SECOND SECTION

CASE OF CERF v. TURKEY

(Application no. 12938/07)

JUDGMENT

STRASBOURG

3 May 2016

This judgment will become final in the circumstances set out in Article 44 2 of the
Convention. It may be subject to editorial revision.

CERF v. TURKEY JUDGMENT

In the case of Cerf v. Turkey,

The European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Julia Laffranque, President,
Il Karaka,
Neboja Vuini,
Paul Lemmens,
Jon Fridrik Kjlbro,
Stphanie Mourou-Vikstrm,
Georges Ravarani, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 29 March 2016,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 12938/07) against the
Republic of Turkey lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(the Convention) by a Turkish national, Mrs Yaar Cerf (the applicant),
on 15 March 2007.
2. The applicant was represented by Ms Catriona Vine, Mr Paul Troop
and Ms Saniye Karaka, lawyers practising in London. The Turkish
Government (the Government) were represented by their Agent.
3. The applicant alleged, in particular, that her husband had been killed
by either the authorities of the respondent State or by persons aided by the
respondent State, and that the national authorities had failed to carry out an
effective investigation into his killing.
4. On 5 September 2014 the application was communicated to the
Government.

THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1946 and lives in Adana. As some of the
facts are disputed by the parties, their submissions will be summarised
separately.

CERF v. TURKEY JUDGMENT

A. The applicants submissions on the facts

6. The applicants husband, Mr Sefer Cerf, was the district leader and
administrative board member of the Peoples Democracy Party (Halkn
Demokrasi Partisi, hereinafter referred to as HADEP), a political party
which was dissolved by the Constitutional Court in 2003 (see HADEP and
Demir v. Turkey, no. 28003/03, 14 December 2010), in the town of Yreir,
within the administrative jurisdiction of the province of Adana. In the four
to five years prior to 1994 he and his family were often harassed,
intimidated and threatened by plainclothes police officers on account of his
political activities. On 1 October 1994 a man fired a shot at the applicants
11-year-old son outside their house, narrowly missing him.
7. At around 8 a.m. on 3 October 1994, the applicants husband Sefer
Cerf left home to go to a caf in the town centre. According to a number of
eyewitnesses, Sefer Cerf arrived at the caf and sat outside on the terrace
next to his friend, R.., who was also an administrative board member of
HADEP.
8. The witnesses then heard six gunshots and immediately afterwards
saw two men with pistols in their hands running away from the caf. The
applicants husband Sefer Cerf and his friend R.. were shot and Sefer Cerf
died at the scene. R.. was injured and died while being taken to a hospital
by a friend, Mr Ahmet Dizman. A third person, Mr S.S., was also hit by a
ricocheting bullet and wounded in the foot.
9. On the day of the killing there were no police or anti-terrorism
officers vehicles in the area. This was unusual as ordinarily they would
have been patrolling the neighbourhood. Furthermore, it took a considerable
amount of time before the authorities attended the scene. When people tried
to call an ambulance, they found that the telephone lines had been cut.
10. Police officers who arrived at the caf questioned eyewitnesses and
collected six spent bullet cases and two deformed bullets from the scene and
sent them for forensic examination. An incident scene investigation was
concluded by the prosecutor the same day.
11. Mr Sait Macir, also a board member of HADEP, was inside the caf
at the time and went outside to help the two victims. He told the authorities
that he had seen the two assailants running away from the scene. Mr Macir
was taken to a police station on the pretext of giving a statement but was
instead questioned about his relationship with the applicants husband. His
caf was closed by the police for no reason and he was subjected to
continuous harassment after the incident. On 30 December 1994 Mr Macir
was himself shot and killed outside the same caf (see Macir v. Turkey
(friendly settlement), no. 28516/95, 22 April 2003). After his death,
Mr Macirs wife was taken to a police station where she was threatened and
questioned about her husbands connections to the applicants husband and
to Mr R..

