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FOURTH
SECTION
CASE OF NECDET BULUT v. TURKEY
(Application
no. 77092/01)
JUDGMENT
STRASBOURG
20
November 2007
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 Necdet Bulut v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas
Bratza, President,
Mr J.
Casadevall,
Mr G.
Bonello,
Mr R.
Türmen,
Mr K.
Traja,
Mr S.
Pavlovschi,
Mrs P.
Hirvelä, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 23 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 77092/01) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr Necdet Bulut
(“the applicant”), on 9 August 2001.
- The
applicant, who had been granted legal aid, was represented by Ms G.
Altay, Mr Ü. Kuş and Mr H. Karakuş, lawyers practising
in Istanbul. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On
3 July 2003 the Court decided to give notice of the application to
the Government.
- In
a letter of 24 June 2005, the Court informed the parties that in
accordance with Article 29 §§ 1 and 3 of the Convention it
would decide on both the admissibility and merits of the application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1984 and lives in Freiburg, Switzerland.
- On
15 July 2000, in the early hours of the morning, the applicant was
injured by gunfire during arrest. He received a single bullet to his
lower left leg. He was sixteen years old.
- A
report of the incident was drafted on the same day at 4.30 a.m. by
the police officers involved in the incident and signed by all the
suspects, with the exception of the applicant who had been taken to
hospital. According to this report, at around 2.30 a.m. the police
officers had received information from police headquarters that a
group of masked persons had been seen writing on walls and tampering
with cars on Tufan Street in the district of Kartal. On arrival at
the scene, the police officers had seen graffiti on the walls and, at
that moment, someone had started to shoot at them from a dark alley
on the opposite side of the street. The police officers and
reinforcement police teams which had arrived in the meantime had
chased the suspects for about one hour. The suspects had eventually
been cornered on an empty plot of land at number 6 Spor Street.
Despite being ordered to surrender, the suspects had continued to
shoot before entering a tent. Following a clash, the applicant had
been injured and immediately taken to Kartal Hospital for treatment.
The other suspects had resisted arrest. The incident report stated
that the police officers had found masks, illegal documents, knives
and spray paint in the tent. It also mentions that a cap gun (a toy
gun that creates a loud sound akin to a gunshot and a puff of smoke
when the trigger is pulled) had been found in the applicant's
possession.
- Between
15 and 17 July 2000 the applicant received medical treatment at
Kartal State Hospital. According to the medical report of 17 July
2000 the applicant had suffered a fracture of the fibula (small bone
located on the outside of the lower leg). The bullet trajectory was
established as having entered from the back of the leg and exited
from the front.
- On
17 July 2000 the applicant was examined by a doctor who noted no
physical signs of ill-treatment on his person apart from the gunshot
wound.
- In
the meantime, on 16 July 2000, the Istanbul Criminal Police
Laboratory conducted a ballistics examination of the cap gun and
eight cartridges. The experts found, inter alia, that the 99
mm. semi automatic cap gun fired noise and gas caps and that the
cartridges submitted corresponded to the gun. However, they asserted
that with some modifications, the gun could shoot real cartridges.
They submitted that the cap gun in question was no different from a
real gun in terms of both its size and mechanical structure and that
it was impossible to distinguish it, at first glance, from a real
gun, even for those who were familiar with guns.
- On
17 July 2000 forensic experts at the Istanbul Criminal Police
Laboratory examined samples taken from the hands and palms of the
applicant and the other suspects. They found no traces of gunpowder.
However, they noted that in certain cases it was possible for traces
of gunpowder on hand and palm extracts to go undetected depending on
the type of gun and powder used, the way a gun was handled and
whether the suspects' hands had been previously washed.
- On
the same day, the public prosecutor at the Istanbul State Security
Court heard evidence from the applicant, who denied knowing the other
suspects and writing graffiti. He claimed, inter alia, that he
had started to run out of fear after he had heard gunshots nearby and
that the police officers had beaten him when they caught him. The
applicant stated that he did not know whether the police were
shooting into the air or at the ground when he was shot.
