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THIRD
SECTION
CASE OF YÜKSEL ERDOĞAN AND OTHERS v. TURKEY
(Application
no. 57049/00)
JUDGMENT
STRASBOURG
15
February 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Yüksel Erdoğan and Others v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič, President,
Mr J.
Hedigan,
Mr R. Türmen,
Mrs A. Gyulumyan,
Mr E.
Myjer,
Mrs I. Ziemele,
Mrs I. Berro-Lefèvre,
judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 25 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 57049/00)
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 nine Turkish nationals, Mr
Yüksel Erdoğan, Mrs Meliha Erdoğan, Mr Sinan
Erdoğan, Mrs Bahar Sağlam, Mr Şinasi Yalçın,
Mr Hüsnü Yalçın, Mr Ali Yalçın, Mr
Ramazan Erdoğan and Mrs Raşidiye Erdoğan (“the
applicants”), on 25 February 2000.
- The
applicants were represented by Mr B. Aşçı, Mr M.
Narin and Mrs A.N. Çelik, Mr M. Köylüoğlu,
Mr C. Yücel and Mr H.İ. Türkyılmaz, lawyers
practising in Istanbul. The Turkish Government did not designate an
Agent for the purposes of the proceedings before the Court.
- The
applicants alleged under Article 2 of the Convention that their
relatives, Fuat Erdoğan, Elmas Yalçın and İsmet
Erdoğan, had been unlawfully killed by the security forces and
that the authorities had failed to conduct an
effective investigation into the circumstances of the case. They
further maintained under Article 6 of the Convention that the
criminal proceedings brought against the police officers had not been
concluded within a “reasonable time”.
- On
11 March 2005 the Court decided to give notice of the application to
the Government. 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.
- On
2 May 2005 the Registry requested the applicants' representatives to
submit a power of attorney signed by two of the applicants, namely
Mr Ramazan Erdoğan and Mrs Raşidiye Erdoğan by 13
May 2005.
- On
16 May 2005 one of the applicants' representatives requested an
extension of one month of the time allowed for submission of the
power of attorney on the ground that these applicants lived in
another city. On 7 June 2005 the Registry informed the
applicants' representatives that the President of the Chamber had
agreed to grant the extension requested. The applicants'
representatives were also warned that the case might be struck out of
the list for lack of interest. In a letter dated 29 September 2006
the applicants' representatives were once again warned that the case
might be struck out of the list for lack of interest.
- No
response was received by the Court to the letters of 16 May and
29 September 2006.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants' dates of birth and their relationship to the three
persons who were killed are described as follows:
Yüksel
Erdoğan (1943) and Meliha Erdoğan (1942) are the
parents and Sinan Erdoğan (1962) and Bahar Sağlam (1970)
are the siblings of the late İsmet Erdoğan. Şinasi
Yalçın (1970), Hüsnü Yalçın (1952)
and Ali Yalçın (1954) are the brothers of the late
Elmas Yalçın. Ramazan Erdoğan and Raşidiye
Erdoğan are the parents of the late Fuat Erdoğan.
A. The killing of İsmet Erdoğan, Elmas Yalçın
and Fuat Erdoğan and the subsequent investigation into the
circumstances of their death
- On
28 September 1994 Fuat Erdoğan, Elmas Yalçın and
İsmet Erdoğan were killed in the Arzum café in
Beşiktaş, a central district in Istanbul, by police
officers from the Anti-Terror Branch of the Istanbul Security
Directorate. According to a report (ihbar tutanağı)
drafted by two police officers on the same date at 3.45 pm, the
Security Directorate received an anonymous phone call on the Security
Directorate's internal telephone number 139. The caller informed the
police that he had seen two men and a woman in Beşiktaş and
that one of the men had given a weapon to the woman. He also told the
police officer that these three persons were in the Arzum café.
- On
the same day, an arrest report (olaylı yakalama ve
zaptetme tutanağı) was drawn up by eight police
officers from the Anti-Terror Branch of the Istanbul Security
Directorate. According to this report, after having received the
anonymous phone call, the police officers arrived at the Arzum café.
They told the suspects, who were on the second floor of the café,
that they were police officers and requested them to submit their
identity cards. The suspects started shouting and opened fire. The
officers then ordered the suspects to surrender and responded to
their firing in order to protect themselves. When they realised that
there was no more gunfire coming from the suspects they stopped the
fire. They then saw that the three suspects were dead and informed
the public prosecutor. The identity cards found on the deceased bore
different names to those of the applicants' relatives. Furthermore,
two firearms, three chargers, six cartridges of 7,65 mm calibre, five
empty cartridges of 7,65 mm calibre, twenty empty cartridges of 9 mm
calibre and five bullets were found next to two of the corpses. The
police officers also found some documents on one of the male corpses.
- On the same day, at 8.10 pm, the Istanbul public
prosecutor drew up a report, according to which he arrived at the
scene of the incident after having received a phone call from the
central police station at 5.10 pm. He maintained in the report that a
medical doctor from the Forensic Medicine Institute had been invited
to examine the corpses. The medical doctor arrived at the scene of
the incident at 7.10 pm and examined the corpses, which were then
sent to the morgue of the Forensic Medicine Institute. According to
the report, the police officers from the Technical Office of the
Istanbul Security Directorate took the fingerprints of the deceased
in order to determine their identity. The public prosecutor further
ordered that the bullets, cartridges and the two firearms that had
been found next to the corpses be handed over to the police officers
from the Technical Office of the Istanbul Security Directorate.
However, they were given to A.B., one of the police officers who had
been involved in the police operation in question.
- On
the same day, two police officers took statements from N.A., C.A. and
S.A., three persons who ran the Arzum café. N.A.
confirmed the arrival of the deceased at the café, but that
when the police officers arrived 15 to 20 minutes later, she had
not been inside the café. She contended that she had heard the
police officers ordering the suspects to surrender and then heard the
shooting. N.A. further contended that she had subsequently learned
that the suspects had been terrorists and killed in the café
during the armed clash. N.A. finally stated that she did not know the
deceased.
- C.A.
and S.A. contended that when the police officers arrived they ordered
the suspects to surrender. They maintained that they had left the
café when the police officers asked them and their clients to
leave. While they were leaving they heard gunfire. They contended
that they had subsequently learned that the deceased had been
terrorists and had died as a result of the armed clash.
- On
29 September 1994 autopsies were carried out on the deceased. The
autopsy reports were drafted on 20 October 1994.
