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SECOND
SECTION
CASE OF BEKTAŞ AND ÖZALP v. TURKEY
(Application
no. 10036/03)
JUDGMENT
STRASBOURG
20 April 2010
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 Bektaş and
Özalp v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 30 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10036/03) 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 two Turkish nationals, Mrs Kezban Bektaş
and Ms Gülay Özalp (“the applicants”), on
28 January 2003.
- The
applicants were represented by Mr Alper Tunga Saral, a lawyer
practising in Adana. The Turkish Government (“the Government”)
were represented by their Agent.
- The
applicants alleged, in particular, that their relatives had been
killed by police officers in breach of Article 2 of the Convention
and that the investigation into the killings had been ineffective.
- On
21 June 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant was born in 1968 and lives in Adana. The second
applicant was born in 1966 and lives in Hatay. The first applicant is
the wife of Mr Murat Bektaş and the second applicant is the
sister of Mr Erdinç Arslan. Mr Bektaş and Mr Arslan were
killed by police officers on 5 October 1999.
A. The killings and post-mortem examinations
- On
5 October 1999 at around 9.30 p.m. six police officers from the
anti terrorist and special forces of Adana police headquarters
raided a block of flats where Murat Bektaş, aged 32, and Erdinç
Arslan, aged 22, had been living. The following day at 4.00 a.m. a
police report (olay-yakalama-ev arama-zapt etme-görgü
tespit tutanağı) was drawn up and signed by thirty six
police officers.
- According
to this report, at 9.00 p.m. on 5 October 1999 Adana police
headquarters received an anonymous telephone call. The caller stated
that several persons had been acting suspiciously and carrying bags
and suitcases into one of the flats on the third floor of a building.
- A
total of thirty-six police officers arrived outside the block of
flats at around 9.30 p.m. and secured the surrounding area. Seven
officers went up to the landing on the third floor, where there were
three doors. There was no lighting in the building and it was dark.
As the police officers did not know which flat to enter, they decided
to raid all of them at the same time. Immediately thereafter, shots
were fired from one of the flats but the police officers were unable
to determine from which of the three flats the shots were coming.
- At
that moment one of the doors was opened by a man carrying a gun who,
upon seeing the police officers, closed the door immediately and
locked it. The officers told this person that they were police
officers and ordered him to surrender. As he did not reply, the
police officers broke the door and, without entering the flat which
was also in the dark, started firing towards the ceiling and the
upper parts of the walls.
- At
around that time the police officers realised that the gunfire had in
fact been coming from the flat on the opposite side of the landing
and ordered the persons in that flat to surrender. However, the
occupants chanted slogans and continued shooting. The officers then
broke down their door, entered the flat – which was also in the
dark – and returned fire. The occupants of the flat then
retreated to a room and the police officers intensified their fire
towards that room. When the officers realised that no more gunfire
was coming from the occupants of the room they stopped firing. In
this room the police officers captured a certain Mr Mustafa Köprü
alive, and found Mr Erdinç Arslan's body. Upon
discovering that there were explosives in the flat the police
officers left the building for their own safety and notified bomb
disposal experts, who subsequently arrived and defused the
explosives.
- Meanwhile,
a number of other officers entered the first flat and found the
second applicant and her three-year-old son as well as the body of
Murat Bektaş.
- The
same evening the Istanbul prosecutor arrived at the scene of the
incident. In his presence the police officers searched Erdinç
Arslan's flat and found a Kalashnikov machine gun numbered SG29101, a
Unique firearm, empty cartridges and bullets. The police officers
found a Star firearm numbered 1898622 in Murat Bektaş's flat.
They also recovered empty Kalashnikov cartridges and bullets by the
entrance to Mr Bektaş's flat.