CERF v. TURKEY JUDGMENT

12. A couple of days after the incident, Ahmet Dizman, who had tried to
take R.. to hospital, was detained by the police. The police officers beat
him up and told him that they had seen him at the funeral of Sefer Cerf and
R.. the day before. They threatened him and told him that if he continued
to be involved in such activities, his end would be like those of the dead
HADEP members. As a result of that ill-treatment Mr Dizmans jaw was
broken (see Dizman v. Turkey, no. 27309/95, 12 and 15, 20 September
2005).
13. Threats against the applicant also continued after the killing of her
husband. Plainclothes police officers continuously observed their family
home, questioned their visitors and, on a number of occasions, threw notes
into the garden with messages such as like your father, your end has
come, addressed to the applicants daughter. On one occasion in 1995 the
applicants daughter was detained at a checkpoint on her return from work
and made to wait in a police vehicle before being taken to a police station.
When her family sought to locate her, the police denied that she was in their
custody. While she was detained, the police questioned her about the death
of her father. On her release, the police threatened her and she was followed
by the police over the following days.
14. On 20 October 1994 the Adana prosecutors office issued a standing
search order in relation to the killing of Sefer Cerf and R.., requesting that
the perpetrators be sought as long as prosecution was not time-barred, and
that information be given to the office on a regular basis, every three
months.
15. On 4 August 1995 a number of individuals were remanded under an
indictment alleging offences including membership of Hizbullah, an illegal
organisation which was involved in the assassination of individuals with
pro-Kurdish sympathies in south-east Turkey in the early 1990s. On 25 July
1996 the Konya State Security Court acquitted the individuals previously
indicted for offences including membership of Hizbullah. That decision was
upheld by the Court of Cassation.
16. On 19 January 2000 a Mr M.D. was arrested. In his statement of
23 January 2000 M.D. admitted membership of Hizbullah, and told the
authorities that he had taken part in the killing of the applicants husband
and his friend R.. He gave a detailed account of the assassination and
described the role played by his co-assassins.
17. Following M.D.s confession, a scene report was drawn up on
30 January 2000. He was taken by helicopter to Adana, where he was taken
to the scene of the killing of the applicants husband for further questioning.
18. On 10 February 2000 Mr H.T., one of the persons implicated by
M.D. in the killing, and seven of his companions were arrested and detained
in custody. H.T. refused to answer any questions put to him regarding the
killing of Sefer Cerf and R..

CERF v. TURKEY JUDGMENT

19. Subsequently A.Y., A.A. and a number of other persons were also
arrested. During his questioning A.A. described the role played in the
killing by K.G., who had been their leader and had given them their orders.
20. The information obtained by the police during the investigations was
forwarded to the Adana State Security Court, which subsequently decided
that it had no jurisdiction, and sent the investigation file to the State
Security Court in Diyarbakr.
21. On 10 February 2005 the applicant applied to the Adana prosecutors
office, seeking information and copies of the documents from the
investigation file. The prosecutor replied and informed the applicant in his
letter that the investigation in question not only concerned the killing of her
husband and R.., but the killings of seven other persons in 1994 and 1995.
The prosecutor informed the applicant in his letter of 11 February 2005 that
on account of the confidential nature of the investigation he could not give
her a copy of the entire investigation file. The prosecutor did, however, give
the applicant copies of certain documents from the file and informed her
that five persons had been identified as possible suspects in the killing of
her husband and that criminal proceedings had been initiated against one of
those individuals before the Diyarbakr State Security Court. When the
applicant insisted on obtaining copies of all the investigation documents so
that she could make an application to the European Court of Human Rights,
the prosecutor told her that he could not give her those documents because
they would be used against Turkey.
22. In December 2006 the applicant again contacted the Diyarbakr
prosecutors office, but was told that it would not provide her with
information concerning the prosecution because she had no case file
number.
23. On 5 March 2007 the applicant made a detailed submission to the
office of the Diyarbakr prosecutor and informed that prosecutor about the
actions taken by her in having her husbands killing investigated. She also
shared with the prosecutor the evidence in her possession and informed him
of her allegations. She asked the prosecutor to reply to a number of
questions set out by her in her submission concerning the investigation. In
reply, the prosecutor informed the applicant about the actions taken in the
criminal proceedings against the suspects K.G. and A.A.
24. On 27 August 2012 the applicants daughter applied to the
Diyarbakr Assize Court, to which the proceedings had been transferred in
the meantime, and asked for information on the proceedings against K.G.,
M.D. and A.A. She was provided with a copy of the judgment of
30 December 2009 in which K.G. and M.D. had been found guilty and
sentenced to life imprisonment. The court did not provide any information
on A.A.s case. On 10 September 2012 the applicant asked the Diyarbakr
Assize Court for information about the whereabouts of K.G., M.D. and A.A.
However, she was not provided with any information in response.