- According
to the report concerning Fuat Erdoğan, he had received two
bullets to his head and three bullets to other parts of his body. Two
bullet entry wounds were observed on the right and left temples. The
other three bullets entered in the body from the upper parts of the
left and right femur and below the left scapula. The bullet exit
wounds were observed next to the xiphoid,
above the scrotum and next to the pubic bone. The cause of his
death was stated as fracture of the skull, internal bleeding and
cerebral haemorrhage. The experts further noted that a paraffin test,
which was to be conducted to detect gunpowder in the hands of the
deceased, could not be carried out as there was ink on both of his
hands due to the taking of fingerprints by police officers at the
scene of the incident.
- The
report concerning İsmet Erdoğan revealed that he had
received two bullets to his body. The bullet entry wounds were seen
on the right of the parietal bone and on the scapular line on the
back. One bullet exit wound was observed on the left ear. The report
concluded that his death resulted from fracture of the skull,
cerebral haemorrhage and damage to the cerebral tissue.
- According
to the report regarding Elmas Yalçın, she had received
one bullet to her head and one to her abdomen. The bullet entry
wounds were seen on the right of the parietal bone and the right of
the abdomen. The bullet exit wounds were observed in the middle of
her lower lip and on the right gluteus. The cause of her death was
also determined as fracture of the skull, cerebral haemorrhage and
damage to the cerebral tissue. The experts further noted that there
was ink on both of her hands due to the taking of fingerprints by
police officers at the scene of the incident.
- According
to the autopsy reports, all of the shots were fired at long range.
- By a letter dated 30 September 1994 the director of
the anti-terror branch sent a Browning firearm, an Unique firearm,
two chargers, twenty empty cartridges of 9 mm calibre, five empty
cartridges of 7,65 mm calibre, six cartridges, four bullets of 9 mm
calibre and one bullet of 7,65 mm calibre to the Istanbul Regional
Criminal Police Laboratory for a ballistic examination. The director
stated in his letter that these items had been found near the corpses
and belonged to the deceased.
- On
5 October 1994 a ballistic examination of the two firearms, bullets
and cartridges found at the scene of the incident was conducted by
two experts from the Istanbul Regional Criminal Police Laboratory.
According to the report drawn up by these experts, five empty
cartridges and a bullet of 7,65 mm calibre were discharged from the
two firearms that had been found in the vicinity of the corpses and
the remaining twenty cartridges and four bullets of 9 mm calibre
were discharged from the police officers' firearms. On the same day,
the deputy director of the Criminal Police Laboratory informed the
anti-terror branch that the firearms examined had not been previously
used in committing any other offence.
- On
6 October 1994 N.A., S.A. and C.A. made statements before the
Istanbul public prosecutor. N.A. maintained that she had not been in
the café at the time of the incident and that when she had
been contacted on the phone, she had been told that there had been a
clash between terrorists and police officers. When she arrived at the
Arzum café the clash was already over and the suspects were
dead. When the public prosecutor stressed that there had been a
contradiction between her statements given before him and those given
to the police, N.A. stated that she had not been in the café
when the suspects arrived. She contended that while she was leaving
the café, she heard some police officers giving orders to
surrender.
- S.A.
and C.A. told the public prosecutor that N.A. had not been in the
café when the suspects had arrived. They contended that they
had been told to leave the café by plainclothes police
officers. They then heard the police orders to surrender and went to
the neighbouring shop. They stated that they had heard gunfire and
had subsequently learned that the three suspects were dead.
- On
18 October 1994 three experts from the Forensic Medicine Institute
conducted an examination of the clothes of the deceased. The experts
concluded that the shots were not fired at short range. They further
considered that it was not possible to determine the exact range of
the shootings.
- On
1 November 1994 the director of the anti-terror branch of the
Istanbul Security Directorate sent the tapes and the transcripts of
two television programmes concerning the incident, during which
journalists interviewed N.A., the owner of the Arzum café and
an unidentified witness. N.A. maintained that she had been outside
the café when the police officers arrived at the café,
10 or 15 minutes after the arrival of the deceased. She further
contended that she had been told that the police officers had ordered
the clients to surrender and that, as the latter had not accepted to
surrender, the police officers had opened fire. The other eyewitness
stated that the police officers had entered the café and asked
the deceased to surrender. He further maintained that the suspects
had opened fire first and that the police officers had responded by
opening fire, which resulted in a clash. The eyewitness however
contended that he had not been in the café at the time of the
incident, but outside with other police officers.
- On
4 November 1994 the Istanbul public prosecutor obtained statements
from two police officers, R.A. and H.K. The officers maintained that
there had been gunfire coming from the suspects and that they had
responded to the fire in order to frighten the suspects and make them
stop the firing.
- On
21 November 1994 the public prosecutor obtained statements from Ş.K
and A.B. who contended that the police officers had opened fire in
order to frighten the suspects and that they had not had the
intention to kill them. A.B. further maintained that police officers
wearing bullet-proof vests had entered the café while he and
some other police officers had been outside, as they had taken
security measures around the café.
B. Criminal proceedings against the police officers
- On
22 November 1994 the Istanbul public prosecutor filed a bill of
indictment with the Istanbul Assize Court against four police
officers, Ş.K., M.K., R.A. and H.K., from the Anti-Terror Branch
of the Istanbul Security Directorate. He issued a non-prosecution
decision regarding B.A., another suspected police officer, since he
had died. The charges were brought under Articles 450 § 5,
463, 281, 31, 33, 50 and 49 §§ 1 and 3 of the
Criminal Code. The defendants were accused of manslaughter -
without the actual offender being identified - during an armed clash
between the deceased suspects and the security forces.
- On
29 November 1994 the Istanbul Assize Court held the first hearing.
1. Hearing of 9 February 1995
- On
9 February 1995 one of the applicants, Yüksel Erdoğan, and
Elmas Yalçın's father, Mustafa Yalçın
intervened as a civil party (müdahil) to the criminal
proceedings brought against the officers. On the same day, the
first-instance court ordered the ballistic examination of the empty
cartridges and decided that the defendants would not be detained on
remand throughout the proceedings in accordance with Article 15 §
1 of the Prevention of Terrorism Act. The court further ordered that
the firearms which had been given to A.B. be sent to the custody
office (adliye emanet memurluğu) of the Istanbul Courts.
2. Hearings of 5 May and 6 July 1995
- On
5 May 1995 the accused police officers made statements before the
Istanbul Assize Court. They all maintained that when they had arrived
at the Arzum café they had taken the two persons who ran the
café outside. They then entered the café and told the
suspects that they were police officers. The suspects however opened
fire. The defendants further contended that there had been gunfire
emanating from the suspects and that in order to frighten the latter
and protect themselves, they responded to the gunfire. One of the
defendants, Ş.K. maintained that he had not opened fire. The
defendants all contended that they had not been wearing bullet-proof
vests when they had entered the café. On the same day, two
witnesses E.M. and N.Ç., police officers from the anti-terror
Branch of the Istanbul Security Directorate, also made statements
before the court. They contended that they had been outside the café.
