FOURTH
SECTION
CASE OF KAKOULLI v.
(Application no. 38595/97)
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 Kakoulli v.
The European Court of Human Rights (Fourth
Section), sitting as a Chamber composed of:
Sir Nicolas Bratza,
President,
Mr G. Bonello,
Mr R. Türmen,
Mr M. Pellonpää,
Mr K. Traja,
Mr L. Garlicki,
Ms L. Mijović,
judges,
and Mr M. O’Boyle,
Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was
adopted on this date:
PROCEDURE
1. The case originated in an
application (no. 38595/97) 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 four Cypriot nationals, Ms Chriso Kakoulli,
Mr Andreas Kakoulli, Ms Martha Kakoulli and Ms Kyriaki Kakoulli
(“the applicants”), on 19 March 1997.
2. The applicants, who had
been granted legal aid, were represented by Mr Constantis A. Candounas, Mr
Pavlos Angelides and Mr Andreas Papacharalambous, lawyers practising in
3. The applicants complained that
their husband and father Petros Kakoulli had been intentionally shot and killed
by Turkish soldiers in
4. The application was
transmitted to the Court on
5. The application was
allocated to the Third 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.
6. By a decision of
7. The applicants and the
Government each filed observations on the merits (Rule 59 § 1). In addition,
third-party comments were received from the Cypriot Government, who had
exercised their right to intervene (Article 36 § 1 of the Convention and
Rule 44 § 1 (b)). The respondent Government replied to those comments (Rule 44
§ 5).
8. On
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The applicants, Chriso
Kakoulli, Andreas Kakoulli, Martha Kakoulli and Kyriaki Kakoulli, were born in
1944, 1969, 1972 and 1970 respectively. The first, third and fourth applicants
live in Avgorou and the second applicant lives in Paralini. The first applicant
is the widow and the other applicants are the children of Petros Kyriakou
Kakoulli, a Greek Cypriot who died on
A. The applicants’ version of the
facts
10. In the early hours of 13
October 1996 Petros Kyriakou Kakoulli and his daughter’s fiancé, Panikos
Hadjiathanasiou, drove to an area called Syrindjieris, situated near the Achna
roundabout in the British Sovereign Base Area (SBA) of Dhekelia, to collect
snails. After a time, they separated and agreed to meet up at about
11. A villager from Avgorou,
Georgios Mishis, who was also collecting snails on the north side of the main
road, saw the victim standing in a field approximately 70 metres away from him.
He also saw a Turkish soldier approximately 10 metres from Mr Kakoulli pointing
his rifle at him and a second Turkish soldier approaching him. Georgios Mishis
heard Mr Kakoulli ask the first soldier, in Greek, whether he spoke Greek,
to which there was no response. At that moment, the two soldiers caught sight
of Mr Mishis and one of them pointed a weapon at him. Mr Mishis then backed
away.
12. At this moment Mr Mishis
saw an SBA police patrol vehicle on the road and told the driver, Constable
Pyrgou, what he had seen. Constable Pyrgou immediately reported the incident to
Sergeant Serghiou of the SBA police at Ayios Nikolaos.
13. Shortly after Mr Mishis
had seen Mr Kakoulli surrounded by Turkish soldiers, Panikos Hadjiathanasiou,
who was searching for Mr Kakoulli, saw him at a distance of approximately
400 metres inside the territory of northern
14. A few minutes later,
while Mr Kakoulli was still lying on the ground, Mr Hadjiathanasiou saw one of
the Turkish soldiers move and fire a third shot at him from a distance of about
7 to 8 metres from where he was lying.
15. Following orders from Sergeant Serghiou of the SBA police, Constable Duru Chorekdjioglou (a Turkish-Cypriot member of the SBA police) and Constable Petros Kamaris (a Greek-Cypriot member of the SBA police) arrived at the Achna roundabout, where they met Panikos Hadjiathanasiou, who explained what had just happened.
16. Constable Duru
Chorekdjioglou spoke to a Turkish lieutenant who told him that a Greek Cypriot
had entered the territory of northern
17. The officer allowed Constable Duru Chorekdjioglou to see the body of the deceased though not to touch or examine it. Constable Duru Chorekdjioglou reported that Mr Kakoulli appeared to be dead.
18. Sergeant Engin Mustafa of the SBA police (a Turkish Cypriot), together with two Turkish soldiers, also visited the scene of the killing and saw the body. The Turkish soldiers told Sergeant Engin Mustafa that Mr Kakoulli had been shot because he had entered “their area” and had refused to obey warnings to stop.
19. Divisional Commander R.H.
Weeks of the SBA police, together with Sergeant Engin Mustafa, entered northern
20. The same day, Superintendent Mathias Cosgrave and Inspector Richard Duggan of the Irish Civilian Police (IRCIVPOL), part of the United Nations Forces in Cyprus (UNFICYP), visited the scene, accompanied by Sergeant Engin Mustafa. They found an investigating team from the Turkish forces already present.
21. Superintendent
Anastasiou, Inspector Christou, Sergeant Zonias and Constable Hadjiyasemis of
the
22. Sergeant Xenofontos and
Constables Kapnoullas and Aristidou of the
23. Georgios Mishis was escorted back to the scene of the incident, where he pointed out the various locations, which were then photographed by Constable Aristidou.
24. A Turkish pathologist, Dr
İsmail Bundak, carried out an autopsy on the body of the deceased, Mr Kakoulli,
at
25. Dr Bundak concluded that the
death had occurred as a result of internal bleeding caused by a shot to the
heart.
26. According to the report by
Superintendent Cosgrave, during the removal of Mr Kakoulli’s clothes, an object
fell from his left boot which was described as a type of garrotte, consisting
of two black metal handles attached to a length of wire. In addition, an object
described as a bayonet in a scabbard was removed from the body’s right boot.
Following the autopsy, the body of Mr Kakoulli was taken to
27. According to the first
applicant’s statement to the
28. On 14 October a second
autopsy was conducted in
“An entry wound on the right side of the neck, just below the right ear, with an exit wound at the back of the neck. This bullet had left the body without causing any damage to vital organs. A second entry wound on the right side of the trunk and an exit wound on the right side halfway down the back. This bullet appeared to have caused soft tissue damage with minor injury to the lungs but was not fatal. A third entry wound on the left side of the trunk towards the back with a steep upward direction into the body. This bullet had exited from the left side of the front of the chest, causing a large exit wound. This wound was fatal, as it had caused severe damage to the left lung and the heart, resulting in severe internal haemorrhage.”
29. Until the second autopsy
was concluded in
30. On
B. The Government’s version of the
facts
31. The Government maintained
that Petros Kyriakou Kakoulli had violated the ceasefire line and had entered
the territory of the “
32. Neither the UN nor the British Sovereign Base authorities carried out an investigation of their own as the scene of the incident was within the territory of the “TRNC”.
33. The Government further referred
to various violent incidents which had taken place in the border area and between
the ceasefire lines of the two sides between August and October 1996. The
United Nations Secretary‑General’s report, submitted to the Security
Council on
34. The Government emphasised the fact that Petros Kyriakou Kakoulli had crossed the Turkish-Cypriot ceasefire line into the territory of the “TRNC”, in the same area where the two Turkish soldiers had been shot. There were strong reasons to believe that Mr Kakoulli, who was a retired fireman, would not have crossed into the “TRNC” territory by mistake, particularly at a location where there were signs in Turkish and Greek indicating the border. Mr Kakoulli had been in possession of a garrotte and a bayonet at the material time, which constituted a strong presumption that he had a sinister motive. His act of carrying a bucket apparently to collect snails was a cover for his real motive.
