SECOND SECTION
CASE OF
KÜLAH AND KOYUNCU v. TURKEY
(Application no.
24827/05)
JUDGMENT
STRASBOURG
23 April 2013
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 Külah and Koyuncu v. Turkey,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
András Sajó,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 26 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
24827/05) 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, Mr İbrahim Külah and Ms Naile
Koyuncu on 7 June 2005.
The applicants, who had been granted legal aid,
were represented by Mr Nihat Osmanoğlu, a lawyer practising in İzmir.
The Turkish Government (“the Government”) were represented by their Agent.
The applicants alleged, in particular, that the
killing of their son by a police officer had been in breach of Article 2 of the
Convention.
On 22 March 2010 the President of the Second
Section decided to give notice of the application. It was also decided to rule
on the admissibility and merits of the application at the same time (Article 29
§ 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1957 and 1958
respectively and live in İzmir.
The facts of the case, as submitted by the
parties and as they appear from the documents submitted by them, may be
summarised as follows.
On 2 July 2001 at about 10 p.m. the applicants’
19-year-old son Ali Külah was sitting in a park in İzmir with two friends
when a police van stopped nearby and police officers asked them to show their
identity cards. The three men gave their identity cards to police officer Ö.A.,
who passed them on to a civilian sitting in the police van. When the applicants’
son Ali protested and said that the civilian had no business checking his
identity card, a uniformed police officer told him to shut up, before
proceeding to slap him in the face.
When Ali fell to the ground from the force of the
slap, other police officers jumped on him and started beating him up. When Ali
managed to free himself from the melee and started running away, police officer
Ö.A. gave chase and caught up with him a few blocks away. Officer Ö.A. then
kicked Ali and he fell to the ground once again. A gunshot was then heard and
officer Ö.A. was seen holding a pistol in his hand and standing next to Ali.
Ali was taken to hospital where his condition was deemed to be life-threatening.
The following day police officers and a
prosecutor took two statements from Ali while he was in the intensive care unit
of the hospital. Ali confirmed the version of the events set out above, and
asked for the officer to be prosecuted.
On 6 July 2001 Ali died in the hospital.
According to the post-mortem report, the cause of death was a bullet which had entered
his neck and exited through his back. A number of injuries observed on his body
were also recorded in the report.
In the meantime, according to two police reports
drawn up on 3 July 2001, officer Ö.A. was not arrested after the incident.
He was released without “having been placed in police custody” and “without
having been brought before a doctor”. According to the reports, the officer was
transferred to the prosecutor’s office for questioning.
A medical report drawn up on 2 July 2001 notes,
however, various cuts and bruised areas on the officer’s body.
On 13 July 2001 the first applicant, Mr Külah,
made an official complaint against the police officer responsible for killing
his son.
A. Criminal proceedings against officer Ö.A.
On 16 November 2001 the İzmir prosecutor
filed an indictment with the İzmir Assize Court (hereinafter “the trial
court”) and charged officer Ö.A. with the offence of manslaughter.
In the course of the trial, officer Ö.A. told
the trial court that during the scuffle Ali had attempted to take his pistol.
When the pistol had fired, both of them had been holding it, but the officer
did not remember which end of the pistol he had been holding.
When the applicants’ legal representative asked
the trial court to obtain copies of the ballistic examination reports of the
officer’s pistol, it became apparent that the pistol had not been examined for
finger prints; it had simply been returned to him by his colleagues after the
incident.
In the course of the trial the applicants
submitted a number of petitions to the trial court and complained about various
defects in the investigation. They argued, in particular, that the report in respect
of officer Ö.A.’s medical examination was dubious because it was dated 2 July
2001. In this connection they pointed to the above-mentioned police reports of
3 July 2001 according to which officer Ö.A. had not been medically
examined. The applicants brought an official complaint against the persons
responsible for drafting the report but the complaint was rejected by the
prosecutor and the prosecutor’s decision was upheld by the Karşıyaka
Assize Court on 13 April 2005.
On 30 December 2003 the trial court found that
officer Ö.A. had shot the applicants’ son Ali with a view to neutralising his
resistance to being arrested. It concluded, however, that officer Ö.A. had
committed the offence of manslaughter because he had exceeded the limits of his
powers in resorting to force which had caused Ali Külah’s death. He was
sentenced to eight years’ imprisonment but the trial court reduced the sentence
to one year, four months and three days because the officer had committed the
offence in the exercise of his duties. Observing that the officer had behaved
well during the hearings, it further reduced the sentence to one year, one
month and ten days. The execution of the sentence was suspended because the
officer had no previous criminal record and because the trial court considered
that he was not likely to commit any offences in the future.
The applicants appealed against the judgment and
repeated their submissions concerning the defects in the investigation.