- On
6 October 1999 at 12.30 a.m. the Adana prosecutor drew up a report
from which it appears that he arrived at the scene of the incident
after having received a telephone call from the security forces. The
prosecutor first conducted an inspection in Erdinç Arslan's
flat and observed the presence of a Kalashnikov machine gun, another
firearm, several cartridges, bullets, empty cartridges, explosives
and materials for making explosives. In Murat Bektaş's flat the
prosecutor noted the presence of the Star firearm and the empty
Kalashnikov cartridges and bullets. The prosecutor further observed
and recorded in his report the existence of numerous bullet marks on
the walls and ceilings in both flats. The prosecutor stated in the
report that a doctor from the Forensic Medicine Institute had
examined the corpses and had observed that there were bullet entry
wounds to Erdinç Arslan's head, abdomen and lumbar regions. As
regards Murat Bektaş, the doctor had noted bullet entry wounds
on his head and hands. The doctor had concluded that classic
autopsies were required in order to establish the cause of death. The
corpses were then sent to the morgue of the Forensic Medicine
Institute.
- The
same day autopsies were carried out on the bodies of the two deceased
men. It appears from the autopsy reports that Murat Bektaş was
shot in the head and hands. A bullet entry wound was observed on his
left temple. Another bullet entry wound was observed on the back of
his right hand. The third bullet had entered his left hand through
the third finger. Bullet exit wounds were observed in the occipital
region, on the right palm and on the left wrist. The experts were
unable to determine the number of bullets which Murat Bektaş had
received to his head. They maintained that all the shots had been
fired at long range. Murat Bektaş's death was stated to have
been caused by a fractured skull, laceration of the brain and a
cerebral haemorrhage as a result of firearms injuries.
- The
report concerning Erdinç Arslan revealed that he had been shot
in the head and chest. Two bullet entry wounds were observed in the
left orbital region. One bullet entry wound was found on the left
side of the chest. The bullet exit wounds were found on the left
parietal region and the right side of the lumbar region. The forensic
experts concluded that the bullets to Erdinç Arslan's head had
been fired at long range, but they were unable to determine the
distance because the deceased's clothing had been covering his body.
- Also
on 6 October 1999 a police chief informed the Adana prosecutor that
the fingerprints taken from “the two dead terrorists” did
not match any fingerprints in their archives.
B. Investigation into the circumstances of the killings
- On
7 October 1999 Mustafa Köprü, who survived the shooting,
made a statement before the Adana prosecutor regarding the incident.
He maintained, inter alia, that he and Erdinç Arslan
had rented the flat ten days before the incident and had been
manufacturing explosives there. On the day of the incident, when he
had heard footsteps on the roof, he had approached the entrance to
the flat and opened fire on the police officers who were outside the
flat. The police officers had then returned fire and shot Erdinç
Arslan but he had not seen Erdinç Arslan firing the
Kalashnikov machine rifle.
- On
8 October 1999 the prosecutor questioned the first applicant, who
maintained, inter alia, that her husband had not had a firearm
and that he had actually been on the telephone when the police
officers had suddenly stormed their flat without any prior warning,
opened fire and shot her husband. She had then hidden in the flat
with her son. After her husband had been hit, the officers had
continued firing into the flat. The officers had not informed them
that they were police officers. The first applicant also gave a
description of the officer who shot her husband. She stated that she
had heard the officers unsuccessfully ordering the occupants of the
other flat to surrender. She maintained that the shooting had
continued for a while and, when it stopped, two uniformed men had
entered her flat and taken her and her son outside. Before she left
the flat she had looked at her husband's body and she had not seen
any weapons next to him. She requested that the persons responsible
for killing her husband be punished.
- On
12 October 1999 the prosecutor questioned the police officers who had
participated in the operation. The officers stated, inter alia,
that they had been surprised on their arrival on the third floor by
the fact that there were three doors, one of which turned out to be
the door to a storeroom. While they were reflecting on how to
proceed, shooting had come from one of the flats. As they could not
establish from which direction the gunfire was coming, they had
decided to raid all the flats. At that moment a man with a pistol in
his hand had briefly emerged from one of the doors and then gone back
inside. The officers had then broken the door to that flat (occupied
by Murat Bektaş) and fired their weapons at random in order to
warn the occupants. They had then realised that the gunfire had
actually come from the flat on the other side of the landing (Erdinç
Arslan's flat) and had called for assistance from the Special Forces.
