Military intervention not exercising effective control
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Turkish Criminal Code 49. The Criminal Code makes it a criminal offence (a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants); (b) to subject an individual to torture or ill-treatment (Articles 243 and 245); (c) to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) or murder (Article 450); 50. If the suspected authors of these criminal acts are military personnel, they may also be prosecuted for the above-mentioned crimes. Proceedings in these circumstances may be initiated by the persons concerned (non ‑ military) before the competent authority under the Code of Criminal Procedure or before the suspected persons'hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts). B. Relevant International Legal Materials 51. A description of relevant international legal materials can be found in Banković and Others v. Belgium and 16 other Contracting States (dec.) [GC], application no. 52207/99, §§ 14-27, ECHR 2001-XII. THE LAW I. PRELIMINARY ISSUE: THE GOVERNMENT'S PRELIMINARY OBJECTION CONCERNING JURISDICTION AND THE APPLICANTS'ESTOPPEL ARGUMENTS A. Parties'submissions 1. The Government 52. In their post-admissibility observations dated 9 July 2002, the Government submitted that the need had arisen to examine the issue of “jurisdiction” in the instant case, having regard to the Court's inadmissibility decision of 12 December 2001 in the case of Banković and Others cited above. They contended that in its Banković and Others decision the Court had departed from its previous case-law on the scope of interpretation of Article 1 of the Convention. Since the jurisdiction issue in the applicants'case had been left unresolved in the admissibility decision, which pre-dated the Banković and Others decision, the Court should address itself in the first place to the compatibility ratione loci of the application. 2. The applicants 53. The applicants replied that the Court in the Banković and Others case had merely refined and applied existing case-law on Article 1 to the facts of the Banković and Others case. In any event, it had already ruled on the admissibility of their complaints. On that account, the Government should be considered estopped from raising a new objection to admissibility at this late stage of the proceedings. The applicants, on the other hand, had addressed the issue of jurisdiction squarely both in their initial application and in their pre-admissibility pleadings. The Government never sought to rebut their claim that Turkey's jurisdiction was engaged on the facts of the case and confined themselves to challenging the admissibility of the application on the grounds set out in Article 35 § 1 of the Convention. To allow the Government to re-open admissibility issues at this stage would fundamentally offend against the principles of certainty and finality and would make a mockery of the principle of “equality of arms”. 54. Furthermore, both the Government and the Court had already accepted jurisdiction in the present case. The applicants reasoned that, in their submissions to the Court in the Banković and Others case, the respondent Governments, including Turkey, expressly agreed with the Court's admissibility decision in Issa, describing it as “ ... a classic exercise of such legal authority or jurisdiction over those persons by military forces on foreign soil” ( Banković and Others, cited above, § 37). Thus, the Turkish Government can be said to have impliedly accepted the force of that argument and its application to the circumstances of the instant case. Likewise, the Court effectively accepted jurisdiction when it ruled on the issue of domestic remedies. For the applicants, it was inconceivable that the Court had not supposed Turkey's jurisdiction when ruling on admissibility. Its detailed examination of the general and political context as well as its cross-references to other judgments against Turkey is only intelligible on the basis that Turkey came within the terms of Article 1. B. The Court's assessment 55. The Government did not explicitly raise the issue of jurisdiction prior to the admissibility decision in the instant case. However, they have at all times denied the factual basis of the applicants'allegations and, by implication, the applicants'specific and crucial contention that the deceased shepherds were under the control and authority of Turkish armed forces operating in northern Iraq at the relevant time and were, accordingly, within the jurisdiction of Turkey. In the Court's opinion, and notwithstanding the requirements of Rule 55 of the Rules of Court, the Government cannot be considered precluded from raising the jurisdiction issue at this juncture. That issue is inextricably linked to the facts underlying the allegations. As such, it must be taken to have been implicitly reserved for the merits