FOURTH SECTION
CASE OF ERDOĞAN
AND OTHERS v.
(Application no. 19807/92)
JUDGMENT
FINAL
This judgment will become
final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of Erdoğan
and Others v.
The European Court of Human Rights (Fourth
Section), sitting as a Chamber composed of:
Mr J. Casadevall,
President,
Mr G. Bonello,
Mr R. Maruste,
Mr K. Traja,
Mr S. Pavlovschi,
Mr J. Šikuta,
judges,
Mr F. Gölcüklü,
ad hoc judge,
and Mr M.
O’Boyle, Section
Registrar,
Having deliberated in private on
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in an
application (no. 19807/92) against the Republic of Turkey lodged with the European
Commission of Human Rights (“the Commission”) under former Article 25 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”)
by Mr Hüseyin Erdoğan and Ms Sevgi Erdoğan (who were replaced by Ms
Hatice Erdogan upon their death), Ms Esme Şimşek, Mr Hüseyin
Şimşek, Mr İsmail Hakkı Ilcı, Mr Nahit Özkaya,
Mr Mahmut Ali Eliuygun (who was replaced by Bakiye Eliuygun upon his death)
and Ms Necla Nurlu (“the applicants”), who are Turkish nationals, on 6
January 1992. They
are relatives of İbrahim Erdoğan, Yücel Şimşek,
İbrahim Ilcı, Cavit Özkaya and Hasan Eliuygun, suspected members of Dev-Sol (“Revolutionary Left”), who were
killed by the security forces in İstanbul on
2. The applicants were
represented by Ms Françoise Hampson, a lawyer practising in
3. The applicants complained,
both on their own behalf and on behalf of their dead relatives, that they had
been victims of violations of Article 2 (right to life), Article 6 (right of
access to court) and Article 13 (right to effective remedies) of the
Convention.
4. The application was
declared admissible by the Commission on 16 January 1996 and transmitted
to the Court on 1 November 1998 in accordance with Article 5 § 3, second
sentence, of Protocol No. 11 to the Convention, the Commission not having
completed its examination of the case by that date.
5. The application was
allocated to the Fourth Section of the Court (Rule 52 § 1 of the
Rules of Court). Within that Section, the Chamber that would consider the case
(Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr
R. Türmen, the judge elected in respect of
6. The applicants and the
Government each filed observations on the merits (Rule 59 § 1). The Chamber
having decided, after consulting the parties, that no hearing on the merits was
required (Rule 59 § 3 in fine), the
parties replied in writing to each other’s observations.
7. On
8. On 28 March 2002, the
parties having failed to reach a friendly settlement, the Government submitted
to the Court a unilateral declaration in which, inter alia, they offered to pay the sum of 160,000 pounds sterling
in respect of the matters of which complaint was made by the applicants under
the Convention, the said sum to include the costs and expenses incurred by them
in the proceedings before the Commission and Court. On
THE FACTS
I. THE
CIRCUMSTANCES OF THE CASE
9. The applicants’ dates of
birth and their relationship to the five persons who were killed in the police operations
described below are as follows:
Hüseyin Erdoğan (1933) was the father and
Sevgi Erdoğan (1956) was the wife of the late İbrahim Erdoğan. Esme
Şimşek (1946) is the mother and Hüseyin Şimşek (1942) is
the father of the late Yücel Şimşek. İsmail Hakkı Ilcı
(1960) is the brother of the late İbrahim Ilcı. Nahit Özkaya (1962)
is the brother of the late Cavit Özkaya. Mahmut Ali Eliuygun (1926) was the
father and Necla Nurlu (1956) is the sister of the late Hasan Eliuygun.
A. General background
10. On
11. In every case, the
victims had been under surveillance for some time and the area was sealed off
before the operation. According to some newspaper reports, the Minister of Internal
Affairs at the material time had confirmed in a press statement that the
victims had been under surveillance before the operations took place and that
the operations had been co‑ordinated.
12. According to some of the
newspaper reports, after the operations Mr Mehmet Ağar, Chief of the İstanbul
Police, had congratulated the members of the police force who had taken part in
the raids.
13. The purpose of the
operations, according to the Government, had been to apprehend persons
suspected of having been involved in terrorist activities and bring them to
trial, and also to prevent possible terrorist attacks.
14. The police reports
suggest that in each case several calls to surrender were made, to which the
deceased replied by opening fire with guns and rifles. All the suspected
terrorists were killed. No member of the police force was killed or injured in
any of the four locations. The only person injured was a resident in one of the
buildings.
15. Certain newspaper reports
suggest that there were calls to surrender, while some others claim that no
call to surrender was made.
16. According to the police
reports, the deceased had been heavily armed; in each case the deceased had opened
fire first; and in each location, guns and rifles of various sizes, bombs, hand
grenades and material used for producing explosives were found. The Public
Prosecutor’s reports confirmed the police reports in this respect.
B. Particular circumstances of each
of the four operations
17. The circumstances of the
four operations, which were co-ordinated, were as follows:
1. Ekmek fabrikası Sokak, Apartment
No. 26/1 - Nişantaşı – İstanbul
18. According to the police reports,
this apartment was the first to be raided, at
19. The police reports
suggest that there was an armed clash for one and a half hours between police
and those inside the building. Two alleged terrorists were killed by the police
at this location, namely İbrahim Ilcı and Bilal Karakaya.
A resident (I.G.) who had tried to run away
from the scene of the incident was shot and wounded by the police.
20. The following details of
the incident are given in the police reports:
“In the course of the operations launched against
the illegal Devrimci Sol organisation ... we proceeded with the duty police
officers to the address in question to arrest the militants of the organisation.
... [A]fter taking the necessary measures... we went to flat No. 1 on the
ground floor ... and knocked on the door. ... [A]s we were determining whether
or not there was anyone inside, explosive materials were thrown from inside ...
at the door at which we were waiting, and we officers withdrew and made calls
to surrender and issued warnings to those inside. When it was observed that the
people inside kept replying to our calls to surrender with hand grenades, and as
it was observed that they had made a booby trap with explosive materials at the
entrance, we made no attempt to enter the apartment. When securing the rear
side of the building, we found a door opening onto the garden. This door was
located in apartment no. 1. The building was surrounded, and the persons in the
building were called on to give themselves up from the rear of the building as
well. ... [T]he militants inside kept throwing hand grenades into the garden ...
and it became impossible to approach the garden and the door behind the
building ... The calls from behind the building were likewise answered with
gunshots and hand grenades. Since this persisted, we returned fire. Since the
militants in the building were continually throwing hand grenades into the
garden and into the access area of the apartment, the people living in the
other parts of the building were evacuated for their own safety, as we had
reason to assume that there could be large quantities of explosives in the
building. They resisted the calls to surrender for about one and a half hours,
and with the aim of getting the militants, who kept throwing bombs and firing
outside with guns, to leave the apartment, tear gas bombs were fired from a tear
gas gun at the house from outside and we waited ... [B]ut when it was observed
that the militants inside were not affected by the gas bombs and continued to
throw bombs ... the security ring was tightened, a close armed combat took
place with the armed‑organisation militants inside and the individuals
were captured dead. ... When it was observed that there were large numbers of
bombs inside the house ... bomb disposal experts were called. First they
defused the booby traps on the doors in order to be able to enter and make a
search ... [I]t was observed that there were guns and hand grenades in the
hands of the individuals who were dead in the room and lounge with the pins attached
to their fingers ... ... [A]fter the hand grenades still in the hands of the
(dead) individuals had been taken by the bomb disposal experts under the
control of the Şişli Deputy Public Prosecutor, the two militants
observed to be dead were removed to hospital in an ambulance...”
