] and [...] as an

independent investigating official he should have been alert to the need to collect evidence at

the scene, to make his own independent reconstruction of the events and to satisfy himself

that the deceased, despite being dressed as a typical farmer, was in fact a terrorist as

alleged.103

Similarly in both Gle v. Turkey104 andErgi v. Turkey105 the Court cited the

McCann case and developed theKaya case further. In Gle by identifying that the

investigation into the death of the applicants son was not effective but also that it was

conducted without the participation of the complainant106 in breach of the procedural

guarantee implicit in Article 2 of the Convention.Ergi concerned the loss of life as a result of

a security forces operation carried out in the South-East region where it was alleged that the

applicants sister was killed when the PKK clashed with State agents. While the Government

argued that the girl was killed as a result of stray bullet shot by a terrorist, (the Commission

was unable to identify based on the evidence submitted to it that this was or was not the case)

the Court rejected this argument and instead held that the responsibility of the State is not

confined to circumstances where there is significant evidence that misdirected fire from

agents of the State has killed a civilian. It may also be engaged where they fail to take all

feasible precautions in the choice of means and methods of a security operation mounted

against an opposing group with a view to avoiding, and in any event to minimising, incidental

loss of civilian life.107 This was a further development of theMcCann case although it was

distinguished in the sense that the court accepted that there was significant intelligence

102Supra n101,Kaya case, para.86. Also,McCann case, Supra n8, para.161103Ibid, para.89104Gle v. Turkey, Judgment of 27 July 1998, (1999) 28 EHRR 121105

Ergi v. Turkey, Judgment of 28 July 1998, (2001) 32 EHRR 388106Gle case,para.82107Ergi case, para.79


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relating to a suspected crime that was expected to be committed, this was not the situation in

theErgi case.108

Perhaps a more interesting aspect of theErgi judgment concerned the obligation on

the State to provide an investigation into killings even when the State cannot be held

responsible for the death. Again, this developed theMcCann case but also theKaya case and

the Court highlighted that the obligation to have an effective investigation is not confined to

cases where it has been established that the killing was caused by an agent of the State [...]

the mere knowledge of the killing on the part of the authorities gave rise ipso facto to an

obligation under Article 2 of the Convention to carry out an effective investigation into the

circumstances surrounding the death.109 These innovative and important judgments

subsequently formed the basis for the decisions in the cases concerning Northern Ireland

commonly known asJordan et al.110 and Mowbray notes that they vividly reflect the

ingenuity of the Court in creatively interpreting the Convention so as to seek the actual

protection of human life from unlawful killings by State agents and private persons.111

2.4 - Kurdish Disappearance cases:

History has shown that, in the absence of safeguards against abuse of power, it is

all too easy for the State to cover up its own unlawful violence, particularly when that

violence is carried out behind closed doors [...] where an individual is known to have been

taken into custody and subsequently disappear or is found dead, therefore, it is logical that a

heavy burden should fall on the State.112 While there have been numerous important cases

from the Kurdish region which have helped to develop the principles of the procedural

requirements of Article 2, some of the seminal cases to have emerged as a result of the

conflict have concerned disappearances.

108Supra n105,Ergi case, para.75109Ibid, para.82110Supra n43-46, Jordan et al.111

Alastair Mowbray, The Creativity of the European Court of Human Rights, Human Rights Law Review,Vol. 5.1, (2005), p57-79, at p78112Supra n1, Ovey & White, p59


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The first major consideration of a disappearance case by the European Court of

Human Rights was that ofKurt v. Turkey.113 Here the applicants son had last been seen four

and a half years previously, surrounded by soldiers during a security operation in a village in

South-East Turkey. While both the Court and the Commission accepted that this was the

case, they failed to find a breach of Article 2 in respect of the right to life. The Court stated

that it must carefully scrutinise whether there does in fact exist concrete evidence which

would lead it to conclude that her son was, beyond reasonable doubt, killed by the authorities

either while in detention in the village or at some subsequent stage.114 Furthermore, citing

McCann andKaya, in respect of the procedural aspect of Article 2 and the positive

obligations of the State to conduct an effective investigation, there was evidence that a fatal

shooting had taken place and would thus give rise to the obligation. This, however, was not

the case inKurt.115 This seemed to be a negative development in respect of Article 2, but it

was also considered under Article 3, where it found in favour of the applicant regarding the

anguish and distress she faced over a prolonged period amounted to a breach116, and Article 5

where the violation concerned a particularly grave violation of the right to liberty and

security of the person.117 The decision in respect of Article 5 reinforces the position in

relation to positive obligations and requires the authorities to take effective measures to

safeguard the whereabouts of the individual detained.118

Article 2 was considered in relation to the death of a disappeared person in Cakici v.

