Violence Against Speakers / Impunity
Restrepo Barrientos v. El Colombiano Newspaper
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The First Section of the European Court of Human Rights (“the Court”) concluded that the Turkish authorities “failed to take reasonable measures available to them to prevent a real and immediate risk” to the life of a journalist (the applicant’s brother) working for the daily newspaper Özgür Gündem in Şanlıurfa. The Court also found that the authorities failed to carry out an effective investigation into the circumstances surrounding his death. The journalist was killed in 1993, despite his urgent requests for protective measures because of attacks and killings aimed at persons working for Özgür Gündem. The applicant argued that the Turkish authorities violated (inter alia) Article 2 of the European Convention of Human Rights (ECHR), which lays down the right to life, and that they did not carry out an effective investigation into the death of his brother. The Court considered that the authorities were aware of the particular and real and immediate risk to his life that the journalist was facing. The government did not take the measures that could be reasonably expected of them to avoid this risk and thus did not fulfill its positive obligation under Article 2 ECHR. Moreover, the investigation file had an inactive status and no inquiries were made as to the possible targeting of the journalist because of his work for Özgür Gündem. This rendered the investigation ineffective, together with other circumstances.
The applicant was Kemal Kiliç’s brother. Kemal Kiliç was a journalist working for the daily newspaper Özgür Gündem in the Şanlıurfa office. Özgür Gündem sought to reflect Turkish Kurdish opinion and numerous prosecutions had been brought against it because it was accused of disseminating separatist propaganda and declarations of the PKK (Workers’ Party of Kurdistan). Persons working for Özgür Gündem, especially persons involved in the sale and distribution of the newspaper, had received death threats and were victims of attacks and killings. For that reason, Kemal Kiliç sent a press release to the governor of Şanlıurfa, requesting that measures be taken to safeguard the persons working for Özgür Gündem in the Şanlıurfa office. This request was refused, because the governor’s office asserted that no such attacks or threats had taken place. Kemal Kiliç published a press release stating that attacks were continuing despite urgent requests for measures. He was charged with insulting the governor and was taken into detention. He was released the same day. On 18 February 1993, Kemal Kiliç was shot and found dead with bullet wounds in the head. His mouth was covered with packaging tape and there was a rope around his neck. A piece of paper with the letters U and Y, stained with blood, was also found. A pistol that had been used in a later armed attack on a shop was found to be the weapon used to kill Kemal Kiliç. Hüseyin Güney, the (alleged) perpetrator of the armed attack, was also charged with the murder of Kemal Kiliç. However, Güney denied involvement in the offences, including the killing. Güney was eventually convicted for the armed attack and for being a member of a separatist organisation. According to the national court, he could not be held responsible for any other offences. The chief public prosecutor of the national court opened an investigation into the killing of Kemal Kiliç, and instructed the Şanlıurfa gendarmerie command to report to him every three months about evidence obtained regarding the Kiliç murder.
Homicide is prohibited in Turkey under Articles 448 and 455 of the national Code of Criminal Procedure. The obligations of the authorities regarding conducting a preliminary investigation are laid down in Articles 151 to 153 of the Code of Criminal Procedure.
The main issue before the Court was whether the Turkish authorities had violated the right to life laid down in Articles 2 and 13 ECHR by not providing for protective measures to avoid the real and immediate risk to Kemal Kiliç’s life and by not carrying out an effective investigation into the circumstances surrounding his death.
The applicant argued that the State is to be held responsible for the death of his brother, because of their failure to provide protective measures and for not conducting an effective investigation into his death. He invoked Article 2 of the Convention [para. 54]. The applicant referred to the Susurluk report “as strongly supporting the allegations that unlawful attacks were being carried out with the support and knowledge of the authorities” [para. 56]. The Susurluk report was produced at the request of the Turkish Prime Minister, in which “acquiescence and connivance” by State authorities in illegal activities is described. The applicant further asserted that “public prosecutors were unlikely to carry out effective investigation into allegations against the security forces” [para. 56]. The applicant thus pointed to a lack of independence in the procedure. Regarding the investigation, the applicant argued (amongst other things) that the authorities took few steps to find the perpetrators and failed to broaden the investigation to examine whether the killing was related to his brother’s work as a journalist for Özgür Gündem. The applicant stated that the trial of Güney, even though there was no evidence linking him to the murder, had the “practical effect of closing the investigation” into the death of his brother [paras. 56 – 58].
The Government stated that the Susurluk report had “no evidential or probative value and could not be considered in assessing the situation in south-east Turkey” [para. 59]. The authorities further argued that Kemal Kiliç was not at a particular risk for unlawful violence. Because of the climate of widespread intimidation and violence at the time, “no one in society could have felt safe at that time. All journalists could be said to have been at risk, for example, not only Kemal Kiliç” [para. 60]. The Government further asserted that the investigation into the killing was conducted with precision and professionalism and that it had continued the investigation after Güney’s conviction.
The Court assessed the case as follows.