21. The police reports also
contain details of weapons found on the premises:
“... during the searches made in the house, there
was found a Colt pistol, serial no. 934900 and cartridge clip in the hand of
one individual captured dead, a 1x 9 mm bore Browning pistol, serial no. 34142
beside the other corpse, and inside the room in various places a 1 x 9 mm Beretta
pistol, serial no. 724027, a cartridge clip with bullets, a 1x 7.65 mm bore
Belgian pistol, the writing on which was illegible and cartridge clips with
bullets. [I]n the pistol and the pistol cartridge clips in the room in which
the individuals were found, 13 Colt bullets, 61 GDCO 7.65 mm bore cartridges,
25 x 32 calibre MKE cartridges, 15 x 9 mm foreign-made cartridges, 2 x 7.65 mm
empty cartridges and 1 x 25 mm bullet were found. In the vicinity of the room
and in a specially equipped place beneath the room we found 67 cartridges of 9 mm
and 556 cartridges, 5 deformed bullets, 7 silencers, one of them broken, 40
large-piece silencers, 104 smaller parts such as those used in the manufacture
of silencers, as well as 13 hand grenades (industrial products), 7 offensive
hand grenades with ready-made primer and triggering device, 1 TNT mould
(industrial product), 1 English-type offensive hand grenade, 5 defensive hand
grenades, 4 small-size TNT moulds, 1 offensive hand grenade (industrial
product), 2 booby traps with walk-on triggering mechanism (industrial product),
9 pipe bombs (handmade) ready for detonation with fragmentation effect, 2 Sim
explosion flashes, model DN 54 CA 79-2, 7 x 6 battery power packs, 5 ready-to-use
electrical devices, 6 electronic devices such as are used in bomb manufacture,
17 electric primers, 100 ordinary primers, 200 electronic devices, 20 x 4.5
volt Varta batteries, 3 electronic alarm clocks, 5 chronometers, 5 electric
watches, 9 calculators, 20 kg basic explosive termite material, 5 timer wicks,
300 metres of explosive fuse, 2 boxes of potassium chlorate of 100 kg each, 3 bomb
casings of dimensions 30x30x30 cm, 7 metal containers for bombs of dimensions 20x20x20
cm, 40 kg aluminium powder for the manufacture of bombs, 30 bomb casings in the
form of pipe castings, chemical materials, 2 detonating fuses, 5 fire-extinguisher
cylinders, 1 notepad with handwritten details of the numbers and types of
weapons and explosive materials of the organisation, handwritten organisation
lists, ... large quantities of leaflets and publications bearing the organisation’s
signature, forged identity papers, ...documents on the murder of Engin Kaya,
who had been executed by the organisation as a traitor (confessor), further
documents on the murder of three students who had been brought to Istanbul from
Izmir Province and murdered, and empty 7.5 mm calibre cartridge cases. This
room had been lined with fibreglass and foam material for soundproofing, which
shows that the people murdered by the organisation had been interrogated and
killed there...”
22. The autopsy report on İbrahim
Ilcı states the cause of death as broken ribs and internal haemorrhage due
to bullet wounds. No autopsy report on Bilal Karakaya was made available to the
Court.
2. Dikilitaş Gelincik Sokak, Apartment
No. 6/2, Beşiktaş – İstanbul
23. The police reports
suggest that this was the second building to be raided, at 7.45 p.m. on 12 July
1991. They also suggest that there was an armed clash between the police and
the alleged terrorists.
24. Cavit Özkaya and Hasan
Eliuygun and three other alleged terrorists, Niyazi Aydın, Zeynep Eda Berk
and Nazmi Türkcan, were killed at this address.
25. The following are the relevant details from the police
reports:
“... On the door of apartment no. 2, on the
ground floor, there was a sign reading “ER-BEK Engineering Office”. After we
had secured the vicinity and ascertained that there were persons in the
apartment, we knocked on the door of the engineering office and called upon the
persons inside the apartment to open the door for the police. The door was not
opened. After a short silence shots were fired through the door from inside the
apartment. Thereupon we moved away from the door and, when the officers who had
been deployed to secure the vicinity had taken measures to protect themselves,
the persons who had shot through the door were called upon to give themselves
up and to come out one at a time with their hands above their heads. Then the
persons in the building started shouting slogans ... The persons in the
building were called upon several times to surrender... They were told that we
would otherwise open fire. The persons in the apartment, whose precise number
was not known, continued firing shots and shouting slogans. Then warning shots
were fired from outside. When the persons in the building continued shooting
even after the warning shots, some officers of the security forces put on
bullet-proof vests and forced the door open. When the persons in the building
fired shots at the security officers in the entrance, close combat ensued in
the course of which the persons fell to the ground. After suitable measures had
been taken, bomb disposal experts were allowed into the apartment, as it was
thought possible that there could be booby traps in the apartment. A check
performed on the persons lying on the floor revealed a corpse lying at the
entrance on the left side of the apartment next to a long-barrelled pistol. In
a room next to the kitchen four male corpses, with normal and long-barrelled
pistols, were found. The pistols lay next to the corpses, where they had fallen
...”
26. The police reports
(confirmed by the public prosecutor’s reports) contain details of weapons and
other materials found on the premises:
“After the bomb disposal experts had inspected
the bombs found in the building and the duty public prosecutor, who had been
notified in the course of the shoot-out, had arrived, a search was performed in
the office and on the corpses ...
The ensuing search of the apartment revealed
material evidence and devices which were taken into the hallway and listed. We
found : 1 pistol with silencer mounted, made 1949, serial number A-25332, make
MAT, two magazines, one of which inserted in the pistol, the other in the
reserve, 1 Kalashnikov machine gun, made 1970, serial number 3 N 4265, with
associated magazine, 1 7.65 mm calibre pistol, Czech make Vizor, serial number
B-76021, and associated magazine, 1 9 mm calibre pistol, make Star, serial
number E-834168, 2 associated magazines, 1 x 14-shot Browning 9 mm calibre
pistol, serial number T-364431, and associated magazine, 1 x 14-shot Browning 9
mm calibre pistol, no serial number, and associated magazine. Next to the
persons found dead the following objects were found: 15 7.62 mm calibre cartridges,
20 7.65 mm calibre cartridges, 30 9 mm calibre cartridges, 207 empty 9 mm calibre
cartridges, 6 empty 7.65 mm calibre cartridge cases, 13 9 mm calibre bullets,
17 empty 5.56 mm calibre cartridge cases and 10 bombs made from factory-marked
pipe castings with a diameter of 5 cm and a length of 10 cm; 10 electric
primers, 10 ordinary primers, 2 plastic bags containing 20 kg aluminium powder,
... 1 reel with about 100 m of yellow-coloured fuse. ... The following objects
were found in the pockets: handwritten lists compiled by the militants of
police stations, political party buildings, police officers, military officers,
district attorneys, judges, and reports on private companies and secret
intelligence reports on state institutions, sketches and plans drawn up in
preparation for militant actions, reports on the activities of the militants in
the organisation, large quantities of identity cards and driving licences, two
photocopied police identity cards, pamphlets bearing the signature of the
organisation, 1 walkie-talkie radio set, make Realistic, for listening in to
police radio channels and 1 list of code numbers and frequency settings; one
car registration plate was found in the presence of the duty public prosecutor ...”
27. The autopsy report on
Cavit Özkaya gives his cause of death as an internal haemorrhage, broken
shoulder blades and ribs, together with the perforation of internal organs
resulting from bullet wounds.
A private forensic pathologist who, at the
request of the applicants, inspected the premises after the incident and
examined the autopsy reports, commented that the only fatal wound to the front side
of Cavit Özkaya was probably the last shot to the body and that it had been
fired when the body was on a firm surface, such as the ground. According to the
forensic pathologist, three of the fatal shots and two non-fatal shots indicated
that the individual had been shot from behind.