CERF v. TURKEY JUDGMENT

According to news reports obtained by the applicant, K.G. and M.D. had
been released from prison on 4 January 2011, and on 26 January 2011 the
Court of Appeal had upheld their convictions. Following their release they
had left Turkey and fled to Syria.
25. It appears from the documents submitted by the Government that
during the criminal proceedings against them M.D., K.G., A.A. and M.A.O.
retracted their earlier statements, which they alleged had been extracted
from them under torture, and denied any involvement in the killing of the
applicants husband.
B. The Governments submissions on the facts
26. The applicants husband Sefer Cerf died as a result of an armed
attack carried out on 3 October 1994. Neither Sefer Cerf nor the applicant
had lodged any complaints with the Adana prosecutor on or after 3 October
1994 or made any allegations that they had been harassed or threatened by
plainclothes police officers.
27. Immediately after the killing of her husband the prosecutor visited
the scene and prepared an incident report. The prosecutor also secured the
evidence such as the bullets, spent cartridges and the clothes worn by the
applicants husband on the day in question, and sent them for forensic
examination. A search of the area was also carried out. The prosecutor and
the investigating police officers took statements from witnesses and
prepared a sketch of the scene of the incident.
28. A post mortem examination was conducted on the body of the
applicants husband the same day, and a bullet recovered from his body was
also sent for forensic examination.
29. On 20 October 1994 the prosecutor issued a standing search order
and instructed law-enforcement officials to investigate the killing until
expiry of the limitation period.
30. Starting in 2000, a number of operations were carried out against
Hizbullah. On 19 January 2000 M.D. was arrested in the course of one of
those operations.
31. On 30 January 2000 prosecutors at the Ankara and Adana State
Security Courts took M.D. to the place where the applicants husband had
been killed. M.D. provided a detailed description of the killing of the
applicants husband.
32. On 14 July 2000 one of M.D.s co-assassins, A.A., was arrested and
confessed to the killings.
33. Subsequently, the following criminal proceedings were brought
against the suspects.

CERF v. TURKEY JUDGMENT

1. A.A.
34. On 9 August 2000 criminal proceedings were brought against A.A.
before the Diyarbakr State Security Court for membership of Hizbullah and
for carrying out armed attacks on behalf of that organisation, including the
killing of the applicants husband. In 2004 the State Security Courts were
abolished and the criminal proceedings against A.A. were taken over by the
Diyarbakr Assize Court.
35. On 12 May 2009 A.A. was found guilty and sentenced to fourteen
years imprisonment. His conviction was quashed by the Court of Cassation
on 1 April 2010 on the ground that at the time the offences were committed
he had been under the age of 18 and that fact had not been taken into
account by the first-instance court.
36. Criminal proceedings restarted before the Batman Assize Court in
2010 and on 9 May 2013 A.A. was sentenced to a total of five years, six
months and twenty days imprisonment. A.A. did not appeal against his
conviction.
37. A.A. was detained in a prison between 17 July 2000 and 23 March
2006 and between 8 and 22 January 2013.
2. M.D. and K.G.
38. On 24 May 2000 M.D. was charged with the offence of attempting
to undermine the constitutional order.
39. On 6 September 2000 K.G. was charged with the offence of
attempting to overthrow the constitutional order by arms and to replace it
with a system based on Sharia rules.
40. In the indictments the killing of the applicants husband was also
included as one of the acts imputable to M.D. and K.G.
41. On 30 December 2009 the Diyarbakr Assize Court handed down its
1,153-page judgment. It appears from this judgment that separate criminal
proceedings instigated against thirty-one defendants for the killing of a total
of 181 people, including the applicants husband and his friend R.., had
been joined in this case. The Diyarbakr Assize Court found M.D. and K.G.
guilty and sentenced them to life imprisonment. Their convictions and
sentences were upheld by the Court of Cassation on 26 January 2011.
42. M.D. and K.G. were remanded in custody on 31 January 2000 and
kept there until their conditional release was ordered on 3 January 2011 by
the Court of Cassation, which noted that they had been in custody for longer
than the ten-year period allowed by statute.
43. Following the upholding of their conviction, arrest warrants were
issued on 29 March 2011 and on 17 May 2011 for M.D. and K.G. with a
view to executing the remainder of their sentences.