35. The death of Mr Kakoulli had
not been a deliberate act, the Government asserted, but an attempt to maintain
security in a highly tense environment. The incident had occurred during a
period when tension at the border between the north and south of
C. Documents submitted by the parties
36. The parties submitted
various documents concerning the investigation into the killing of Petros
Kakoulli. These documents, in so far as they are relevant, are summarised below.
1. Documents
submitted by the applicants
(a) Statements taken by the Sovereign Base
Areas Police
(i) Statement by Panikos Hadjiathanasiou
37. Mr Panikos Hadjiathanasiou
is the fiancé of Mr Petros Kyriakou Kakoulli’s daughter. He accompanied Mr Kakoulli
to collect snails on the day of the impugned incident. In his statements he
claimed, inter alia, the following:
“...After the rainfall at my village, I agreed
with my father-in-law to go together this morning (13 October) to collect
snails. So, today in the morning I set off with my father-in-law in my car,
which I was driving. We took a bucket each in which to put snails... At
approximately
(ii) Statement by Georgios D. Mishis
38. The witness is a fellow
villager of Petros Kyriakou Kakoulli. He stated, inter alia:
“...Today at about half past five in the
morning, and because of the rain during the previous night, I woke up to go and
collect snails... I was alone and drove to the Syrindjieris territory situated
near the Achna roundabout on the main Vrysoulles-Dhekelia road ... About
(iii) Statement by Constandinos Ioannou Ioannou
39. The witness, who lives on the Vrysoulles refugee housing estate, was collecting snails in the same area where Petros Kyriakou Kakoulli met his death. He stated, inter alia:
“...At about
(iv) Statement by Police Sergeant Engin Mustafa
40. The witness is a police sergeant at the SBA. On the day of the impugned incident he was on duty at the base. He stated:
“...On the same day about at
(v) Statement by Divisional Commander (East)
R.H. Weeks
41. The witness is the Commander of the Dhekelia Division of the SBA Police. He stated, in so far as relevant:
“...At 8.50 [on
(vi) Statement by Chryso Kakoulli
42. The witness is the wife
of the deceased, Mr Petros Kakoulli. She claimed that her husband had left the
family house with a bucket to collect snails. She disputed the allegation that
her late husband was in possession of a knife and a wire rope and stated that
such an allegation must have been advanced to cover up his murder.
(vii) Statement by Police Constable M. Pyrgou
43. The witness, a police
constable stationed at the SBA Police Station in Ayios Nikolaos, saw a middle-aged
person holding a basket, collecting snails on the main road in the direction of
Larnaca. This person told the witness that somebody had been arrested by the
Turkish forces and asked him to take action. The witness called Sergeant
Serghiou at the Ayios Nikolaos Police Station and requested him to dispatch a
patrol and also to inform the relevant agencies.
(viii) Statement by Police Sergeant Antonios
Serghiou
44. The witness is a police
sergeant stationed at the SBA Police in Ayios Nikolaos. He was on duty at the
time of the killing of Petros Kakoulli. After having been informed, by Police Constable
M. Pyrgou, about the arrest of a male Greek Cypriot by the Turkish soldiers,
the witness instructed Police Constables P. Kamaris and D. Chorekdjioglou to
proceed to the scene and to carry out inquiries and to report back. At
(ix) Statement by Police Constable Duru
Chorekdjioglou
45. The witness is a police
constable stationed at the SBA Police in Ayios Nikolaos. He was on duty at the
time of the killing of Petros Kakoulli. On the instructions of Police Sergeant
Serghiou the witness went to the Achna roundabout, along with Police Constable
Kamaris, to inquire into the arrest of Petros Kakoulli. He stated, in so far as
relevant, the following:
“...When I walked close to [Border Stone] 155
some [Turkish] soldiers shouted at me to stay away. I replied to them that I was
a Turkish SBA police officer. Still they shouted at me to stay away and I then
walked back to the edge of the main road and shouted at them again to ask whether
the commander was present. They replied that he was not there. They promised to
call me back when he arrived at the scene. At
(x) Statement by Police Constable Petros Kamaris
46. The witness is a police
constable stationed at the SBA Police in Ayios Nikolaos. He was on duty at the
time of the killing of Petros Kakoulli. On the instructions of Police Sergeant
Serghiou the witness went to the Achna roundabout, along with Police Constable
Duru Chorekdjioglou, to inquire into the arrest of Petros Kakoulli. On the way
to the Achna roundabout the witness met Panikos Hadjiathanasiou, who told him
that his father-in-law had been shot dead by Turkish soldiers. He informed his
colleagues at the Ayios Nikolaos Police Station and Dhekelia about the impugned
incident.
(xi) Statement by Superintendent Theofanis
Anastasiou
47. The witness is a police
superintendent in
(xii) Statement by Chief Superintendent
Nathanael Papageorgiou
48. The witness was involved
in the investigation into the killing of Petros Kakoulli. He stated that Mr
Kakoulli had been shot dead by Turkish soldiers while collecting snails 40
metres inside the Turkish-occupied areas. He attended the post-mortem examination
of the corpse of Mr Kakoulli at
(xiii) Statement by Police Inspector Marcos
Christou
49. The witness is a police
inspector in the Famagusta Police Division in the
(xiv) Statements by Police Constables S.
Aristidou and H. Hadjiyasemi
50. The witnesses are
specialist photographers attached to the Criminal Investigation Division at the
Famagusta Police Division. They took various photographs of the scene of the
impugned incident on
(b)
51. The UNFICYP issued two
press releases on 14 and
52. In the press release of
14 October 1996 it expressed concern that an innocent life, namely that of
Petros Kakoulli, had been lost as a result of deplorable and unnecessary force.
The UNFICYP qualified the incident as a disproportionate response and stressed
that lethal force should not be used by either side against persons who crossed
the respective ceasefire lines or entered the United Nations Buffer Zone. It
was further noted that the commander of the UNFICYP had requested the commander
of the Turkish forces in
53. In the press release
dated
(c) Post-mortem examination report
54. Dr Peter Vanezis, from
the Department of Forensic Medicine and Science at the
“The deceased suffered three gunshot wounds to
the body as follows:
One to the right side of the neck, which
entered at a position just below the ear, exited at the back of the neck and
did not cause any damage to any vital organs.
The second entered through the right side of
the trunk and exited at the back at approximately the same level and appeared
to have caused soft tissue damage with some minor associated internal injury to
the lung, but was not in my view fatal.
The third wound was on the left side of the trunk towards the back. It entered the body and its trajectory was steeply upwards into the body at an angle of 45 degrees. It then exited from the left side of the front of the chest, causing a large exit wound. This wound was the fatal wound, causing severe damage to the left lung and the heart with consequent extensive internal bleeding.
The first two wounds mentioned were from
approximately the same direction and both had approximately horizontal trajectories
on entering the body.
The third wound was on the other side of the
body and had a steep upward trajectory. The position of this wound indicates
that the deceased, at the time of receiving this wound, was in a horizontal
position either on the ground or crouching.
The first two wounds appeared to have been
fired at approximately the same time, bearing in mind that their direction and
their position on the body are from the same side...”
