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THIRD SECTION
CASE OF KASA v. TURKEY
(Application no. 45902/99)
JUDGMENT
STRASBOURG
20 May 2008
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 Kasa v. Turkey,
The European Court of Human Rights
(Third Section), sitting as a Chamber composed of:
Josep Casadevall,
President,
Elisabet
Fura-Sandström,
Rıza
Türmen,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele, judges,
and
Stanley Naismith, Deputy Section Registrar,
Having deliberated in private on 29
April 2008,
Delivers the following judgment, which
was adopted on that date:
PROCEDURE
- The case originated in an
application (no. 45902/99) 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 Hamdi Kasa (“the applicant”) on
11 November 1998.
- The applicant was
represented by Mr Behiç Aşçı, Mr Metin Narin
and Mr Basri Akyüz, lawyers practising in Istanbul. The Turkish
Government (“the Government”) did not designate an agent
for the purpose of the proceedings before the Court.
- The applicant alleged, in
particular, that the killing of his son Hakan Kasa by police officers
had been in violation of Articles 2 and 6 of the Convention.
- On 19 February 2002 the
Court decided to give notice of the application to the Government and
on 30 March 2006, under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- . The
applicant was born in 1950 and lives in Istanbul. He is the father of
Hakan Kasa, who was killed by a number of police officers on
13 August 1993.
A. Introduction
- . The
facts of the case as presented by the applicant and the Government
are based on a number of documents drawn up in the course of the
domestic investigation. The following information is taken from the
parties' submissions as well as from the documents submitted by them.
B. The Facts
1. Background
- On 12 July 1993 police
officer Mehmet Bulut was shot in the shoulder in a marketplace in
Istanbul. The injury was not fatal. The perpetrators managed to
escape and the police officer's pistol went missing during the
incident. The police began a search to find the perpetrators and to
recover the pistol.
2. The operation
- At around midday on 13
August 1993 the police received an anonymous telephone call from a
man who stated that there were a number of armed persons in a café
on the 11th floor of a shopping mall in the Beyoğlu
district of Istanbul who were behaving suspiciously.
- According to an incident
report drawn up and signed by twenty-two members of the
anti-terrorist police on 13 August 1993, a police team carried out
reconnaissance in the café and determined that the information
given by the anonymous caller had been correct. Armed police officers
then secured the area in and around the shopping mall and a special
police team, wearing bulletproof vests, entered the building.
- When the members of the
special police team were on the 11th floor and were
walking towards the café, a man and a woman outside the café
drew their pistols and opened fire at them. The two persons failed to
cease firing and surrender despite warnings from the police officers.
As a result, the police officers returned fire and an armed clash
ensued which resulted in the deaths of the two persons.
- While the police
officers were dealing with the two persons, firing began from inside
the café. The officers asked the people inside the café
to stop and surrender. Nevertheless, when they failed to comply with
that request, the officers returned fire. When the firing finally
ceased from inside the café, the officers entered the café
and saw three men lying on the floor behind a fridge. The members of
the special police team then informed their superiors and the
prosecutor. A search team was sent to the café.
- A stick of dynamite was
found during the search subsequently carried out in the café
and was defused by bomb-disposal teams. It was destroyed the
following day. It was also established that the five persons were all
dead. Each of the five deceased had a pistol next to their right
hands. The identities of the five deceased persons were established
from the identity cards found in their pockets.
- The woman killed outside
the café was identified as 22-year-old Selma Çıtlak.
The man killed next to her was identified as 21-year-old Mehmet
Salgın. The three men inside were 16-year-old Sabri Atılmış,
32 year-old Nebi Akyürek and the applicant's 18-year-old
son Hakan Kasa. A large number of bullet cases and deformed bullets
were also found in and around the café. These were secured for
the necessary examinations to be carried out.
3. The preliminary investigation
- The following
information appears from the report prepared on the same day by a
prosecutor who had gone to the scene after having been informed by
the police at 1.30 p.m. The prosecutor, who was accompanied by a
doctor from the Forensic Medicine Institute, arrived at the scene at
2 p.m.
- Following the arrival of
the prosecutor and the doctor, the bodies were moved to a suitable
room within the shopping mall for the necessary examinations to be
carried out. There were eight bullet wounds on Selma Çıtlak's
body. Mehmet Salgın's body had ten bullet wounds. The pistol
found next to his body bore serial number 302-83715. Nebi
Akyürek's body had eighteen bullet wounds, whereas the bodies of
Sabri Atılmış and the applicant's son had nine and
seven bullet wounds respectively.
