Content Regulation / Censorship, Violence Against Speakers / Impunity
Perozo and others v. Venezuela
Venezuela, Bolivarian Republic of
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The First Section of the European Court of Human Rights (ECtHR) held that the Turkish authorities did not violate the right to life (Article 2) of the European Convention of Human Rights concerning the murder of journalist Kutlu Adali by unknown actors. However, the Court did find a violation of Article 2 under its procedural limb due to the lack of an adequate and effective investigation into the circumstances surrounding the the killing. The application was brought to the ECtHR by Adali’s wife alleging the involvement of Turkish and/or the Turkish Republic of Northern Cyprus agents in the crime. The Applicant complained about the inadequacy of the investigation carried out by the authorities into the death of Adali. Hence, the Court in its conclusion further held that Turkish authorities violated her right right to an effective remedy under Article 13. The Court, however, found no violation of Articles 3, 8, and 14 with respect to allegations of harassment, intimidation, and discrimination towards the applicant by the authorities on the grounds that they were not adequately substantiated.
On July 6, 1996, Kutlu Adali, a Turkish Cypriot writer and journalist known for writing and publishing criticism of the policies and practices of the Turkish Government and the Turkish Republic of Northern Cyprus (‘TRNC’) authorities was shot dead in front of his house. Mrs. Adali (the Applicant) was in Istanbul when her husband was killed. [para 18, 26] Before his death, he informed his wife, the Applicant, that he had been receiving death threats from “them,” referring to the TRNC. The Applicant who requested to see her husband’s body was informed that no postmortem was conducted and wasn’t allowed to see the body and or even the X-rays. [para 26]
The Applicant in an attempt to know what had happened, investigated the case herself. She asked neighbors about the incident who informed her about a specific black car being parked in the street. They also informed her that they heard her husband cry and beg his killers for his life and among the killers one man said that the applicant’s husband deserved to die. The Applicant further learned from her neighbors that after minutes of shooting about twelve military cars arrived and sealed off the area. The “special teams” of police officers threatened the neighbors with guns to force them to go back inside their houses. [paras. 27-28]
On July 8, 1996, an article was published in a pro-TRNC newspaper named Kıbrıs which reported that the Turkish Revenge Brigade claimed to have killed Adali. [para. 29] Later, the Applicant received an anonymous call who gave the names of two individuals who were responsible for Adalı’s murder, Hüseyin Demirci, and Orhan. When the Applicant informed the Police authorities, the authorities refused to investigate stating that the caller is unreliable. [para. 30] Later in December 1996 and July 1997, the Applicant repeatedly complained to the Security Forces Commander about the Police authority’s failure to conduct the investigation properly. [paras. 35, 37]
After facing humiliation, threat, and injustice, the Applicant applied to the European Court of Human Rights (ECtHR) under Articles 2, 3, 6, 8, 10, 11, 13, 14, and 34 of the Convention. The Applicant alleged that Turkish and/or TRNC agents were involved in the murder and pointed out the inadequacy of the investigation carried out by the TRNC authorities. In the application, the Applicant stated that Adali held a civil service position, however, when the President wanted Adali to work for a radio station that was under the control of the Turkish Resistance Movement to restore his withheld salary. [para. 19] When Adali refused, he was imprisoned without any charge or trial. [para. 20] After his release, Adalo started to work for this radio station and was compelled to take early retirement in 1987. [para. 21] During his career and after his retirement, Adali continued to work as a writer and journalist, writing under a pseudonym because of fear of arbitrary prosecution. [para. 22]
Further, the Applicant stated that in 1981, Adali finally started using his real identity and wrote columns for a left-wing newspaper. Later in 1981, Adali and the Applicant started receiving death threats, including an incident where his house was attacked with machine guns. [para. 23] Another time, unknown persons entered his house and searched for copies of articles to find evidence to initiate criminal proceedings. Once Adali wrote an article about a robbery incident wherein he reported that thieves had broken into a tomb in a monastery, stealing different objects of cultural significance. Adali in the article also mentioned that the license plates from the thieves’ cars had been traced and reported that they belong to the two members of the Civil Defence Organisation. [paras. 23-24]
On July 4, 1996, two days before Adali was killed, the Yenidüzen newspaper published another article by Adalı which strongly criticized the “Mother Country-Child Country” policy of the Government of Turkey and the TRNC. [para. 25] Following the application before ECtHR, the Applicant contended that her daughter was dismissed from her post in a bank and despite her being ranked 15th among 68 candidates in the examination to become a civil servant, she was not allocated any post. [para. 44] The Applicant in other contentions stated that following her husband’s death, she had been subjected to ongoing practices of harassment, intimidation, and discrimination by the TRNC authorities.