CERF v. TURKEY JUDGMENT

3. M.A.O.
44. M.A.O. was indicted on 11 June 2001 and charged with the offence
of membership of an outlawed organisation, namely Hizbullah, and for
carrying out illegal acts on behalf of that organisation, including the killing
of the applicants husband.
45. On 13 February 2008 the Diyarbakr Assize Court found him guilty
and sentenced him to life imprisonment. The conviction and the sentence
were upheld by the Court of Cassation on 29 September 2009.
46. M.A.O. who had been remanded in custody on 23 April 2001, is still
in prison serving his sentence.
4. A.Y.
47. On 26 July 2000 criminal proceedings were brought against A.Y. for
membership of Hizbullah and for carrying out abductions and killings on
behalf of that organisation, including the killing of the applicants husband.
48. On 20 December 2012 the Adana State Security Court found him
guilty and sentenced him to twelve years and six months imprisonment. On
2 June 2013 the Court of Cassation upheld that judgment.
49. While the above-mentioned criminal proceedings were pending, on
11 February 2005 the Adana prosecutor communicated to the applicant, in
response to a request made by her, copies of the documents concerning the
investigation into the killing of her husband. As the investigation did not
concern only the killing of her husband but also those of a number of other
individuals, the applicant was only provided with copies of those documents
which concerned the killing of her husband. In this connection a decision to
classify the investigation files as confidential constituted an obstacle to the
applicants access to the documents in question.
50. On 5 March 2007 the applicant made representations to the
Diyarbakr prosecutor. On 21 and 27 March 2007 the applicant was
provided with replies in respect of those representations.

THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
51. Relying on Article 2 of the Convention the applicant complained that
her husband had been killed because of his political affiliation and by either
the respondent States agents or by Hizbullah, aided by the authorities.
Under the same provision the applicant also complained that the authorities
had not conducted an effective investigation into the killing. Citing
Article 13 of the Convention, the applicant complained that the

CERF v. TURKEY JUDGMENT

investigation had been systematically and persistently flawed and politically

compromised. As a result, enforcement of the available domestic remedies
had been rendered ineffective.
52. The Government contested the applicants arguments.
53. The Court considers that the applicants complaints should be
examined solely from the standpoint of Article 2 of the Convention, the
relevant part of which reads as follows:
1. Everyones right to life shall be protected by law ...

A. Admissibility
54. Referring to the criminal proceedings brought against the suspects
for the killing of the applicants husband (see paragraphs 33-48 above), the
Government argued that the applicant had not taken part in those
proceedings and had not availed herself of the right to appeal. They invited
the Court to declare her complaints inadmissible for failure to exhaust
domestic remedies within the meaning of Article 35 1 of the Convention.
55. The Government also argued that the applicant had failed to comply
with the six-month rule laid down in Article 35 1 of the Convention.
Referring to the decisions in the cases of Hanm Han v. Turkey ((dec.),
no. 31248/09, 15 January 2013), and Seyithan Aydn v. Turkey ((dec.),
no. 71998/01, 4 March 2008), the Government submitted that there was no
justification for the thirteen years of inactivity on the part of the applicant,
who took the view that the domestic trial was ineffective and who alleged
that she had not been sufficiently informed. In the opinion of the
Government, the applicant should have at least raised her objection
concerning the effectiveness of the investigation during the six-year period
between 20 October 1994 and 19 January 2000, which were respectively the
dates on which the search order had been issued (see paragraph 29 above)
and on which A.A. had been arrested (see paragraph 32 above).
56. The applicant accepted that the national legislation permitted her to
join the criminal proceedings in question as an intervening party. She
argued, however, that while that remedy might have been available in
theory, it was not reasonable to expect her to pursue it. The cases that she
might have been able to participate in were cases concerning the
involvement of a large terrorist organisation that had been supported by the
Government. Had she put herself forward as an intervening party in such a
high-profile case she would have exposed herself to serious risk, given
especially the threats made against witnesses, the applicant herself, and her
family.
57. Concerning the Governments submissions that she had failed to
comply with the six-month time-limit by delaying introducing her

CERF v. TURKEY JUDGMENT

application with the Court, the applicant considered that the two cases relied
on by the Government did not lend support to the Governments
submissions. Unlike the applicants in those two cases, she and her family
had been threatened and intimidated. In any event, she had clearly been
active, and had followed the proceedings closely notwithstanding her
difficulties in finding legal representation given her lack of means.
58. The applicant also argued that her case could not be compared to the
two cases relied on by the Government in which the applicants had
remained inactive for periods of fifteen and nine years. In her case the
authorities had given the appearance of engaging in a complex and
confidential investigation which identified suspects, entailing numerous
levels of the respondent States prosecutorial authorities that was ongoing,
albeit slowly, over a number of years. In these circumstances, also having
regard to the fates of the persons who had witnessed the killing of her
husband (see paragraphs 11-12 above), she argued that she should not be
criticised if she took a less active role than would otherwise be expected.
59. In the circumstances of the present case, before examining the
Governments objection to the admissibility of the applicants complaints
because she did not participate in the criminal proceedings, the Court deems
it more appropriate to deal first with the Governments other objection,
which concerns the applicants alleged failure to comply with the six-month
time-limit.
60. The Court reiterates that under Article 35 1 of the Convention it
can only deal with applications after all domestic remedies have been
exhausted and within a period of six months from the date on which the
final domestic decision was taken. The six-month time-limit has a number
of aims. Its primary purpose is to maintain legal certainty by ensuring that
cases raising issues under the Convention are examined within a reasonable
time, and to prevent the authorities and other persons concerned from being
kept in a state of uncertainty for a long period of time. It also affords the
prospective applicant time to consider whether to lodge an application and,
if so, to decide on the specific complaints and arguments to be raised and
facilitates the establishment of facts in a case, since with the passage of
time, any fair examination of the issues raised is rendered problematic
(Sabri Gne v. Turkey [GC], no. 27396/06, 39, 29 June 2012 and the
cases cited therein).
61. The Court notes that it was held in the cases of Hanm Han and
Seyithan Aydn, referred to by the Government, and in a number of other
comparable cases, that if no remedies are available or if they are judged to
be ineffective the six-month time-limit in principle runs from the date of the
act complained of. Special considerations could apply in exceptional cases
where an applicant first avails himself of a domestic remedy and only at a
later stage becomes aware, or should have become aware, of circumstances
which make that remedy ineffective. In such a situation, the six-month