28. The autopsy report on
Hasan Eliuygun gives his cause of death as internal haemorrhage caused by
bullet wounds. The report indicates that he was shot by five bullets. Five
metal fragments also hit his body. No autopsy reports on the other three
deceased were made available to the Court.
3. Balmumcu, Özmelik Apartmanı, Apartment
No. 11/1 Beşiktaş, İstanbul
29. This was the third
building, raided at 10.30 p.m. Two militants were killed at this address: İbrahim
Erdoğan and Yücel Şimşek. The official report states that there
was an armed clash with the people inside the building.
30. The following are some
relevant details from the police reports:
“... At the door of the lower basement it
could be seen from the outside that a light was burning inside. Before ringing
the doorbell the surrounding area was secured. When a team approached the door
with the intention of checking the identity of any persons present and
searching the room, shots were fired from the inside of the building to the
outside, as the militants must have noticed that the surrounding area was being
secured. Thereupon, for the safety both of the officers engaged in securing the
surrounding area and of the officers standing in front of the door, in the name
of the police, we called upon the militants who had fired the shots from inside
the building to give themselves up. In reply to these calls, the militants
inside the building answered with slogans like “government of murderers, the
fascist police will not get us, ...” and kept on firing shots. This led to a
shoot-out between us, the officers on duty, and the militants which went on for
about 15 minutes. After the shooting ... the following was found: one of the
militants was lying on the floor in the stairwell of the building, behind the
door. He was holding a 14-shot gun in his hand. The other militant was lying in
the room to the right-hand side of the stairwell. Next to him there lay a 7.65
mm calibre pistol. This is how the militants were captured. In case there was a
primed bomb on any of these persons or in other rooms, the bomb disposal
experts entered the apartment at once and checked in particular the persons
lying on the floor. The check revealed that they were dead. The duty public prosecutor
arrived at the scene. Then the corpses were taken to hospital in an ambulance...”
31. The police reports
(confirmed by the public prosecutor’s reports) also contain details of weapons
and other materials found on the premises:
“Besides the weapons lying next to the dead
militants, the following objects were found: on the left hand side of the room
that apparently served as the living room 3 pistols were found. In the adjoining
room large quantities of weapons, ammunition and other materials were found.
Thereupon the search was continued. After all the objects ... found had been
brought together, a list was drawn up: 1 sub-machine gun, make Uzi, serial number
SA67188, calibre 9 mm and 2 magazines belonging to this pistol; 1 Beretta
pistol, calibre 22, serial number M55554, with magazine; 1 Magnum Ruger 357
pistol, serial number 152-38150 and magazine; 1 Unig pistol, 7.65 mm, no serial
number, with magazine; 1 Browning 9 mm pistol, serial number A-81875 and
magazine, 1 Colt pistol, no serial number, with magazine, 11.25 mm; 1 Star 9 mm
pistol, serial number A-757647 and magazine; 1 Unig pistol, 7.65 mm, local
imitation, serial number 444444 and magazine; 1 Browning pistol, 7.65 mm, local
imitation, serial 772 and magazine; 1 Browning pistol, 7.65 mm, local
imitation, serial number 222 and magazine; 1 Ceska pistol, 7.65 mm, serial
number 476087 and magazine; 1 Map pistol, calibre 7.65 mm, local imitation, and
magazine; 1 pistol, 7.65 mm, local manufacture, serial number 2422 and
magazine; 1 pistol, 7.65 mm, local imitation of Japanese type, no serial number
and magazine; 1 pistol, 7.65 mm, local manufacture, serial number 4930 and
magazine; 1 Browning pistol, 7.65 mm, no serial number, with silencer and
magazine; 1 Lama pistol, 7.65 mm, serial number 17920 and magazine; 1 Maxim
pistol, calibre 6.35 mm, serial number 983 and magazine; 1 Sley pistol, calibre
68; serial number 3006; 1 Reck gas pistol, calibre 68; 7 pistol magazines for
various calibres; 2 silencers for pistols; 2 binoculars 8x56m makes Mater and
ZEF; 550 cartridges, calibre 22 mm; 55 cartridges, calibre 9 mm. In the pistols
and in boxes were found: 300 cartridges of calibre 7.62 x 51 mm; 50 cartridges
of calibre 7.62; 12 cartridges of calibre 38; 34 hunting-rifle cartridges of
various calibres; 3 magnum 357 cartridges. In the area of the shoot-out were
found: 28 empty cartridge cases, 9 mm; 33 empty cartridge cases, 5.56 mm; 19
empty cartridges cases, 7.65 mm; 4 deformed bullets; 10 metres of fast fuse; 7
timers for manufacture of explosive devices; 1 gas mask; 200g of explosive
material; 5 kg white explosive powder; 4 kg yellow explosive powder; 500g
gunpowder; large quantities of medical material and packed medicines; large
quantities of packed clothing, officers’ uniforms, police uniforms, 4 gun
holsters, 1 set of handcuffs; two radio holders, 3 sleeping bags, 8
walkie-talkie radios of various makes, large quantities of publications
belonging to the special warfare division; large quantities of signed pamphlets
of the organisation and other publications, handwritten intelligence reports
prepared by the militants...”.
32. The autopsy report on
İbrahim Erdoğan gives his cause of death as internal bleeding due to
bullet wounds and fractured skull and spinal column. The autopsy report
described nine gunshot wounds to the body of İbrahim Erdoğan, of
which six were to the back, five of them being jointly fatal. According to the
autopsy report on Yücel Şimşek, his death occurred as a result of
internal and external haemorrhage, destruction of the brain and skull and broken
vertebrae caused by bullets and metallic parts of an explosive material. The
report found that the two bullet injuries and four of the shrapnel injuries
were of a jointly fatal quality, while the other shrapnel injuries were not of
a fatal quality.
33. According to Professor
Pounder, a forensic pathologist who,
at the request of the applicants, inspected the premises after the incident, there
was no evidence of an exchange of gunfire having occurred inside the apartment;
the main room of the apartment shows evidence of a minimum of nine gunshots
having been fired; all nine gunshots fired in the main room of the apartment
were directed downwards towards the floor with a shooter-to ‑ target
distance of about three metres or less; if a person was shot dead within the
main room of the apartment, the evidence suggests that the person was on or
close to the floor, within three metres of the shooter, and was not firing a weapon
at the time of being shot.
As to the injuries sustained by Yücel Şimşek,
Professor Pounder expressed the view that the pattern of the four fatal
shrapnel injuries implied that he was alive and upright at the moment they were
inflicted and that he was thus already fatally injured at the time when he was
hit by the two bullets.
4. Levent, Birlik Sokak, Apartment No.
10/1, Beşiktaş, İstanbul
34. The fourth raid took
place at this location. One alleged terrorist, Ömer Coşkunırmak, was
killed there. His death is not the subject of any application.
C. Proceedings before
the domestic authorities
1. Complaint by Sevgi Erdoğan to the public
prosecutor against the İstanbul Chief of Police and the police officers
who participated in the operations
35. On
36. On
2. Criminal proceedings instituted by
the Public Prosecutor of İstanbul before the İstanbul Sixth
37. In an indictment dated
38. During the first hearing,
which took place on
39. Between
40. During the course of five
hearings held between
41. Between
42. In a decision dated
43. An intervener, who is a relative
of Zeynep Eda Berk who was killed during the operations, appealed against the
decision to the Court of Cassation.
44. On
3. Criminal proceedings before the İstanbul
Fourth
45. These proceedings concerned the killing of İbrahim Ilcı
and Bilal Karakaya during the police raid at the first location (see paragraphs
18-22 above).
During the preliminary investigation these
proceedings were severed from the proceedings relating to the three other
locations and the case was referred to the Public Prosecutor of the Şişli
District. The case was then referred back to the Public Prosecutor of İstanbul.