(d) Sketch maps and photos
55. The applicants provided
the Court with sketch maps and photographs of the scene of the killing of
Petros Kakoulli and with the photographs taken during the post-mortem examination
carried out by Dr Peter Vanezis.
56. It is to be noted that Dr Vanezis’s observations concerning the deceased’s body correspond to the photos taken during the post-mortem examination.
(e) Newspaper reports
57. Between 14 and
2. Documents
submitted by the Government
58. The following documents furnished by the Government pertain to the investigation carried out by the “TRNC” authorities into the killing of Petros Kakoulli.
(a) Work schedule
59. This document sets out, in chronological order, the course of action taken by the investigating authorities in relation to the killing of Petros Kakoulli. It includes statements by various witnesses, reports, and decisions by the authorities. It appears that the investigation into the death of Petros Kakoulli was mainly carried out by Inspector Ömer Tazeoğlu, who at the relevant time worked at the Legal Branch of the Gazi Magusa Police Directorate.
(i) Preliminary investigation
60. Inspector Ömer Tazeoğlu
commenced his investigation immediately after he had learned about the death of
Mr Kakoulli, namely at
61. Having completed his
preliminary investigation, Inspector Tazeoğlu established that at
62. According to the work
schedule, Police Constable Osman Pekun took the necessary photographs of the
scene of the incident. Police Sergeant Mehmet Deniz drew a plan of the
location. Inspector Ömer Tazeoğlu collected five cartridges and took
samples from the pool of blood. SBA police officers Engin Çelebi and Bülent
Nihat and inspectors and soldiers from the Peace Force visited the location but
left without doing anything, given that the incident had taken place within the
boundaries of the “TRNC”. At the scene of the incident, the military doctor
Ömer Gür examined the body and found two entry holes and two exit holes caused
by bullets. The body was then transferred to
(ii) Post-mortem examination
63. On
64. Between
(iii) Statements and reports
65. Between
66. In a letter of
“[Petros Kakoulli], despite the presence of
warning signs, secretly crossed into the TRNC territory near border stone no.
155 and advanced 200 metres inside...
Infantry Private Harun Avşar first
verbally warned Petros Kakoulli and asked him to stop. But the said person
attempted to escape by walking away speedily. Following that, Infantry Private
Harun Avşar got 10 metres closer to the victim and first fired a single
warning shot into the air. When [Petros Kakoulli] continued to run away, Harun
Avşar fired another warning shot to the ground. But when he again tried to
escape, Harun Avşar fired a single shot in the direction of his legs and
then two shots below the waist. Petros Kakoulli was stopped after being shot...
During the removal of Petros Kakoulli’s boots, a garrotte wire hidden in the left boot and a 33 cm bayonet hidden inside the right boot were discovered. Both have been seized as exhibits...
The ballistic examination revealed that 5
empty cartridges had been fired by a G3 infantry rifle with the serial number
259550.
The comparison of the fingerprints of the
victim with the fingerprints found on the bayonet which was found in his right
boot showed that the fingerprints on the bayonet belonged to the victim...
A charge of manslaughter can be brought
against someone in the event of a criminal offence or negligence. However, as
the testimonies show, Infantry Private Harun Avşar made all the necessary
moves to apprehend the person but as a last resort, after giving warnings,
opened fire on Petros Kakoulli and shot him.
In my opinion, in the light of the existing
testimonies, the incident qualifies, under Article 15 (3) (b) and Chapter 154 Article
17 of the Criminal Code, as an act of causing death which does not constitute a
criminal offence...”
67. In a letter of
68. In June 1997 the police
authorities decided to classify the case concerning the killing of Petros
Kakoulli as “no case” and to discontinue the investigation.
(iv) The Coroner’s decision of
69. Having completed the
judicial inquest, the Gazi Magusa district judge concluded that Petros Kakoulli
had died of injuries caused by shots fired by Infantry Private Harun Avşar
after illegally entering the “TRNC” and failing to obey warnings to stop.
(v) Statement by Inspector Ömer Tazeoğlu
70. In his statements
concerning the conclusions he had reached at the end of the investigation into
the killing of Petros Kakoulli, Inspector Tazeoğlu expressed the view that
Private Harun Avşar had acted in accordance with the instructions given to
him. Private Avşar had given the necessary warnings and had shot and
killed Petros Kakoulli because of the latter’s failure to stop. Inspector Tazeoğlu
thus concluded that this was a justified killing since Private Harun Avşar
had done what his duty dictated. Inspector Tazeoğlu recommended that the
case should be classified as “no case”.
(b) Report by Superintendent Mathias Cosgrave of
the Irish Civilian Police (IRCIVPOL), UNFICYP, in
71. This report describes the
sequence of events concerning the involvement of IRCIVPOL in the investigation into
the killing of Petros Kakoulli. It appears that immediately after the killing
of Mr Kakoulli, at
(c) Statement by Infantry Private Harun Avşar
72. In his statements to the
investigating authorities, Infantry Private Harun Avşar claimed the
following, in so far as relevant, in relation to his killing of Petros
Kakoulli:
“...Today, on 13.10.1996, Rezvan
Topaloğluları and I were on guard duty at Haşim 8... After
5-10 minutes from the time we started our shift, we – I and Rezvan Topaloğluları
– saw, approximately 300 or 400 metres from our guard post, a person walking
inside our territory. This person was walking in a south-north direction, in
other words in the direction of a trail we describe as the patrolling trail. We
did not know who this person was. As soon as I saw this person I informed Duty
Officer Ali Ogdu via the wireless (radio). He told us over the wireless to
continue to keep the person under observation. Then I told my companion,
Infantry Private Rezvan Topaloğluları: ‘You stay here; I will go and
look at this person.’ And, holding my rifle with a loaded magazine attached to
it, I came down from Haşim 8 guard post and joined the trail, advancing
towards the border fence... After approaching to about 50 metres from the
person, I shouted and asked him what he was doing there. Without saying
anything the person continued walking on the slope in the direction of the
patrolling trail. Until that moment I could not firmly determine whether this
person was a Turk or a Greek Cypriot. So I moved closer to him. The distance
between us was about 5-6 metres. This person was high on the slope. At that
moment, I sensed that the person could well be a Greek Cypriot. The look of the
person was one of bad intent and unease. After that, through hand signals I
asked him where he was coming from. Initially the person gave no verbal reply,
but he signalled with his right hand and indicated the Turkish side and said
something in Greek. But I did not understand what he said. When I was sure that
the person was a Greek Cypriot, I removed the safety catch of my weapon and
aimed at him. At that moment, the person, while speaking in Greek and making hand
signals, started coming towards me. Faced with this situation I shouted in
Turkish, telling him to stop, and with my left arm I signalled to him to stop.
The person did not stop and continued walking towards me. I, for my part,
stepped back a few metres and shouted at my colleague Rezvan and told him to
inform the exchange about the situation...