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CERF v. TURKEY JUDGMENT

period might be calculated from the time when the applicant becomes
aware, or should have become aware, of these circumstances (see Bulut and
Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002 and the cases cited
therein; and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07
and 32431/08, 258-259 and 264, ECHR 2014 (extracts)).
62. Turning to the circumstances of the present case, the applicants
husband was killed on 3 October 1994 and an investigation was started the
same day by the prosecutors of their own motion and without waiting for
the applicant to make an official complaint. The Court observes, however,
that the investigation seems to have run out of steam very quickly, and a
decision was taken by the prosecutor to issue a standing search order some
seventeen days after the killing, on 20 October 1994 (see paragraph 29
above). Not a single further step appears to have been taken in the
investigation before a person was arrested and confessed to the killing of the
applicants husband in January 2000 (see paragraph 30 above). On the other
hand, during that dormant period of five years and three months the
applicant does not appear to have taken any steps to acquaint herself with
the investigations progress.
63. In the light of the foregoing, the Court considers that the absence of
a meaningful investigation must have been apparent to the applicant long
before January 2000. Nevertheless, it does not appear that the applicant
exercised due diligence in determining that the criminal investigation had
become dormant (see Alkn v. Turkey, no. 75588/01, 34, 13 October
2009).
64. The Court concludes, therefore, that the applicants complaints
concerning the killing of her husband and the alleged ineffectiveness of the
investigation into the killings conducted during the period up to
January 2000 have been introduced out of time and are inadmissible under
Article 35 1 and 4 of the Convention.
65. The Court considers, however, that in some cases information
purportedly casting new light on the circumstances of a killing may come
into the public domain at a later stage. The issue then arises as to whether,
and in what form, the procedural obligation to investigate is revived. To that
end, the Court considered in its judgment in the case of Brecknell v. the
United Kingdom (no. 32457/04, 71, 27 November 2007) that, where there
is a plausible or credible allegation, the discovery of any new piece of
evidence or item of information relevant to the identification and eventual
prosecution or punishment of the perpetrator of an unlawful killing would
require the authorities to take further investigative measures. The steps
which it would be reasonable to take will vary considerably depending on
the facts of the situation. The lapse of time will, inevitably, be an obstacle as
regards, for example, the location of witnesses and the ability of witnesses
to recall events reliably. Such an investigation may in some cases

CERF v. TURKEY JUDGMENT

11

reasonably be restricted to verifying the credibility of the source, or of the

purported new evidence.
66. The Court considers that the information provided by M.D., who
was arrested in January 2000 and who confessed to the killing of the
applicants husband, amounted to the kind of new evidence alluded to in the
preceding paragraph. In this connection the Court observes that a new
investigation was started into these allegations by the authorities, who
subsequently discovered new leads and information about the killing.
Subsequently, a number of other persons were also arrested and put on trial
together with M.D. for offences including, inter alia, the killing of the
applicants husband, and they were found guilty at the end of the
proceedings.
67. In light of the foregoing, the Court considers that the information
submitted to the authorities in January 2000 led to significant new
developments and that therefore the procedural obligation to investigate the
killing of the applicants husband was revived after that date (see Gasyak
and Others v. Turkey, no. 27872/03, 60-63, 13 October 2009; see also
Say v. Turkey, no. 37715/11, 50, 27 January 2015).
68. It follows that the Governments objection to the admissibility of the
complaint under Article 2 of the Convention, in so far as it concerns the
effectiveness of the investigation and the trial carried out after
January 2000, must be dismissed.
69. The Court has also examined the Governments arguments that the
applicant failed to exhaust domestic remedies within the meaning of
Article 35 1 of the Convention by not joining the criminal trials as an
intervening party and by not lodging appeals against the judgments. It notes
that it has already examined and rejected similar arguments raised by the
same respondent State in comparable cases (see, inter alia, Abdurrahman
Orak v. Turkey, no. 31889/96, 56-59 and 87, 14 February 2002; and Erat
and Salam v. Turkey (dec.), no. 30492/96, 15 May 2001). In the instant
case the Court does not see any particular reason to depart from those
findings, and it rejects the Governments objection to the admissibility of
this complaint based on exhaustion of domestic remedies.
70. The Court notes that the applicants complaint concerning the
effectiveness of the investigation and the trial conducted after January 2000
is not manifestly ill-founded within the meaning of Article 35 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
71. The applicant expressed serious concerns about the effectiveness of
the investigation and the trial and alleged that the focus of the investigation
had been primarily on establishing that the suspects were members of