46. In an indictment dated
47. Between
48. At a hearing on
49. In a judgment of
50. On
II. RELEVANT
DOMESTIC LAW AND PRACTICE AT THE MATERIAL TIME
A. Criminal
prosecutions
51. Under the Criminal Code all
forms of homicide (Articles 448 - 455) and attempted homicide (Articles 61 and
62) constitute criminal offences. The authorities’ obligations in respect of
conducting a preliminary investigation into acts or omissions capable of
constituting such offences that have been brought to their attention are
governed by Articles 151 - 153 of the Code of Criminal Procedure. Offences may
be reported to the authorities or members of the security forces as well as to
public prosecutors’ offices. The complaint may be made in writing or orally. If
it is made orally, the authority must make a record of it (Article 151).
If there is evidence to suggest that a death
is not due to natural causes, members of the security forces who have been
informed of that fact are required to advise the public prosecutor or a
criminal court judge accordingly (Article 152). Under Article 235 of the
Criminal Code, any public official who fails to report to the police or a
public prosecutor’s office an offence of which he has become aware in the
course of his duty is liable to imprisonment.
A public prosecutor who is informed by any
means whatsoever of a situation that gives rise to the suspicion that an
offence has been committed is obliged to investigate the facts in order to
decide whether or not there should be a prosecution (Article 153 of the Code of
Criminal Procedure).
52. If the suspected offender
is a civil servant and if the offence was committed during the performance of
his duties, the preliminary investigation of the case is governed by the Law of
1914 on the Prosecution of Civil Servants, which restricts the public
prosecutor’s jurisdiction ratione
personae at that stage of the proceedings. In such cases it is for the
relevant local administrative council (for the district or province, depending
on the suspect’s status), which is chaired by the governor, to conduct the
preliminary investigation and, consequently, to decide whether to prosecute. In
the instant case the presiding governor had under his command the security
forces which carried out the
operation in issue. Once a decision to prosecute has been taken, it is for the
public prosecutor to investigate the case.
B. Civil and
administrative liability arising out of criminal offences
53. Under section 13 of Law
no. 2577 on administrative procedure, anyone who sustains damage as a result of
an act of the authorities may, within one year after the alleged act was
committed, claim compensation from them. If the claim is rejected in whole or
in part or if no reply is received within sixty days, the victim may bring
administrative proceedings.
54. Article 125 §§ 1 and 7 of
the Constitution provides:
“All acts or decisions of the authorities
shall be subject to judicial review ...
The authorities shall be liable to make
reparation for all damage caused by their acts or measures.”
That provision establishes the State’s strict
liability, which comes into play if it is shown that in the circumstances of a
particular case the State has failed in its obligation to maintain public
order, ensure public safety or protect people’s lives or property, without it
being necessary to show a tortious act attributable to the authorities. Under
these rules, the authorities may therefore be held liable to compensate anyone
who has sustained loss as a result of acts committed by unidentified persons.
55. Under the Code of
Obligations, anyone who suffers damage as a result of an illegal or tortious
act may bring an action for damages for pecuniary loss (Articles 41-46) and
non-pecuniary loss (Article 47). The civil courts are not bound by either the
findings or the verdict of the criminal court on the issue of the defendant’s
guilt (Article 53).
However, under section 13 of Law no. 657 on
State employees, anyone who has sustained loss as a result of an act done in
the performance of duties governed by public law may, in principle, only bring
an action against the authority by whom the civil servant concerned is employed
and not directly against the civil servant (Article 129 § 5 of the Constitution
and Articles 55 and 100 of the Code of Obligations). That is not, however, an
absolute rule. When an act is found to be clearly illegal and, consequently, is
no longer an “administrative” act or deed, the civil courts may allow a claim
for damages to be made against the official concerned, without prejudice to the
victim’s right to bring an action against the authority on the basis of its
joint liability as the official’s employer (Article 50 of the Code of
Obligations).
C. Use of
firearms by law-enforcement officials
1. International law
56. The United Nations Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials (“UN
Force and Firearms Principles”) were adopted on
“Law enforcement officials shall not use firearms against
persons except in self-defence or defence of others against the imminent threat
of death or serious injury, to prevent the perpetration of a particularly
serious crime involving grave threat to life, to arrest a person presenting
such a danger and resisting their authority, or to prevent his or her escape,
and only when less extreme means are insufficient to achieve these objectives.
In any event, intentional lethal use of firearms may only be made when strictly
unavoidable in order to protect life.”
57. Paragraph 5 of the
Principles provides, inter alia, that
law enforcement officials shall “act in proportion to the seriousness of the
offence and the legitimate objective to be achieved”. In accordance with
paragraph 7, “governments shall ensure that arbitrary or abusive use of force
and firearms by law enforcement officials is punished as a criminal offence
under their law”. Paragraph 11 (b) states that national rules and regulations
on the use of firearms should “ensure that firearms are used only in
appropriate circumstances and in a manner likely to decrease the risk of
unnecessary harm” (see, further, Makaratzis v. Greece [GC], no. 50385/99, §§ 28-32,
2. National law
58. Under Section 16 of Law no.
2559 on the duties and legal powers of police, enacted on 4 July 1934 and
published in the Official Journal on 14 July 1934, police are entitled to
use a weapon in the following circumstances: (a) for the purpose of self‑defence;
(b) for the purpose of thwarting an attack involving sexual abuse of, or bodily harm to, individuals where it is not possible to thwart such an attack
through any means other than using a weapon; (c) for the purpose of preventing
an attempt to escape or an attack on the police and where police warnings are
ignored during transfer or transportation of an accused who has been
apprehended and remanded in custody for an
offence requiring severe punishment or a sentenced convict where the police are
responsible for safe delivery; (d) in a case where the police are incapable of
thwarting, by any means other than
using a weapon, a threat made against the post he holds, his weapon, a police
station or third parties under police protection; (e) during a police operation
in a location where the suspect is hiding and where a serious offence liable to
severe punishment has occurred and has been witnessed and/or if an individual
appears in suspicious circumstances but fails to adhere to police warnings; (f)
during the capture of a fugitive who has been convicted and sentenced for an
offence requiring long-term imprisonment where the fugitive fails to pay regard to police warnings and continues to
flee; (g) where police warnings, to hand over weapons or other instruments of
aggression, are ignored or where an attempt is made by force by a third party
to recover such weapons and instruments; (h) during the capture of any person
or persons where resistance is collectively or individually demonstrated with a
view to obstructing the police in the performance of their duties or where the
police are attacked; (i) if and when resistance is shown by using a weapon
against the authorities or a member of the public.
Furthermore, pursuant to Article 17 of the
Police (Duty and Power) Regulations, “Section 16 of Law no. 2559 shall be relied
on exclusively to govern the use of a weapon by police when there is no other
alternative. In such cases the police shall use the weapon to endeavour to
capture the offender by inflicting minor rather than fatal injury and to avoid
using the weapon in densely populated areas”.
THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 2 OF THE CONVENTION
59. The applicants complained
under Article 2 that their relatives were killed in circumstances in which
resort to lethal force was not justified. Alternatively, it was alleged that
the planning and conduct of the operation which resulted in the deaths was not
such as to ensure the protection of the right to life of their relatives. In
addition, it was contended that the right to life of their relatives was not
adequately protected by domestic law and practice in
Article 2 of the Convention provides, so far
as is material:
“1. Everyone’s right to life shall be
protected by law. No one shall be deprived of his life intentionally save in
the execution of a sentence of a court following his conviction of a crime for
which this penalty is provided by law.
2. Deprivation of life shall not be
regarded as inflicted in contravention of this article when it results from the
use of force which is no more than absolutely necessary:
(a) in defence of any person from
unlawful violence;
(b) in order to effect a lawful
arrest or to prevent the escape of a person lawfully detained;
(c) ...”