- Following the
preliminary examinations, the bodies were taken to the Forensic
Medicine Institute for post-mortem examinations to be carried out.
The prosecutor noted that by this time the identity cards of the
deceased persons, with the exception of Mehmet Salgın and Sabri
Atılmış, were missing. He was thus unable to identify
the bodies of the applicant's son and the remaining two deceased.
- According to a report prepared by the Police
Laboratory on 16 August 1993 concerning the examination of “the
pistols found after the police operation involving members of the
THKP-C/Dev Sol”,
the pistol found outside the café next to the body of Mehmet
Salgın, with serial number 302-83715, was the missing pistol
belonging to police officer Bulut who had been shot and injured on 12
July 1993 (see paragraph 7 above). It was established that the pistol
found next to the body of Sabri Atılmış had also been
used in the shooting incident during which officer Bulut was injured.
It also appears from this report that the special police team members
had fired 332 rounds, and 35 rounds had been fired from the five
pistols found next to the deceased.
- On 19 August 1993 the
applicant's elder son and members of the Contemporary Lawyers'
Association submitted a petition to the prosecutor's office in
Istanbul. They alleged that the killings had been arbitrary and that
the police officers had been covering up their tracks by destroying
the evidence. They also alleged that the pistols found next to the
bodies and the dynamite had been “part of a set up”.
- On 20 August police
officer Bulut identified the deceased Mehmet Salgın and Nebi
Akyürek as the persons who had shot and injured him on 12 July
1993.
- On 9 September 1993 the
wife and the father of Mr Nebi Akyürek also submitted a petition
to the prosecutor's office and complained that the killings had been
arbitrary. Nebi had not been a member of any illegal organisation;
had he not been killed, it would have been established that he was
innocent. They challenged the prosecutor to divulge the evidence, if
any such evidence existed, to show that Nebi had been a member of the
illegal organisation as alleged by the police. They also drew the
prosecutor's attention to the fact that one of the deceased had only
been 16 years old. He was also their relative and had been working in
their family business.
- They denied that Nebi or
the other deceased had been armed and maintained that the pistols
found next to the bodies had been planted there after the killings.
Nebi was not left-handed but the pistol had been found next to his
left hand. Furthermore, the pistols did not bear the finger prints of
the deceased. Moreover, there were no bullet holes in the walls of
the café to indicate that the three persons inside the café
had opened fire. The broken windows of the café and the
surrounding shops had been replaced by the police officers
immediately after the operation, making it impossible to determine
the direction from which the shooting had been coming and what types
of weapons had been used.
- None of the police
officers who had taken part in the operation had any injuries. This,
they maintained, showed that the deceased had been unarmed and killed
at close range. Finally, they argued that alternative methods could
have been used to arrest the five persons alive. They had been in a
café on the 11th floor of a shopping mall and, as such, it
would have been impossible for them to escape. They asked the
prosecutor to carry out autopsies on the bodies with a view to
establishing the distance from which they had been shot. They also
asked the fingers of the deceased to be examined to establish whether
they had indeed handled the weapons found next to their bodies and
whether they had fired them as alleged.
- According to a report
prepared by the chief of the anti-terrorist police in Istanbul on 13
September 1993, the five deceased had been members of the
THKP-C/Dev-Sol. There were police records concerning Nebi Akyürek
and Mehmet Salgın's participation in unlawful demonstrations but
there were no records in the police files in relation to the
remaining three, including the applicant's son.
- On 16, 18, 21 and 25
September 1993 five reports were drawn up in relation to the
post-mortem examinations which had apparently been carried out on 13
August 1993 on the bodies of the five deceased. The reports detail
the various injuries caused by the bullets in their bodies and heads.
As the finger tips of the deceased had been covered with ink by the
police to obtain their fingerprints, it had not been possible to test
them for gunpowder residues.
- On 3 December 1993 the
prosecutor began questioning the police officers who had taken part
in the operation on 13 August 1993. One of the police officers stated
that police officers Ayhan Çarkın, Ayhan Özkan and
Ömer Kaplan had fired first after they had come under fire from
the five persons.
- On 27 April 1994 the
explosives expert who had defused the dynamite found in the café
was questioned by the prosecutor. The expert stated that he had found
the bombs underneath the bodies inside the café.
- On 29 September 1994
police officers Ayhan Çarkın, Ayhan Özkan and Ömer
Kaplan, who had taken part in the operation, were questioned by a
prosecutor for the first time. All three maintained that they had
acted in the execution of their duties.
- On 14 October 1994 the
prosecutor filed an indictment with the Istanbul Assize Court,
charging nine police officers with the offence of causing death in
the execution of their duties.