- Officers
Nurettin Bülbül, Eyüp Yalçınkaya and
Haydar Erol from the anti-terrorist branch stated that, together with
the officers from the special forces, officer Bülbül and
officer Yalçınkaya had broken the door to Mr Arslan's
flat and opened fire. The occupants of the flat who had been firing
at them had then retreated to a room and continued to fire from
there. According to officer Bülbül, the armed clash had
continued for approximately ten minutes, whereas officer Yalçınkaya
was of the opinion that it had lasted for five minutes. After the
operation, officers Bülbül and Yalçınkaya had
seen a Kalashnikov rifle, a pistol, a cartridge and explosives in the
room. Officer Yalçınkaya added that he had used a
Kalashnikov rifle in the operation.
- Officers
Fevzi Mustan and Muammer Topaç from the special forces told
the prosecutor that when they and their team arrived outside the
building they had heard gunfire and had gone up to the third floor
where they had met with officers from the anti-terrorist branch. No
fire had been opened from Mr Arslan's flat before they stormed the
flat. After having entered the flat they had asked the occupants of
the flat to surrender but one shot had been fired in response from
one of the rooms, followed by an object which had been thrown towards
them from the same room and which they had considered at the time to
be a bomb. They and another colleague from the anti-terrorist branch
had then opened fire towards the room; they had used M16 rifles and
the remaining officer had used a Kalashnikov rifle. Officer Mustan
stated that he was sure that only a total of three officers –
including himself – had opened fire. The firing had continued
for approximately five to six seconds. After the firing had ceased,
they had seen a pistol in the room but no bombs or any other rifles.
- On
13 October 1999 Adana Magistrates' Court questioned the police
officers. Officers Mustan and Topaç stated that on their
arrival on the third floor landing gunfire had been coming from
inside Mr Erdinç's flat. The Magistrates' Court rejected the
prosecutor's request to order the pre-trial detention of six of the
police officers, namely Nurettin Bülbül, Haydar Erol, Eyüp
Yalçınkaya, Ali Erdurucan, Fevzi Mustan and Muammer
Topaç. The following day the prosecutor successfully lodged an
objection against the Magistrates' Court's decision.
- On
18 October 1999 the first applicant identified police officer Ali
Erdurucan as the person who had shot her husband Murat Bektaş.
- The
same day the six police officers being held in pre-trial detention
lodged an objection against their detention. The following day the
Adana Assize Court ordered the release of five of them and rejected
the objection lodged by Officer Ali Erdurucan.
- On
21 October 1999 the prosecutor heard evidence from the second
applicant, who contended that on the day of the incident at around
9.35 pm. her brother Erdinç Arslan had telephoned her. She had
heard him shouting “Let me go! Leave me!”. She maintained
that she had heard noises on the telephone but not gunfire.
C. Criminal proceedings against the police officers
- On
25 October 1999 the Adana prosecutor filed a bill of indictment with
the Adana Assize Court. In the indictment the prosecutor stated that,
prior to the operation, the security forces had failed to conduct an
investigation or gather information about the suspected persons and
had thus failed to plan the operation in a proper manner. The
prosecutor noted that officers Nurettin Bülbül, Haydar
Erol, Eyüp Yalçınkaya and Ali Erdurucan had broken
down the door to Murat Bektaş's flat and entered there
without issuing a warning. The prosecutor considered that, although
the officers alleged that they had not directly aimed at Murat
Bektaş, the wounds to Murat Bektaş's head could not have
been the result of random firing. As for the firearm found next to Mr
Bektaş's body, the prosecutor stated that his office had been
unable to determine how the firearm had come to be there; no
cartridges or bullets belonging to that firearm had been found at the
scene of the incident.