A. Arguments
of the parties
1. The applicants
60. The applicants submitted first that
no real attempt had been made to arrest their relatives and that the intention had
rather been to kill them. Alternatively, they submitted that their relatives’ deaths
had resulted from a use of lethal force that had been more than absolutely
necessary. They noted that there was conflicting evidence as to whether the
security forces had given a warning that the suspects should surrender. The security
forces had not been issued with non-lethal weapons, such as CS gas and/or stun
grenades. Furthermore, it was unclear as to whether the firing had come from
inside or outside the building. In at least one location, there was no evidence
of firing by those within the premises.
61. As to the investigation
conducted in the present case, the applicants argued that the public prosecutor
had not been present when the premises were searched for the first time and
that there was no independent evidence of what had been found in the premises.
According to the applicants, no photographs of the scene of the incidents had
been taken and there was no visual indication of the position of those killed
in the four locations. Neither was there any information in the investigation
file about which members of the security forces had been in each location at
different times, and no statements of these members had been taken. No
fingerprints had been taken, not even those on the weapons. Weapons allegedly
found at the victims’ premises and weapons of the security forces had not been
sent to forensic laboratories. Spent cartridges and grenade shrapnel inside or
outside the premises had not been looked for. The clothes of those killed were
missing from the investigation file.
2. The Government
62. The Government contended
that the deceased had been members of a left-wing terrorist organisation and
had participated in various terrorist activities, as the
63. The Government pointed
out that, according to the oral evidence given by the witnesses before the
criminal court, in all three operations the area had first been sealed off by
the police officers and the deceased had been given many warnings by megaphone.
It had been established that the deceased had started shooting from the windows
and the security forces had fired back. Some witnesses had even stated that
they could not tell clearly who had fired first; others could confirm that they
had first heard shooting from the flats.
64. The Government maintained
that in all cases the police officers had acted in accordance with their orders
and within the scope of their duties, and that they had made no more use of
lethal force than was absolutely necessary. They had acted within the limits of
legitimate self-defence to protect their own lives and the lives of others and to
safeguard public order against these armed militants.
B. The Court’s assessment
1. General principles
65. Article 2, which
safeguards the right to life and sets out the circumstances when deprivation of
life may be justified, ranks as one of the most fundamental provisions in the
Convention, from which no derogation is permitted (see Velikova v. Bulgaria, no. 41488/98, § 68, ECHR 2000-VI). Together
with Article 3, it also enshrines one of the basic values of the democratic
societies making up the Council of Europe. The circumstances in which
deprivation of life may be justified must therefore be strictly construed (see Salman v. Turkey [GC], no. 21986/93, §
97, ECHR 2000‑VII). The object and purpose of the Convention as an
instrument for the protection of individual human beings also requires that
Article 2 be interpreted and applied so as to make its safeguards practical and
effective (see McCann and Others v. the
United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46,
§§ 146-47).
66. The first sentence of
Article 2 § 1 enjoins the State not only to refrain from the intentional and
unlawful taking of life, but also to take appropriate steps within its internal
legal order to safeguard the lives of those within its jurisdiction (see Kiliç v. Turkey, no. 22492/93, § 62,
ECHR 2000-III). This involves a primary duty on the State to secure the
right to life by putting in place an appropriate legal and administrative
framework to deter the commission of offences against the person, backed up by
law-enforcement machinery for the prevention, suppression and punishment of
breaches of such provisions.
67. The text of Article 2,
read as a whole, demonstrates that paragraph 2 does not primarily define
instances where it is permitted to intentionally kill an individual, but
describes situations where it is permitted to “use force” which may result, as
an unintended outcome in the deprivation of life. The use of force, however,
must be no more than “absolutely necessary” for the achievement of any of the
purposes set out in subparagraphs (a), (b) or (c). In this respect the use of
the term “absolutely necessary” in Article 2 § 2 indicates that a stricter and
more compelling test of necessity must be employed than that normally
applicable when determining whether State action is “necessary in a democratic
society” under paragraph 2 of Articles 8-11 of the Convention. In
particular, the force used must be strictly proportionate to the achievement of
the aims set out in the subparagraphs of the Article (see McCann and Others, cited above, p. 46, §§ 148-9).
68. In keeping with the
importance of Article 2 in a democratic society, where death results from the
use of lethal force by the police or security forces, the Court must subject
allegations of breach of this provision to the most careful scrutiny, taking
into consideration not only the actions of the agents of the State who actually
administered the force but also all the surrounding circumstances including
such matters as the planning and control of the actions under examination (see McCann and Others, cited above, p. 46, §
150). In the latter connection, police officers should not be left in a vacuum
when exercising their duties, whether in the context of a prepared operation or
a spontaneous pursuit of a person perceived to be dangerous: a legal and
administrative framework should define the limited circumstances in which
law-enforcement officials may use force and firearms, in the light of the
international standards which have been developed in this respect (see Makaratzis, cited above, § 59).
69. Against this background,
the Court must examine in the present case not only whether the use of lethal
force used against the deceased persons was no more than absolutely necessary
but also whether the operation was regulated and organised in such a way as to
minimise to the greatest extent possible any risk to life (see Makaratzis, cited above, § 60).
2. As to the alleged violation of the
right to life of the applicants’ relatives
a. The establishment of the facts
70. The Court notes at the
outset that it is confronted with divergent accounts of the events, in
particular as regards the conduct of the police during the operations in the
four buildings located in different areas of İstanbul. It observes that a
judicial determination of the facts took place in the criminal proceedings
brought against a total of 21 police officers before the İstanbul Fourth
and Sixth Assize Courts. Both courts took evidence from the accused police
officers involved in the operations and from various witnesses. The Sixth
Assize Court determined that in the three locations which were the subject of
the charges before it the areas had first been sealed off and the deceased given
warnings by megaphone. As to the question whether the deceased or the security
forces had fired first, certain of the witnesses stated before the Sixth Assize
Court that the deceased had started shooting from the windows and that the
security forces had returned fire, while other witnesses stated that they could
not tell clearly who had fired first. On the basis of this evidence the court
found it established that the police had been fired at first and that, in
entering the apartments and killing all the suspected members of Dev-Sol, they had acted in accordance
with their orders and within the scope of their duties and that their actions
remained within the limits of legitimate self-defence. The Fourth Assize Court,
which was concerned with the killing of İbrahim Ilcı and Bilal
Karakaya during the police raid at the first location, likewise found that the
deceased had opened fire first and that the police officers had fired back in
lawful self-defence and in the performance of their official duties.
71. In general, it would
require cogent elements to lead the Court to depart from the reasoned findings
of fact reached by national judicial authorities, particularly where, as in the
present case, the Court has not itself had the benefit of seeing and examining
the relevant witnesses and forming its own assessment of their credibility.
However, the central importance of the protection afforded under Article 2 is
such that the Court is required to subject deprivations of life to the most
careful scrutiny even where domestic proceedings and investigations have
already taken place. Moreover, in view of the different burden of proof in
criminal proceedings as well as the different standards applied in assessing
criminal responsibility, the fact that such proceedings resulted in the
acquittal of the police officers concerned can in no sense be regarded as
decisive of the issue which arises under the Convention, namely whether the use
of force has been shown to be no more than absolutely necessary.
72. Of still greater
significance is the fact that the Court finds that the investigation of the
deaths which led up to the institution of criminal proceedings against the
police officers was marked by very serious deficiencies which detract from the
reliance which might otherwise be placed on the decisions of the national
courts. These deficiencies which are more fully described below, when examining
the procedural aspects of the complaint under Article 2, include the absence of
any effective investigation of the planning of the coordinated operations at
the four locations; the absence of any photographs or sketch plans of the
scenes of the incidents; the lack of any fingerprint, ballistics or other
forensic evidence; and the lack of contemporary individual statements by the
police officers who participated in the operations.