- On 31 October 1994 the
criminal proceedings against the police officers began before the
Istanbul Assize Court (hereinafter “the trial court”).
The applicant and the relatives of the other four deceased joined the
proceedings as interveners. During the trial the applicant and his
wife informed the trial court that their son Hakan had not been
involved in any criminal activity, and alleged that he had been
killed unlawfully.
- The Higher Disciplinary
Board of the police observed on 20 July 1995 that the
time-limit for initiating disciplinary proceedings under the statute
of limitations had expired, and decided not to bring any disciplinary
proceedings against the police officers.
- A number of hearings had
to be postponed on account of the failure of some of the defendants
and prosecution witnesses to attend the hearings. When one particular
defendant, Mr Ayhan Çarkın, failed to give evidence in
court, he was questioned elsewhere and his statement was included in
the case file. The requests made by the interveners to question Mr
Çarkın before the trial court was rejected.
- During one of the
hearings, one of the defendants stated that they had come under fire
and had responded by firing back. When he was asked by one of the
lawyers representing the families whether the police always had to
return fire and kill persons who opened fire on them, the defendant
replied that in this particular operation they had not opened fire
with an intention to kill. The witnesses and the defendants confirmed
that during the operation they had used MP-5 automatic submachine
guns.
- The husband of the
deceased Sema Çıtlak informed the trial court that his
wife had been working in the café as a cashier. She had had no
involvement in any illegal activity. Following the killing of his
wife the police had told him that his house would be searched, but
this had never been done.
- During the hearing held
on 15 January 1998 the lawyers for the families repeated their
requests for the trial court to carry out an on-site inspection in
the shopping mall with a view to ascertaining whether or not it would
have been possible for the five persons to escape. The trial court,
considering that “the [answer] to this question was obvious
because the five persons [had been] killed on the 11th floor of the
shopping mall”, rejected the request.
- During the next hearing
a civilian eyewitness to the events testified before the trial court
and stated that during the operation he had been shot accidentally
and injured. He had not seen who had shot him. He did not remember
whether he had heard the police shouting “surrender”.
- One of the prosecution
witnesses, police officer Adalet Aküzüm, testified before
the trial court and stated that he had also participated in the
operation and had opened fire. The lawyers for the families then
requested the trial court to prosecute this particular witness as he
had clearly been more than just a witness to the events. This request
was not accepted.
- During the trial the
lawyers for the families alleged that the police officers had
destroyed the evidence. In particular, the police officers had taken
the deceased persons' clothes and had immersed them in water, making
it impossible to forensically determine whether the deceased persons
had opened fire and whether their clothes had gunpowder residues.
- On 14 May 1998 the
lawyers representing the families asked for the judges of the trial
court to be withdrawn from hearing the case. In support of their
request the lawyers pointed out that even the most basic steps had
not been taken in the proceedings despite the fact that the trial had
been going on for three and a half years. In this connection they
submitted that their requests for a ballistic comparison of the
bullets found in the victims' bodies with the weapons used by the
police officers had been rejected. Similarly, their requests for the
court to determine the distance between the police officers and the
deceased and to have forensic examinations of the clothing the
deceased had been wearing carried out had also been rejected by the
trial court.
- The lawyers also pointed
to the testimony given by officer Aküzüm (see paragraph 36
above) in his capacity as a witness, confirming that he had also
opened fire on the deceased persons. The lawyers stated that their
request to have Mr Aküzüm prosecuted had been rejected.
They alleged that their request for the defendant Ayhan Çarkın
to be questioned and for an inspection of the café to be
carried out with a view to ascertaining whether or not it would have
been possible to apprehend the five deceased persons alive had also
been rejected without any justification. In this connection they also
drew the trial court's attention to a number of highly publicised
criminal proceedings pending against two of the defendants, namely
Ayhan Çarkın and Selim Kostik, on account of their
alleged involvement in the killings of a number of other persons and
their alleged involvement in ransoms and protection rackets.
- The request for the
withdrawal of the judges was rejected on 22 May 1998
because the points raised by the lawyers were not of a nature to call
into question the independence of the judges of the trial court.
- During the hearing held
on 3 November 1998 the applicant's lawyers informed the trial court
that they had applied to the European Court of Human Rights as they
believed that the criminal proceedings were not being conducted in an
independent fashion. During the same hearing one of the three judges
on the bench withdrew from sitting on the case on account of the
distrust displayed by the families towards him and his two
colleagues.