- In
the meantime, the Istanbul State Security Court also heard evidence
from the suspects arrested at the same time as the applicant. The
co-accused Mr A.U, Mr M.B, heard on 15 July 2000, and Mr D.Ş.A.,
heard on 18 July 2000, all admitted that they had written slogans on
the walls. However, they affirmed that none of them had fired at the
police officers, including the applicant. Moreover, they suggested
that the applicant had been injured after they had been taken out of
the tent and made to lie down on the ground. Some of the accused
referred to hearing gunshots from a wedding nearby.
- On
an unspecified date, the Kartal public prosecutor instigated an
investigation into the incident. On 23 March 2001 he decided not
to prosecute the eight police officers who took part in the incident
on the ground that there was no evidence supporting the suspects'
allegations that they had been ill-treated during arrest. The
prosecutor further considered that the applicant had been injured as
a result of the clash between the police officers and the suspects
after the latter had responded to the police officers' order to
surrender by opening fire from the tent. The applicant's objection to
this decision was dismissed by the Kadıköy Assize Court on
17 May 2001.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in Şimşek and Others v. Turkey, nos.
35072/97 and 37194/97, §§ 82 87, 26 July
2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3, 5 AND 13 OF THE
CONVENTION
- The
applicant complained that the force used by the police officers
during his arrest had been disproportionate and had caused him to
suffer serious bodily harm. He further complained that there had been
no adequate or effective investigation into the circumstances
surrounding the incident. The applicant relied on Article 3 of the
Convention.
- In
addition, the applicant stated that he had been injured during his
arrest and that therefore Article 5 § 1 (c) of the Convention
had been breached.
- The
Court considers that these complaints should be examined from the
standpoint of Article 3 alone, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicant further complained that he had been denied the right to an
effective remedy in breach of Article 13 of the Convention, 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.”
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government submitted that the applicant had been arrested in the
course of a random operation which had given rise to unexpected
developments to which the police officers had had to react without
prior preparation. They admitted that at the scene of the incident
the police officers had outnumbered the suspects. However, they
pointed out that the applicant had been in possession of a cap gun
which was indistinguishable, at first glance, from a real gun. They
submitted that the police officers had used their guns only when it
had become absolutely necessary and that they had aimed at the person
who had opened fire. In this connection, the Government pointed out
that the police officers had not aimed at the vital organs of the
applicant. They maintained that, in the circumstances of the present
case, the use of force had been proportionate to the aim pursued.
- The
applicant maintained his allegations. He submitted, in particular,
that neither he nor the other suspects had resisted arrest and that
they had never fired the gun. He denied that there had been a clash
between them and the police and maintained that he had been shot
after he had been taken out of the tent. He claimed that the police
officers had used disproportionate force and that he had been injured
as a result of their arbitrary shootings.
2. The Court's assessment
- The
Court reiterates that Article 3 does not prohibit the use of force in
certain well-defined circumstances, such as to effect an arrest.
However, such force may be used only if indispensable and must not be
excessive (see, among others, Ivan Vasilev v. Bulgaria, no.
48130/99, § 63, 12 April 2007, Rehbock v. Slovenia,
no. 29462/95, §§ 68 78, ECHR 2000 XII;
Krastanov v. Bulgaria, no. 50222/99, §§ 52 and
53, 30 September 2004, and Günaydın v. Turkey, no.
27526/95, §§ 30 32, 13 October 2005).
- In
the instant case the applicant was injured by a single gunshot to his
left knee. The Court finds this injury sufficiently serious to bring
it within the scope of Article 3. It is undisputed that the
applicant's leg injury resulted from the use of force by the police
officers in the performance of their duties, namely while effecting
an arrest. However, differing versions of how the applicant had
actually sustained the injury were put forward by the parties.