- With
regard to the killing of Erdinç Arslan, the prosecutor
observed in his indictment that the wound to Mr Arslan's head could
not have been the result of warning shots. Noting that the deceased
had only fired once, the prosecutor considered that officers Nurettin
Bülbül, Fevzi Mustan and Muammer Topaç had exceeded
the limits of self-defence by killing him.
- The
prosecutor charged Ali Erdurucan, Haydar Erol and Eyüp
Yalçınkaya with the offence of murder. Nurettin Bülbül
was charged with murder and with exceeding the limits of legitimate
self-defence. Finally, Fevzi Mustan and Muammer Topaç were
charged with the offence of causing death by exceeding the limits of
legitimate self-defence.
- On
12 December 1999 the Adana Assize Court (hereinafter “the trial
court”) held the first hearing on the merits of the case. On
the same day the applicants and the deceased men's other relatives
joined the proceedings as interveners.
- On
2 February 2000 the representative for the interveners requested the
trial court to order an investigation into the accused police
officers' superiors who had planned and controlled the operation. The
trial court dismissed this request, holding that the intervening
parties should apply to the prosecutor's office.
- On
28 March 2000 the trial court had regard to the time spent by Officer
Ali Erdurucan in detention and also noted that the collection of the
evidence was almost complete. Noting that Mr Erdurucan had a
permanent residence, the trial court ordered his release from prison.
- During
the subsequent hearings the trial court heard evidence from the
defendants, the applicants, the intervening parties, the police
officers who participated in the operation, the deceased persons'
neighbours and Mustafa Köprü. Mr Köprü changed
his previous statement and maintained that Erdinç Arslan had
in fact fired the Kalashnikov. The trial court also conducted an
on-site inspection of the two flats and ordered experts to take
photographs of the scene of the incident and to draw up a sketch map.
- During
the on-site inspection on 19 February 2001, the trial court ordered
an expert to draw up a report in order to determine whether the shots
had been fired at random and to establish the accuracy of the police
officers' account that they had not been able to establish the source
of the firing at the beginning of the operation.
- On
16 March 2001 the expert submitted his report to the trial court. He
concluded that the police officers had fired their guns at random.
The expert also considered that it was probable that the police
officers had failed to determine the direction of the shots fired
from the Kalashnikov because shots from such a powerful weapon would
have caused an echo in the building.
- On
9 May 2001 the trial court rendered its judgment. It held that there
was no evidence in the case file to prove that there had been a
premeditated plan to kill the two persons or that the firearms found
at the scene of the incident had been planted there by the police
officers who had participated in the operation.
- With
regard to the killing of Murat Bektaş, the trial court rejected
the first applicant's allegation that the lights had been on in the
flat at the time of the incident and that her husband had not had a
firearm. The trial court considered it probable that Murat Bektaş
had had a firearm in his hand as there were armed men in the
building. The trial court further noted that the police officers had
planned to render Mr Bektaş harmless in order to be able to
arrest him. It also observed that Murat Bektaş had not fired his
gun.
- The
trial court observed that the police officers had fired a total of
eighteen bullets and that Mr Bektaş had been shot in the head,
whereas the police officers should have aimed at other parts of his
body, such as his legs and feet, in order to avoid the risk to his
life. The trial court concluded that Nurettin Bülbül,
Haydar Erol, Eyüp Yalçınkaya and Ali Erdurucan had
exceeded the limits of their powers in resorting to force and had
thus caused Murat Bektaş's death. However, the trial court could
not determine which officer had actually killed Murat Bektaş and
it thus reduced the four police officers' sentences to eight years,
before further reducing them to six months and then suspending them
altogether.