Contrary, the Turkish Government denied all allegations concerning the killing of Kutlu Adalı. [para. 46] They contended that the TRNC authorities had immediately commenced an investigation into his death, and had conducted a thorough investigation. However, the perpetrators of the crime had not yet been identified. The Government also rejected the applicant’s allegations of harassment and submitted that these submissions were mere speculation. [p. 10-12]
The seven-judge bench of ECtHR delivered the decision. Justice Türmen delivered a sole partly dissenting opinion. The primary questions before the Court were
On exhaustion of domestic remedies, the Turkish government contended that the Applicant failed to comply with the exhaustion of domestic remedies rule in Article 35 of the Convention. [para. 175] The authorities contended that the Turkish Constitution, under Articles 136 to 155, stipulates an effective and independent judicial system that exists in the TRNC. The government concluded that the Applicant filed her application without having recourse to the local remedies which were effective, sufficient, and easily accessible to her and capable of providing redress for her complaints within the judicial system of the TRNC. [paras. 176- 180]
The Court reiterated the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention and observed that the existence of remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. The Court held that Article 35 necessitates that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate and ineffective. [İlhan v. Turkey, (2000); Akdivar v. Turkey, (1996); and Aksoy v. Turkey (1996)]
On the violation of the right to life (Article 2) under the Convention, the Applicant contended that the authorities could not establish with certainty the identity of the killer because of the absence of any effective, independent, and official investigation, open to public scrutiny. [para. 198-200] The applicant emphasized that it was a political assassination of a preeminent public critic of the administration. The Applicant further contended Turkish government had produced no cogent or convincing evidence to show that there had been a prompt, impartial, and effective official investigation into her husband’s death, including her allegation that he was killed by State agents. [para. 202]
The Turkish Government contended that there was no evidence supporting the Applicant’s claim that any government agents were involved in the murder of her husband. [para. 204] The Government also stated that there had been no evidence that indicated that Adali’s life was in danger. [paras. 205-206] The Government argued that the murder was not politically linked, but was closely linked to information that Adali had about, amongst others, secret organizations. The Government reiterated that it had fulfilled the requirements of Article 2 ECHR regarding the investigation. [para. 207]
The Cypriot Government took the Applicant’s side, contending that the Respondent government violated Article 2 of the Convention. They further contended that the Respondent government knew the identity of the murderers and had even orchestrated the murder. [para. 208-209]
The Court referred to Ireland v. the United Kingdom, (1978) and reiterated that the required evidentiary standard of proof for the Convention is that of “beyond reasonable doubt”, and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. [para. 216] On the circumstances, the Court established that there were no eyewitnesses to the murder of Adali. The witnesses that the Applicant referred to, remained anonymous and did not provide evidence for various reasons. Two bullet shells that were extracted from the victim’s body are the only pieces of evidence in this connection. [para. 217] The Court held that the Applicant did not adequately substantiate the allegations made by her relating to the circumstances of her husband’s death. The Court concluded that there had not been a (substantive) violation of Article 2 of the Convention on account of Adali’s murder. [para. 218-220]
Regarding the investigation, the Court observed that Article 2 of the Convention requires by implication that there should be an effective official investigation if an individual has been killed as a result of the use of force. [para. 223] The investigation must also be capable of leading to a determination of whether the use of force was justified or not in the circumstances of the case and to the identification and punishment of those who are responsible. This is an obligation of means, not of result. “A requirement of promptness and reasonable expedition is implicit in this context.” [para. 224] In the present case, the Court considered that the local authorities had carried out an extensive investigation into the killing. However, there were serious shortcomings from the outset of the investigation. The Court also noted that there was no real coordination or monitoring of the scene of the incident by the investigating authorities and no report was produced as to what was found at the scene.