- On 8 July 1999 the
lawyers for the applicant submitted their written arguments to the
trial court. They pointed out that the first time the prosecutor had
questioned the police officers had been some four months after the
killings. It had taken the prosecutor thirteen months to question all
the defendants. No thought had been given to identifying the
eye-witnesses to the incident. Furthermore, the pistols found next to
the bodies had not been examined for finger prints. They believed
that the failure to take the above-mentioned steps had rendered the
investigation ineffective, in violation of Articles 2 and 6 of the
European Convention on Human Rights. This, they alleged, had
encouraged the police to carry out similar summary executions in
future.
- On 21 December 1999 the
trial court found five of the nine police officers guilty of the
offence of intentional homicide. The trial court rejected the
prosecutor's request to acquit these five defendants who, in the
opinion of the prosecutor, had killed the deceased in the execution
of their duties and had remained within the permissible limits of
self-defence.
- The remaining four
defendants were acquitted because they had not taken part in the
armed operation, but had been involved in the securing of the area in
and around the shopping mall. The trial court left it to the
discretion of the prosecutor to bring criminal proceedings against
police officer Adalet Aküzüm, who had participated in the
operation with the above-mentioned five police officers and who gave
evidence as a witness during the trial (see paragraph 36 above).
- The trial court observed
that thirty-five rounds had been fired from the five pistols found
next to the bodies. The five accused police officers and officer
Aküzüm, on the other hand, had fired 322 bullets. According
to the trial court, the deceased had been greatly outnumbered by the
police officers, some of whom had been highly trained in
anti-terrorist operations. The area around the shopping mall had been
secured by the police officers and it would have been impossible for
the five deceased persons to escape from the building. It could have
been possible, therefore, to apprehend the five persons alive.
Furthermore, although the five accused police officers had acted in
self-defence, they had used disproportionate force, in violation of
the applicable legislation.
- The trial court held
that the right to life was the most fundamental right of all the
rights and freedoms, and was protected in Article 2 of the European
Convention on Human Rights. Police officers were representatives of
the State and in their dealings with the public they were expected to
comply with, inter alia, the international conventions which
formed part of the domestic law. Nevertheless, the killing of the
five persons had not been absolutely necessary within the meaning of
Article 2 § 2 of the Convention as the police
officers had exceeded what was absolutely necessary to eliminate the
danger. Although under domestic law they were entitled to open
non-lethal fire at parts of the individuals' bodies, and they could
have thus fired once or twice at each person, they had in fact fired
between seven and eighteen rounds at each victim. In this connection
the trial court pointed to the fact that the officers had been
wearing bulletproof vests.
- The trial court
sentenced the five police officers to death. Nevertheless, the death
penalty was commuted to eight years' imprisonment in accordance with
Article 50 of the Criminal Code. The prison sentences were then
halved pursuant to Article 463 of the Criminal Code which concerned
joint enterprises in the commission of the offence of homicide. The
sentences were then increased to four years and eight months in
accordance with Article 281 of the Criminal Code, as the trial court
considered that the defendants had abused their “means and
powers”. Finally, the trial court used its discretion under 59
of the Criminal Code and reduced the prison sentences to three years
and twenty days. The trial court further decided to ban the five
defendants from carrying out their duties as police officers for a
period of three months.
- The convicted police
officers, the prosecutor and the applicant appealed against the
judgment.
- The prosecutor argued
that the police officers had acted in the execution of their duties
and, in accordance with Article 49 of the Criminal Code, they should
not have been punished.
- In their appeal
petitions the police officers maintained that the deceased had been
members of an illegal organisation and that they had remained within
the permissible limits of self-defence when they shot them.
- The applicant, for his
part, argued that the judgment had not been in compliance with the
applicable law and procedure.
- On 23 May 2001 the Court
of Cassation quashed the judgment convicting the five police
officers, and considered that they had acted in self-defence, on the
orders of a competent authority and out of immediate necessity.
- Criminal proceedings
recommenced before the trial court. During the re-trial the applicant
asked the trial court not to depart from its previous judgment.
- On 22 October 2001 the
trial court recalled its previous judgment but held, in accordance
with the Court of Cassation decision, that “the defendants had
committed the offence out of legitimate necessity” and, as
such, it was not possible to punish them.
- The applicant and the
relatives of the other deceased persons appealed against the judgment
and argued that it was difficult to reconcile the judgment of 22
October 2001 with the judgment of 21 December 1999 in that, in its
later judgment, the trial court had not explained why it was
abandoning its previous conclusion. Given that the elements on which
the Court of Cassation decision was based had already been examined
and answered by the trial court in its first judgment, and also
having regard to the fact that the circumstances surrounding the
killings had not changed, it was impossible to comprehend how the
trial court could decide to acquit the defendants.