- At
the outset, the Court cannot ignore that the police were initially
called upon to attend to an incident without any prior preparation
(see, a contrario, Rehbock v. Slovenia, no. 29462/95,
§ 72, ECHR 2000-XII). It further notes that the incident
occurred late in the evening in a residential area where gunshots
were heard. In addition, according to the official documents, the
applicant was found with a cap gun in his possession which could have
conveyed the impression that he was carrying a weapon. However, the
Court similarly cannot overlook the fact that the police officers,
who largely outnumbered the suspects, gave chase for about an hour
before they cornered the applicant and the other suspects in a tent
where the applicant was shot and arrested. The security forces were
thus able, with the lapse of time, to properly evaluate the situation
and to organise and coordinate their efforts accordingly. Against
this background and, particularly, in the light of the type of force
used, namely firearms, the Court considers that the burden rests on
the Government to demonstrate with convincing arguments that the use
of force, which resulted in the applicant's injury, was not excessive
(see, mutatis mutandis, Matko v. Slovenia, no.
43393/98, §104, 2 November 2006, and Zelilof v. Greece,
no. 17060/03, § 47, 24 May 2007).
- However,
in the instant case, the Government merely stated that the police
officers had opened fire only after the applicant had shot at them
without providing any explanation or documentation which could shed
light on the exact circumstances regarding the applicant's arrest. In
this regard, the Court observes that there is no information in the
case file as regards the manner in which the police operation was
conducted. For example it is not clear from the case file whether the
applicant was injured in the crossfire or whether he was aimed at and
shot by a police officer who had received such an instruction. There
is no information regarding the number of shots fired by the parties
and the official documents do not indicate whether any shots were
effectively fired from the cap gun found on the applicant or whether
any empty cartridges were found in the area (see paragraph 10).
Finally, the Court also finds it noteworthy that the bullet
trajectory indicates that the applicant was not facing towards the
police officers when he was hit (see paragraph 8) and that
consequently he could not have been shooting at the police officers,
at least at that precise moment, as the Government suggested. In
these circumstances, the Court finds that the Government have failed
to provide convincing or credible arguments which would justify the
degree of force used against the applicant in order to arrest him.
- Finally,
although the applicant's injury - a single gunshot wound to a
non-vital organ - appears not to have had any lasting consequences
for his health, the Court finds that it must have led to severe pain
and suffering, particularly when account is taken of his young age at
the time of the events.
- In
light of the above, the Court concludes that the force used against
the applicant during his arrest was excessive and that therefore the
State is responsible, under Article 3 of the Convention, for the
injury sustained by him on that date. It
follows that there has been a violation of Article 3 of the
Convention.
- Having
regard to the facts of the case, the parties' submissions and the
grounds on which it has found a violation of Article 3 above (see, in
particular, paragraph 26 above), the Court considers that there is no
need to give a separate ruling on the applicant's remaining
complaints under Articles 3 and 13.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 5,000 euros (EUR) in respect of pecuniary damage
and EUR 60,000 for non-pecuniary damage.
- The
Government contested those amounts.
- As
regards the alleged pecuniary damage sustained by the applicant, the
Court considers that the applicant has failed to properly
substantiate his claim. The Court accordingly dismisses it.
- However,
the Court accepts that the applicant must have suffered pain and
distress which cannot be compensated for solely by the Court's
finding of a violation. Ruling on an equitable basis, the Court
awards the applicant EUR 5,000.
B. Costs and expenses
- The
applicant, who received EUR 701 by way of legal aid from the Council
of Europe, also claimed EUR 4,287 for the costs and expenses incurred
before the Court. In support of his claim the applicant submitted a
breakdown of costs drawn up by his legal representative.
- The
Government contested the amount.
- Since the applicant submitted no substantiation by way
of vouchers or receipts of his costs claim, as required by Rule
60 of
the Rules of Court, and having regard to the fact that he has already
received a certain amount in legal aid from the Council of Europe,
the Court makes no award under this head.