The Court stated that Article 2 does not only command the State to “refrain from the intentional and unlawful taking of life” [para. 62], but also entails that states should take appropriate steps to safeguard the lives of persons within their respective jurisdictions. In appropriate circumstances, this positive obligation extends to taking “preventive operational measures to protect an individual whose life is at risk from criminal acts of another individual” [para. 62]. This possible obligation must not impose an “impossible or disproportionate burden on authorities” [para. 63]. In this case, it could not be established that Kemal Kiliç was killed by State agents or persons acting on their behalf. The question that remained to be determined is whether the authorities failed to fulfill their positive obligation to protect Kiliç from a known risk to his life.
The Court recalled that Kemal Kiliç requested the governor to take protective measures, two months before he was shot dead. His petition showed that he considered himself and others at risk because of their work for Özgür Gündem. Sellers and distributors of that newspaper had been threatened and attacked, according to Kemal Kiliç. The Government claimed that Kiliç was not at a particular risk. However, the Court has previously found that in early 1993 the authorities were aware that persons working for Özgür Gündem feared that they were “falling victim to a concerted campaign” that was tolerated or even approved by State officials [para. 66]. A significant number of offences occurred in which journalists were killed and newspaper kiosks and distributors of the newspaper were attacked. The Court was of the opinion that Kemal Kiliç was at a particular risk at this time. Furthermore, this risk should have been regarded as real and immediate. The authorities were aware of that risk, and Kemal Kiliç had requested protective measures. The Susurluk report substantiates that State officials might have been involved in several incidents regarding individuals that were “perceived to be acting against State interests” [para. 68].
Different circumstances can be identified that have led to the Court’s conclusion that the protection provided by the criminal law in the south-east region was undermined. Offences were committed by State officials and the competence to investigate these offences was taken away from the public prosecutor and transferred to administrative councils. These investigations were not independent, because the administrative councils were under the orders of the governor, who was responsible for the security forces whose conduct was the object of investigation. In addition, cases examined by the Convention organs have resulted in a series of findings entailing that the authorities failed to investigate allegations of wrongdoing by security forces. Moreover, incidents were often attributed to the PKK with minimal or no supporting evidence [para. 73]. The National Security Courts, which have jurisdiction for terrorist crimes, were found by the Court in several judgments to lack independence.
The Government disputed that they “could have effectively provided measures” to protect Kiliç [para. 76]. The Court found in that respect that a wide array of measures were available to the authorities, thus rejecting this argument. The Court concluded that Article 2 ECHR has been violated.
Regarding the alleged inadequacy of the investigation, the Court reiterated that State authorities are required to carry out an effective official investigation in instances where individuals have been killed by the use of force. The Court observed that it was not apparent that the National Security Court took any steps to continue the investigation after the conviction of Güney and that the file thus had an inactive status, despite the fact that there was no direct evidence that linked him to the killing. The Court further observes that the investigation did not include any inquiries regarding the possible targeting of Kiliç because of his work as a journalist for Özgür Gündem. The fact that the case was transferred to the National Security Court prosecutor “indicates that it was regarded as a separatist crime” [para. 82]. Due to the limited scope and short duration of the investigation, the Court concluded that there had not been an effective investigation into the death of Kemal Kiliç. Article 2 ECHR has been violated.
The applicant argued that he had not had an effective remedy before a national authority, as provided for by Article 13 ECHR.
According to the Court, Article 13 ECHR requires a domestic remedy to be provided to deal with “arguable complaints” under the Convention [para. 91]. The Court observed that the applicant’s brother was the victim of an unlawful killing and may therefore be considered to have such an “arguable complaint” [para. 92]. For the reasons provided earlier, there was no effective criminal investigation. The Court found that the applicant had been denied an effective remedy in respect of his brother’s death. Consequently, Article 13 ECHR was violated.
As regards the alleged violation of Article 10 and Article 14 ECHR, the Court concluded that those complaints arose out of the same facts as those considered under Article 2 and Article 13 of the ECHR, and it was therefore not necessary to examine these complaints separately.
Alleged practice by the authorities
The applicant asserted that the violation of Articles 2 and 10 was an “officially tolerated practice” in Turkey. “Having regard to its findings under Articles 2 and 13 above, the Court [did] not find it necessary to determine whether the failings identified in this case [were] part of a practice adopted by the authorities” [para 95].
The Court did not award any pecuniary damage, because the amounts claimed did not represent losses actually incurred by Kemal Kiliç before his death, or by the applicant after his brother’s death [para. 102].
The Court awarded GBP 15,000 (approx. USD $22,622 at the time) in non-pecuniary damages on behalf of the applicant’s brother, which has to be held by the applicant for his brother’s heirs. The Court awarded the applicant an amount of GBP 2,500 (approx. USD $3,770 at the time) in non-pecuniary damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Expands freedom of expression by reiterating that States have a positive obligation to protect individuals from threats to their lives, especially journalists who are in a vulnerable position when expressing critical views.
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