73. Having regard to the
serious inadequacies in the investigation into the various operations leading
to the deaths of the applicants’ relatives which were carried out by the
authorities, the Court must treat the findings of the domestic courts with some
caution. Nevertheless, even if this were possible, the Court does not find it
necessary to attempt to resolve the points of conflict between the parties,
since as appears below it finds that the material before it provides a
sufficient factual basis on which to examine whether it has been shown that the
national authorities complied with their obligations under Article 2 of the
Convention.
b. Application
of the general principles in the circumstances of the present case
74. The applicants argue that
there was a premeditated plan to kill the deceased individuals rather than to
effect their lawful arrest. In this regard they place particular reliance on
the fact that there was no evidence of the existence of search or arrest
warrants having been issued, that the security forces were not armed with
non-lethal weapons such as CS gas or stun-grenades, that the four operations
were conducted consecutively rather than simultaneously and that the reports of
various Non-Governmental and Inter-Governmental bodies on killings at the hands
of the Turkish security forces showed that at the relevant time
disproportionate force had been routinely used against suspects.
75. In examining this
question, the Court has been hampered by the absence of any contemporary
documents recording the planning of the operations and the briefings given to
the officers involved. Such material might have thrown light on a number of
questions posed by the applicants, notably the reasons why, if the intention
had been to arrest the suspects, the operations were not planned to be carried out
in simultaneous raids. Nevertheless, on the material available to it, the Court
does not find it sufficiently established that within the İstanbul police there
had been a conspiracy to execute the suspects or that the police officers entering
the apartments had been instructed by the superior officers to kill the
suspects irrespective of the existence of any justification for the use of lethal
force.
76. An important factor to be
taken into consideration in the present case is that, until it was dismantled, the
Dev-Sol group had committed numerous
crimes, including the assassination of many police officers, army officers or
public prosecutors. This, coupled with the fact that the deceased had been followed
by the police for months as members of this armed group, contributed to their
being perceived as a dangerous threat in the eyes of the police. The Court
accepts that police chiefs, while planning the operation, could reasonably make
a number of suppositions on the basis of their experience in dealing with the
armed Dev‑Sol group, in
particular that the suspected members of this group would be armed and would be
likely to use their arms if confronted. It is also true that the authorities
operated on the basis of limited information as to the actual weapons kept by
the suspects in each of the premises. Consequently, the Court finds in the
circumstances that the police could reasonably have considered that there would
be a need to resort to the use of
their weapons in order to arrest the suspects or neutralise the threat posed by
them.
77. This said, serious
questions nevertheless arise as to the organisation of the operation. First, at
the time of the events at issue the applicable legislation was Law no. 2559,
enacted in 1934, which listed a wide range of situations in which a police
officer could use firearms without being liable for the consequences. This
legal framework would not appear sufficient to provide the level of protection
“by law” of the right to life that is required in present-day democratic
societies in
78. The Government referred
to the legal rules under which the police officers had acted. However, they did
not explain how the rules concerning the use of force were implemented in
practice and what controls were in place to ensure that they were respected. It
appears that the system in place did not give law‑enforcement officials
clear guidelines and criteria governing the use of force when carrying out
arrests of dangerous suspects in peacetime. Thus, it was almost unavoidable
that the authorities responsible for the planning of the operation to effect
the arrest of the suspects enjoyed an excessively wide autonomy of action and
took unconsidered initiatives.
79. In the particular
circumstances of the present case, it is not clear whether, in applying these
rules, police chiefs instructed the police officers executing the operation to
identify themselves as such and to give a clear warning of their intent to use
firearms with sufficient time for the warnings to be observed. Furthermore, the
police authorities appear to have made no distinction between non-lethal
methods and lethal methods while planning the operation. The Court has been
provided with no evidence that clear instructions were issued by superiors as
to how to capture and detain the suspects alive or as to how to negotiate a
peaceful surrender, which must have increased the risk to
the lives of any who might have been willing to surrender. In fact, as noted by
the applicants, the police officers who entered the apartments appear to have
been provided only with guns and grenades and were not issued with non-lethal
weapons. It is true that in the police reports regarding the operation in the
apartment in the Nişantaşı neighbourhood, the police officers
indicated that they had used tear gas bombs. However, it is not indicated in
the same reports that the police officers had gas masks while entering the
premises after using tear gas bombs. In any event, according to a declaration
made by a police officer before the national courts, the officers participating
in the operation were not able to use gas.
As a result, even though the suspects were
surrounded and had taken no hostages whom they might have harmed, the storming
of the premises, as planned and executed by the police authorities, could only
be achieved in a manner which significantly jeopardised the lives of the
suspects.
These failures by the authorities amount in
the view of the Court to a lack of appropriate care in the control and
organisation of the arrest operation.
80. The manner in which the
operations were actually carried out at the four locations also gives rise to
concern. The precise course of events at the scene of the operations is unclear
on the evidence before the Court. There is conflicting evidence as to whether
warnings were given to the suspects and as to whether the initial firing came
from outside or inside the premises. Because of the inadequacies of the investigation
by the national authorities, the Court is not able to rely with confidence on
the findings of the domestic Courts on either of these points. Moreover, the
lack of contemporary forensic and other evidence, notably photographic,
fingerprint and ballistics evidence, as well as evidence derived from an
examination of the clothing of the deceased,
makes it difficult to arrive at a clear assessment as to the manner in which
the ten suspects lost their lives.
81. However, the material
before the Court is such as to give rise to serious doubt as to whether the
death resulted from the use of force which was no more an absolutely necessary
in self defence. In the first place, while it is true that the police appeared
to have worn helmets and bullet-proof jackets, at least at some stage of the
operation at each location, it remains a striking feature of the case that,
although all ten alleged members of Dev-Sol were shot dead, none of the police
officers was either killed or injured, despite the intensity of the exchange of
fire which is alleged to have occurred in at least three of the locations and
despite the evidence of the police officers that, at the first location, the
suspects were continually throwing hand grenades into the garden and into the
access area of the building and that they had grenades in their hands with the
pins attached to their fingers at the time they were shot.
82. Further, the Court
attaches particular weight to the findings in the report of the Professor
Pounder, an independent forensic pathologist who, with the permission of the
national authorities, examined the third location where Ibrahim Erdogan and
Yucel Şimşek were killed some six weeks after the deaths had occurred
and who further examined the autopsy reports relating to five of the deceased.
83. Professor Pounder, in his
report which described in detail the exterior and interior of the premises, found
no evidence of an exchange of fire within the main room of the apartment and no
damage to the outer wall of the apartment around the window. However, he found
signs of recent damage to some of the floor tiles in the room. It was his view
that the tiles showed evidence of a minimum of nine gunshots having been fired,
all of which were directed downwards, as revealed by the bullet-strike marks, the
evidence suggesting that the person at whom they were fired was on or close to
the floor and within three metres of the shooter. He further found no evidence
of gunfire from the floor upwards. The Court notes, in this regard, that the
body of the İbrahim Erdoğan appears from the police report to have
been found in the main room of the apartment and, according to the autopsy
report, bore nine gunshot wounds, six of which were to the back, five of them
being fatal.
84. As to Yücel
Şimşek, whose body was found behind the door in the stairwell of the
building, the autopsy report noted that the two bullet injuries and four
shrapnel injuries to the body were of a jointly fatal quality. The shrapnel
injuries suggest that grenades or other explosive devices were used by the
police officers, even though no reference to their use is made in the police
reports. The pattern of the shrapnel injuries was in the view of Professor
Pounder such as to indicate that Yucel Şimşek was alive and upright
when the injuries were inflected and that he was already fatally injured at the
time he was hit by the two bullets.