Turkey.119The Government claimed that the disappeared man was a militant member of the

PKK and following a clash with armed forces he was found dead. He had been taken into

custody and sustained serious injuries and over four years had elapsed since he was last seen

alive. Interestingly, the Court found that there was sufficient circumstantial evidence, based

on concrete elements, on which it may be concluded beyond reasonable doubt that Ahmet

113Kurt v. Turkey, Judgment of 25 May 1998 (1999) 27 EHRR 373114Ibid, para.107115Ibid.116Ibid, paras.130-134117Ibid, para.129118Ibid, para.124, The Court emphasises in this respect that the unacknowledged detention of an individual is acomplete negation of these guarantees and a most grave violation of Article 5. Having assumed control over thatindividual it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5must be seen as requiring the authorities to take effective measures to safeguard against the risk of

disappearance and to conduct a prompt effective investigation into an arguable claim that a person has beentaken into custody and has not been seen since.119Cakici v. Turkey, Judgment of 8 July 1999, (2001) 31 EHRR 133


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Cakici died following his apprehension and detention by the security forces.120 This is a

development of theKurtjudgment where it was distinguished on the basis that there was no

evidence of maltreatment of the applicants son after his detention by the authorities. As

Cakici was presumed dead following his detention by the authorities and no explanation has

been forthcoming from the authorities as to what occurred following his apprehension, nor

any ground for justification [...] in respect of any use of lethal force by their agents,121 the

State of Turkey were found liable for his death and thus violated Article 2.

In two other cases concerning disappeared persons, namelyErtak v. Turkey122 and

Timurta v. Turkey123 the Court took a sterner approach relating to the evidential burden

attached to the State. In the former case, there was eye-witness evidence that the disappeared

person had been ill-treated while in detention and subsequently died. Violations of Article 2

were found in respect of the States responsibility for the death of the disappeared man as in

akici and also that the procedural obligations to conduct an effective investigation as in

Kaya, were not fulfilled. Again this case was distinguished fromKurtas there was sufficient

evidence to show that Mr. Ertak was ill-treated while detained. The latter case ofTimurta

concerned circumstantial evidence as opposed to the concrete evidence required as per

Kaya. The applicant relied on a photocopy of a document as recorded proof of his sons arrest

and detention. From the Governments failure to disclose evidence which it claimed to have

it may be deduced [...] that the need was felt to conceal the apprehension and detention of

Abdulvahap Timurta.124 The Court once again distinguished the Kurt case in holding that

the length of time was a crucial factor in deciding that Mr. Timurta must be presumed dead.

Six and a half years elapsed since he was last seen, compared with four and a half in Kurt.

Furthermore, whereas zeyir Kurt was last seen surrounded by soldiers in his village [...]

Abdulvahap Timurta was taken to a place of detention [...] by authorities for whom the State

is responsible.125 Also the fact that Timurta was wanted by the authorities in connection

with his alleged involvement with the PKK, whereas Kurt was not under the suspicion of the

authorities, led the Court to conclude that he must be presumed dead and that responsibility

must lie with the State.

120Supra n119, Cakici case, para.85121Ibid, para.87122Ertak v. Turkey, Judgment of 9 May 2000123

Timurta v. Turkey, Judgment of 13 June 2000, (2001) 33 EHRR 121124Timurta case, para.84125Ibid, para.85


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2.5 - Summary:

Democracy and human rights in Turkey have been a prominent subject of discussion

in many international forums over the past ten years due to that country's unique domestic

difficulties and geopolitical importance. Hardly any other country in the world has been so

criticized for its human rights record, nor is the future of any other country so dependent on

the promotion of human rights.126 Turkeys commitment to improving their human rights

record is one of the conditions that must be addressed if they are to fulfil the transition from

candidate to member of the European Union. The volume of applications from the South-East

region of Turkey alleging violations of Article 2 of the Convention highlights the seriousness

of the conflict that raged between the PKK and State forces. The judgments help to

demonstrate the legal and evidential difficulties individuals have faced in seeking to bring

home responsibility for unknown perpetrator killings, deaths during security operations and

disappearances.127

The facts of the cases suggest that there appears to be a failure to secure to the people

of the conflicted Kurdish region, the rights guaranteed by the Convention. The judgments

have contributed significantly to the development of the jurisprudence of the European Court

of Human Rights, particularly in respect of finding a State guilty of conduct amounting to

torture as inAksoy, expanding what conduct amounts to torture as inAydin and also

principles surrounding the geographical scope of derogations under Article 15 as in Sakik and

Others.