The guard Rezvan Topaloğluları heard me. Then I again turned my head towards the person. I shouted and warned the person to stop. After that he stopped walking towards me and started walking towards the border fence. I again shouted and warned him to stop. But this person continued walking away in the direction of the fence while moving his arms and hands saying something in Greek. The distance between this person and the border fence was 200 metres. Following that, I went up to the slope to have a better view of him. The person was still walking towards the border fence. I shouted again and asked him to stop. But he went on walking, waving his hands at the same time. After that the distance between the person and me was about 15 metres. At that point I fired a shot into the air. After hearing the firing of the gun the person quickened his steps. After that I turned my weapon in his direction and fired another shot towards the ground. He again failed to stop and further increased his speed. The distance between us at that moment was about 30 metres. When I realised that the person would not heed my warnings and would cross over to the Greek-Cypriot side, that is I would not be able to catch him, I decided to stop the person by shooting and wounding him. Therefore, while he was walking I aimed my gun roughly at his legs and fired. After that the person stopped momentarily. Until that moment I was not sure if my shot had found its target. Following that, and while he was in a walking position, I fired two rounds, aiming at the person. And the person was shot and fell to the ground. Naturally, the person fell on his right side. I realised that the person was shot. But I did not go near him. I thought there could be others hiding in the area. Therefore, I went up to the hilltop and, hiding behind the rock, began observing and monitoring the area. After that I did not hear any sound coming from the said person.
The shooting incident took place at around
(d) Statement by Infantry Private Rezvan
Topaloğluları
73. At the time of the
impugned incident Infantry Private Rezvan Topaloğluları was on guard
duty along with Private Harun Avşar at Haşim 8 guard post. In
his statements to the authorities he mentioned, in so far as relevant, the
following:
“...Today, on 13.10.1996 at around 6.45 a.m.,
the duty officer of the company, Non‑commissioned Officer Ali Ogdu, drove
Harun Avşar and me to the guard post and we began our guard duties there.
Five to ten minutes after the start of our guard duties, we saw a person in
civilian dress between our guard post and the border fence and 300 metres away
from the post. Immediately after seeing this person my colleague Harun Avşar
notified the situation to the exchange via the wireless. However, I am not sure
who he talked to. Over the wireless he was told ‘OK, keep an eye on it’.
Following that, we continued to keep the person in question under surveillance...
This person was approximately 250-300 metres from the border fence inside our
territory. After that my colleague told me: ‘I will go and find out who that
person is. You stay here and watch...’ The person we saw was to the south of
the patrolling trail inside the ‘TRNC’ territory, which was a military
prohibited zone. No one is allowed to enter the area where we saw the person
without permission... When we first arrived at our post no information was
given to us about the presence of a person there. Therefore, we realised that
that person could not be someone with permission. As a result, [Harun Avşar]
left the post to find out who that person was. Harun left the post holding the
G-3 infantry rifle, registered in his name, with one magazine attached to it
and another one inside his belt, and directly joined the patrolling trail from
the top and crossed the trail in a southerly direction and started walking in
the field as if he wanted to get away from the person, but he was going to
approach the person from behind. The way he was moving he would prevent the
person from escaping or getting closer to the border fence. What I saw from the
guard post was this: Harun got closer to the person and the distance between
them was about 15 metres. First I saw that person on the slope and Harun was in
the field. Then I saw Harun climbing up the slope. I do not know if there was
any conversation between the person and Harun; I could not hear them from my
post. At that moment, as I was watching them Harun got nearer to the person,
about 10-15 metres away. Then I saw Harun Avşar turn towards the guard
post and signal by hand and shout, telling me to inform the exchange. Right at
that moment I understood that Harun had found out that the person was a Greek
Cypriot. At that moment – the time was about
II. RELEVANT
LAW AND PRACTICE
A. Military instructions concerning Haşim 8 Guard Post
74. Guards on duty at Haşim
8 guard post are required to follow the instructions mentioned below, among
others. Paragraph 8 of the General Instructions reads:
“In the event of any danger the guard shall
fully load his weapon, shall open the safety catch and if need be shall use the
weapon without hesitation but in accordance with the rules of engagement.”
75. Paragraph 10 of the
Special Instructions reads:
“Guards shall always stop any person
approaching them at night. They shall ask for a password and a signal. Unless
they are sure, they shall not allow anyone to approach them.”
76. Paragraph 19 of the
Special Instructions provides:
“When armed or unarmed military persons enter
the buffer zone or cross the confrontation line, the guard on duty shall
immediately inform the company’s telephone exchange and take up position. If
enemy personnel are inside the buffer zone and continue to approach after a warning
is given for them to stop, they shall be aimed at and fired at. If the enemy
personnel intend, after entering the buffer zone, to cross the confrontation
line, the guard on duty shall not allow the removal of wounded or dead
personnel from the buffer zone or inside the confrontation line. The guard
shall not allow the destruction of evidence. If need be he shall take aim and
open fire. No personnel, in such a situation, shall enter the buffer zone.”
B. International legal materials
77. 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.”
78. Paragraph 5 of the
Principles provides, inter alia, that
law enforcement officials must “exercise restraint in [the] use [of force and
firearms] and act in proportion to the seriousness of the offence and the
legitimate objective to be achieved”. Paragraph 7 provides: “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”.
79. Paragraph 10 of the
Principles reads as follows:
“... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.”
THE LAW
I. THE GOVERNMENT’S PRELIMINARY
OBJECTION CONCERNING NON-EXHAUSTION OF DOMESTIC REMEDIES
The submissions of the parties
1. The respondent
Government
80. The Government averred that the applicants had failed to comply with the exhaustion of domestic remedies rule in Article 35 § 1 of the Convention. In this connection they reasoned that the applicants had filed their application without having recourse to the local remedies which were effective, sufficient and accessible to them and capable of providing redress for their complaints within the judicial system of the “TRNC”.
81. The Government submitted that
the Constitution of the “TRNC” clearly demonstrated that an effective and
independent judicial system existed in the “TRNC” and that the Turkish-Cypriot
courts were the guardians of the rights of individuals. The Constitution
incorporated provisions for human rights drawn from the 1960 Cypriot
Constitution, and also the European Convention on Human Rights, which formed
part of the laws of the “TRNC”. Under the Constitution fundamental rights and
liberties could only be restricted by law and only for the purposes that were
provided for in law. Articles 136 to 155 of the Constitution provided for
access to independent courts and for judicial review of administrative action
on the grounds of illegality or error of law and excess and/or abuse of power
(Article 152), and also for judicial review of legislation by way of
reference to the Supreme Constitutional Court (Article 148) and the institution
of proceedings for annulment of legislation and subsidiary legislation
(Article 147). In particular, Article 152 of the Constitution provided
that the High Administrative Court had exclusive jurisdiction to adjudicate in
the final instance on a complaint that a decision, act or omission of any body,
authority or person exercising any executive or administrative authority was
contrary to any of the provisions of the Constitution, or of any law or
subsidiary legislation thereunder, or exceeded or abused the powers vested in
such body or authority or person.
82. The Government noted that
all prosecutions were carried out by the Attorney‑General, who enjoyed
all judicial guarantees of independence (Article 158). The criminal justice
system in
2. The
applicants
83. The applicants disputed
the respondent Government’s submissions and claimed that there had been no
failure on their part to comply with the requirements of Article 35 of the
Convention. They stressed that the “TRNC” courts were not properly established
under the law applicable in northern
84. Moreover, the claim of
the “TRNC” to statehood had been rejected not only by the United Nations
Security Council but by every State in the world with the exception of
85. The applicants further asserted that even if there was in principle a duty to make use of any remedies which might exist in the “TRNC”, the courts there did not offer an remedy which was effective and available to them.