Therefore, they did not witness the clash but heard the accused
police officers ordering the suspects to surrender.
- During
the hearing, the intervening parties' lawyers requested the court to
ask the defendants certain questions concerning the trajectory of the
bullets and the range of the shootings. The Istanbul Assize Court
dismissed these requests holding that it was not necessary to have
responses to these questions.
- On
the same day, the first-instance court ordered that the defendants'
firearms be handed over for a ballistic examination. It further
ordered that the bullets which had been found at the scene of the
incident be subject to an examination with a view to determining
which of these bullets and cartridges were discharged from the
defendants' weapons.
- At
the end of the hearing of 6 July 1995 the first-instance court once
again ordered that the defendants' firearms be sent for a ballistic
examination.
3. Hearings of 30 October and 13 December 1995 and the
subsequent developments
- On
30 October 1995 the Istanbul Assize Court further heard four
witnesses, A.B., police officer from the Anti-Terror Branch, N.A.,
C.A. and S.A., three persons who ran the Arzum café. A.B.
maintained that he had not been inside the coffee shop and had not
witnessed the incident, yet, he had heard the officers warning the
suspects. He contended that as soon as the police officers entered
the café, he had heard one gun shot and that he did not know
whether it was the police officers or the suspects who had fired
first. He further contended that he had signed the arrest report and
that he could not remember the exact location of the firearms at the
scene of the incident. A.B. finally maintained that he did not
remember who had given the warnings to the deceased. N.A., the owner
of the Arzum café, testified that she had not been in the café
on the day of the incident and that she had been informed about the
incident by her sister S.A. She further contended that the windows in
the café had not been struck by the bullets. When the
first-instance court reiterated her statement before the police and
emphasised that there was a contradiction between the two statements,
she maintained that she had taken tranquillizers before her
statements had been taken by the police and that she had signed these
statements without having read them. S.A. and C.A contended that they
had been told by the police officers to go outside and that they had
not witnessed the incident. C.A. maintained that she had heard the
officers' warnings but as she had been in another shop she had not
heard anything else. She contended that she did not remember how much
time after hearing the officers the gunshots had started. S.A.
witnessed that she had heard the officers' ordering the suspects to
surrender. S.A. further contended that 2 to 3 seconds after hearing
the officers speak, she heard gun shots which had lasted 2 to 3
minutes. She maintained that the glass of a cupboard, which had been
on the ground floor, had been broken during the incident and that it
could not have been broken by a bullet coming from the suspects
unless the bullet ricocheted from the wall. S.A. finally stated that
she did not have any information as to the position of the corpses on
the second floor of the café as the police officers had not
authorised her to go upstairs.
- On
the same day, the first-instance court once again ordered that the
firearms of the defendants be handed over for ballistic examination
following receipt of a letter from the Istanbul Security Directorate
refusing to give these firearms on the ground that the defendants
would not be secure without their weapons.
- During
the same hearing, the intervening parties requested the court to
order the defendants' detention on remand since they failed to attend
the hearings without a justification. The public prosecutor opined
that the defendants should be requested to state their reasons for
not attending the hearings. The defendants' lawyer requested that the
defendants be exempted from attending the hearings. The Istanbul
Assize Court accepted the latter's request on the ground that the
defendants and the witnesses had already been heard. The court
further held that an on-site inspection be conducted after receiving
the ballistic examination report from the Forensic Medicine
Institute.
- On
an unspecified date, the Istanbul Security Directorate sent to the
Istanbul Assize Court six firearms which had been used by the accused
police officers at the incident on 28 September 1994.
- On
13 December 1995 the first-instance court decided to send the
defendants' firearms as well as the bullets and the empty cartridges
found at the scene of the incident and one bullet extracted from
İsmet Erdoğan's body to the Forensic Medicine Institute for
a ballistic examination with a view to determining which of these
bullets and cartridges had been discharged from the defendants'
weapons.
- On
8 January 1996 experts from the Forensic Medicine Institute conducted
an examination of the defendants' firearms, two 9 mm calibre bullets
that were found at the scene of the incident and one 9 mm calibre
bullet that had been extracted from İsmet Erdoğan's body.
The experts concluded that neither of the 9 mm calibre bullets had
been discharged from the police officers' firearms.
4. Hearing of 22 April 1996 and the subsequent
developments
- On 22 April 1996, the ballistic report was read out
before the court. The intervening parties opined that the barrels or
the firing pins of the firearms could have been changed and requested
that the first-instance court ask for information as to whether there
had been any such change. The intervening parties further requested
that the empty cartridges also be sent to the Forensic Medicine
Institute for examination and that a determination be made as to
whether the three 9 mm calibre bullets matched the empty cartridges.
They finally asked the court to hold an on-site inspection in the
Arzum café as they had been informed that the café
would be renovated. The public prosecutor agreed with the intervening
parties.
- On
the same day, the Istanbul Assize Court decided that the defendants'
firearms as well as the firearms, bullets and cartridges, found near
the deceased and extracted from one of the corpses be sent for a new
examination. Forensic experts were requested to give information in
order to determine whether the three 9 mm calibre bullets matched the
empty cartridges and whether the latter had been discharged from one
of the firearms belonging to the police officers or the deceased. The
court further decided to request the Istanbul Security Directorate to
provide information as to whether the barrels or the firing pins of
the firearms had been changed after 28 September 1994. It
finally decided to hold an on-site inspection in the Arzum café
on 18 June 1996.
- On
31 May and 20 June 1996 the Istanbul Assize Court received two
letters from the Istanbul Security Directorate. The letter of 31 May
1996 stated that the Directorate did not have any information as to
whether the parts of the firearms had been changed whereas the second
letter stated that the firearms' parts had not been changed.
- On
18 June 1996 the judges of the Istanbul Assize Court, an expert, the
four accused police officers and their representative as well as the
intervening parties' representatives went to the Arzum café
for an on-site inspection. However, as the Arzum café had been
renovated in the meantime, the court could not conduct the inspection
at the scene of the incident in the absence of the witnesses who had
run the café at the time of the incident. The first-instance
court therefore decided to hold an on-site inspection in the presence
of the witnesses.
5. Hearing of 11 July 1996 and the subsequent
developments
- On
11 July 1996 the Istanbul Assize Court decided to request more
information from the Security Directorate as the letters of 31 May
and 20 June 1996 were contradictory. It further ordered
that a ballistic examination be conducted. The court finally decided
to conduct an on-site inspection with the attendance of all
defendants, witnesses and intervening parties on 11 October 1996.