C. Default interest
- 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
- Declares the application admissible unanimously;
- Holds by six votes to one that there has been a
violation of Article 3 of the Convention on account of the injury
sustained by the applicant during his arrest;
- Holds unanimously that there is no need to
examine separately the applicant's remaining complaints under
Articles 3 and 13 of the Convention;
- Holds by six votes to one
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage, to be converted
into new Turkish liras at the rate applicable at the date of the
settlement and free of any taxes or charges that may be payable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Mr R.
Türmen is annexed to this judgment.
N.B.
T.L.E.
DISSENTING OPINION OF JUDGE TÜRMEN
I
regret that I am unable to agree with the majority in finding a
violation of Article 3 in its substantive aspect. The facts as
contained in the judgment are as follows:
The
police were called upon to attend an incident without any
preparation. The incident occurred late in the evening in a
residential area where gunshots were heard. According to the report
prepared by the police, a group of masked persons was writing on
walls and tampering with cars. The applicant was in possession of a
gun which, according to experts, “was no different from a real
gun in terms of both size and mechanical structure.” They also
said that it was “impossible to distinguish it, at first
glance, from a real gun, even for those who were familiar with guns”
(paragraph 10). After a long chase of one hour, the applicant and his
friends were cornered and, despite being ordered to surrender, the
applicant continued to shoot and the policemen returned the fire,
which resulted in a fracture of the applicant's fibula.
To
determine whether the force used was “proportionate”
several elements have to be taken into consideration.
First
of all, the police were called upon to conduct a random operation
without any preparation. Therefore, it seems unreasonable to
consider, as the majority does in paragraph 25, that, with the lapse
of time, the police could have properly evaluated the situation and
that they should or could have organised and coordinated their
efforts accordingly. Such an assertion fails to take into account the
practical realities of police work and imposes a disproportionate
burden on the authorities.
Secondly, the authorities
found that the applicant was in possession of a cap gun that was not
distinguishable from a real gun. According to official police records
the applicant produced his gun and shot at the policemen. In such
circumstances the police had no choice but to return fire in
self-defence since they could not have known at that time that the
applicant's gun was not real. In addition, the majority gave undue
consideration to the fact that the bullet trajectory was established
as having entered from the back of the leg and exited from the front.
The bullet trajectory does not in my opinion disprove the fact that
the applicant was shooting at the policemen before he was injured.
The majority's consideration under this head is therefore
speculative.
Thirdly, the majority disregarded the fact that the applicant's
version of facts both before the domestic authorities and the Court
lacked coherence and credibility. For example the applicant denied
knowing the other suspects and writing graffiti, whereas all the
co accused had admitted that they knew each other and had
written graffiti on the walls together with the applicant. In this
connection, I find it difficult to believe, in the absence of a
plausible explanation by the applicant, that the police officers shot
the applicant after having already apprehended him and made him lie
down.
Finally, taking into account the fact that the only injury sustained
by the applicant was a single gun shot to a non-vital organ and that
neither he nor the other suspects had sustained any other injuries, I
accept the Government's argument that the force used against the
applicant in this case was made necessary by his own conduct. The
foregoing circumstances count heavily against the applicant, with the
result that, in my view, the Government's burden to prove that the
use of force was not excessive in this case was less stringent (see,
mutatis mutandis, Berliński v. Poland,
nos. 27715/95 and 30209/96, § 64, 20 June 2002).
However,
it seems that the majority has accepted facts relating to the
investigation, such as the lack of information regarding the number
of shots fired by each side or whether any empty cartridges were
found in the area, as the basis for finding a violation of the
substantive aspect of Article 3.
It
would have been more in line with the Court's case-law to examine all
these issues that are closely linked to the investigation under the
procedural aspect of Article 3.
I am therefore of the opinion that there has been no violation of
Article 3 in its substantive aspect.