3. The
Cypriot Government
86. The Cypriot Government endorsed
the applicants’ submissions and contended that the respondent Government’s
objection on non-exhaustion should be dismissed. They maintained that the
applicants could not be required to exhaust the remedies provided by a
subordinate local administration whose existence was dependent upon the control
of an occupying power. With reference to their earlier observations in the fourth
inter-State case of Cyprus v. Turkey ([GC],
no. 25781/94, §§ 83-85, ECHR 2001‑IV), they submitted that no valid
Convention remedies existed within the “TRNC” and that the illegality of those
remedies in international law amounted to a special circumstance absolving the
applicants from the requirement of exhaustion.
4. The
Court’s assessment
87. The Court reiterates that
the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of
the Convention obliges applicants to use first the remedies which are available
and sufficient in the domestic legal system to enable them to obtain redress
for the breaches alleged. The existence of the remedies must be sufficiently
certain both in theory and in practice, failing which they will lack the
requisite accessibility and effectiveness. Article 35 § 1 also requires
that the complaints intended to be brought subsequently before the Court should
have been made to the appropriate domestic body, at least in substance and in
compliance with the formal requirements and time-limits laid down in domestic
law and, further, that any procedural means that might prevent a breach of the
Convention should have been used. However, there is no obligation to have
recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December
1996, Reports of Judgments and Decisions 1996‑VI, pp. 2275-76, §§
51-52, and Akdivar and Others v. Turkey,
judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65-67).
88. It is
incumbent on the respondent Government claiming non‑exhaustion to
indicate to the Court with sufficient clarity the remedies to which the
applicant has not had recourse and to satisfy the Court that the remedies were
effective and available in theory and in practice at the relevant time, that is
to say that they were accessible, were capable of providing redress in respect
of the applicants’ complaints and offered reasonable prospects of success (see Akdivar
and Others, cited above, p. 1211, § 68).
89. Bearing in mind the
foregoing principles, the Court observes at the outset that, for the purposes
of Article 35 § 1, remedies available in the “TRNC” may be regarded as “domestic
remedies” of the respondent State and that the question of their effectiveness
is to be considered in the specific circumstances where it arises (see Cyprus
v. Turkey, cited above, §
102). However, this conclusion
is not to be seen as in any way putting in doubt the view of the international
community regarding the establishment of the “TRNC” or the fact that the
government of the Republic of Cyprus remains the sole legitimate government of
Cyprus (ibid., §§ 14, 16 and 90).
90. That being so, the Court notes
that in its admissibility decision of 4 September 2001 it considered that
the question whether the criminal investigation at issue could be regarded as
effective under the Convention was closely linked to the substance of the
applicants’ complaints and that it should be joined to the merits. Noting the
arguments submitted by the parties on this question, the Court considers it
appropriate to address these questions in its examination of the substance of
the applicants’ complaints under Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE
2 OF THE CONVENTION
91. The applicants alleged
that the killing of Petros Kakoulli by Turkish soldiers in
“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) in action lawfully taken for
the purpose of quelling a riot or insurrection.”
A. Submissions of the parties
1. The applicants
92. The applicants alleged that the circumstances in which the late Petros Kakoulli had met his death suggested that those who had shot him had intended to kill him. In their opinion, the acts which had caused the death of Petros Kakoulli went far beyond anything which might have been justified under Article 2 § 2 (a), if indeed any use of force at all could have been “absolutely necessary” in those circumstances.
93. The applicants maintained that Petros Kakoulli had been killed while acting in a manner which no reasonable person could have believed posed a threat of violence to anyone. The only object which he had been holding in his hands was a red plastic bucket and he had dropped that before he had been shot. At the time of his death he had not been holding anything which could have been mistaken for a weapon by the soldiers who killed him, who had been close enough to observe his movements, dress and appearance in detail.
94. The applicants also submitted that the garrotte and bayonet which had been found on Mr Kakoulli’s body at the time of the first post-mortem had obviously been planted by members of the Turkish forces in a clumsy attempt to justify their actions. Even if Mr Kakoulli had been in possession of those weapons concealed in his boots at the time of his death, that fact would not have justified the action of the soldiers in killing him. With such weapons he could not even have threatened two soldiers armed with rifles. Furthermore, the eyewitness accounts showed that the deceased had been doing nothing that might reasonably have been interpreted as threatening. On the contrary, he had had his hands raised in a gesture of surrender. The post-mortem examination conducted by Dr Vanezis had confirmed that one of the shots had been fired when Petros Kakoulli had his hands raised and that the fatal shot had been fired while he had been lying on the ground.
95. Referring to the considerations of the Court in the case of McCann and Others v. the United Kingdom (judgment of 27 September 1995, Series A no. 324, p. 59, § 201), the applicants contended that the respondent Government had fallen short of their obligations under Article 2 on account of the use of lethal force by their armed forces against an individual who had been doing no more than collecting snails in a peaceful area at a time when there were no reasonable ground for expecting violence.
2. The respondent Government
96. The Turkish Government
submitted that the unfortunate killing of Petros Kakoulli should not be seen as
an isolated incident; a number of violent incidents which had taken place in
the border area prior to the impugned incident should also be taken into
consideration. In this connection, they noted that on
97. Petros Kakoulli had crossed the Turkish-Cypriot ceasefire line into the territory of the “TRNC” in the same area which the attackers of the two Turkish-Cypriot soldiers had infiltrated to carry out their sinister operation. There were clear notices in Greek, Turkish and English indicating the boundary of the “TRNC” and warning that entry was prohibited. Mr Kakoulli had been warned to stop verbally and by hand gestures. But he had continued to run towards the boundary fence. One of the Turkish-Cypriot soldiers manning the sentry post had approached him and fired warning shots in the air. Petros Kakoulli had taken no notice and a second shot had been fired at the ground in order to stop him. As he continued to run away a third round had been fired towards him below his waist, which had apparently caused the fatal wound.
98. It was highly improbable
that Petros Kakoulli, a trained fireman, would have crossed into the “TRNC”
territory by mistake, particularly at a location where there were signs in
Turkish and Greek indicating the border. He had been in possession of a
garrotte and a bayonet at the material time, which constituted a strong
presumption of a sinister motive, and the carrying of a bucket to collect
snails had served to camouflage his actual motive. Given the tense situation
following the killing of the two Turkish-Cypriot soldiers in the area, there had
been no reason to take such a reckless action and to collect snails within the
territory of the “TRNC”, when he could safely have done so in the open fields
around him and away from the ceasefire line.
99. In the context of the dangerous situation created by the Greek-Cypriot authorities, the Turkish soldiers had been fully justified in having recourse to force in order to abate danger and threats of the ceasefire line being crossed and to protect the lives of others. Thus, the death of Petros Kakoulli had not been a deliberate act. It had occurred in an attempt (a) to maintain security in a highly tense environment and to defend people and property in that area against any possible act of aggression by the intruder, and (b) to effect a lawful arrest. Such action was justified under Article 2 § 2 (a) and (b) of the Convention.
100. Furthermore, in the
Government’s opinion, the allegation that the “second set of wounds had been
inflicted by a shot while the victim had his hand raised and the third set of
wounds were consistent with a shot having been fired into the body while the
victim was lying on the ground” was highly speculative and wrong. This was not
a matter on which a pathologist could state the facts with any degree of
certainty.