- On
24 July 1996 the deputy director of the Istanbul Security Directorate
sent a letter to the Istanbul Assize Court, maintaining that any
change in the firearms could only be determined by a criminal
laboratory examination and that such a change constituted a criminal
offence.
- On
28 August 1996 experts from the Forensic Medicine Institute conducted
a new ballistic examination. The ballistic report confirmed the
findings of the Istanbul Regional Criminal Police Laboratory's report
of 5 October 1994. It further revealed that twenty 9 mm calibre
cartridges out of twenty-two, which had been submitted to the
experts, were discharged from the firearms numbered MP5-3793, T-1192
and 245 PV 30170. The first firearm belonged to H.K., the second
belonged to B.A., and the third weapon belonged to Ş.K.
According to the report four 9 mm calibre bullets also matched with
B.A.'s firearm numbered T-1192. As regards the 9 mm calibre
bullet which had been extracted from İsmet Erdoğan's body
and the two other 9 mm calibre bullets found close to the Fuat
Erdoğan's corpse, the forensic experts reached a different
conclusion than their previous findings. They opined that the first
bullet was discharged from the firearm numbered T-1192 and the other
two bullets were discharged from the firearms numbered T-1192 and
245 PV 30170. These firearms belonged respectively to B.A. and
Ş.K.
- On
3 September 1996 three of the accused police officers, Ş.K.,
R.A. and H.K. were served with an order of the Istanbul Assize Court,
requesting them to attend the on-site inspection on 11 October 1996.
The fourth accused officer, M.K., could not be served on the order as
he had been appointed to a post in Erzurum.
- On
11 October 1996 the judges of the Istanbul Assize Court, an expert,
one of the intervening parties, Ali Yalçın, his
representative, N.A., S.A. and two police officers who had been heard
as witnesses, E.M. and N.Ç. conducted an on-site inspection.
During the inspection, N.A. and S.A. contended that the stairs going
to the second floor of the café remained unchanged. S.A.
further showed the judges the table where the deceased had been
sitting and the location of the bullet traces on the walls of the
second floor on the day of the incident. The police officers
maintained that they had been outside the café at the time of
the incident and did not have any information as to how the killing
occurred. N.Ç. further maintained that the deceased had not
been given the warnings by a megaphone and that he did not remember
the position of the corpses on the second floor.
-
Following the on-site inspection, on 22 October 1996, the expert who
had been present at the inspection drafted a report and produced a
sketch map showing the location of the café, the bullet
traces, and the position of the corpses at the time of the incident.
6. Hearings of 23 October and 23 December 1996, 20
February and 5 May 1997
- On
23 October 1996 two of the applicants, Ali Yalçın and
Hüsnü Yalçın, also joined the proceedings
as a civil party.
- On
23 December 1996 the intervening parties requested the first instance
court to broaden the scope of the investigation, claiming that the
sketch map was erroneous and that technical expertise was needed
regarding the trajectory of the bullets in the deceased's bodies.
- On
20 February 1997 one of the applicants, Şinasi Yalçın,
joined the criminal proceedings as a civil party. On the same day,
the first-instance court held that it was not necessary to correct
the sketch maps and requested the intervening parties to submit their
observations on the merits of the case during the next hearing.
- On 5 May 1997 the intervening parties once again
requested the first instance court to broaden the scope of the
investigation. They requested, in particular, that the transcripts of
police radio communications of 28 September 1994 be drafted and
information be requested from the General Security Directorate as to
whether the operation conducted on 29 September 1994 had been
one of the “secret” operations that had been told to be
conducted by Mehmet Ağar, the Minister of the Interior at the
material time. They further requested that the officers who had
drafted the autopsy reports be heard as witnesses and that the Türk
Telekom be requested to submit information as to whether there had
been any call made to the Istanbul Security Directorate as was
mentioned in the report drafted at 3.45 pm on 29 September 1994. The
intervening parties further requested the first-instance court to
hear a pathologist as a witness in order to determine the exact
shooting ranges and to order the relevant authorities to submit
information as to whether the firearms allegedly found next to the
corpses had been the special teams' weapons. The first-instance court
requested the public prosecutor to submit his observations on the
intervening parties' requests and, therefore, decided to postpone the
hearing.
7. Hearings of 10 July and 20 October 1997
- During
the hearing which was held on 10 July 1997 Şinasi Yalçın
requested that the accused police officers be ordered to attend the
hearings as he wished to question them. He further requested that the
police officers be detained on remand as the trajectories of the
bullets in the deceased's bodies clearly demonstrated that they had
been executed. Another intervening party, Yüksel Erdoğan,
requested the court to hold a new on-site inspection in order to
determine whether the trajectories of the bullets matched the accused
police officers' account of the events. Ş.K.'s lawyer requested
that a new ballistic examination be conducted, claiming that Ş.K.
had not opened fire. Finally, the Istanbul public prosecutor
requested the first-instance court to hear the police officers who
had drafted the report at 3.45 pm on 29 September 1994 as witnesses.
One of the intervening parties' lawyers submitted the documents
concerning other criminal proceedings brought against the accused
police officers with the charge of homicide and the judgments of the
European Court of Human Rights in cases which concerned actions of
the accused police officers. The Istanbul Assize Court postponed the
hearing in order to examine the parties' and the public prosecutor's
requests.
- On
20 October 1997 the Istanbul Assize Court dismissed the requests by
the intervening parties, accused police officers and the public
prosecutor, holding that the evidence in the case-file was sufficient
to allow it to establish the facts of the case. The court requested
the parties and the public prosecutor to submit their observations on
the merits of the case and, as a result, postponed the hearing.
8. Hearing of 21 December 1998 and the Forensic
Medicine Institute's report of 15 January 1999
- On
21 December 1998, upon the requests of the intervening parties and
the public prosecutor, the Istanbul Assize Court decided to request
the Forensic Medicine Institute to conduct an examination of all
firearms, bullets and cartridges in order to resolve the
contradictions between the previous ballistic reports and determine
whether the bullet entries on the corpses could have been formed as a
result of a shooting from downstairs to the second floor and whether
the deceased were targeted by the defendants. The court further
requested information concerning the range of the shootings.
- On
15 January 1999 experts from the Forensic Medicine Institute drew up
three separate reports concerning the deceased. The relevant
paragraphs, which are common to all three reports, read as follows:
“...It is a medically recognised fact that the
entry and exit holes in corpses cannot be indicative of the place and
the level of the exact place where the shots were fired from since
persons are mobile and can change place and position. Therefore, it
cannot be medically determined whether the bullets were fired from
the ground floor or the stairs or the second floor. Likewise, it
cannot be determined whether the deceased were targeted by the
accused.