- On 20 May 2002 the Court
of Cassation upheld the judgment of 22 October 2001.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The version of the
Turkish Criminal Code which was in force at the time of the events
contained provisions dealing with unintentional homicide
(Articles 452, 459), inadvertent and negligent homicide
(Article 455) and intentional homicide (Article 448).
Articles 49 and 50 of the Criminal Code addressed the commission
of offences carried out, inter alia, in excess of duty and in
self-defence.
- According to Article 448
of the Criminal Code, any person who intentionally killed another was
liable to be sentenced to a term of imprisonment of twenty-four to
thirty years. According to Article 450, the death penalty could
be imposed in cases of, inter alia, multiple murder. Under
Article 452, where death resulted from an act of violence but it
was not the intention of the perpetrator to kill the victim, a
sentence of eight years' imprisonment could be imposed on the
perpetrator. Where death resulted from an act of carelessness,
negligence or inexperience on the part of the offender in breach of a
law, orders or regulations, Article 455 stipulated that the
guilty party was to be sentenced to a term of imprisonment of two to
five years and to a substantial fine.
- Article 49 of the
Code provided that:
“A person shall not be punished for committing an
act which was carried out in pursuance of a law or on the orders of a
competent authority or where the person was obliged to commit the act
out of immediate necessity to repel an unjustified assault against
his own or another's person or chastity or in order to save his life
or the life of another from an immediate and grave personal danger
for which he was not responsible and the commission of the act was
the only way in which the danger could be avoided.”
Article 50 of the Code qualified the
provisions of Article 49:
“Where the person in committing the act exceeds
the limits of a duty prescribed by law or by the competent authority
or exceeds the exigencies of the situation, that person shall be
sentenced to a minimum term of imprisonment of eight years if the
punishment in respect of the act is the death penalty, and to a
minimum term of imprisonment of between six and fifteen years if the
punishment in respect of the act is life imprisonment.”
60. According
to Article 463 of the Criminal Code, if a person was killed by two or
more persons, and if it was not established at the trial which one of
these persons had caused the death, the prison sentence to be imposed
on any of the perpetrators could not be more than two-thirds and not
less than half of the maximum prison sentence stipulated in the
Criminal Code for the offence of homicide.
- Article 59 of the
Criminal Code provided as follows:
“If the court considers that, other than the
statutory mitigating circumstances, there are other circumstances
favourable to reducing the penalty [imposed] on the perpetrator,
capital punishment shall be commuted to life imprisonment and life
imprisonment to a term of imprisonment of thirty years.
Other penalties shall be reduced by a maximum of
one-sixth.”
62. The
relevant provisions of the Act on the Duties and Powers of the Police
(Polis Vazife ve Selahiyet Kanunu, Law
No. 2559), read as follows:
Article 16
“The police may use firearms:
(a) in self-defence;
(b) for the purpose of thwarting an attack
involving sexual abuse of, or bodily harm to,
individuals where it is not possible to thwart such an attack through
any means other than using a weapon;
...
(g) where police warnings to hand over weapons or other
instruments of aggression are ignored or where an attempt is made by
force by a third party to recover such weapons and instruments;
...”
THE LAW
I. ADMISSIBILITY
- The Government argued that the applicant had failed to
comply with the requirement to exhaust domestic remedies. They
submitted that the applicant had not raised in the domestic
proceedings the issues he raised before the Court. Secondly, they
submitted that at the time of the introduction of the application,
the proceedings were still ongoing before the domestic courts.
- As regards the first
limb of the Government's submissions, the Court reiterates that
it is sufficient that the complaints intended to be made subsequently
before it should have been raised, at least in substance and in
compliance with the formal requirements before the national
authorities (see Gökçe and Demirel v. Turkey,
no. 51839/99, § 63, 22 June 2006, and Fressoz and
Roire v. France [GC], no. 29183/95, § 37,
ECHR 1999-I). In the present case the applicant not only expressly
argued before the domestic court that the killing of his son had been
unlawful under the domestic legislation, but also complained that the
killing had been in violation of, inter alia, Article 2 of the
Convention (see paragraph 42 above). The Court rejects, therefore,
the Government's submission on this issue.
- As for the second limb
of the Government's submissions, the Court observes that the criminal
proceedings against the police officers were completed on 20 May
2002.
- Consequently, the
application cannot be rejected for non-exhaustion of domestic
remedies.
- 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.