85. It appears that Professor
Pounder was unable to gain access to the other two locations which are the direct
subject of the present proceedings. However, the Court notes that, having
examined the autopsy report relating to Cavit Özkaya, who was killed at the
second location, Professor Pounder found that five of the shots fired at the
suspect appeared to have been fired from behind, while the only fatal wound to
the front side of his body appeared to have been fired when the body was on a
firm surface, such as the ground.
86. These findings provide,
in the view of the Court, strong evidence that in at least two of the locations
which formed part of concerted and coordinated operations, the suspects were
not shot and killed in self defence during an exchange of fire, as suggested by
the police reports. While such findings might perhaps have been refuted or
explained by cogent evidence of a forensic or other nature, such evidence has
not, as noted above, been forthcoming or made available to the Court.
87. In sum, having regard to
the above, the Court finds that in the planning and manner of execution of the
operations there was a failure on the part of the national authorities to
protect the right to life of the applicants’ relatives and that it has not been
shown that the killing of the applicants’ relatives constituted a use of force
which was no more than absolutely necessary.
Accordingly, the applicants have been the
victims of a violation of Article 2 of the Convention on this ground.
3. As to the alleged inadequacy of
the investigation
88. The obligation to protect
the right to life under Article 2 of the Convention, read in conjunction with
the State’s 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 (see Çakici v. Turkey
[GC], no. 23657/94, § 86, ECHR 1999‑IV). The essential purpose of such an
investigation is to secure the effective implementation of the domestic laws
safeguarding the right to life and, in those cases involving State agents or
bodies, to ensure their accountability for deaths occurring under their
responsibility (see Anguelova v. Bulgaria,
no. 38361/97, § 137, ECHR 2002‑IV). Since often, in practice,
the true circumstances of the death in such cases are largely confined within
the knowledge of State officials or authorities, the bringing of appropriate
domestic proceedings, such as a criminal prosecution, disciplinary proceedings
and proceedings for the exercise of remedies available to victims and their
families, will be conditioned by an adequate official investigation, which must
be independent and impartial. The same reasoning applies in the case under
consideration, where there is no dispute that the deceased were killed by the
police officers during an operation to arrest them.
89. The investigation must be
capable, firstly, of ascertaining the circumstances in which the incident took
place and, secondly, of leading to the identification and punishment of those
responsible. This is not an obligation of result, but of means. The authorities
must take the reasonable steps available to them to secure the evidence
concerning the incident, including, inter
alia, eyewitness testimony and forensic evidence. A requirement of
promptness and reasonable expedition is implicit in this context. Any
deficiency in the investigation which undermines its capability of establishing
the circumstances of the case or the person responsible is liable to fall foul
of the required standard of effectiveness (see Kelly and Others v. the United Kingdom, no. 30054/96, §§
96-97, 4 May 2001, and Anguelova,
cited above, § 139).
90. In the instant case,
following the incidents, administrative and judicial investigations were
opened. A number of police officers and other witnesses were interviewed. After
the investigation criminal prosecutions were brought against twenty-one police
officers, who were subsequently acquitted.
91. However, the Court
observes that there were striking omissions in the conduct of the
investigation. In the first place, there appears to have been no investigation
of the planning of the coordinated operations at the four locations and, in
particular, of the instructions given to the police officers participating in
them as to the best means of achieving the aim of arresting the suspects
without recourse to the use of force and of the reasons why the officers
concerned had apparently only been armed with lethal weapons.
92. The investigation into
the manner in which the operations were carried out was also manifestly
deficient. In particular, the investigation authorities did not take
photographs at the scene of the incidents; nor did they make sketches of the
interior or exterior of the premises or prepare a plan showing where each
member of the security forces was at the various stages of the operation. As a
result there is no indication in the case file of the position of those killed
in the apartments and of the position and movements of each police officer in
each operation.
It also appears that the investigation
authorities did not take fingerprints, in particular, from the weapons
allegedly used by the deceased. Nor does it appear that a chemical analysis was
carried out on the hands of the deceased to confirm that they had recently
handled and fired weapons. Moreover, the weapons themselves were not sent for
forensic examination in order to determine whether they had been recently
fired. No search was conducted for spent cartridge and grenade shrapnel outside
or inside the four apartments. The investigation authorities did not gather any
evidence to show whether the firing had come from inside or outside the
apartments. These omissions make it impossible to be sure that the suspects
opened fire on the security forces first or at all.
93. In addition, the weapons
of the police officers were not submitted for forensic examination. Further, no
detailed account of the events was taken from each of the police officers to
determine with precision the part played by each officer. The investigation did
not thus determine which members of the security forces members had fired which
shots and from where. It also appears that the clothing of those killed unaccountably
disappeared and was not provided to the forensic specialist for the purpose of
determining the range from which the bullets had been fired by the police
officers. Nor were photographs taken during the autopsy investigations. These
omissions made it impossible to verify the applicants’ allegations in the
domestic proceedings that the police officers shot some of the suspects while
they were lying down, without weapons.
94. The above omissions seriously
undermined the effectiveness of the investigation and the reliability of the
findings; it also hampered the domestic courts, in the very protracted criminal
proceedings, in making as full findings of fact as they might otherwise have
done. In these circumstances the Court cannot accept the Government’s assertion
that the domestic authorities carried out a complete investigation concerning
the incidents.
95. Having regard to the
above considerations, the Court concludes that the authorities failed to carry
out an effective investigation into the events leading to the death of the
applicants’ relatives.
There has accordingly also been a violation of
Article 2 of the Convention in this respect.
II. ALLEGED
VIOLATION OF ARTICLE 6 OF THE CONVENTION
96. The applicants further
complained that there had been no effective investigation into their relatives’
death and that they were denied access to a court, in violation of Article 6 §
1 of the Convention, of which the relevant part provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by [a] tribunal
...”
97. The Court observes that
the essence of the applicants’ complaint under Article 6 §1 of the Convention
concerns the domestic authorities’ failure to mount an effective criminal
investigation into the deaths of the applicants’ relatives. In the Court’s
view, it is therefore more appropriate to examine the applicants’ Article 6
complaint in relation to the more general obligation on Contracting States
under Article 13 of the Convention to provide an effective remedy in respect of
violations of the Convention (see, among other authorities, Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and
Decisions 1996‑VI, p.
2286, § 93).
98. It accordingly does not
find it necessary to determine whether there has been a violation of Article 6
§ 1.
III. ALLEGED
VIOLATION OF ARTICLE 13 OF THE CONVENTION
99. The applicants complained
that the investigatory procedure in this case was not effective and capable of
leading to the identification and punishment of those responsible for the death
of their relatives and that, for this reason, they did not have an effective
remedy within the meaning of Article 13 of the Convention. They also alleged a
violation of Article 6 of the Convention on the same factual basis. The Court will
consider these complaints under Article 13, which provides:
“Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been committed by
persons acting in an official capacity.”
100. The Government rejected
the applicants’ submissions and argued that the judicial authorities had
carried out an appropriate and effective investigation into their complaints.
101. The Court reiterates
that Article 13 of the Convention guarantees the availability at the national
level of a remedy to enforce the substance of the Convention rights and
freedoms in whatever form they might happen to be secured in the domestic legal
order. The effect of article 13 is thus to require the provision of a domestic
remedy to deal with the substance of an “arguable complaint” under the
Convention and to grant appropriate relief, although Contracting States are
afforded some discretion as to the manner in which they conform to their Convention
obligations under this provision. The scope of the obligation under Article 13
varies depending on the nature of the applicant’s complaint under the
Convention. Nevertheless, 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 (see Aksoy, cited above, § 95; Aydın v. Turkey, judgment of 25 September 1997, Reports 1997‑VI, pp. 1895/96, §
103; and Kaya v. Turkey, judgment of
19 February 1998, Reports 1998‑I,
pp. 329‑330, § 106).