...It has been unanimously concluded that all of the
shots were fired at long range and that the exact range of the
shootings cannot be determined.”
9. Hearings between 24 March 1999 and 5 December 2001
and the Forensic Institute's report of 19 September 2001
- On
different dates, the Istanbul Assize Court requested the Forensic
Medicine Institute to conduct a new ballistic examination on all the
firearms, bullets and cartridges in order to resolve the
contradictions between its reports of 8 January and 28 August 1996
with a view to determining whether any bullets had been discharged
from Ş.K.'s firearm. The first-instance court, however, had to
postpone the hearings between 24 March 1999 and 27 March 2001 as
the firearm of deceased police officer B.A. was not submitted for the
ballistic examination.
- On
27 March 2001 the first-instance court sent the firearms, bullets and
cartridges to the Forensic Medicine Institute.
- On
19 September 2001 experts from the Forensic Medicine Institute
drafted a ballistic report. The conclusions of the experts read as
follows:
“As was determined in the report of 28 August
1996:
1- Three of the 7,65 mm calibre bullets were discharged
from the Browning make firearm numbered 241716. Two of the 7,65 mm
calibre bullets were discharged from the Unique firearm numbered
855392.
2- Out of the twenty 9 mm empty cartridges:
a) Nine of them were discharged from the firearm
numbered MP5-3793, eight of them were discharged from the Ceska
firearm numbered T 1192 and three of them were discharged from
the Browning firearm numbered 245 PV 30170.
b) Furthermore, two 9 mm empty cartridges were not
discharged from the firearms submitted. They were discharged from two
different 9 mm calibre automatic or semi automatic firearms.
3- Out of the three 9 mm bullets:
a) the one which was sent in an envelope marked “İbrahim
Korkmaz” was discharged from the Ceska 9 mm calibre firearm
numbered T-1192;
b) one of the two bullets which were sent in an envelope
marked ... “Fuat Erdoğan” was discharged from the
Ceska 9 mm calibre firearm numbered T-1192 and the other was
discharged from the Browning firearm numbered 245 PV 30170.
4- Three 9 mm calibre bullets may belong to the 9 mm
empty cartridges sent. However, it cannot be determined with
certainty whether they matched or not.
...”
10. The Istanbul Assize Court's judgment of 7 February
2002
- On 7 February 2002 the Istanbul Assize Court rendered
its judgment in the case and acquitted the accused police officers of
the charges brought against them. The first-instance court noted that
the deceased İsmet Erdoğan, Fuat Erdoğan and Elmas
Yalçın had been members of the DHKP C, an illegal
organisation, who had used forged identity cards on the day of the
incident and that there had been detention orders and search warrants
in their respect. It further noted that an armed clash had broken out
between the deceased and the police officers and that five bullets
had been discharged from the two firearms (numbered 241716 and
855392) found near the corpses after the incident. All three deceased
had weapons that were used during the armed clash. In the light of
the findings of the Forensic Medicine Institute's report of 19
September 2001, the assize court found it established that the
accused police officers, including Ş.K., had used their firearms
during the clash. In view of the conclusion of the Forensic Medicine
Institute's report of 15 January 1999, the assize court further
established that the police officers had fired shots at long range.
It noted the experts' conclusion that the position of the police
officers and the deceased could not be established. The court
considered that it should be accepted that the police officers had
approached the stairs leading up to the second floor and had fired in
response to the shots coming from the deceased on the second floor.
The court further noted that there was no evidence in the case file
which proved that the police officers had killed the deceased
although the latter had not resisted, or that the parts of their
firearms had been changed. The Istanbul Assize Court further found it
established, in the light of the witnesses' statements, that the
accused police officers had given the necessary warnings and that, on
being fired at, had retaliated by shooting back. The court concluded
that the police officers had acted within the scope of their duties
and in order to protect their own lives. It found that the accused
had remained within the limits of legitimate self defence in
accordance with Article 16 of Law no. 2559 on the duties and legal
powers of police.
11. The Court of Cassation's decision of 7 July 2003
- On
7 July 2003 the Court of Cassation upheld the judgment of the
Istanbul Assize Court. It found it established that the accused
police officers had remained within the limits of legitimate
self-defence in accordance with Article 16 (a) and (g) of Law no.
2559.
II. RELEVANT INTERNATIONAL AND DOMESTIC
LAW
63. A
description of the relevant domestic law at the material time and the
international law can be found in Erdoğan and Others v.
Turkey (no. 19807/92, §§ 51-58, 25 April 2006).
THE LAW
I. AS REGARDS THE APPLICANTS RAMAZAN ERDOĞAN AND
RAŞİDİYE ERDOĞAN
- The
Court notes that the applicants' representatives did not submit a
power of attorney signed by Ramazan and Raşidiye Erdoğan
while introducing the application on 25 February 2000. On 16 May and
7 June 2005 the Registry requested the applicants'
representatives to submit such an authorisation which was essential
to establish the validity of the application insofar as brought by
these two applicants. On 7 June 2005 and 29 September 2006 the
applicants' representatives were also warned that Ramazan and
Raşidiye Erdoğan's application might be struck out of the
list. No response was received to the letters of 7 June 2005 and
29 September 2006 (see paragraphs 5, 6 and 7 above).
- In
these circumstances, taking into account the lack of diligence of the
applicants' representatives and the absence of a serious indication
that the applicants themselves wished to lodge or pursue the
application, the Court concludes that it is no longer justified to
continue the examination of the application brought on behalf of
Ramazan Erdoğan and Raşidiye Erdoğan within the
meaning of Article 37 § 1 (c) of the Convention. Furthermore,
the Court finds no reasons of a general character, as defined in
Article 37 § 1 in fine, which would require the
examination of this part of the application by virtue of that
Article.
- The
Court therefore decides to strike the application, insofar as it has
been brought on behalf of Ramazan Erdoğan and Raşidiye
Erdoğan in respect of the killing of Fuat Erdoğan, out of
its list of cases under Article 37 § 1 (a) of the
Convention.
II. ALLEGED VIOLATIONS OF ARTICLES 2 AND 6 OF THE
CONVENTION BY YÜKSEL ERDOĞAN, MELİHA ERDOĞAN,
SİNAN ERDOĞAN, BAHAR SAĞLAM, ŞİNASİ
YALÇIN, HÜSNÜ YALÇIN AND ALİ YALÇIN
- The
applicants complained, under Article 2 of the Convention, that the
use of force employed by the security forces against İsmet
Erdoğan and Elmas Yalçın was disproportionate and
resulted in their unlawful killing. They further complained, under
the same head, that the investigation and the subsequent criminal
proceedings brought against the four police officers were
fundamentally flawed and, as a result, were not capable of being
effective, in violation of the procedural obligations under Article 2
of the Convention. They further complained, under Article 6 of the
Convention, that the proceedings in question were not concluded
within a reasonable time.