stage. It would add that it cannot accept the applicants'arguments that the Court had accepted that Turkey had jurisdiction when it ruled on the admissibility of the application. It refers in this connection to the fact that the Grand Chamber in its Banković and Others decision pointed out that “in any event the merits of [the Issa case ] remain to be decided.” ( ibid. § 81). In conclusion, the question of jurisdiction must be seen as a live issue in the case before it and must therefore be examined. II. WHETHER THE APPLICANTS'RELATIVES CAME WITHIN THE JURISDICTION OF TURKEY A. Arguments submitted to the Court 1. The Government 56. The Banković and Others decision demonstrated that the Court's recognition of the exercise of acts of extra - territorial jurisdiction by a Contracting State was exceptional since such acts were subject to the sovereignty of another State. That decision also confirmed that the Convention was a treaty operating in an essentially regional context and in the legal space ( espace juridique ) of Contracting States and that jurisdiction would only be established when the territory in question was one that would normally be covered by the Convention. 57. Iraq was an independent and sovereign State which exercised effective jurisdiction over its national territory. It was neither a member of the Council of Europe nor a signatory to the Convention. Accordingly, the acts imputed to Turkey could not fall under the Convention protection system and/or within the jurisdiction of a Contracting State. The applicants could not rely on the argument that, in the event of a ruling by the Court that it was not competent to decide the case, a vacuum or lacuna in the system of human rights system would thereby result. 58. As they had done in their submissions on the admissibility of the application, the Government confirmed that Turkish troops had conducted an operation in northern Iraq between 19 March and 16 April 1995. However, no Turkish soldiers had been present in the area indicated by the applicants. During this military operation Turkish troops had advanced to Mount Medina. However, the scene of the impugned incident was ten kilometres to the south of Mount Medina, and thus beyond the zone of operations. The records of the armed forces showed that no Turkish soldiers were in the area indicated by the applicants. For the Government, the mere presence of Turkish armed forces for a limited time and for a limited purpose in northern Iraq was not synonymous with “jurisdiction”. Turkey did not exercise effective control of any part of Iraq and it had to be concluded that Turkey could not be held responsible for the acts imputed to it in the instant application. 59. The Government further pointed out that no complaint had ever been made to any officer of the Turkish armed forces operating in the Mount Medina region at the relevant time, and no investigation could therefore be conducted into the incident of which Turkey was accused. As regards the video recording of statements made by the KDP Chief of the Amedi region, Mr Shookri Newayi, during a press conference held in Dohouk, the Government observed that the KDP office in Ankara had been contacted with a view to verifying the reliability of the statements made by Mr Nerwayi and to ascertaining the outcome of the investigations carried out by the local authorities. The KDP office replied that Mr Nerwayi was the contact person for the KDP with the Turkish army, that no accusations had been made against the Turkish army and that no investigation had been conducted into the incident (see paragraph 46 above). The KDP's letter also stated that at the relevant time the PKK had been active in the region and that there had been many confrontations between the KDP and the PKK. This information supported the views expressed in news reports at the time of the incident that the killing could have been carried out by members of the PKK operating in the region. 60. Finally, the Government stressed that individuals who suffered pecuniary or non-pecuniary damage as result of misconduct by members of the Turkish armed forces received compensation on submission of their complaints to the competent authorities. They referred in this connection to a newspaper article which reported that the Turkish Government had paid compensation to the relatives of thirty-eight persons who had lost their lives during an aerial campaign of the Turkish army in northern Iraq (see paragraph 47). 61. In sum, the Government concluded that, in view of the circumstances of the present case and having regard to the Court's interpretation of the notion of “jurisdiction” in the Banković and Others decision, Turkey's jurisdiction did not extend to northern Iraq for alleged violations of the Convention and its protocols and that Convention responsibility for the incident in the present case could not therefore be imputed to Turkey. 