II. ALLEGED VIOLATIONS OF ARTICLES 2 AND 6 OF THE
CONVENTION
- The applicant alleged
that his son had been killed in violation of Article 2 of the
Convention. Relying on Article 6 of the Convention he also complained
that the investigation into the killing had been ineffective.
- The Court considers that
these complaints should be examined from the standpoint of Article 2
of the Convention alone, which provides as follows:
“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. The killing of the applicant's son
- The applicant submitted
that, at the time of his killing, his son had been on the 11th
floor of a shopping mall and, as such, it would have been
possible to apprehend him alive. In the opinion of the applicant, the
police could have used non-lethal methods, such as plastic bullets
and smoke bombs, to do so. In any event, a failure to comply with the
order to surrender did not justify the killing of his son. In the
opinion of the applicant, the police had had a premeditated plan to
kill the persons in the café. Moreover, the police had covered
their tracks by destroying the evidence by, inter alia,
replacing the windows of the café and the surrounding shops,
smearing the deceased persons' fingers in ink and confiscating their
clothing.
- The Government submitted
that the burden of proof may be regarded as resting on the
authorities to provide a satisfactory and convincing explanation for
the death of the applicant's son in line with the Court's case-law.
To this end, the Government maintained that the investigation carried
out by the national authorities had shown that the killings had been
inevitable, as the applicant's son and the other persons had refused
to surrender and had instead opened fire at the police officers. The
police officers, who had come under fire, had used force which had
been no more than absolutely necessary and strictly proportionate to
achieve the aim of protecting their own lives and the lives of other
persons in the shopping mall.
- The Court reiterates
that Article 2, which safeguards the right to life and sets out the
circumstances when deprivation of life may be justified, ranks as one
of the most fundamental provisions in the Convention, from which no
derogation is permitted (see Velikova v. Bulgaria,
no. 41488/98, § 68, ECHR 2000-VI). Together with
Article 3, it also enshrines one of the basic values of the
democratic societies making up the Council of Europe. The
circumstances in which deprivation of life may be justified must
therefore be strictly construed (see Salman v. Turkey [GC],
no. 21986/93, § 97, ECHR 2000 VII). The object and
purpose of the Convention as an instrument for the protection of
individual human beings also requires that Article 2 be interpreted
and applied so as to make its safeguards practical and effective (see
McCann and Others v. the United Kingdom,
judgment of 27 September 1995, Series A no. 324, pp. 45-46,
§§ 146-47).
- The first sentence of
Article 2 § 1 enjoins the State not only to refrain from the
intentional and unlawful taking of life, but also to take appropriate
steps within its internal legal order to safeguard the lives of those
within its jurisdiction (see Kılıç v. Turkey,
no. 22492/93, § 62, ECHR 2000-III). This involves a primary
duty on the State to secure the right to life by putting in place an
appropriate legal and administrative framework to deter the
commission of offences against the person, backed up by
law-enforcement machinery for the prevention, suppression and
punishment of breaches of such provisions.
- The text of Article 2,
read as a whole, demonstrates that paragraph 2 does not primarily
define instances where it is permitted to intentionally kill an
individual, but describes situations where it is permitted to “use
force” which may result, as an unintended outcome, in the
deprivation of life. The use of force, however, must be no more than
“absolutely necessary” for the achievement of any of the
purposes set out in subparagraphs (a), (b) or (c). In this respect
the use of the term “absolutely necessary” in Article 2 §
2 indicates that a stricter and more compelling test of necessity
must be employed than that normally applicable when determining
whether State action is “necessary in a democratic society”
under paragraph 2 of Articles 8-11 of the Convention. In
particular, the force used must be strictly proportionate to the
achievement of the aims set out in the subparagraphs of the Article
(see McCann and Others, cited above, p. 46, §§
148-9).
- In this connection, the
Court reiterates that it is sensitive to the subsidiary nature of its
role and recognises that it must be cautious in taking on the role of
a first-instance tribunal of facts, 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, 4
April 2000). Where domestic proceedings have taken place, it is not
the Court's task to substitute its own assessment of facts for that
of the domestic courts and as a general rule it is for those courts
to assess the evidence before them. Though the Court is not bound by
the findings of domestic authorities, in normal circumstances it
requires cogent elements to lead it to depart from the findings of
fact reached by those authorities (see, mutatis mutandis,
Klaas v. Germany, judgment of 22 September 1993, Series A
no. 269, p. 18, §§ 29-30).