3. The
Cypriot Government
101. The Cypriot Government
disputed the respondent Government’s arguments and claimed that the killing of
Petros Kakoulli had not been justified on any grounds under Article 2 of the
Convention. Even if Mr Kakoulli had been carrying a bayonet and a garrotte
and fleeing from a location where he should not have been, this could not
justify killing him to effect his arrest. There was no indication that the
weapons allegedly found on him had been used by him or that the soldiers had
felt threatened by them. In the Cypriot Government’s opinion, the only reason
for the killing of Petros Kakoulli had been his Greek-Cypriot origin.
B. The Court’s assessment
102. The Court notes that it
has been presented with conflicting accounts as to the circumstances of the
killing of Petros Kakoulli by Turkish soldiers on guard duty along the
ceasefire lines in
103. In assessing evidence,
the Court reiterates that it adopts the standard of proof “beyond reasonable
doubt”. Such proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions of fact
(see Ireland v. the United Kingdom,
judgment of 18 January 1978, Series A no. 25, p. 65, § 161; Avşar v. Turkey, no. 25657/94,
§ 282, ECHR 2001‑VII (extracts); and Ülkü
Ekinci v. Turkey, no. 27602/95, §§ 141-42, 16 July 2002).
104. However, the Court is
sensitive to the subsidiary nature of its function and must be cautious in
taking on the role of a first-instance tribunal of fact, where this is not
rendered unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.),
no. 28883/95,
105. In the light of the
foregoing, the Court will determine whether the facts of the instant case
disclose a failure by the respondent State to protect the right to life of the
applicants’ relative and to comply with the procedural obligation imposed by
Article 2 of the Convention to carry out an adequate and effective
investigation into the incident.
1. Whether the killing of Petros
Kakoulli was justified under Article 2
(a) General principles
106. Article 2, which
safeguards the right to life, ranks as one of the most fundamental provisions
in the Convention and enshrines one of the basic values of the democratic
societies making up the Council of Europe. The Court must subject allegations
of breach of this provision to the most careful scrutiny. In cases concerning
the use of force by State agents, it must take 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 relevant legal
or regulatory framework in place and the planning and control of the actions
under examination (see McCann and Others,
cited above, pp. 45-46, §§ 146-147; Makaratzis
v. Greece [GC], no. 50385/99, §§ 57-59, ECHR 2004‑; and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 93, ECHR 2004‑).
107. As the text of Article 2
§ 2 itself shows, the use of lethal force by State security forces may be
justified in certain circumstances. However, any use of force must be no more
than “absolutely necessary”, that is to say it must be strictly proportionate
in the circumstances. In view of the fundamental nature of the right to life,
the circumstances in which deprivation of life may be justified must be
strictly construed (see Andronicou and
Constantinou v. Cyprus, judgment of 9 October 1997, Reports 1997-VI, pp. 2097-98, § 171, p.
2102, § 181, p. 2104, § 186, p. 2107, § 192, and p. 2108, § 193; and McKerr v. the United Kingdom,
no. 28883/95, §§ 108 et seq., ECHR 2001‑III).
108. Accordingly, and with
reference to Article 2 § 2 (b) of the Convention, the legitimate aim of
effecting a lawful arrest can only justify putting human life at risk in
circumstances of absolute necessity. The Court considers that in principle
there can be no such necessity where it is known that the person to be arrested
poses no threat to life or limb and is not suspected of having committed a
violent offence, even if a failure to use lethal force may result in the
opportunity to arrest the fugitive being lost (see the Court’s approach in McCann and Others, cited above, pp.
45-46, §§ 146-50 and pp. 56-62, §§ 192-214, and, more recently, in Makaratzis, cited above, §§ 64-66; see
also the Court’s condemnation of the use of firearms against unarmed and
non-violent persons trying to leave the former German Democratic Republic in Streletz, Kessler and Krenz v. Germany [GC],
nos. 34044/96, 35532/97 and 44801/98, §§ 87, 96 and 97, ECHR 2001‑II;
and finally, as the most recent authority, Nachova
and Others, cited above, § 95, where the Court condemned excessive use of
force to arrest victims, which resulted in their death).
109. In addition to setting out the circumstances when deprivation of life may be justified, Article 2 implies a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework defining the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the relevant international standards (see Makaratzis, cited above, §§ 57-59, and the relevant provisions of the UN Force and Firearms Principles cited in paragraphs 77‑79 above).
110. Furthermore,
law-enforcement agents must be trained to assess whether or not there is an
absolute necessity to use firearms not only on the basis of the letter of the
relevant regulations but also with due regard to the pre-eminence of respect
for human life as a fundamental value (see the Court’s criticism of the “shoot
to kill” instructions given to soldiers in McCann
and Others, cited above, pp. 61-62, §§ 211-214; and Nachova and Others, cited above, § 97).
(b) Application of these principles in the
present case
111. It is undisputed that Petros Kakoulli was shot and killed by a Turkish soldier on guard duty in the border area within the territory of the “TRNC”. The Court must therefore consider whether in the instant case the force used against the victim by the Turkish soldier could be said to have been no more than absolutely necessary and therefore strictly proportionate to the achievement of one of the aims set out in paragraph 2 of Article 2, the only relevant ones of which, in the circumstances of the case, are the “defence of any person from unlawful violence” and “to effect a lawful arrest”.
112. In this connection, a number of key factual issues must be ascertained, in particular whether the soldiers were indeed at risk from Petros Kakoulli, whether any warnings were given before the shooting, and whether the deceased was shot when he was already injured and on the ground in circumstances where it would have been possible to carry out an arrest. Determining these issues should involve, among other things, careful scrutiny of the account of the soldier in question as to the circumstances in which he fired his weapon and of the findings of the investigating authorities and pathologists who carried out the post-mortem examination. Assessment of the credibility and reliability of the various witnesses and the documents submitted by the parties, in particular pictures taken during the post-mortem, must also play a crucial role.
113. Before embarking upon
the examination of these issues, it is to be noted that the respondent
Government have placed great emphasis on the fact that there was a high level
of violence and increased tension along the ceasefire lines during the period
in question (see paragraphs 96-99 above). They argued that the soldier on guard
duty at the time of the incident in the present case had used lethal force against
the victim as he had been under stress caused by the dangerous climate. The use
of lethal force was also explained by the failure of Petros Kakoulli to obey
warnings to stop and the risk he posed to the soldiers on guard duty on account
of his possession of a garrotte and a bayonet (see paragraph 96 above).
114. The Court notes that, at
the time of the killing of Petros Kakoulli, the buffer zone between the two
sides in Cyprus was not very peaceful, as appears from the press releases
issued by the United Nations Peacekeeping Force in Cyprus, concerning the death
of civilians and soldiers and violent demonstrations taking place along the
ceasefire lines (see paragraphs 52 and 53 above). The Court accepts that border
policing undoubtedly presents the authorities with special problems, such as
unlawful crossings or violent demonstrations along the border lines. However,
this does not mean that the law-enforcement officials have carte blanche to use
firearms whenever they are confronted with such problems. On the contrary, they
are required to have the ability to assess all parameters and to organise their
actions carefully with a view to minimising a risk of deprivation of life or
bodily harm. In this connection, the Contracting States have a duty to provide
effective training to law-enforcement officials operating in border areas and
to give them clear and precise instructions as to the manner and circumstances
in which they should make use of firearms, with the objective of complying with
international standards on human rights and policing (see paragraphs 77-79
above on the UN Force and Firearms Principles). Accordingly, the Court cannot
accept the respondent Government’s argument for justifying the use of lethal
force against civilians who breach the border lines. The Court will return to
this point when examining the proportionality of the use of lethal force in
question.