The cases concerning Article 2 have helped to further consolidate the principles laid

down in theMcCann and Others in relation to the procedural duties and obligations of the

State where individuals have been killed as a result of the use of force by State agents.

However, the Ergi judgment showed that the Court was prepared to extend this obligation to

include situations where the State cannot be held responsible for the death. By interpreting

126 Aslan Gndz, TheLand of Many Crossroads, Human Rights and Turkeys Future in Europe, Orbis, Vol.45,

No.1 Winter 2001, p15-30, at p15127 Carla Buckley, TheEuropean Convention on Human Rights and the Right to Life In Turkey, Human RightsLaw Review, Vol.1, No.1, 2001, p35-65, at p64


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the Convention as to impose these further obligations on the State, it can be seen to demand a

greater commitment from States to respect and secure the right to life of its citizens.

Finally, the progressive development of the disappearance cases shows that the

Court were initially reluctant to consider this as an Article 2 issue as perKurtbut

distinguished it in subsequent cases to presume that disappeared persons were in fact dead

and that the State were liable. Although the Court was mindful of the consequence of

accepting circumstantial evidence, it represents a progressive step in securing the

Convention rights and has generated a broader notion of State responsibility under Article 2.

However, Turkey continues to be criticised for its response to the threat posed in the Kurdish

region and the cases were regarded simply as cases lost and compensation paid rather than

taken as an opportunity to engage with the Kurdish question by coming to grips with the

causes of violence and addressing state accountability.128

128

Baak ali, The Logics of Supranational Human Rights Litigation, Official Acknowledgment, and HumanRights Reform: The Southeast Turkey Cases before the European Court of Human Rights, 1996-2006. Law &Social Inquiry, Vol.35, No.2, Spring 2010, p311-337, at p334


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Chapter 3: Russia Chechen Region

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Chapter 3:

3.1 - Russia Chechen Region

Introduction:

May 1998 marked Russias ratification of the European Convention on Human Rights

thereby granting jurisdiction to the European Court of Human Rights to hear complaints from

Russian citizens against Russian authorities. This proved to be quite a significant

development in the history of the European Court in Strasbourg as Russia has been a frequent

visitor to the chambers with quite a number of cases concerning the conflict in the Chechen

region. This area has historically proven to be a region of particular resistance against Russia,

with unrest between the regions dating back to the 1780s.

Prior to the dissolution of the Soviet Union on December 31st 1991, Chechnya

declared its independence under the leadership of Soviet military hero Dzhokar Dudayev. In

June 1992, Dudayev broke ties with neighbouring Ingushetia, at which point the Russian

Federation set up an economic blockade of the region. In December 1994, President Boris

Yeltsin authorized a military intervention in Chechnya to re-establish control over what had

quickly become a de facto independent state.129 What followed was the first Russian-Chechen

war which lasted until August 1996 when a peace treaty was signed, despite the fact that a

ceasefire was declared in July 1995.

The Second Chechen War began in August 1999, following the invasion by Chechen

forces into the nearby Dagestan and also a number of apartment bombings in many Russian

cities, including Moscow, in September of the same year, which were attributed to Chechen

separatists. This prompted the central government in Moscow to try and regain control over

the de facto independent republic. The aftermath of the conflict has led to an extraordinary

number of applications from the Chechen region, with most surrounding alleged violations of

the Article 2 guarantee of the right to life. A number of these cases have also concerned

enforced disappearances in circumstances similar to the cases from the Kurdish region of

South-East Turkey, but this chapter will begin with analysis of the case law of the European

129 Russian Justice Initiative. See http://www.srji.org/en/chechnya (Accessed on 14/09/2010)


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Court of Human Rights with the first case to emerge from the Chechen region, that of

Isayeva, Yusopova, Bazayeva v Russia.130 (Isayeva et al.)

3.2 - Isayeva, Yusopova, Bazayeva v Russia:

The onset of the second war in Chechnya was triggered by the series of apartment

block explosions across many Russian cities in August 1999. October 29th marked one of the

most devastating acts of violence seen in any of the previous conflicts mentioned above, or

the previous war in Chechnya. This was the day of the infamous Convoy Bombing between

Grozny, in Chechnya and the Ingushetian border. Russian authorities had offered civilians in

the city of Grozny safe passage to the border, to escape the conflict. Having reached the

border, the applicants found that it was blocked but were told that it would be open later that

morning. More and more people joined the convoy as the morning progressed. Finally, after a