2. The applicants 62. The applicants claimed that the jurisdictional position of the applicants remained unaffected by the Banković and Others decision. With reference to the Convention institutions'jurisprudence and legal commentaries on the issue of jurisdiction, the applicants submitted that the victims of the atrocity were within the jurisdiction of the respondent State at the material time (see, Loizidou v. Turkey ( preliminary objections ), judgment of 23 March 1995, Series A no. 310, p. 23, § 62; Loizidou v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2 234, § 52; Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001 -IV; Banković and Others, cited above, § § 54 and 70; Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, p. 29, § 91; Oppenheim's International Law, 9 th Edition 1992 (Jennings and Watts), Vol. 1, § § 136 and 137; Brownlie, Principles of International Law, 4 th Edition 1990, p. 2 98, 311; and Byers, Custom, Power and the Power of Rules, Cambridge University Press, 1999, p. 53 ). 63. The applicants maintained that Turkey's ground operations in northern Iraq were sufficient to constitute “effective overall control” ( within the meaning of the Loizidou judgment ) of the area where the breaches of their relatives'human rights occurred. In their official statements on the conduct of military operations in northern Iraq at the relevant time, the Turkish authorities accepted that the area was under the authority of the Turkish State, and hence within its jurisdiction (see Government Statement. Subject: Military Operation in Northern Iraq. Permanent Mission of Turkey to the United Nations Office of the Press Counsellor, 20 March 1995 ). During those military operations, the Turkish Government deployed in excess of 35,000 ground troops, backed up by tanks, helicopters and F- 16 fighter aircraft ( Turkey: Anti ‑ Kurdish Offensive, Keesing's Record of World Events, News Digest for March 1995). Given the degree of control enjoyed by the Turkish armed forces of the area, the Turkish Government had de facto authority over northern Iraq and its inhabitants, as opposed to de jure sovereignty. The circumstances of the applicants'case were different from those in the Banković case since the deceased shepherds had been deliberately targeted, murdered and mutilated by Turkish armed forces. In their opinion, the fact that the decision ‑ making process that led to the military operation in northern Iraq took place in Turkey lent further weight to their submission that Turkey exercised jurisdiction at the relevant time. 64. The applicants also stressed that the shepherds fell within the protected persons category defined in Article 4 of Fourth Geneva Convention of 1949, namely “those who at any given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals ”. Accordingly, the seven Iraqi shepherds were brought within the jurisdiction of the respondent State by virtue of the de minimis protection afforded by the Geneva Conventions. The fact that under international law the victims were clearly within the jurisdiction of Turkey reinforced their submission that the requirements for the applicability of Article 1 of the Convention were satisfied in this case. B. The Court's assessment 1. General principles 65. Article 1 of the Convention provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” 66. It follows from Article 1 that Contracting States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia, [GC], no. 48787/99, § 311, ECHR 2004 - ... ). 67. The established case-law in this area indicates that the concept of “jurisdiction” for the purposes of Article 1 of the Convention must be considered to reflect the term's meaning in public international law (see Gentilhomme, Schaff-Benhadji and Zerouki v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, 14 May 2002; Banković and Others, cited above, §§ 59-61, and Assanidzé v. Georgia, [GC], no. 71503/01, § 137, ECHR 2004 -...). From the standpoint of public international law, the words “within their jurisdiction” in Article 1 of the Convention must be understood to mean that a State's jurisdictional competence is primarily territorial (see Banković and Others, cited above, § 59 ), but also that jurisdiction is presumed to be exercised normally throughout the State's territory. 68. However, the concept of “jurisdiction ” within the meaning of Article 1 of the Convention is not necessarily restricted to the national territory of the High Contracting Parties (see Loizidou v. Turkey, cited above, pp. 2235-2236 § 52). In exceptional circumstances the acts of Contracting States performed outside their territory or which produce effects there (“extra-territorial act”) may amount to exercise by them of their jurisdiction within the meaning of Article 1 of the Convention. 