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CERF v. TURKEY JUDGMENT

Hizbullah rather than on scrutinising the offences that they may have carried
out as members of that organisation. The applicant considered it noteworthy
that the only significant evidence revealed by the respondent State had been
the confessions of those convicted; there was precious little other evidence
linking those individuals with the death of her husband. In the opinion of
the applicant, the confessions themselves seemed of dubious value, given
that those convicted had subsequently retracted their claims, alleging that
they had been tortured and forced to confess. The applicant alleged that the
authorities had used those statements to obscure the truth concerning the
death of her husband.
72. Taking into account the credible suspicion of links between the
respondent States authorities and Hizbullah, it was incumbent on the
authorities to undertake a comprehensive investigation capable of
determining the truth of these allegations. Given the victims political
affiliation, the modus operandi of the assassins, the lack of a security
presence on the day of the killing and the extensive circumstantial evidence
linking the respondent States security forces and Hizbullah, any credible
investigation should have investigated the potential involvement of the
security services in the killing. There was no evidence that such
investigation had been pursued.
73. Although contemporaneous descriptions of the perpetrators had been
given by eyewitnesses to the killing, there was no evidence that those
witnesses were given an opportunity to identify the individuals whom the
respondent State claimed were responsible for the murders. By contrast,
S.S., who had been injured by a ricocheting bullet, was asked to identify the
suspects, but was unable to.
74. The applicant also complained that there had been unexplained,
unjustifiable and continuing delays in the proceedings before the national
authorities. The proceedings against the various suspects had been
transferred between the State Security Courts at Adana, Ankara and
Diyarbakr for a number of years. Those delays had inevitably led to
information being withheld, misplaced or not communicated between the
various State agencies involved in the investigation.
75. The Government argued that the investigating authorities had shown
due diligence in order to establish the whereabouts and the identities of the
perpetrators. Subsequently those perpetrators had been found guilty and
sentenced to various terms of imprisonment.
76. The Government took the lengthy proceedings into account and
left it to the Courts discretion to decide on the applicants complaint
regarding the delays in the criminal proceedings. In that connection they
submitted that a large number of previously unsolved murders and assaults
had now been solved, and a large number of individuals had been
prosecuted in the course of those related criminal proceedings.

CERF v. TURKEY JUDGMENT

13

77. The Court reiterates that the obligation to protect the right to life
under Article 2 of the Convention, read in conjunction with the States
general duty under Article 1 of the Convention to secure to everyone within
[its] jurisdiction the rights and freedoms defined in [the] Convention,
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. The investigation must be, inter alia, thorough, impartial and careful
(see McCann and Others v. the United Kingdom, 27 September 1995,
161-63, Series A no. 324). In that connection, the Court points out that
this obligation is not confined to cases where it is apparent that the killing
was caused by an agent of the State (see Salman v. Turkey [GC],
no. 21986/93, 105, ECHR 2000-VII). A requirement of promptness and
reasonable expedition is implicit in this context. It must be accepted that
there may be obstacles or difficulties which prevent progress in an
investigation in a particular situation. However, a prompt response by the
authorities in investigating a use of lethal force may generally be regarded
as essential in maintaining public confidence in their adherence to the rule
of law and in preventing any appearance of collusion in or tolerance of
unlawful acts (see McKerr v. the United Kingdom, no. 28883/95, 114,
ECHR 2001-III and the cases cited therein; see also Mocanu and Others
v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, 316-325,
ECHR 2014 (extracts); and Mustafa Tun and Fecire Tun v. Turkey [GC],
no. 24014/05, 169-182, 14 April 2015).
78. The Court reiterates that in the normal course of events a criminal
trial, with an adversarial procedure before an independent and impartial
judge, must be regarded as furnishing the strongest safeguards of an
effective procedure for the finding of facts and the attribution of criminal
responsibility (ibid., 134). In the present case, a number of suspects were
prosecuted and five of them were subsequently convicted of offences
including, inter alia, the killing of the applicants husband; they were
sentenced to various terms of imprisonment. The Court cannot, contrary to
the applicants submissions, find that the preliminary investigations
conducted after January 2000 and the subsequent trials proved incapable of
identifying and prosecuting the perpetrators of the killings (see, mutatis
mutandis, Acar and Others v. Turkey, nos. 36088/97 and 38417/97, 90,
24 May 2005).
79. Concerning the promptness of the criminal proceedings conducted
after 2000, the Court reiterates that Article 2 of the Convention requires
investigations to begin promptly and to proceed with reasonable expedition,
and that this is required quite apart from any question of whether the delay
actually impacted on the effectiveness of the investigation (see McCaughey
and Others v. the United Kingdom, no. 43098/09, 130, ECHR 2013).
80. The Court notes that the criminal proceedings against the defendants
were instituted on various dates in 2000 and were not concluded until 2009