12km queue had developed, the soldiers at the border advised that the border would not in

fact be opened and ordered the crowd to leave the area. As the convoy was turning, two

Russian aircraft appeared in the sky above them and opened fire, launching a number of

missiles at the vehicles and people on the roadside in attacks that continued for up to four

hours. Following this attack, the two children of the first applicant were killed with the final

death toll standing at 25 and an additional 70 injured.131

In a report submitted by the NGOHuman Rights Watch in relation to bombings of

fleeing civilians and civilian convoys, it was stated that where aircraft make multiple attack

passes over a civilian convoy [...] the most plausible inference is that such attacks are

intentional and with the likely knowledge of the predominantly civil character of the convoy

[...] customary international law requires that any attacks discriminate between the civiliansand military objects and that foreseeable injury to civilians be proportionate to the direct and

concrete military advantage to be gained by the attack [...] the incidents described below

raises concerns that civilians may have been targeted intentionally or that the force used was

not proportionate to the military advantage pursued.132 The applicants alleged violations of

Article 2 in respect of the deaths suffered and cited theAkdivar case in making the

application as the domestic procedure for redress would be ineffective and the Court noted

130

Isayeva, Yusopova, Bazayeva v. Russia, Judgment of 24 February 2005, (2005) 41 EHRR 847131Isayeva et al. case, paras.13-31132Ibid, para.102


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that the fact that the law-enforcement bodies were not functioning properly in Chechnya at

the time [...] there existed special circumstances which affected their obligation to exhaust

remedies.133 In its judgment, the Court referred to theMcCann case in examining whether

the authorities were negligent in their planning and control of the operation resulting in the

loss of life and also the proportionality of the force used to the desired aim. It also accepted

that a situation existed requiring exceptional measures to regain control over the Chechen

Republic and if the planes were initially attacked by rebel forces, as alleged by the

government, it could have justified the use of lethal force. However, the Court was not

satisfied that there was sufficient evidence that the planning stages were conducted

effectively as the authorities failed to inform the air force of the safe passage arrangement.134

Furthermore, the Court noted that the failure of the government to invoke the

provisions of any domestic legislation governing the use of force in such security situations

contributed to the proportionality of the response to the perceived threat, as considered in the

McCann case, and thus a violation of Article 2 was found in respect of a States obligation to

protect the right to life of the applicants.135 The importance of this case is that it marks a

departure from the reliance on humanitarian law which governs internal armed conflicts and

provides for individual remedies under human rights law. It has been noted that there existed

a regime of impunity in Chechnya as international jurisdiction over such crimes is

impossible with Russias veto in the United Nations Security Council and non-membership of

the International Criminal Court.136 However the judgment inIsayeva et al. marked a

significant positive development in respect of the right to life guarantee under Article 2.

Although not permitting criminal convictions like the International Criminal Court, it

provides an element of redress for the applicants in the form of compensation where an

Article has been violated. This was the first in a wave of judgments relating to the conflict in

Chechnya and the conduct of the security forces, further cases being those ofIsayeva v.

Russia137andKhashiyev and Akayeva v. Russia.138

133Supra n130,Isayeva et al. case, para.150134Ibid. para.186135Ibid, paras.198-200136 Vesselin Popovski, Terrorizing Civilians as a Counter-terrorist Operation: Crimes and Impunity in

Chechnya, Southeast European and Black Sea Studies, Vol.7, No.3, September 2007, p431-447, at p 431137Isayeva v. Russia, Judgment of 24 February 2005, (2005) 41 EHRR 791138Khashiyev and Akayeva v. Russia, Judgment of 24 February 2005, (2005) 42 EHRR 397


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TheIsayeva case marked a reiteration of the reasoning in theIsayeva et al. andErgi

cases where all feasible precautions in the planning and operations stage must be taken to

minimise incidental loss of civilian life.139 The facts of this case are similar to those

concerned with the convoy bombing. Here a safe passage of escape from an area of heavy

fighting was bombed by a highly explosive device dropped from a Russian military aircraft.

The applicants son and three nieces were killed and the applicant and other relatives injured.

The Government argued that the use of force was necessary due to the large number of armed

rebel fighters in the area. The Court accepted that the situation in Chechnya could give rise to

the deployment of army units equipped with combat weapons which may include military

aviation and artillery.140 Similar to the language used in theIsayeva et al. case, the court

accepted that the use of force may have been justified in the present case, it goes without

saying that a balance must be achieved between the aim pursued and the means employed to

achieve it.141 However, the Court was not satisfied that the evidence presented to it by the

Government, who did not disclose most of the documents related to the military action,142

satisfied the requirements that it was planned and executed with the requisite care for the

lives of the civilian population,143 and thus a violation of Article 2 was found.