- The
Court considers that these complaints should be examined from the
standpoint of Article 2 of the Convention alone, which provides:
“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. Admissibility
1. Submissions of the parties
- The Government argued that Meliha Erdoğan, Sinan
Erdoğan and Bahar Sağlam had failed to exhaust the domestic
remedies available to them within the meaning of Article 35 § 1
of the Convention as they had not joined the proceedings against the
accused police officers as civil parties. Alternatively, they alleged
that the application was submitted out of time as the applicants'
relatives had been killed on 29 September 1994 whereas the
application was introduced only on 25 February 2000. They
argued that if the applicants considered the domestic remedies
ineffective, they should have submitted their application to the
Court within six months from 29 September 1994, the date on
which the alleged violation took place.
- The
applicants contended that Meliha Erdoğan, Sinan Erdoğan and
Bahar Sağlam had not been required to intervene in the criminal
proceedings as the other applicants had already joined the
proceedings concerning the killing of İsmet Erdoğan and
Elmas Yalçın. They further maintained that they had
lodged their application with the Court when they had become aware of
the ineffectiveness of the criminal proceedings brought against the
police officers and that, therefore, they had complied with the
six-month rule.
2. The Court's assessment
- As
regards the Government's argument that Meliha Erdoğan,
Sinan Erdoğan and Bahar Sağlam had failed to exhaust
the domestic remedies, the Court reiterates at the outset that the
rule of exhaustion of domestic remedies referred to in Article 35 §
1 of the Convention obliges applicants to use first the remedies that
are normally available and sufficient in the domestic legal system to
enable them to obtain redress for the breaches alleged (see Hugh
Jordan v. the United Kingdom (dec.), no. 24746/94, 4
April 2000).
- Nevertheless,
the application of the rule of exhaustion of domestic remedies must
make due allowance for the fact that it is being applied in the
context of machinery for the protection of human rights that the
Contracting States have agreed to set up. The Court has recognised
that Article 35 § 1 must be applied with some degree of
flexibility and without excessive formalism. It has further
recognised that the rule of exhaustion is neither absolute nor
capable of being applied automatically; for the purposes of reviewing
whether it has been observed, it is essential to have regard to the
circumstances of the individual case. This means, in particular, that
the Court must take realistic account not only of the existence of
formal remedies in the legal system of the Contracting State
concerned but also of the general context in which they operate, as
well as the personal circumstances of the applicant. It must then
examine whether, in all the circumstances of the case, the applicant
did everything that could reasonably be expected of him or her to
exhaust domestic remedies (see İlhan v. Turkey
[GC], no. 22277/93, § 59, ECHR 2000 VII).
- Moreover,
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. The essential
purpose of such investigation is to secure the effective
implementation of the domestic laws which protect the right to life
and, in those cases involving State agents or bodies, to ensure their
accountability for deaths occurring under their responsibility. What
form of investigation will achieve those purposes may vary in
different circumstances. However, whatever mode is employed, the
authorities must act of their own motion, once the matter has come to
their attention. They cannot leave it to the initiative of the next
of kin either to lodge a formal complaint or to take responsibility
for the conduct of any investigative procedures (see
McKerr v. the United Kingdom, no. 28883/95,
§ 111, ECHR 2001 III).
- The
Court further recalls that in its decision of Erdoğan and
Others v. Turkey ((dec.), no. 19807/92, 16 January 1996), where
the facts of the case and the Government's arguments were similar to
those in the present case, the Commission considered that two
applicants, who had not intervened in the criminal proceedings
brought against police officers who had been charged with killing the
applicants' relatives, were absolved from the need to join to these
proceedings since the other applicants had intervened in the
proceedings and were able to raise all the issues concerning their
killing.
- In
the present case, the Court observes that Meliha Erdoğan,
Sinan Erdoğan and Bahar Sağlam, the family members of
the late İsmet Erdoğan, did not join to the criminal
proceedings as a civil party. Nor did they lodge a criminal complaint
with the prosecuting authorities. However, in the light of the
aforementioned principle that the prosecuting authorities are under
the obligation to act on their own motion without waiting for a next
of kin to lodge a complaint where an individual has been killed as a
result of the use of force by members of the security forces and
having regard to the fact that Yüksel Erdoğan, who was the
father of İsmet Erdoğan, joined the proceedings in
question and raised all the issues concerning his son's killing, the
Court considers that Meliha Erdoğan, Sinan Erdoğan
and Bahar Sağlam were not required to become intervening parties
in the criminal proceedings in question.
- As to the Government's alternative argument that the
applicants failed to comply with the six-month's rule, the Court
reiterates that where an applicant avails himself of, or relies on,
an apparently existing remedy and only subsequently becomes aware of
circumstances which render the remedy ineffective, it is appropriate
to take as the start of the six month period the date when he or she
first became aware or ought to have become aware of those
circumstances (see Acar and Others and Akay and Others
v. Turkey (dec.), nos. 38417/97 and 36088/97, 27 November
2001; and Paul and Audrey Edwards v. the United
Kingdom (dec.), no. 46477/99, 7 June 2001).
- In
the present case, the Court considers that the criminal proceedings
relating to the killing of the applicants' relatives afforded in
principle a remedy which the applicants were required to exhaust (see
Acar and Others and Akay and Others, cited above). It notes in
this connection that a criminal investigation was opened into the
killing of the applicants' relatives immediately after the incident
and that, on 22 November 1994, criminal proceedings were
instituted against the four police officers. However, these
proceedings resulted in the acquittal of all the defendants on 7 July
2003, some eight years and nine months after the date of the
killings. The Court considers, in view of the seriousness of the
charges, that the substantial delays involved deprived the remedy of
its effectiveness. The Court finds that the applicants acted
reasonably in awaiting developments in the criminal proceedings
before lodging their complaint with the Court and that the
application was brought within six months of the date when the
applicants became aware or ought to have become aware that the remedy
would not be effective (see Acar and Others and Akay and Others,
cited above).
- Consequently,
the application cannot be rejected for non-exhaustion of domestic
remedies or for non-compliance with the six-month rule.