14

CERF v. TURKEY JUDGMENT

and 2013 (see paragraphs 34 and 48 above). Although, as the Government

pointed out, the proceedings were complex, the Government have not
sought to justify those delays, and have not argued that the delays were
justifiable vis--vis the procedural obligation under Article 2 of the
Convention.
81. The Court considers that the above-mentioned delays in the criminal
proceedings cannot be regarded as compatible with the States obligation
under Article 2 of the Convention to ensure the effectiveness of
investigations into suspicious deaths, in the sense that the investigative
process, however it is organised under national law, must be commenced
promptly and carried out with reasonable expedition. To this extent, the
foregoing finding of excessive delay in the investigation of itself entails the
conclusion that the investigation was ineffective for the purposes of
Article 2 of the Convention. There has, accordingly, been a violation of
Article 2 of the Convention under its procedural aspect (ibid. 140).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
82. Lastly, relying on Article 14 of the Convention, the applicant alleged
that her husband had been killed on account of his Kurdish origin and his
political activities. In support of this complaint the applicant referred to the
killing of her husbands friend Sait Macir and the ill-treatment of Ahmet
Dizman referred to above, both of whom had also been HADEP members.
Finally, under the same provision she also alleged that the prosecutor had
not carried out an effective investigation because her husband was Kurdish.
83. Having regard to the documents in its possession, the Court finds
that this part of the application does not disclose any appearance of a
violation of the Conventions provisions. It follows that this part of the
application is manifestly ill-founded and should be rejected, in accordance
with Article 35 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
84. Article 41 of the Convention provides:
If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.

A. Damage
85. The applicant claimed 1,907,200 Turkish liras (TRY, approximately
635,750 euros (EUR)) in respect of pecuniary and 62,000 pounds sterling
(GBP, approximately EUR 86,800) in respect of non-pecuniary damage.

CERF v. TURKEY JUDGMENT

15

86. The Government argued that there was no causal link between the
claim for pecuniary violation and the alleged violations of the applicants
rights under the Convention. They also considered that the applicants claim
for non-pecuniary damage was excessive.
87. The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 20,000 in respect of
non-pecuniary damage.
B. Costs and expenses
88. The applicant also claimed the total sum of GBP 21,962.59
(approximately EUR 31,200) for the costs and expenses incurred before the
domestic courts and for those incurred before the Court. GBP 20,422.50 of
that sum was requested in respect of the legal representatives fees and the
remaining GBP 1,540.09 for administrative costs and expenses such as
translation, telephone and postage. In support of her claims for the fees of
her legal representatives the applicant submitted a time-sheet showing the
hours spent by her representatives on the case. In support of her claim for
administrative costs and expenses the applicant submitted several
documents. The applicant requested the Court to order that the award in
respect of the costs and expenses be paid directly into her legal
representatives bank account in the United Kingdom.
89. The Government considered the claims for costs and expenses to be
excessive and unsupported by documentary evidence.
90. According to the Courts case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable to award
the applicant the sum of EUR 3,000 covering costs under all heads, to be
paid in pounds sterling into her representatives bank account in the United
Kingdom.
C. Default interest
91. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.