- However, the central
importance of the protection afforded under Article 2 is such that
the Court is required to subject allegations of breach of this
provision to the most careful scrutiny, taking into consideration not
only the actions of the agents of the State who actually administered
the force but also all the surrounding circumstances including such
matters as the planning and control of the actions under examination
even where domestic proceedings and investigations have already taken
place (see Erdoğan and Others v. Turkey,
no. 19807/92, § 71, 25 April 2006).
- In the present case, the
Court notes firstly that it is undisputed between the parties that
the applicant's son Hakan was shot and killed by police officers. The
Court is however confronted with fundamentally divergent accounts of
how he was killed. The applicant maintained that the police officers
had arrived at the café with the aim of killing the persons
there, including his son. The Government, on the other hand,
submitted that the killing had not been premeditated and that the
applicant's son had been killed in self-defence and defence of others
from unlawful violence.
- The Court observes that
a judicial determination of the facts took place in the criminal
proceedings brought against nine police officers before the Istanbul
Assize Court. Even if certain facts remain unclear, the Court
considers, in the light of all the material produced before it, that
there is a sufficient factual and evidentiary basis on which to
assess the case, taking as a starting point the findings of the
national court (see Makaratzis v. Greece [GC], no.
50385/99, § 47, ECHR 2004 XI, and Perk and Others
v. Turkey, no. 50739/99, § 57, 28 March 2006).
- The Court observes, on
the basis of the material before it, that the applicant's son was
killed in the course of a police operation by officers from the
anti-terrorist branch. In this connection, as to the applicant's
allegation that there was a premeditated plan to kill his son, the
Court does not find it sufficiently established, on the basis of the
material provided by the parties, that there was such a plan.
- As regards the legal
framework defining the circumstances in which law enforcement
officials may use force and firearms, the Court notes that it has
already held that the applicable legislation at the time of the
incident, that is, Law no. 2559, enacted in 1934, would not appear
sufficient to provide the level of protection “by law” of
the right to life that is required in present-day democratic
societies in Europe (see Erdoğan and Others, cited above,
§ 77) but that the difference between the relevant national
standard and the standard provided by the expression “absolutely
necessary” in Article 2 § 2 of the Convention is not
sufficiently great that a violation of Article 2 § 1 could
be found on this ground alone (see Perk and Others, cited
above, § 60; see also Yüksel Erdoğan and
Others v. Turkey, no. 57049/00, § 92, 15 February
2007).
- In carrying out its
assessment of the planning and control phase of the operation from
the standpoint of Article 2 of the Convention, the Court must have
particular regard to the context in which the incident occurred as
well as to the way in which the situation developed (see Andronicou
and Constantinou v. Cyprus, judgment of 9 October 1997, Reports
of Judgments and Decisions 1997 VI, § 182).
- The Court observes in
this connection that the police officers arrived at the scene of the
incident following a phone call received by the
police on 13 August 1993 according to which a number of armed
persons were behaving suspiciously there (see paragraph 8
above). Therefore, this was an emergency situation which demanded
that the police officers act with great rapidity.
- The Court also observes
that the use of force by the police officers was the direct result of
the unlawful violence emanating from the deceased persons. In this
connection, the Court observes that the police officers secured the
area around the shopping mall. Consequently, the operation in
question should be considered to have been effected “in defence
of any person from unlawful violence” and “in order to
effect a lawful arrest” within the meaning of Article 2 §
2 of the Convention.
- The Court should
therefore determine whether the use of force in the instant case was
no more than absolutely necessary and strictly proportionate to the
achievement of the aforementioned aims.
- In this connection it is
significant that the first gunshot came from the deceased. As the
statements of the witnesses before the prosecutor and the Istanbul
Assize Court demonstrate, the police officers, who entered the
building, did order the deceased to surrender and gave the necessary
warnings before shooting and started shooting only after having been
fired at (see paragraph 10 above).
- The Court accepts, in
the circumstances of the case, that when the police officers entered
the building and were confronted with the shooting coming from the
persons inside and outside the café, they believed that it was
necessary to continue firing until the persons stopped firing back
(see Perk and Others, cited above, § 68). In this
connection, the Court notes that, according to the ballistic
examination reports, thirty-five of the bullets found at the scene of
the incident had been discharged from the firearms found next to the
deceased persons' bodies (see paragraphs 17 and 45 above).