- 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. Submissions of the parties
- The
applicants submitted first that no real attempt had been made to
capture their relatives alive. In this connection, they contended
that the police officers had known the identity of the victims when
they arrived at the café and that there was a premeditated
plan to kill them rather than to effect their lawful arrest. They
further maintained that there were several indications of this aim,
such as the facts that the police officers had been wearing
bullet-proof vests and that the bullets followed a downward
trajectory within the victims' bodies. They further contended that
the security forces' claim that there had been an armed clash was
unsubstantiated as neither of the police officers had been injured.
The applicants maintained that their relatives had been killed as a
result of use of force which was not absolutely necessary.
- As
to the investigation conducted in the present case, the applicants
argued that there were serious flaws both at the preliminary
investigation stage and after the proceedings brought against the
police officers. They maintained, in that respect, that the public
prosecutor had not been present after the incident when the police
officers who had participated in the police operation collected the
evidence and that, therefore, there was no independent evidence.
Furthermore, no photographs of the scene of the incident had been
taken. Nor were the premises filmed. The applicants complained that
the on-site inspection was conducted twenty-five months after the
killing of their relatives. They further contended that the
first instance court rejected their requests to broaden the
scope of the investigation and to put certain questions to the
accused police officers. The applicants finally maintained that the
proceedings against the police officers lasted an unreasonably long
time and that the accused had not been suspended from duty, even
though criminal proceedings had been brought against them.
- The
Government submitted, in reply, that the death of the applicants'
relatives resulted from a use of force which was no more than
absolutely necessary. They maintained that it was established by the
domestic courts that the police officers had started firing only
after the deceased had opened fire and in order to protect
themselves. They contended that, as was stated in the Istanbul Assize
Court's judgment of 7 February 2002, the deaths had resulted from
self-defence and in accordance with Article 16 of Law no. 2559
on the duties and legal powers of police.
- The
Government further maintained that the investigation conducted into
the killing of the applicants' relatives and the subsequent criminal
proceedings brought against the police officers had been effective.
They submitted, in this respect, that the authorities had conducted
autopsies, ballistic examinations and an on-site inspection and that
the trial court had taken into consideration all the evidence, in
particular, the ballistic reports, before rendering its judgment. The
Government finally made submissions as regards the length of the
criminal proceedings brought against the accused police officers and
maintained that the proceedings had been completed within a
reasonable time in view of the complexity of the case.
2. The Court's assessment
a. As to the alleged violation of the
right to life of İsmet Erdoğan and Elmas Yalçın
i. General principles
- 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 Kiliç 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, cited above, § 71).
ii. Establishment of the facts
- In
the present case, the Court notes firstly that it is undisputed
between the parties that the applicants' relatives were shot and
killed by the security forces. The Court is however confronted with
fundamentally divergent accounts of how İsmet Erdoğan and
Elmas Yalçın were killed. The applicants alleged that the
police officers arrived at the café with the aim of killing
their relatives and that the alleged identity control had been a
pretext. The Government, on the other hand, claimed that the
applicants' relatives had refused to submit their identity cards and
had opened fire. The Government contended that they had died during
an armed clash during which the police officers acted within the
scope of Law no. 2559 on the duties and legal powers of
police.
- The
Court observes that a judicial determination of the facts took place
in the criminal proceedings brought against four 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).
iii. Application of the general principles
in the circumstances of the present case
- The
Court observes, on the basis of the material before it, that İsmet
Erdoğan and Elmas Yalçın were killed in the
course of a police operation by officers from the anti-terror branch
of the Istanbul Security Directorate. In this connection, as to the
applicants' allegation that there was a premeditated plan to kill
their relatives, the Court does not find it sufficiently established,
in view of the material provided, 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 recalls
that it has already held that the applicable legislation at the time
of the incident, 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).
- 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 29 September 1994 according
to which the suspects were carrying at least one firearm in a public
place in a central area in Istanbul (see paragraph 9
above). Therefore, this was an emergency situation which demanded
that the security forces act with great rapidity.
- Similar
to the Istanbul Assize Court, the Court also observes that in the
circumstances of the case, the use of force by the security forces
was the direct result of the unlawful violence emanating from the
deceased suspects. In this connection, the Court observes that the
police officers entered the café, told the civilians to leave
the premises and, before going upstairs to where the deceased were,
gave the necessary warnings. Consequently, the operation in question
should be considered to be 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.
- It
is important, in the eyes of the Court, that the Istanbul Assize
Court found it established, on the basis of the evidence before it,
that the first gunshot came from the deceased. As the statements of
the witnesses before the Istanbul public prosecutor and the Istanbul
Assize Court demonstrate, the police officers, who entered the café,
did order the deceased to surrender and gave the necessary warnings
before shooting and they started shooting only after being fired at
(see paragraphs 22, 26, 34 and 48 above).
- The
Court accepts, in the circumstances of the case, that when the police
officers entered the café and were confronted with the
shootings coming from the suspects, they believed that it was
necessary to continue firing until the suspects stopped firing back
(see Perk and Others, cited above, § 68). In this
connection, the Court notes that, according to the ballistic
examination reports, five of the bullets found at the scene of the
incident had been discharged from the firearms found near to the
suspects' corpses and that the police officers' shots had all been
fired at long range (see paragraphs 18 and 57 above).
- The
Court further considers that it is not necessary to speculate on the
question of the possibility to use non-lethal methods by the security
forces in order to arrest the deceased. In this connection, the Court
recalls that in the cases of Andronicou and Constantinou and
Perk and Others, where the applicants' relatives had been
killed as a result of use of force by the 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 suspects 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 and did not amount to a
breach by the respondent State of their obligations under Article 2
§ 2 (a) of the Convention.
- It
follows that there has been no violation of Article 2 of the
Convention in respect of the killing of İsmet Erdoğan and
Elmas Yalçın.
b. As to the alleged inadequacy of the
investigation
i. General principles
- The
Court has already held 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,
with the purpose of securing the effective implementation of the
domestic laws which protect the right to life and, in those cases
involving State agents or bodies, to ensure their accountability for
deaths occurring under their responsibility (see paragraph 73 above).
- For
an investigation into alleged unlawful killing by State agents to be
effective, it may generally be regarded as necessary for the persons
responsible for and carrying out the investigation to be independent
from those implicated in the events (see Güleç v.
Turkey, judgment of 27 July 1998, Reports 1998-IV, §§
81-82; and Oğur v. Turkey [GC], no. 21594/93,
§§ 91-92, ECHR 1999-III). This means not only a lack
of hierarchical or institutional connection but also a practical
independence (see, for example, Ergi v. Turkey, judgment of 28
July 1998, Reports 1998-IV, §§ 83-84).
- 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 Kaya v.
Turkey, judgment of 19 February 1998, Reports 1998 I,
p. 324, § 87) and to the identification and punishment of
those responsible (Oğur, cited above, § 88).