115. The Court notes, further, that the respondent Government pointed to the fact that a garrotte and a bayonet were found on the body of Petros Kakoulli during the post-mortem examination, which in their submission proved that he had a sinister motive and posed a serious threat to the soldiers on guard duty (see paragraphs 63 and 98 above). This allegation was vehemently denied by the applicants (see paragraph 94 above), who, relying on statements by a number of witnesses, claimed that Petros Kakoulli had been only in possession of a plastic bucket to collect snails in the area (see paragraphs 37, 38, 40, 42 and 93 above). The Court does not find it necessary to determine whether Petros Kakoulli was indeed in possession of the objects in question prior to his death or whether they were planted by the Turkish security forces subsequent to his death. In this connection, it suffices to note that its duty in the instant case is not to fulfil the functions of a criminal court as regards the apportionment of the degree of individual fault (see Gül v. Turkey, no. 22676/93, § 80, 14 December 2000). On that account, even assuming that the respondent Government are right in their assertions, this does not relieve their agents of the obligation to avoid using disproportionate force with the intention of killing or with reckless disregard for the life of Petros Kakoulli.
116. Turning to the circumstances
of the killing of the victim, the Court notes that the soldier in question,
namely Private Harun Avşar, claimed in his statements that, following his
verbal warnings to Mr Kakoulli to stop, he had given one warning shot in the
air, and then another towards the ground (see paragraph 72 above). Since Mr
Kakoulli had failed to heed his warnings and had attempted to escape to the
Greek-Cypriot side, Private Avşar aimed at the victim’s legs and thus
fired a third shot with a view to apprehending him (ibid.). After a while he aimed
and fired twice at the victim, who had already stopped; these shots caused his
death (ibid.). In his report, the principal investigator Ömer Tazeoğlu
noted that he had found five cartridges at the scene of the incident, which
confirms Private Avşar’s version in so far as it concerns the number of
shots (see paragraph 62 above). Furthermore, the military doctor who examined
the body at the scene of the killing established the presence of two entry
bullets and two exit holes caused by the bullets (ibid.). On the other hand,
several witnesses claimed that the Turkish soldiers had fired three times at
the victim and that the third shot had been fired a few minutes after the first
two (see paragraphs 37, 38 and 41 above).
117. According to the post-mortem
examination report prepared by Dr Vanezis, and regard being had to the
photos of the deceased, it appears that Mr Kakoulli received three bullets: the
first one to the neck, the second one to the right side of the trunk and the
third one to the left side of the trunk (see paragraphs 54-56 above). In his
report, Dr Vanezis also noted that the first two shots appeared to have been
fired at the same time and that both had had horizontal trajectories on
entering the body and had not been fatal, whereas the third one had entered the
body of the victim whilst he was in a horizontal position either on the ground
or crouching and had been the fatal one (see paragraph 54 above). The Court therefore
concludes that, apart from the first shot, Private Avşar fired two or
three shots with his gun, aimed directly at the victim, and that the last shot
caused the victim’s death.
118. In this connection the Court reiterates that, by definition, warning shots are fired into the air, with the gun almost vertical, so as to ensure that the suspect is not hit (see Oğur v. Turkey [GC], no. 21594/93, § 83, ECHR 1999-III). That was all the more essential in the instant case as the victim in question was a middle-aged man in civilian clothes and was not carrying any visible arms which could have posed a threat from a distance, such as a rifle or a pistol. Accordingly, even though it was subsequently discovered that there were a garrotte and a bayonet in Mr Kakoulli’s boots, there was no basis for the soldiers on guard duty to reasonably consider that there was any need to resort to the use of their weapons in order to stop and neutralise the suspect.
119. Moreover, even assuming that Mr Kakoulli failed to stop promptly upon the verbal warning from the soldiers as he passed the border line, the Court finds that this does not disclose any basis for the use of force which, whether deliberately or owing to lack of proper aim, was lethal in its effects. As noted earlier, the Court cannot overlook the Government’s argument that the location of the incident was not peaceful at the relevant time. However, the fact that unrest was prevailing in the area in question does not of itself give the soldiers the right to open fire upon people or persons whom they deem suspicious.
120. Nevertheless, the soldier in question had recourse to lethal force while there was no imminent risk of death or serious harm to him or other persons (see paragraphs 77-79 above, concerning the UN Force and Firearms Principles). On the contrary, the Court notes that in his statement to the investigating authorities Private Avşar stated at the time he shot and wounded Petros Kakoulli, the latter was about 30 metres away and was walking towards the border fence and that he (Private Avşar) decided to shoot him because he would otherwise not have been able to catch him. The Court is particularly struck by the fact that the last shot was fired several minutes after the two shots, which had already wounded the victim and neutralised him, at a time when it could have been possible to carry out an arrest (see paragraphs 37, 41, 54, 72 and 73 above). In this latter context, it cannot be said either that the use of fire in the instant case was in compliance with the rules of engagement (see paragraphs 74 and 76 above).
121. In the light of the above, the Court concludes that the use of force against Petros Kakoulli was neither proportionate nor absolutely necessary for the purpose of “defending any person from unlawful violence” or “effecting a lawful arrest”.
There has therefore been a violation of
Article 2 on that account.
2. Whether the investigation into the killing of Petros Kakoulli was adequate and effective, as required by Article 2 of the Convention
122. 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 Çakıcı 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 (see Makaratzis, cited above, § 73).
123. 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 have taken 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).
124. In the present case,
immediately after the impugned incident, the domestic authorities commenced a
comprehensive investigation. To that end, the investigators visited the scene
of the incident along with officers from the IRCIVPOL, a sketch map of the
location was drawn up and photographs were taken (see paragraphs 60-62 above).
Statements were taken from a number of police officers, SBA officials and the
soldiers on guard duty, including the one who shot the victim (see paragraphs
65, 72 and 73). A post-mortem examination and other laboratory tests were also
conducted (see paragraphs 63, 64 and 66 above). However, following the
investigation no criminal or disciplinary proceedings were brought against the
soldier who shot dead Petros Kakoulli because the investigating authorities
concluded that he had done what his duties had dictated and that the killing
had therefore been justified in the circumstances (see paragraph 70 above). The
domestic authorities thus classified the case as “no case”, meaning that there
would not be any further investigation or criminal proceedings (see paragraphs
68 and 70 above).
125. The Court observes that notwithstanding
the seriousness of the incident, there were a number of significant omissions
which raise doubts about the effectiveness and impartiality of the
investigation in question. In that connection, the Court points out that the military
doctor Ömer Gür, who examined the body at the scene of the incident, and Drs İsmail
Bundak and Erdal Özcenk, who carried out the post-mortem examination, concluded
that there were a total of two entry and two exit wounds on the body (see
paragraphs 62 and 64 above). According to this conclusion, the victim must have
received two bullets. On the contrary, from the photos taken during the post-mortem
examination and according to the report by Dr Vanezis, there appear to be three
entry and three exit wounds, which clearly indicates that the victim received
three bullets to his body (see paragraphs 54-56 above). It is also remarkable
that the investigating authorities concluded that, following the first shot in
the air, Private Avşar fired two shots below the victim’s waist, specifically
at the legs; meaning that only two bullets out of five entered the body of the
deceased (see paragraphs 61 and 65 above). However, again having regard to the
photos of the body, there is no appearance of a bullet wound in the victim’s legs.