16

CERF v. TURKEY JUDGMENT

FOR THESE REASONS, THE COURT,

1. Declares, unanimously, the complaint under Article 2 of the Convention
concerning the effectiveness of the criminal proceedings conducted
between 2000 and 2013 admissible;
2. Declares, by six votes to one, the remainder of the application
inadmissible;
3. Holds, unanimously, that there has been a violation of Article 2 of the
Convention in its procedural aspect;
4. Holds, unanimously,
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 2 of the Convention, the following amounts:
(i) EUR 20,000 (twenty thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted
into the currency of the respondent State at the rate applicable at the
date of settlement;
(ii) EUR 3,000 (three thousand euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses, to be
converted into pounds sterling at the rate applicable at the date of
settlement and paid into her representatives bank account in the
United Kingdom;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
5. Dismisses, unanimously, the remainder of the applicants claim for just
satisfaction.

CERF v. TURKEY JUDGMENT

17

Done in English, and notified in writing on 3 May 2016, pursuant to

Rule 77 2 and 3 of the Rules of Court.

Abel Campos
Registrar

Julia Laffranque
President

In accordance with Article 45 2 of the Convention and Rule 74 2 of

the Rules of Court, the separate opinion of Judge Lemmens is annexed to
this judgment.

J.L.
A.C.

18

CERF v. TURKEY JUDGMENT SEPARATE OPINION

PARTLY DISSENTING AND PARTLY CONCURRING

OPINION OF JUDGE LEMMENS
1. To my regret, I cannot fully agree with the reasoning adopted in the
judgment.
2. As summarised in paragraph 51 of the judgment, the applicant
complains in the first place about the killing of her husband, either by the
respondent States agents or by a non-governmental group (Hizbullah) aided
by the authorities. She also complains of the ineffectiveness of the
investigation.
When it comes to the examination of the merits of the complaint, the
majority examines only the second aspect (the procedural limb of Article 2),
not the first one (the substantive limb of Article 2). Hence, it does not look
into what is undoubtedly the main aspect of the applicants complaint,
namely the alleged direct or indirect involvement of the State in the killing
of her husband.
The reason for disregarding the main issue in this way is to be found in
paragraph 64 of the judgment. There, the majority holds that the applicants
complaint about the killing of her husband like her complaint relating to
the alleged ineffectiveness of the investigation up to January 2000 is
inadmissible because it was lodged out of time.
While I agree that the complaint relating to the first stage of the
investigation is inadmissible for the reason stated, I respectfully disagree
with the inadmissibility of the complaint in so far as it relates to the killing
of the applicants husband. As acknowledged by my colleagues, since there
were significant new developments in January 2000, the procedural
obligation to investigate the husbands killing was revived after that date,
with the result that the complaint relating to the ineffectiveness of the
investigation thereafter cannot be declared inadmissible as being lodged out
of time (see paragraphs 67 to 68 of the judgment). In my opinion, the fact
that the applicant is entitled to complain that the investigation as resumed
after January 2000 was ineffective should result in the admissibility of her
complaint relating to the specific object of that investigation, namely the
killing of her husband. The applicant should have been able in principle to
await the outcome of the resumed investigation to see whether it produced
evidence of the States implication in the killing of her husband, and then to
refer to the results of the investigation (or the lack of meaningful results) in
support of her argument that the State was in fact involved.
3. With respect to the merits of the applicants complaint relating to the
ineffectiveness of the investigation after it was resumed, it is again clear
from her submissions that she is primarily concerned with the absence of an
investigation into the possible involvement of the security services in the
killing of her husband (see paragraph 72 of the judgment). According to the
applicant, far from shedding light on the circumstances surrounding the

CERF v. TURKEY JUDGMENT - SEPARATE OPINION

19

death of her husband, the investigation was an attempt to obscure the truth
concerning his death (see paragraph 71 of the judgment).
The majority does not give a direct answer to that complaint. With
respect to the adequacy of the investigation, it limits itself to finding that the
investigation was capable of identifying and prosecuting the perpetrators of
the killing, that is, the members of Hizbullah who had confessed to carrying
out the operation which resulted in the killing of the applicants husband
(see paragraph 78 of the judgment). To my regret, I consider that this is a
very incomplete answer. The Court should have examined whether there
was reason for the investigation to look into the possible involvement of the
State security forces, as alleged by the applicant, and if so, whether an
investigation into that aspect was actually undertaken.
By holding that the investigation was ineffective because of the delays
incurred (see paragraphs 79 to 81 of the judgment), the majority is able to
find a violation of Article 2. I concur with that result, but consider it to be a
very meagre one.
4. I am left with the unpleasant feeling that not only the domestic
investigation, but also the examination of the case by our Court, failed to
contribute to disclosing the truth about what really happened when the
applicants husband was killed.