This is not an obligation of result, but of means. The authorities
must have taken the reasonable steps available to them to secure the
evidence concerning the incident, including inter alia eye
witness testimony, forensic evidence and, where appropriate, an
autopsy which provides a complete and accurate record of injury and
an objective analysis of clinical findings, including the cause of
death (see, concerning autopsies, Salman, cited above, §
106, concerning witnesses, Tanrıkulu v. Turkey [GC],
no. 23763/94, § 109, ECHR 1999-IV; concerning forensic
evidence, Gül v. Turkey, no. 22676/93, § 89,
14 December 2000). Any deficiency in the investigation which
undermines its ability to establish the cause of death or the person
or persons responsible will risk falling foul of this standard.
- 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; Tanrıkulu,
cited above, § 109; 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)).
ii. Application of the general principles
in the circumstances of the present case
- In
the instant case, an investigation into the incident was indeed
carried out by the Istanbul public prosecutor. However, there were
important shortcomings in the conduct of the investigation.
- Among
these deficiencies, the Court is particularly struck by the fact that
the public prosecutor who inspected the scene of the incident on
29 September 1994 failed to secure evidence which was essential
in determining whether the deceased had ever handled the firearms
which were found at the scene of the incident. It was in his presence
that police officers took fingerprints of the deceased, which
subsequently prevented the forensic experts from conducting an
examination of the deceased's hands in this respect. Moreover, the
firearms allegedly used by the deceased were never subjected to a
fingerprint analysis in order to establish whether or not these
weapons had ever been handled by the deceased.
- Furthermore,
the investigating authorities did not take photographs at the scene
of the incident; nor did they make sketches of the interior or
exterior of the premises or prepare a plan showing the position of
each member of the security forces in the café at the time of
the shootings. A sketch map of the scene of the incident was
drawn up as late as 22 October 1996 by an expert following the
Istanbul Assize Court's on-site inspection of the café, which
had already been renovated after the incident. Moreover, one of the
police officers who had participated in the operation, A.B., also
participated in the first examination of the scene of the incident
with the public prosecutor and was actually given the bullets,
cartridges and the two firearms which had been found next to the
deceased by the police officers who killed the deceased.
- The
Court is of the opinion that the above elements disclose a
significant defect in the reliability and thoroughness of this part
of the investigation. It has therefore examined whether this was
remedied by the investigation conducted by the assize court during
the criminal proceedings.
- The
Court recalls that, in the normal course of events, a criminal trial,
with an adversarial procedure before an independent and impartial
judge must be regarded as furnishing the strongest safeguards of an
effective procedure for the finding of facts and the attribution of
criminal responsibility (see McKerr, cited above, § 134).
Nonetheless, it cannot be excluded, for example, that defects in an
investigation may fundamentally undermine the ability of a court to
determine responsibility for a death (see Salman, cited above,
§§ 106-109 concerning inadequate autopsy procedures,
and Kılıç v. Turkey, no. 22492/93,
§§ 79-83, ECHR 2000-III where there was no evidence
presented to the trial court linking the suspect to the killing).
- In
the present case, the Court considers that, the shortcomings
described in paragraph 126 above were fundamental; that is to
say, they had the effect of undermining the Istanbul Assize Court's
ability to establish the accountability for the killing of İsmet
Erdoğan and Elmas Yalçın.
- The
Court nevertheless observes other deficiencies in the proceedings
before the Istanbul Assize Court. Firstly, in the course of the
proceedings before this court only six witnesses made statements.
Three of these six persons were police officers from the Anti Terror
Branch, who had participated in the police operation in question. One
of them was the owner of the coffee shop who had not been in her café
during the incident. It appears from the case-file that the court,
like the public prosecutor, took no other step in order to identify
possible witnesses, such as the owners of the neighbouring shops.
- Secondly,
the Istanbul Assize Court failed to conduct an on-site inspection
earlier than 11 October 1996. On the latter date, when the court
finally carried out the inspection, the accused police officers did
not attend, thus casting doubt on the reliability of the conclusions
drawn from the inspection since only the police officers were present
in the interior of the café at the time of the killings.
Furthermore, the assize court failed to clarify the vital issue of
the possibility of the use of non-lethal methods during the
operation.
- Finally,
there have been substantial delays in the proceedings. The court
postponed the hearings for almost six months as the Istanbul Security
Directorate failed to send the accused police officers' weapons to
the Istanbul Assize Court despite the latter's persistent requests.
It also postponed the trial between 24 March 1999 and 27 March
2001 as the firearm of the deceased police officer was not submitted
to the court. The Court notes that the failure of the authorities to
submit the police officers' firearms to the first-instance court
cannot be attributed to the applicants. In the circumstances of the
case, the Court considers that the proceedings in question, which
lasted eight years and nine months, cannot be described as a prompt
response by the authorities in investigating the alleged unnecessary
and disproportionate use of force.
- Having
regard, therefore, to the duration and serious shortcomings of the
criminal investigation and trial proceedings in this case, the Court
concludes that there has been a breach of the State's procedural
obligation under Article 2 of the Convention.
- It
follows that there has been a violation of Article 2 in this
respect.
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.”
- The applicants did not submit any claim for just
satisfaction under Article 41 of the Convention taken together with
Rule 60 of the Rules of Court. In these circumstances, the Court
considers that there is no reason to award any sum under Article 41
of the Convention (see Ciucci v. Italy,
no. 68345/01, § 33, 1 June 2006).
FOR THESE REASONS, THE COURT
- Decides unanimously to strike the case
out of the list insofar as it was brought on behalf of Ramazan
Erdoğan and Raşidiye Erdoğan in respect of the killing
of Fuat Erdoğan;
- Declares unanimously the application admissible
insofar as it was brought by Yüksel Erdoğan, Meliha
Erdoğan, Sinan Erdoğan, Bahar Sağlam, Şinasi
Yalçın, Hüsnü Yalçın and
Ali Yalçın;
- Holds by 6 votes to 1 that there has been no
violation of Article 2 of the Convention as regards the death of
İsmet Erdoğan and Elmas Yalçın;
- Holds unanimously that there has been a
violation of Article 2 of the Convention as regards the
investigations carried out by the national authorities.
Done in English, and notified in writing on 15 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Boštjan M. Zupančič
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the statement of dissent of Mrs I.
Berro-Lefèvre is annexed to this judgment.
B.M.Z.
S.Q.
STATEMENT OF DISSENT BY JUDGE BERRO-LEFÈVRE
I am
unable to follow the finding of the majority that there has been no
violation of Article 2 of the Convention in its substantive aspect as
I consider that there was a lack of appropriate care in the control
and organisation of the arrest operation.