- The Court further
considers that it is not necessary to speculate on the possibility
for the police officers to use non-lethal methods in order to
apprehend the applicant's son alive. In this connection, the Court
recalls that in the above-mentioned cases of Andronicou and
Constantinou and Perk and Others, where the
applicants' relatives had been killed as a result of use of force by
security forces, it held that it could not with detached reflection
substitute its own assessment of the situation for that of the
officers who were required to react in the heat of the moment. The
Court further considered that to hold otherwise would be to impose an
unrealistic burden on the States and their law enforcement
personnel in the execution of their duty, perhaps to the detriment of
their lives and the lives of others (see Andronicou and
Constantinou, cited above, § 192, and Perk and
Others, cited above, § 72). The Court sees no reason to
reach a different conclusion in this case, where the police officers
had to act rapidly when confronted with armed persons in a public
place.
- The Court considers
therefore that the use of lethal force in the circumstances, however
regrettable it may have been, did not exceed what was “absolutely
necessary” for the purposes of self-defence and effecting a
lawful arrest.
- It follows that there
has been no violation of Article 2 of the Convention in respect of
the killing of Hakan Kasa.
B. Alleged inadequacy of the investigation
- The applicant argued
that the investigation into the killing of his son had not been
effective. In this connection, the applicant repeated the arguments
which he had submitted to the national investigating authorities,
including the trial court (see paragraphs 18, 34, 36-39, 41-42 and 55
above).
- The Government
maintained that the applicant's complaints about the investigation
had no basis. The investigation had been commenced immediately after
the operation had ended. Although the police officers had not been
interviewed immediately, the time taken by the prosecutor to
interview them could not be regarded as unreasonable.
- The Court reiterates
that 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, mutatis mutandis,
McCann and Others, cited above, § 161, and Kaya
v. Turkey, judgment of 19 February 1998, Reports 1998-I,
§ 105). 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).
- 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 (see Kelly and Others v. the United Kingdom,
no. 30054/96, §§ 96-97, 4 May 2001, and Anguelova,
cited above, § 139). The investigation must also be
effective in the sense that it is capable of leading to a
determination of whether the force used in such cases was or was not
justified in the circumstances (see, for example, Kaya, cited
above, § 87).
- A requirement of
promptness and reasonable expedition is implicit in this context (see
Yaşa v. Turkey, judgment of 2 September 1998, Reports
1998 VI, pp. 2439-2440, §§ 102-104;
Çakıcı v. Turkey [GC], no.
23657/94, §§ 80-87 and 106, ECHR 1999-IV; and Mahmut
Kaya v. Turkey, no. 22535/93, §§ 106-107,
ECHR 2000-III). It must be accepted that there may be obstacles or
difficulties which prevent progress in an investigation in a
particular situation. However, a prompt response by the authorities
in investigating a use of lethal force may generally be regarded as
essential in maintaining public confidence in their adherence to the
rule of law and in preventing any appearance of collusion in or
tolerance of unlawful acts (see Avşar v. Turkey, no.
25657/94, § 395, ECHR 2001 VII (extracts)).
- Turning to the facts of
the present case, the Court observes that the national investigating
authorities did not begin questioning the police officers who killed
the applicant's son on 13 August 1993 until 3 December 1993, that is,
almost four months after the killing. Moreover, some of the police
officers responsible for the killing were first questioned on
29 September 1994, that is, more than a year after the killing.
- Unlike the respondent
Government, the Court considers that the failure to question for a
period of between four and fourteen months the police officers who
were responsible for the killing of the five persons was
unreasonable. The Government have not offered any explanation for the
delays. The Court notes that the police officers who killed the
applicant's son continued to perform their duties as police officers
after the killing and that it would have been straightforward for the
authorities to locate and question them in a timely fashion. These
police officers were the only eye-witnesses to the events and their
questioning should have been regarded as a priority. Furthermore, the
Court cannot exclude that the failure to question the police officers
for such lengthy periods damaged public confidence in the adherence
to the rule of law not only of the police officers but also of the
investigating authorities.
- The Court considers this
failure to be so serious as to lead to the conclusion that the
investigation as a whole had been ineffective, contrary to the
requirements of Article 2 of the Convention. It thus deems it
unnecessary to examine the remaining alleged failures in the
investigation.
- The Court finds,
therefore, that there has been a violation of Article 2 of the
Convention under its procedural limb.
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.”
- On 3 April 2006 the
Court invited the applicant to submit his just satisfaction claims by
2 May 2006. However, he did not submit any claims.
- Accordingly, the Court
considers that there is no call to award the applicant any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares
the application admissible;
2. Holds
that there has been no violation of Article 2 of the Convention
on account of the killing of the applicant's son by the police
officers;
3. Holds
that there has been a violation of Article 2 of the Convention
on account of a lack of an effective investigation into the killing.
Done in English,
and notified in writing on 20 May 2008, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
Stanley Naismith Josep
Casadevall
Deputy Registrar President