The Court further considered that the ballistic examination carried out by the authorities was not sufficient, for example in respect of the bullet cartridges found. The authorities also failed to take statements from some key witnesses. [para. 229] The Court disregarded the Government’s allegation that the Applicant’s husband was killed because his journalistic work was implausible. However, it observed that the authorities failed to effectively inquire about the motives behind the killing of Adali. [para. 231] Furthermore, the Court held that there was also a lack of public scrutiny of the investigation and the deceased’s family did not receive enough information. [para. 232] In light of these observations, the Court concluded that Article 2 has been violated under its procedural limb. [para. 233]
Regarding the violation of the right to an impartial investigation (Article 6) and right to an effective remedy (Article 13) under the Convention. The Applicant contended that because of the absence of an impartial and effective investigation into the circumstances of her husband’s death, she had been denied effective access to the courts to determine her civil right to compensation for his murder allegedly committed by agents of the State. [paras. 244-245]
The Court observed that since the Applicant did not attempt to seek compensation before the “TRNC” courts, it is not feasible to determine whether these courts would have been able to adjudicate her claims. [para. 249] Further, the Court referred to Aydin v. Turkey, (1997) & Mahmut Kaya v. Turkey, (2000) and reiterated that the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State. [para. 250] The Court considered that the complaint under Article 2 is arguable for Article 13 of the Convention. In light of the arguments above, the Court concluded that Article 13 was violated concerning the killing of the Applicant’s husband. The Court reasoned that no effective criminal investigation can be considered to have been conducted following the requirements of Article 13, which requirements are broader than the obligation to investigate imposed by Article 2. [para. 253] However, regarding the allegations of harassment, intimidation, and discrimination, the Court concluded that Article 13 was violated, because the veracity of these allegations could not be established.
The Applicant claimed a violation of the right to freedom of expression (Article 10) contending that Adali had been murdered because of the public expression of his views, which were strongly critical of the policies and practices of the respondent State and its agents in Turkish-controlled northern Cyprus. [para. 257] The Court does not consider it necessary to examine this complaint separately for the reason that the Applicant’s allegations arise out of the same facts as those examined under Article 2 of the Convention. [para. 260]
The Applicant also claimed a violation of the right to freedom of assembly and association (Article 11) contending that the Turkish and Turkish-Cypriot authorities refused to allow her to cross the “green line” to attend a meeting organized by a radio station in southern Cyprus with Greek Cypriots. [para. 261] The Court reiterated its conclusions in the cases of Cyprus v. Turkey and Djavit An v. Turkey (2003) concerning the rigorous approach taken by the TRNC authorities to bi-communal contacts after the second half of 1996 by the imposition of restrictions and, indeed, prohibitions. [para. 268] The Court noted that the Applicant was refused a permit to attend a meeting held on 20 June 1997 in southern Cyprus and the same hindrance can amount to a violation of the Convention just like a legal impediment. [Loizidou v. Turkey (1996)] The Court concluded that Article 11 of the Convention was violated. The refusal to permit the applicant to attend a meeting constituted an interference with the right to freedom of assembly, and this interference was not justified because it was not prescribed by law.
The Applicant sought pecuniary damage from the Court for the loss of her husband’s earnings. The Court concluded that there is no causal link between the matters held to violate the Convention and the pecuniary damage the applicant has allegedly suffered. [Djavit An v. Turkey (2003) and Çakıcı v. Turkey (1999)] The Court awarded 20,000 EUR in non-pecuniary damages.
Justice Türmen partly opined against the plurality of the Court’s observation that the national authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the killing of the Applicant’s late husband in violation of Articles 2 and 13 of the Convention. Justice Türmen noted that the plurality not only refused to leave a margin of taking reasonable steps available to them to secure the evidence to the investigating authorities but was inclined to act as a private body of investigators replacing the national authorities. [p. 67] Further, J. Türmen disregarded the opinion of the plurality that the excessive sum awarded to the Applicant regarding her costs and expenses had actually and necessarily incurred. [p. 67-68]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court did not consider Article 10 ECHR and found no violation of Article 2 ECHR regarding the killing of the applicant’s husband. Rather, it only considered a breach regarding the investigation’s effectiveness (procedural limb).
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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