69. According to the relevant principles of international law, a State's responsibility may be engaged where, as a consequence of military action – whether lawful or unlawful – that State in practice exercises effective control of an area situated outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration ( ibid. § 52 ). 70. It is not necessary to determine whether a Contracting Party actually exercises detailed control over the policies and actions of the authorities in the area situated outside its national territory, since even overall control of the area may engage the responsibility of the Contracting Party concerned ( ibid., pp. 2235-2236, § 56). 71. Moreover, a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State's authority and control through its agents operating – whether lawfully or unlawfully - in the latter State (see, mutatis mutandis, M. v. Denmark, application no. 17392/90, Commission decision of 14 October 1992, DR 73, p. 193; Illich Sanchez Ramirez v. France, application no. 2878 0/95, Commission decision of 24 June 1996, DR 86, p. 155; Coard et al. v. the United States, the Inter ‑ American Commission of Human Rights decision of 29 September 1999, Report No. 109/99, case No. 10.951, §§ 37, 39, 41 and 43; and the views adopted by the Human Rights Committee on 29 July 1981 in the cases of Lopez Burgos v. Uruguay and Celiberti de Casariego v. Uruguay, nos. 52/1979 and 56/1979, at §§ 12.3 and 10.3 respectively ). Accountability in such situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory ( ibid .). 2. Application of the above principles 72. In the light of the above principles the Court must ascertain whether the applicants'relatives were under the authority and /or effective control, and therefore within the jurisdiction, of the respondent State as a result of the latter's extra ‑ territorial acts. 73. In this connection, the Court notes that it is undisputed between the parties that the Turkish armed forces carried out military operations in northern Iraq over a six - week period between 19 March and 16 April 1995 (see paragraphs 58 and 63 above). It transpires from the parties'submissions and the documentary evidence contained in the case-file that the cross-border operation conducted at that time was extensive and was aimed at pursuing and eliminating terrorists who were seeking shelter in northern Iraq (see paragraphs 36, 43, 45, 58 and 63 ). 74. The Court does not exclude the possibility that, as a consequence of this military action, the respondent State could be considered to have exercised, temporarily, effective overall control of a particular portion of the territory of northern Iraq. Accordingly, if there is a sufficient factual basis for holding that, at the relevant time, the victims were within that specific area, it would follow logically that they were within the jurisdiction of Turkey (and not that of Iraq, which is not a Contracting State and clearly does not fall within the legal space ( espace juridique ) of the Contracting States (see the above-cited Banković decision, § 80). 75. However, notwithstanding the large number of troops involved in the aforementioned military operations, it does not appear that Turkey exercised effective overall control of the entire area of northern Iraq. This situation is therefore in contrast to the one which obtained in northern Cyprus in the Loizidou v. Turkey and Cyprus v. Turkey cases (both cited above). In the latter cases, the Court found that the respondent Government's armed forces totalled more than 30,000 personnel (which is, admittedly, no less than the number alleged by the applicants in the instant case - see § 63 above – but with the difference that the troops in northern Cyprus were present over a very much longer period of time) and were stationed throughout the whole of the territory of northern Cyprus. Moreover, that area was constantly patrolled and had check points on all main lines of communication between the northern and southern parts of the island. 76. The essential question to be examined in the instant case is whether at the relevant time Turkish troops conducted operations in the area where the killings took place. The fate of the applicants'complaints in respect of the killing of their relatives depends on the prior establishment of that premise. The Government have vigorously denied that their troops were active in or around Azadi village in the Spna area (see paragraphs 25 and 58 above). The reasonableness of that assertion must be tested in the light of the documentary and other evidence which the parties have submitted to the Court, having regard to the standard of proof which it habitually employs when ascertaining whether there is a basis in fact for an allegation of unlawful killing, namely proof “beyond reasonable doubt” ( Orhan v. Turkey, no. 25656/94, § 264, 18 June 2002; Tepe v. Turkey, no. 27244/95, § 125, 9 May 2003; and İpek v. Turkey, no. 25760/94, § 109, ECHR 2004 ‑ ... (extracts) ), it being understood that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. 