Referring to the Court’s judgments in cases against Turkey, the applicants
argued, inter alia, that the investigation and the trial had been in
breach of various provisions of the European Convention on Human Rights,
including the right to life.
On 14 November 2005 the Court of Cassation
dismissed the appeal in so far as it concerned the trial court’s conclusion
concerning the finding of guilt, but quashed it and sent it back to the trial
court so that the case could be examined in the light of the provisions of the
new Criminal Code which had entered into force in the meantime.
On 31 March 2006 the trial court noted that the
provisions of the former Criminal Code under which the officer had been found
guilty and sentenced were more favourable to him, and reiterated the
conclusions it had reached on 30 December 2003.
The appeal lodged by the applicants was
dismissed by the Court of Cassation on 21 May 2007.
B. Criminal proceedings for the destruction of the
evidence
The applicants also made an official complaint
against the police and a prosecutor for failing to ensure a fingerprint
analysis of the pistol. A police officer, A.Y., was held by the İzmir
Criminal Court of First Instance to have failed to take the necessary steps at the
crime scene. He was also found to be at fault by handing back officer Ö.A.’s
pistol before ballistic examinations had been carried out. On 30 October 2008
he was sentenced to the payment of a fine of 861 Turkish liras (TRY) (approximately
480 euros (EUR) at the time).
Both the applicants and officer A.Y. lodged an
appeal against the judgment. On 11 November 2010 the Court of Cassation noted
that the statute of limitations had expired, and decided to discontinue the
criminal proceedings against officer A.Y.
C. Civil and administrative proceedings
In the meantime, the applicants brought a civil
claim against officer Ö.A. and the Ministry of the Interior. On 8 June 2009 the
İzmir Civil Court of First Instance ordered officer Ö.A. to pay the
applicants TRY 13,875 (approximately EUR 5,550 at the time). The claim
made against the Ministry was rejected on the ground that no such claim could
be brought against the Ministry before a civil court.
The applicants also unsuccessfully brought a
claim against the Ministry of Justice before the Ankara Administrative Court,
and argued that the Ministry had been responsible for the defects in the
investigation. In that connection the applicants alleged, inter alia, that
their son had been deprived of his right to life as a result of the actions of
the police officer and that the judicial authorities had breached their
obligations under Articles 2, 3, 6 and 13 of the Convention by failing to
conduct an effective investigation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2, 6 AND 13 OF
THE CONVENTION
The applicants complained under Articles 2, 6
and 13 of the Convention that their son’s right to life had been violated and
that the national authorities had failed to conduct an effective investigation
into the killing.
The Court considers that the essence of the
applicants’ complaints concerns the deprivation of their son’s right to life
and the effectiveness of the investigation into the killing. The Court thus
considers it appropriate to examine all of the above complaints solely from the
standpoint of Article 2 of the Convention, which 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 that argument.
A. Admissibility
The Government were of the opinion that the
applicants had not complied with the obligation to exhaust domestic remedies
because they had not raised the substance of their complaints before the
administrative courts. They also submitted that the applicants had applied to
the Court while the criminal proceedings were still continuing.
Finally, the Government considered that the
applicants could no longer claim to be victims within the meaning of Article 34
of the Convention because an effective investigation had been carried out by
the authorities and the applicants had applied for and received compensation
for the death of their son.
The Court observes that the applicants did raise
the substance of their complaints before the Ankara Administrative Court and
referred expressly to their rights under the Convention (see paragraph 26
above). It also notes that the applicants exhausted all criminal remedies in
relation to the killing of their son (see paragraph 22 above). It therefore
rejects the first element of the Government’s objection.
Concerning the Government’s objection to the
applicants’ victim status the Court reiterates that a decision or measure
favourable to an applicant is not, in principle, sufficient to deprive that individual
of his or her status as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded redress for
the breach of the Convention (see Nikolova and Velichkova v.
Bulgaria, no. 7888/03, § 49, 20 December 2007, and the
case cited therein).
As for the Government’s objection based on the
issue of compensation, the Court reiterates that it has
already examined and rejected similar preliminary objections made in similar
cases (see Özcan and Others v. Turkey, no. 18893/05, § 54, 20 April 2010; Peker v. Turkey (no. 2), no. 42136/06, §§ 44 and 46,
12 April 2011). It finds no particular circumstances in the instant case which
would require it to depart from its findings in the above-mentioned cases. It
therefore rejects the Government’s objection in so far as it concerns
the issue of compensation.
As for the Government’s objection to the
applicants’ victim status based on the investigation which, in the opinion of
the Government, had been effective, the Court observes that that objection
raises issues which are closely
linked to the question of redress. The Court thus considers it appropriate to
address this point in its examination of the merits of the applicants’
complaint under Article 2 of the Convention, and joins it to the merits (see paragraph 44
below). Noting that no other obstacle to its admissibility exist, the Court
declares the complaint admissible.