- As
to the killing of Erdinç Arslan, the trial court noted at the
outset that the security forces had received information that the
deceased and Mustafa Köprü had been making explosives in
their flat with a view to carrying out bomb attacks on the provincial
offices of the three political parties which formed the coalition
Government at the time. The trial court observed that, according to
the expert report of 7 October 1999, Erdinç Arslan and Mustafa
Köprü's hand swabs revealed traces of antimony. It further
noted that an exchange of gunfire had begun between the police
officers who had secured the area outside the building and Erdinç
Arslan and Mustafa Köprü, who had been in the flat. It
recorded that twelve bullets had been fired from the Kalashnikov and
nine from the Unique firearm; both these weapons had been found in Mr
Arslan's flat. The court noted that a bullet had been fired from the
room in the direction of the police officers who had been on the
other side of the door.
- The
trial court considered that the police officers, who had been facing
two persons armed with weapons and bombs in a confined place, could
not have been expected to fire at non-life-threatening parts of
Mr Arslan's body. It therefore held that Nurettin Bülbül,
Fevzi Mustan and Muammer Topaç had remained within the limits
of legitimate self-defence. It concluded that there were no grounds
for imposing any punishment on those officers for the killing of
Erdinç Arslan.
- On
6 June 2001 the applicants appealed against the judgment of
9 May 2001 and maintained that the use of lethal force in
the circumstances of the case had not been absolutely necessary.
- On
29 May 2002 the Court of Cassation upheld the judgment of the Adana
Assize Court. On 31 July 2002 the Court of Cassation's decision was
deposited with the registry of the Adana Assize Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice are set out in the judgment of
Kasa v. Turkey (no. 45902/99, §§ 57-62, 20 May
2008).
THE LAW
ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants complained under Article 2 of the Convention that the use
of force by the security forces against Murat Bektaş and Erdinç
Arslan had been disproportionate and had resulted in their unlawful
killing. They further maintained under the same head that the
investigation and the criminal trial had been flawed and ineffective.
They contended in this connection that the acquittal of Nurettin
Bülbül, Fevzi Mustan and Muammer Topaç, and the
deferral of the execution of the sentences imposed on Nurettin
Bülbül, Haydar Erol, Eyüp Yalçınkaya and
Ali Erdurucan, had undermined the deterrent role of the judicial
system in preventing violations of the right to life.
Article
2 of the Convention reads 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.”
- The
Government contested the applicants' arguments.
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 killing of Murat Bektaş
- The
first applicant alleged that her husband had been killed unlawfully
and that the police officers responsible for the killing had not been
punished.
- The
Government submitted that there had never been any intention to kill
the applicant's husband; the police officers standing at the entrance
to the flat had fired warning shots towards the ceiling and not
directly at Mr Bektaş.
- The
Court observes that it has already been established by the Adana
Assize Court that the police officers exceeded the limits of their
powers and unlawfully caused the death of Murat Bektaş. Instead
of aiming at other parts of his body – such as his legs and
feet – and thus avoiding the risk to his life, the four police
officers fired eighteen bullets and shot Mr Bektaş in the head.
For the Court, that conclusion amounts to an acknowledgment in
substance that the death of Mr Bektaş was in breach of Article 2
of the Convention. This conclusion makes it unnecessary for the Court
to establish whether the force used by the police officers was
absolutely necessary and justified under Article 2 § 2 of the
Convention. The Court's examination of the first applicant's
complaint will therefore be limited to ascertaining whether or not
the national authorities afforded appropriate and sufficient redress
for the violation. In this connection the Court notes that, although
the police officers who killed Mr Bektaş were found guilty of
the offence of murder, they were sentenced to six months'
imprisonment which, in any event, was suspended.
- Article
2 of the Convention imposes a duty on the State to secure the right
to life by putting in place effective criminal-law provisions 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 (see Osman v. the United
Kingdom, 28 October 1998, § 115, Reports of
Judgments and Decisions 1998 VIII; Mastromatteo v. Italy
[GC], no. 37703/97, §§ 67 and 89, ECHR 2002 VIII;
Menson v. the United Kingdom (dec.), no. 47916/99, ECHR
2003 V). Compliance with the State's positive obligations
under Article 2 requires the domestic legal system to demonstrate its
capacity to enforce criminal law against those who have unlawfully
taken the life of another (see Nachova and Others v. Bulgaria
[GC], nos. 43577/98 and 43579/98, § 160, ECHR
2005-VII).