77. The Court notes that the applicants have provided written statements describing the alleged course of events leading to the arrest and killing of their relatives. While the applicants were all unequivocal in their statements that the alleged acts were perpetrated by Turkish soldiers, they have not given any particulars as to the identity of the commander or of the regiment involved in the impugned acts (see paragraphs 26-33 above). Nor have they given a detailed description of the soldiers'uniforms. It is to be noted in this connection that there is no independent eye-witness account of the presence of Turkish soldiers in the area in question or of the detention of the shepherds. 78. As regards the statements made by Mr Shookri Newayi and other KDP officials during a press conference held in Dohouk, the Court considers that no weight should be given to their assertions, having regard to the facts that the content of the letter from Mr Safeen Dizayee, who is the head of the KDP office in Ankara, contradicts them and that, in any event, they lack precise and sufficient information about the characteristics of the Turkish troops alleged to have been involved in the events in question (see paragraphs 33, 38-40 and 43 above). 79. Furthermore, the Court is unable to determine, on the basis of the findings contained in the post-mortem reports and the video recording showing the bullet shells marked “MKE” allegedly removed from the shepherds'corpses, whether the deaths were caused by gunfire discharged by Turkish troops (see paragraphs 34, 35, 42 and 48 above). It notes that the post ‑ mortem reports submitted by the applicants do not mention that bullet shells with the marking “MKE” had been recovered from the corpses of the shepherds (see paragraphs 34 and 35 above). Accordingly, the Court cannot attach any decisive importance to the video footage since this is untested and at most circumstantial evidence. In this connection, the Court cannot overlook either the fact that the area where the applicants'relatives were killed was the scene of fierce fighting between PKK militants and KDP peshmergas at the relevant time (see paragraphs 41 and 46 above ). Moreover, although news reports and official records confirm the conduct of cross-border operations and the presence of the Turkish army in northern Iraq at the material time, these materials do not make it possible to conclude with any degree of certainty that Turkish troops went as far as the Azadi village in the Spna area (see paragraphs 36 and 43 ‑ 45 above). 80. Finally, the Court has also had regard to the applicants'allegations that they appealed to Turkish army officers to secure the release of their relatives and, subsequent to the discovery of the bodies, for an investigation to be carried out by the Turkish authorities into the killings. However, given the failure of the applicants to provide any cogent and convincing evidence capable of rebutting the Government's contention that no such complaint was ever made to Turkish army officers in northern Iraq and having regard to the KDP's letter confirming the Government's stance (see paragraph 46 above), the Court cannot but conclude that these allegations are unsubstantiated. 81. On the basis of all the material in its possession, the Court considers that it has not been established to the required standard of proof that the Turkish armed forces conducted operations in the area in question, and, more precisely, in the hills above the village of Azadi where, according to the applicants'statements, the victims were at that time. 3. The Court's conclusion 82. In the light of the above, the Court is not satisfied that the applicants'relatives were within the “ jurisdiction ” of the respondent State for the purposes of Article 1 of the Convention. This finding makes it unnecessary to examine the applicants'substantive complaints under Articles 2, 3, 5, 8, 13, 14 and 18 of the Convention.
The Court recalled that the concept of “jurisdiction” under the Convention was not restricted to the national territory of the Contracting Parties. In exceptional circumstances the acts of Contracting States performed outside their territory, or which produced effects there, might amount to exercise by them of their jurisdiction. Accountability in such situations stemmed from the fact that Article 1 (obligation to respect human rights) of the Convention could not be interpreted so as to allow a Contracting State to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory. However, the Court was unable to determine, on the basis of the evidence available to it, whether the applicants’ relatives had been killed by gunfire coming from Turkish troops. The Court was accordingly not satisfied that the applicants’ relatives had been within Turkish jurisdiction for the purposes of Article 1 of the Convention.