B. Merits
The applicants maintained that their son had
been killed in circumstances which were in breach of Article 2 of the
Convention. The authorities had both failed to collect the vital evidence and
had destroyed it, which meant that the officer responsible for the killing was given
a lenient sentence.
The Government argued that the applicants’ son
had not been killed intentionally; he had been trying to escape from police
officers and resisting their attempts to arrest him. The police officers had
warned him and asked him to surrender but he had not complied. The applicants’
son had died in the course of his fight with the police officer.
The Court observes that it has already been
established by the İzmir Assize Court that police officer Ö.A. exceeded
the limits of his powers and unlawfully caused the death of Ali Külah. For the
Court, that conclusion amounts to an acknowledgment in substance that the death
of Mr Külah 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 officer was absolutely necessary and justified under Article 2 § 2 of
the Convention. The Court’s examination of the applicants’ complaint will
therefore be limited to ascertaining whether or not the national authorities
afforded appropriate and sufficient redress for the violation (see Fadime and Turan Karabulut v. Turkey, no. 23872/04, § 43, 27 May 2010; Bektaş
and Özalp v. Turkey, no. 10036/03, § 48, 20 April 2010) and
whether they have thus complied with their substantive and procedural
obligations under Article 2 of the Convention. In this connection the
Court notes that, although officer Ö.A. who killed Mr Külah was found guilty of
the offence of manslaughter, he was given a lenient prison sentence, which, in
any event, was suspended.
The Court reiterates that the State’s positive
obligation under Article 2 of the Convention to protect
life through the law 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). In order to examine whether that
obligation is satisfied, it is for the Court to review whether and to what
extent the national courts, in reaching their conclusions, may be deemed to
have submitted the case to the careful scrutiny required by Article 2 of the
Convention, so that the deterrent effect of the judicial system in place and
the significance of the role it is required to play in preventing violations of
the right to life are not undermined (see Ali and Ayşe Duran
v. Turkey, no. 42942/02, § 62, 8 April 2008).
It must be emphasised that, 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);
and 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, cited above, § 61).
In the present case, although the domestic law
permitted the trial court to mete out a much higher sentence, the court handed
down an extremely lenient sentence for the offence of unlawful killing and then
suspended it altogether. By imposing such a disproportionate sentence, 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 Külah, 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
applicants.
In light of the foregoing the Court rejects the
Government’s objection to the applicants’ victim status (see paragraph 35
above) and finds that there has been a violation of Article 2 of the
Convention both in its substantive and procedural aspects on account of the
unlawful killing of the applicants’ son Ali Külah by police officer Ö.A. as
well as on account of the suspension of the police officer’s prison sentence
which, in effect, rendered his conviction ineffective
(see, mutatis mutandis, Taylan v. Turkey, no. 32051/09, § 46, 3 July 2012).
II. ALLEGED VIOLATION OF ARTICLES 3 AND 5 OF THE
CONVENTION
Relying on Article 3 of the Convention the
applicants complained that their son had been beaten up by police officers
prior to his death. In support of that complaint the applicants referred to the
autopsy report, detailing a number of injuries on their son’s body. Relying on
Article 5 of the Convention, the applicants also complained that their son had
been arrested arbitrarily.
The Government contested those arguments.
The Court considers that these complaints should
be declared admissible. However, having regard to the
violation found above, the Court does not deem it necessary to examine these
complaints separately on the merits.
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 applicants claimed EUR 80,000 in respect of
pecuniary damage and EUR 120,000 in respect of non-pecuniary damage.
The Government considered the claim for
pecuniary damage to be unsubstantiated. The Government also considered that the
claim for non-pecuniary damage was excessive and would lead to unjust
enrichment.
The Court observes that the applicants have not
submitted to the Court any documents in support of their claim for pecuniary
damage; it therefore rejects this claim. On the other hand, it awards the applicants
jointly EUR 65,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicants also claimed EUR 20,000 for the
costs and expenses incurred before the domestic courts and for those incurred
before the Court.
The Government noted that the claim for costs
and expenses was not supported with any evidence.
According to the Court’s case-law, an applicant
is entitled to 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. In the present case, the applicants have not
substantiated that they actually incurred the costs claimed. In particular,
they failed to submit documentary evidence, such as bills, receipts, a
contract, a fee agreement or a breakdown of the hours
spent by their lawyer on the case. Accordingly, 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 UNANIMOUSLY
1. Joins to the merits the Government’s
objection to the applicants’ victim status and dismisses it;
2. Declares the application admissible;
3. Holds that there has been a violation of
Article 2 of the Convention in its substantive and procedural aspects on
account of the killing of the applicants’ son Ali Külah;
4. Holds that there is no need to examine the
complaints under Articles 3 and 5 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicants
jointly, within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 65,000 (sixty-five
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(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;
6. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 23 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