- While
there is no absolute obligation for all prosecutions to result in
conviction or in a particular sentence, the national courts should
not under any circumstances be prepared to allow life-endangering
offences to go unpunished. This is essential for maintaining public
confidence, ensuring adherence to the rule of law and preventing any
appearance of tolerance of or collusion in unlawful acts (see,
mutatis mutandis, Öneryıldız v. Turkey [GC],
no. 48939/99, § 96, ECHR 2004 XII; Okkalı v.
Turkey, no. 52067/99, § 65, ECHR 2006 XII
(extracts); Türkmen v. Turkey, no. 43124/98, §
51, 19 December 2006).
- Although
the Court should grant substantial deference to the national courts
in the choice of appropriate sanctions for ill-treatment and homicide
by State agents, it must exercise a certain power of review and
intervene in cases of manifest disproportion between the gravity of
the act and the punishment imposed (see Nikolova and Velichkova v.
Bulgaria, no. 7888/03, § 61, 20 December 2007).
- In
the present case, although the domestic law permitted the trial court
to mete out much higher sentences, it handed down extremely lenient
sentences for the offence of unlawful killing and then suspended them
altogether. By imposing such disproportionate sentences, the trial
court used its power of discretion to lessen the consequences of a
serious criminal act rather than to show that such acts could in no
way be tolerated (see Okkalı, cited above, § 75).
- In
conclusion, the Court considers that the criminal-law system, as
applied to the killing of Mr Bektaş, proved to be far from
rigorous and had little dissuasive effect capable of ensuring the
effective prevention of unlawful acts, such as those complained of by
the first applicant.
There
has accordingly been a violation of Article 2 of the Convention in
respect of the killing of Murat Bektaş.
2. The killing of Erdinç Arslan
- The
second applicant argued that the force used by the police officers in
killing her brother Erdinç Arslan had not been absolutely
necessary.
- The
Government were of the opinion that there was insufficient evidence
to prove that the police officers had acted with the intention to
kill.
- As
for the Government's submission, the Court reiterates that 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 v. the United
Kingdom, 27 September 1995, §§ 148-149, Series A
no. 324).
- In
the present case the Court notes firstly that it is undisputed
between the parties that the second applicant's brother Erdinç
Arslan was shot and killed by police officers. It follows therefore
that the Government bear the burden of proving that the force used by
the police officers was no more than absolutely necessary, within the
meaning of Article 2 § 2 of the Convention. In examining whether
the Government have discharged their burden the Court will not only
examine whether the use of lethal force used by the police officers
was no more than absolutely necessary, but also whether the operation
was regulated and organised in such a way as to minimise to the
greatest extent possible any risk to life (see Makaratzis
v. Greece [GC], no. 50385/99, § 60, ECHR 2004 XI).
- 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 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 the domestic authorities, in normal
circumstances it requires cogent elements to lead it to depart from
the findings of fact reached by such authorities (see, mutatis
mutandis, Klaas v. Germany, 22 September 1993, §
29-30, Series A no. 269).
- The
central importance of the protection afforded under Article 2 of the
Convention is such that the Court is required to subject allegations
of a 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).
- As
for the organisation of the operation, the Court observes that
thirty-six police officers arrived outside the block of flats half an
hour after having received an anonymous telephone call informing them
that a number of persons had been going in and out of a flat,
carrying suitcases. The Court has not been provided with information
to show that the police officers had to act as swiftly as they did
and that it was not possible to gather more information about the
activities of the suspicious persons by, for example, observing or
following them.
