Kaya v Turkey (1999) 28 EHRR 1

This case was heard before the first section of the European Court of Human
Rights. It concerned the following articles of the Convention:

Article 2 (Right to Life);

Article 3 (Prohibition on Torture and Inhuman Treatment);

Article 13 (Effective Remedies);

Article 14 (Discrimination).1

In essence, the court was tasked with deciding (a) whether an individual had
been unlawfully killed by state action, and (b) whether the failure to bring
the perpetrator(s) to justice breached Article 13 as a consequence of
discrimination against Kurds.

Facts
The deceased, Dr Hasan Kaya, practiced medicine in South-east Turkey. He
would often treat Kurdish PKK activists who had been injured in clashes with
the Turkish security forces. It is alleged that the Turkish authorities had
harassed Dr Kaya and his associates on numerous occasions. This led Dr
Kaya to fear that his life was in danger, suspecting that "the police were
making reports on him and keeping him under surveillance."2

On 23rd February 1993 an anonymous source tipped off Dr Kaya and his
friend Metin Can (a human rights lawyer) about an injured PKK fighter who
was hiding on the outskirts of town. They left to tend to him. They did not
return. Later that evening, an anonymous phone call was received saying
that both had been killed. The caller was said to sound like one of the men
who gave the tip-off. Four days later, Kaya and Can's bodies were found
underneath a bridge. An autopsy confirmed that Kaya had been shot in the
head while his hands were tied behind his back. There was clear evidence
that Can had been tortured.

Investigations began to suggest State involvement in the deaths. Witnesses

indicated that the police had intercepted Kaya and Can. The men would have
needed to traverse eight official checkpoints to get to where their bodies
were discovered. Local sources identified "contra-guerillas paid by the state"
as the perpetrators.3 All of this was denied by the local police.4 However,
they repeatedly failed to follow up on investigative leads. Further
discrepancies in the information began to emerge (including a TV
investigation), which further alluded to Gendarme (military police)
involvement in the deaths. An official report for the Turkish Prime Minister,
the 'Susurluk Report', seemed to reach the same conclusion. However,
despite investigations and named suspects, no one was ever brought to
account for the killings.

The Issues
The applicant submitted that Dr Kaya was killed "either by undercover
agents of the State or by persons acting under their express or implied
instructions, and to whom the State gave support, including training and
equipment."5 They relied upon the Susulruk report as evidence to support
this assertion.6 Kaya was at risk from violence, the State were aware of this,
and as such, they could have taken steps to protect him. They also criticised
the investigation, including the failure to complete adequate autopsies and
forensic examinations, and the failure to follow up leads and locate possible
suspects.7

The Turkish State rejected this, pointing out the Susurluk report was not an
investigative document, serving purely to inform the Prime Ministers Office of
events.8 They also pointed out that the State was dealing with a "high level
of terrorist violence" that had killed over 30,000 Turkish citizens. With such
"widespread intimidation and violence .... all state officials such as doctors
could be said to be at risk, not only Hasan Kaya".9 They defended the
investigation, describing it as robust and pointing out that it would remain
open until either solved, or twenty-years pass.10

Ruling
The Court found a violation of Article 2, 3 and 13 "in respect of failure to
protect life and ineffective investigation." It deemed it not necessary to
investigate Article 14.11

The Court observed that Article 2 "enjoins the State not only to refrain from
the intentional and unlawful taking of life, but also to take appropriate steps
to safeguard the lives of those within its jurisdiction."12 Although it could not
be established beyond reasonable doubt that the State was directly
responsible for the killing, the Court concluded that "strong inferences could
be drawn on the facts of the case that the perpetrators were known to the
authorities". It also attached significance to the Susurluk report, which "took
the position that the murder of Kaya was one of extra-judicial execution carried
out with the knowledge of the authorities."13
The court acknowledged the high number of conflict related fatalities, but
noted the high number of "unknown perpetrator killings" of prominent
Kurdish figures which had alleged contra-guerrila involvement. As a doctor
"suspected of aiding and abetting the PKK", the State should have known
that he was at "real and immediate" risk of death.14

Impact
The case was significant in helping to explain and apply the complicated,
contradictory reasoning in Osman v UK.15 In Osman, the ECtHR ruled that
under Article 6 of the Convention, the police have a duty to adequately
investigate killings. This means that the State potentially owes a duty of care
towards citizens who are known to be at risk from dangerous people. 16
However, the Court declined to find that this amounted to a breach of the
Article 2 right to life.

In Kaya, the Court was prepared to take this extra step. Even though Kaya
had not explicitly requested protection from the State, he was well known as
a doctor offering support for a Kurdish minority in a volatile part of the
country. Previous incidents meant that Dr Kaya was an identifiable individual
who could reasonably of expected State protection.17 As a consequence, the
States failure to adequately investigate and bring those responsible to justice
meant that it failed to prevent the death and prevent any potential
repetition, therefore breaching Article 2.18

The case enshrines a duty to investigate deaths as vital component of the

right to life,19 and proved influential on cases involving Russian action in
Chechnya.20