The judgment inKhashiyev and Akayeva affirmed the position in relation to the

responsibility of the authorities for those persons detained by them. This reinforces that the

burden of proof lies with the state to provide a satisfactory and convincing explanation of

what happens as in the Kurdish cases ofErtak, Cakici and Timurta. The applicants in this

case alleged that their family members were tortured and killed by Russian federal soldiers at

an identity check and had eye-witness evidence that their relatives were seen being detained

by the soldiers and that their bodies were later discovered with bullet wounds and showing

signs of beatings.144 Again, there was a failure by the authorities to provide an adequate

explanation of the events, the court observed that since no explanation has been forthcoming

from the Russian Government as to the circumstances of the deaths, nor has any ground of

justification been relied on by them in respect if any use of lethal force [...] liability for the

139Supra n137,Isayeva case, para.176140Ibid, para.180141Ibid, para.181142

Ibid, para.182143Ibid. para.200144Supra n138,Khashiyev and Akayeva case, para.127


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applicants relatives deaths is therefore attributable to the respondent State.145 Furthermore

the Court found that the investigation into the deaths was not effective and this was also a

violation of Article 2. As Abresch notes, the significance of these first Chechen cases is that

while the accepted doctrine has been that, in situations of armed conflict, humanitarian law

serves as a lex specialis to human rights law [...] it is now clear that the European Court of

Human Rights will apply the doctrines it has developed on the use of force in law

enforcement operations even to large battles involving thousands of insurgents, artillery

attacks and aerial bombardments.146

3.3 - Chechen Enforced Disappearance cases:

In addition to the cases emerging from the military bombing operations in Chechnya,

there have been a number of important cases from the region in relation to enforced

disappearances. The first of these judgments was delivered inBazorkina v. Russia147 and

concerns some particularly shocking facts surrounding the disappearance of Mr. Yandiyev,

which may have made the Courts task a little easier than in previous cases. The application

brought by the mother of the disappeared man contained evidence from a CNN broadcast

team who filmed a Russian general ordering his execution in February 2000. While this case

marks an endorsement of the position taken in the Kurdish disappearance cases it again

addressed the two key difficulties central to many cases of disappearances; a person may be

presumed dead in the absence of a body and whether the standard of evidence is sufficient to

find the State concerned guilty. Here the Court, citing Timurta, noted that the numerous

witness statements and the CNN videotape confirming the order of execution coupled with

the lack of information on his whereabouts for over six years led to a presumption that he was

now dead.148 While this judgment is in essence uncontroversial given that it followed the

principles established in the Kurdish disappearance of persons in custody cases, it is useful in

distinguishing subsequent Chechen disappearance cases.

145 Supra n138,Khashiyev and Akayeva case, para.147146 William Abresch,A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in

Chechnya, The European Journal of International Law, Vol.16, No.4, 2005, p741-767, at p742147Bazorkina v. Russia, Judgment of 27 July 2006, (2006) 46 EHRR 261148Ibid, paras.110-112


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The second enforced disappearance case to emerge from the Chechen region was that

ofLuluyev and Others v. Russia149 where the Court examined the allegations that a mother of

four was abducted by the military from a market in Grozny and subsequently killed and

buried in a mass grave. The Court considered that there existed a body of evidence that

attains the standard of proof beyond reasonable doubt, and thus makes it possible to hold

the State authorities responsible for Nura Luluyeva's death.150 However, this case can be

distinguished from the previous case as the evidence was not concrete that the disappeared

woman was detained by the agents of the state. The evidence was somewhat circumstantial as

the Government denied they were involved in apprehending her but accepted that they were

carrying out a mopping-up operation in the area at the time of the disappearance and that

State forces were involved in this operation. This appears to be a lesser standard as inKurt

where the evidence was similarly not concrete but it can perhaps be distinguished, as here

her body was recovered compared to the continued disappearance inKurt.

In addition to theBazorkina andLuluyev cases,Imakayeva v. Russia151 sheds some

important light on the development of the Courts jurisprudence concerning enforced

disappearances in Chechnya. Eye-witnesses identified that the abductors of the applicants

son were military personnel, using military vehicles and also that the abduction took place at

a military roadblock.152 What is interesting in this case is that the Court seemed to take a

stricter approach as to the level of inferences that may be drawn by a Governments refusal to

comply to requests for information from the file relating to an alleged disappearance.

Although the evidence was circumstantial, the failure by the Government to provide the

information requested helped the Court to find that the requisite standard of proof was

satisfied such that it could be establish

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