On the contrary, Dr Vanezis’ report records that one of the three gunshots
wounds entered the body just below the ear while the other two were in the
trunk of the victim. Further, the third and fatal wound had, according to Dr
Vanezis’ report, a steeply upward trajectory at an angle of 45 degrees and its
position indicated that the victim was in a horizontal position on the ground
or crouching at the time he was hit.
126. Thus, the failure of the
autopsy examination to record fully the injuries on Petros Kakoulli’s body
hampered an assessment of the extent to which he was caught in the gunfire, and
his position in relation to the soldiers on guard duty. In this context, the
Court reiterates that the purpose of a post-mortem examination is to elucidate
the circumstances surrounding the death, including a complete and accurate
record of possible signs of injury and an objective analysis of clinical
findings (see in that connection the Model Autopsy Protocol annexed to the
Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary
and Summary Executions adopted by the United Nations in 1991, which emphasises
the necessity in potentially controversial cases for a systematic and
comprehensive examination and report to prevent the omission or loss of
important details, and is referred to in Gül,
cited above, § 89).
127. Furthermore, although the actions of the soldier who killed Petros Kakoulli required careful scrutiny of the circumstances with a view to determining the necessity and proportionality of the lethal force, the investigating authorities based their findings solely on the soldiers’ account of the facts, without casting any doubt on it and without seeking any further eyewitnesses. They did not inquire into whether the victim could have posed a serious threat to the soldiers from a long distance with the alleged weapons or whether the soldiers could have avoided using excessive lethal force. Nor did the investigators examine whether Private Avşar had complied with the rules of engagement laid down in the military instructions concerning the Haşim 8 Guard Post (see paragraph 74 above).
128. In the light of the
foregoing, the Court considers that the investigation conducted by the “TRNC”
authorities into the killing of Petros Kakoulli was neither effective nor
impartial. It accordingly dismisses the Government’s objection of
non-exhaustion (see paragraph 90 above) and holds that there has been a
violation of Article 2 under its procedural limb.
III. ALLEGED
VIOLATION OF ARTICLE 8 OF THE CONVENTION
129. The applicants alleged
that the killing of Petros Kakoulli had deprived them of a family member, who
was a husband and a father, and had therefore also given rise to a violation of
Article 8 of the Convention, the relevant part of which provides:
“1. Everyone has the right to
respect for his ... family ... life ...
2. There shall be no interference
by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the
interests of national security, public safety ... ”
130. The respondent Government
submitted that the applicants’ allegation was devoid of any legal basis.
131. The Cypriot Government
agreed with the applicants’ allegation and claimed that there had been a
separate violation of Article 8, in addition to Article 2, on account of the
killing of Petros Kakoulli.
132. In the circumstances of
the present case, notwithstanding the tragic consequences for the family, the
Court does not find that any issues arise separate from its above conclusion
that there has been a violation of Article 2 of the Convention on account
of the killing of Petros Kakoulli (see paragraph 121 above).
IV. ALLEGED
VIOLATION OF ARTICLE 14 OF THE CONVENTION
133. The applicants contended
that the killing of Petros Kakoulli had also involved discrimination based upon
his Greek-Cypriot origin and Christian religion, in violation of Article 14 of
the Convention, which provides:
“The
enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.”
134. The respondent
Government did not address this allegation beyond denying the factual basis of
the substantive complaints.
135. The Cypriot Government
also asserted that the killing of Petros Kakoulli had been perpetrated on
account of his ethnic origin.
136. The Court has examined
the applicants’ allegation in the light of the evidence submitted to it, and
considers it unsubstantiated. There has therefore been no violation of Article
14 of the Convention, taken in conjunction with Articles 2 and 8.
V. APPLICATION OF ARTICLE 41 OF
THE CONVENTION
137. 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
138. The applicants sought an
award of compensation in respect of non‑pecuniary damage in the amount of
175,000 Cypriot pounds (CYP) (approximately 305,600 euros (EUR), broken down
into CYP 100,000 for the first applicant and CYP 25,000 for each of the other three
applicants. They reasoned that at the time of his killing Petros Kakoulli had
been just over 58 years old, had taken early retirement from the Fire Brigade
and had been occupied with collecting mushrooms and snails in his village. His
death had deprived the first applicant not only of a husband but also of a life
companion for the rest of her days. Given the social conditions prevailing in
139. The respondent
Government did not comment on the applicants’ just satisfaction claims. In
their observations, they merely disputed the factual basis of those claims.
140. The Court has found a
violation of Article 2 of the Convention on account of the killing of Petros Kakoulli
and the failure of the national authorities to carry out an effective and
independent investigation (see paragraphs 121 and 128 above). Accordingly, it
considers that an award of compensation should be made in favour of the widow
and three children of Petros Kakoulli since his death must have caused them
considerable anguish and distress. In these circumstances, and having regard to
the awards made in comparable cases, the Court, ruling on an equitable basis,
awards the first applicant Chriso Kakoulli the sum of EUR 20,000 and each of
the remaining three applicants the sum of EUR 3,500 for the non-pecuniary
damage sustained by them in their personal capacity. It holds that the above
sums are to be converted into Cypriot pounds at the rate applicable at the date
of payment.
B. Costs and expenses
141. The applicants claimed a
total of 8,300 pounds sterling (GBP) (approximately EUR 12,000) in respect of the
advisory work carried out by a leading counsel in the
142. The Government did not
comment on the applicants’ claims in respect of their costs and expenses
either.
143. The Court reiterates
that only legal costs and expenses necessarily and actually incurred can be
reimbursed under Article 41 of the Convention. Furthermore, the amounts claimed
must be reasonable as to quantum. In this connection, the Court notes that the
present case involved complex issues of fact and law requiring detailed
examination. However, having regard to the details of the schedule of costs and
expenses, it is not satisfied that in the instant case all the costs and
expenses were necessarily and actually incurred. Furthermore, the Court
considers the sum of GBP 8,300 claimed in respect of the work done in the
144. Making its own estimate,
based on the information available, the Court awards the applicants EUR 20,000
in respect of costs and expenses exclusive of any value-added tax that may be
chargeable, such sum to be converted into Cypriot pounds at the rate applicable
at the date of the payment.
C. Default interest
145. 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 UNANIMOUSLY
1. Joins to the merits the
Government’s preliminary objection concerning the exhaustion of domestic
remedies and dismisses it;
2. Holds that there have been violations of Article 2 of the
Convention in both its substantive and procedural aspects;
3. Holds that no separate issue arises under Article 8 of the
Convention;
4. Holds that there has been no violation of Article 14, taken in
conjunction with Articles 2 and 8 of the Convention;
5. Holds
(a) that the respondent State is
to pay the applicants, within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the Convention, the following
sums, to be converted into Cypriot pounds at the rate applicable at the date of
settlement, plus any tax that may be chargeable:
(i) to the first applicant Chriso Kakoulli
EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage;
(ii) to each of the remaining
three applicants EUR 3,500 (three thousand five hundred euros) in respect of
non-pecuniary damage;
(iii) EUR 20,000 (twenty thousand
euros) in respect of costs and expenses;
(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 the remainder of the applicants’ claim for just
satisfaction.
Done in English, and notified in writing
on
Michael O’Boyle Nicolas
Bratza
Registrar President