- However,
even assuming that the police officers had to act within that limited
time, not even the most rudimentary attempt appears to have been made
to establish the exact location of the target flat. As set out above,
the confusion created by that uncertainty tragically resulted in the
loss of life of Mr Bektaş. For the Court, the decision taken by
the police officers to raid all three flats simultaneously, coupled
with the fact that they were ready to employ lethal force with little
hesitation, is an indication that no discernible concern was
entertained by the police officers for the lives of the residents of
the three flats.
- Similarly,
the Court has not been provided with any information to show that the
police officers had given thought to employing non-lethal methods,
such as securing the area around the block of flats and then
evacuating the residents who had nothing to do with the operation
and, if all else failed, using non-lethal weapons. In fact the
Government, who were requested by the Court to provide documentary
evidence concerning the planning and conduct of the operation, have
failed to do so. As such, the Court is unable to establish how
exactly the police officers were instructed by their superiors to
apprehend the suspects.
- In
the light of the foregoing, the Court shares the prosecutor's view
(see paragraph 26 above) that no adequate steps were taken in the
planning of the operation.
- With
reference to the carrying-out of the operation itself the Court will
have regard to the investigation, trial and documents drawn up. As
stated above, the Adana Assize Court concluded that the police
officers responsible for the killing of Mr Arslan had acted
within the permissible limits of self-defence (see paragraph 39
above).
- The
Court observes at the outset that the police officers who killed Mr
Arslan on 5 October 1999 were not questioned until 12 October
1999. For the Court, a delay of seven days in questioning the main
suspects in an investigation into the killings fails to show the
required diligence. It not only creates an appearance of collusion
between the judicial authorities and the police, but is also liable
to lead the relatives of the deceased – as well as the public
in general – to form the opinion that members of the security
forces operate in a vacuum in which they are not accountable to the
judicial authorities for their actions. Moreover, it cannot be
excluded that the failure to question the police officers in a timely
fashion, coupled with the fact that they continued in the meantime to
work as police officers, created the risk of collusion with one
another (see Ramsahai and Others v. the Netherlands [GC],
no. 52391/99, § 330, ECHR 2007 ...).
- Secondly,
it is to be noted that the police officers who took part in the
investigation also carried out the initial investigation themselves
and secured the crucial evidence such as bullets, spent cartridges
and weapons. The Court considers that allowing the very same police
officers who killed the second applicant's brother to secure the
crucial evidence is so serious as to taint the independence of the
entirety of the criminal proceedings (see, mutatis mutandis,
Ramsahai, cited above, §§ 339-341).
- Thirdly,
the Court is struck by the trial court's failure to attempt to
clarify the conflicting information with which it was provided
concerning the number of times the deceased Mr Arslan and Mr Mustafa
Köprü allegedly opened fire. According to the initial
police report, fire was opened from Mr Arslan's flat on a number of
occasions and subsequently there was crossfire between the police
officers and the occupants of the flat (see paragraph 10 above).
According, however, to the information given by two of the police
officers from the Special Forces who took an active part in the
operation, there was no crossfire and only one shot was fired from
the room where Erdinç Arslan and Mustafa Köprü had
been hiding (see paragraph 21 above).
- Fourthly,
there is no information in the case file to indicate that the two
weapons allegedly found in Erdinç Arslan's flat were examined
for fingerprints to establish whether or not they had been handled by
the deceased or by Mustafa Köprü. This failure exacerbates
the failure to clarify the above-mentioned contradictory information
concerning the exchange of fire.
- In
its judgments in a number of cases against Turkey concerning similar
operations during which police officers used lethal force, the Court
held that it could not with detached reflection substitute its own
assessment of the situation for that of the officers who had been
required to react in the heat of the moment; 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 Gülen
v. Turkey, no. 28226/02, § 37, 14 October 2008; Kasa,
cited above, § 87; Yüksel Erdoğan and Others
v. Turkey, no. 57049/00, § 99, 15 February 2007; Perk
and Others v. Turkey, no. 50739/99, § 72, 28 March
2006). In the present case, however, owing to the lack of proper
planning of the operation, coupled with the defects in the
investigation which are highlighted above, the Government have not
proved to the Court's satisfaction that the police officers had to
act in the heat of the moment and that the lethal force used by them
was no more than absolutely necessary.