102. Given
the fundamental importance of the right to protection of life, Article 13
requires, in addition to the payment of compensation where appropriate, a
thorough and effective investigation capable of leading to the identification
and punishment of those responsible for the deprivation of life and including
effective access for the complainant to the investigation procedure (see Kaya, cited above, pp. 330-31, § 107).
103. On the basis of the
evidence adduced in the present case, the Court has found that the respondent
State is responsible under Articles 2 of the Convention for the death of the
applicants’ relatives. The applicants’ complaints in this regard are therefore
“arguable” for the purposes of Article 13 (see, for example, Salman v. Turkey [GC], no. 21986/93, § 122, ECHR 2000‑VII).
104. The authorities thus had
an obligation to carry out an effective investigation into the circumstances of
the death of the applicants’ relatives. For the reasons set out above (see
paragraphs 83-88), no effective criminal investigation can be considered to
have been conducted in accordance with Article 13, the requirements of which
may be broader than the obligation to investigate imposed by Article 2 (see Kaya,
cited above, pp. 330-31, § 107). The Court finds,
therefore, that the applicants were denied an effective remedy in respect of
the death of their relatives, and were thereby denied access to any other
available remedies at their disposal, including a claim for compensation.
105. Consequently, there has
been a violation of Article 13 of the Convention.
IV. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
106. 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
107. The applicants claimed 42,500
pounds sterling (GPB) for non‑pecuniary damage in respect of each
deceased for the anxiety and pain they had suffered.
108. The Government submitted
that no compensation was due to the applicants as the deceased had been
terrorist suspects who had been intending to execute terrorist attacks (see McCann and Others, cited above, pp. 84-85, § 219). In any event,
the claims in question were excessive and wholly without foundation.
109. The Court reiterates
that the five deceased were indisputably members of the Dev-Sol, a group whose
members carried out many terrorist activities. However, it is not convinced
that they were preparing a terrorist attack at the time of the police
operations. The Court recalls that it has found that the use of force which
resulted in the death of the five suspects was in violation of Article 2 of the
Convention and that the authorities failed to provide an effective
investigation and remedy in respect of the killing, in breach of the procedural
obligations under that Article and in breach of Article 13 of the Convention.
In these circumstances, and deciding on an equitable basis, the Court awards in
respect of non-pecuniary damage the sum of 30,000 euros (EUR) in respect of
each deceased, the sums to be held for the benefit of their heirs. It also
awards the applicants, Hatice Erdogan, Esme Şimşek, Hüseyin
Şimşek, İsmail Hakkı Ilcı, Nahit Özkaya, Bakiye
Eliuygun and Necla Nurlu, the sum of EUR 3,000 each for non-pecuniary damage
sustained by them in their personal capacity.
B. Costs and expenses
110. The applicants claimed a
total of GBP 7,332.50 for fees and costs incurred in the application by the
legal team in the
111. The Government
maintained that in the absence of any supporting evidence the above claims must
be rejected as unsubstantiated, and that in any event they were excessive and unnecessarily
incurred. They also contended that the applicants had claimed fees for lawyers
who had not represented them.
112. The Court reiterates
that, in accordance with its case-law, it is only costs which are actually and
necessarily incurred and reasonable as to quantum that are recoverable under
this head. Taking into account the circumstances of the case, it awards the
applicants EUR 12,000 jointly in respect of costs and expenses.
C. Default
interest
113. The Court considers it
appropriate that the default interest should be based on the marginal lending
rate of the European Central Bank, to which should be added three percentage
points.
FOR THESE
REASONS, THE COURT
1. Holds by six votes to one that there has been a violation of
Article 2 of the Convention in respect of the deaths of İbrahim
Erdoğan, Yücel Şimşek, İbrahim Ilcı, Cavit Özkaya and
Hasan Eliuygun;
2. Holds unanimously that there has been a violation of Article 2
of the Convention in respect of the respondent State’s obligation to conduct an
effective investigation into the circumstances of the incidents that led to the
death of the said persons;
3. Holds unanimously that no separate issue arises under Article 6 of
the Convention;
4. Holds unanimously that there has been a violation of
Article 13 of the Convention;
5. Holds
(a) that the respondent State is to pay,
within three months from the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, the following amounts to
be converted into new Turkish liras at the rate applicable at the date of
settlement:
(i) by six votes to one, by way of
compensation for non-pecuniary damage, EUR 30,000 (thirty thousand euros), which
sum is to be held by the applicant Hatice Erdoğan for İbrahim
Erdoğan’s heirs; EUR 30,000 (thirty thousand euros), which sum is to
be held by the applicants Esme Şimşek and Hüseyin Şimşek
for Yücel Şimşek’s heirs; EUR 30,000 (thirty thousand euros), which
sum is to be held by the applicant İsmail Hakki Ilcı for İbrahim
Ilcı’s heirs; EUR 30,000 (thirty thousand euros), which sum is
to be held by the applicant Nahit Özkaya for Cavit Özkaya’s heirs; 30,000
(thirty thousand euros), which sum is to be held by the applicants Bakiye Eliuygun
and Necla Nurlu for Hasan Eliuygun’s heirs;
(ii) unanimously, the sum of EUR
3,000 (three thousand euros) for each applicant Hatice Erdoğan, Esme
Şimşek, Hüseyin Şimşek, İsmail Hakkı Ilcı,
Nahit Özkaya, Bakiye Eliuygun and Necla Nurlu for non-pecuniary damage
sustained by them in their personal capacity;
(iii) unanimously, EUR 12,000 (twelve
thousand euros) jointly to all of the applicants in respect of costs and
expenses;
(iv) unanimously, any tax that may
be chargeable on the above amounts;
(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;
6. Dismisses unanimously the remainder of the applicants’ claim for
just satisfaction.
Done in English, and notified in writing
on
Michael O’BoylE Josep CASADEVALL
Registrar President
In accordance with Article 45 § 2 of the
Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion
of Mr Gölcüklü is annexed to this judgment.
J.C.M.
M.O’B.
PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ
(Translation)
There are three points on which I am unable
to share the opinion expressed by the majority of my colleagues.
114. Firstly, I consider that
in undertaking any evaluation of the way in which the operation in issue was
organised and controlled, the Court should have studiously resisted the
temptations offered by the benefit of hindsight.
At the relevant time the authorities had to
plan the operations and make decisions on the basis of incomplete information.
Only the suspects knew at all precisely what they intended, and it had no doubt
been part of their training to ensure that as little as possible of their
intentions was revealed. It would be wrong to conclude in retrospect that a
particular course of action would, as things later transpired, have been better
than the one adopted at the time under the pressures of an ongoing
anti-terrorist operation and that the latter course must therefore be regarded
as culpably mistaken.
115. Secondly, the facts
which led the majority of the Court to find a violation of Article 2 in its
substantive aspect have not been established beyond all reasonable doubt.
Certain omissions that have been noted in the conduct of the operations in
question are inherent in the nature of such cases and thus inevitable.
I therefore consider that there has not been
a violation of Article 2 of the Convention in its substantive aspect.
116. Thirdly, the present
case is, if not identical, at least similar, to the case of McCann and Others v. the United Kingdom (judgment of 27 September 1995, Series
A no. 324), in which the Court did not make an award in respect of any kind of
damage, seeing that “the three terrorist suspects who
were killed had been intending to plant a bomb in Gibraltar”.
In the present case the suspects who were
killed were acknowledged, dedicated and hardened terrorists and were firmly set
on continuing their criminal acts. As is clear from their criminal records and
the weapons found in the flats where the operations in question were carried
out, they were neither “angels” nor “saints”. In those circumstances, I
consider that no award should have been made under this head.
In any event, the sums awarded are more than
exorbitant.