Accordingly,
there has been a violation of Article 2 of the Convention in respect
of the killing of the second applicant's brother, Erdinç
Arslan.
II. 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
first applicant claimed that her husband had been working as a
cleaner in a factory, earning approximately 50 euros (EUR) per month.
After he was killed she had been unable to find a job for a period of
two years and during that time she and her son had not had any
income. She thus claimed the sum of EUR 2,800 in respect of pecuniary
damage. This sum represented her deceased husband's wages for the two
years in question, together with interest. The first applicant also
claimed the sum of EUR 100,000 in respect of non-pecuniary
damage.
- The
second applicant stated that her deceased brother Erdinç
Arslan had been a university student and had not had any income.
Under the head of pecuniary damage she claimed EUR 200 in respect of
her brother's funeral expenses. She also claimed EUR 100,000 in
respect of non-pecuniary damage.
- The
Government considered that the sums claimed by the applicants were
excessive, unsubstantiated and therefore unacceptable.
- The
Court's case-law has established that there must be a clear causal
connection between the damages claimed by an applicant and the
violation of the Convention and that this may, in appropriate cases,
include compensation in respect of loss of earnings (see, among other
authorities, Barberà, Messegué and Jabardo v. Spain
(Article 50), 13 June 1994, §§ 16 20, Series
A no. 285-C). The Court has found (see paragraphs 53 and 69
above) that the authorities were liable under Article 2 of the
Convention for the deaths of the first applicant's husband Murat
Bektaş and the second applicant's brother Erdinç Arslan.
It also notes that the first applicant's submission that her husband
had been providing for her and her son financially was not disputed
by the Government. In these circumstances, a direct causal link has
been established between the violation of Article 2 and the first
applicant's loss of the financial support provided by her husband.
The Court also considers that the sum claimed by the second applicant
in respect of the funeral expenses of her brother does not, owing to
its nature, require substantiation.
- Furthermore,
the Court is not persuaded that the sums claimed by the applicants
for pecuniary damage are excessive. It therefore awards the
applicants the sums claimed by them in full – that is, EUR
2,800 to the first applicant and EUR 200 to the second applicant –
in respect of pecuniary damage.
- Deciding
on an equitable basis, the Court also awards the first applicant EUR
60,000 and the second applicant EUR 40,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants claimed EUR 500 for translation costs and EUR 1,000
in respect of the fees of their legal representative, and submitted
documentary evidence in respect of their claims.
- In
the Government's opinion, the applicants had not submitted any
documents in respect of their claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. Contrary to what was suggested by the
Government, the applicants did in fact submit to the Court fee
agreements with their legal representative and a certified receipt
from an interpreter in respect of the amounts claimed by them. Thus,
regard being had to the information and documents in its possession,
the Court considers it reasonable to award the applicants jointly the
sum of EUR 1,500 for their costs and expenses.
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 UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
2 of the Convention in respect of the killing of the first
applicant's husband Murat Bektaş;
- Holds that there has been a violation of Article
2 of the Convention in respect of the killing of the second
applicant's brother Erdinç Arslan;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Turkish liras at the rate applicable at
the date of settlement:
(i) to
the first applicant, Mrs Kezban Bektaş, EUR 2,800 (two thousand
eight hundred euros) in respect of pecuniary damage and EUR 60,000
(sixty thousand euros) in respect of non-pecuniary damage, plus any
tax that may be chargeable;
(ii) to
the second applicant, Ms Gülay Özalp, EUR 200 (two hundred
euros) in respect of pecuniary damage and EUR 40,000 (forty thousand
euros) in respect of non-pecuniary damage, plus any tax that may be
chargeable; and
(iii) to
the two applicants jointly, EUR 1,500 (one thousand five hundred
euros) in respect of costs and expenses, plus any tax that may be
chargeable to them;
(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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 20 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
