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SECOND
SECTION
CASE OF PEKER v. TURKEY (No. 2)
(Application
no. 42136/06)
JUDGMENT
STRASBOURG
12 April
2011
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 Peker v. Turkey
(no. 2),
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Ireneu
Cabral Barreto,
Dragoljub Popović,
András
Sajó,
Işıl Karakaş,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 22 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42136/06) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr Nurettin Peker (“the
applicant”), on 12 October 2006.
- The
applicant, who had been granted legal aid, was represented by Ms İpek
Kadirhan and Ms Gülizar Tuncer, lawyers practising in Istanbul.
The Turkish Government (“the Government”) were
represented by their Agent.
- The
applicant alleged, in particular, that he had been shot in the leg
and then beaten up by a number of gendarmes who had been carrying out
an operation in the prison where he was being detained.
- On
11 May 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Introduction
- The
applicant was born in 1966 and lives in Istanbul.
- On
19 December 2000 security operations were conducted in a number of
prisons in Turkey, during which scores of detainees were killed and
hundreds injured (for details of these operations, see İsmail
Altun v. Turkey, no. 22932/02, 21
September 2010; Keser and Kömürcü v. Turkey,
no. 5981/03, 23 June 2009; and Gülbahar and Others v.
Turkey, no. 5264/03, 21 October 2008).
- The
operation in Gebze prison, where the applicant was serving a prison
sentence, started in the early hours of the day. As the remaining
facts of the case are disputed between the parties, they will be set
out separately.
B. The applicant’s submission on the facts
- At
around 5.00 a.m. on 19 December 2000 a large number of gendarmes went
into the prison by the main entrance and started firing without
giving any warning. At that moment the applicant was in the corridor
just outside his dormitory. He was hit in the leg by a bullet fired
by the gendarmes. A doctor friend of the applicant who was a remand
prisoner in the same prison provided first aid to the applicant.
- When
the inmates set up barricades to protect themselves, the gendarmes
threw in explosives containing various gases and smoke. They also
continued firing. Heavy machinery was used to make large holes in the
prison roof, through which the gendarmes poured boiling water and
sprayed gases.
- At
around 7.00 p.m. the same day the applicant and the other injured
inmates were taken into the courtyard of the prison. There the
applicant was handcuffed and dragged through a 100-metre-long human
corridor formed by the gendarmes. While this was being done the
gendarmes kept hitting the applicant until he passed out. While the
prison governor and other civilian authorities were checking the
inmates’ identity documents, a gendarme dragged the applicant
into a corner and beat him up there. He was subsequently taken to
Gebze State Hospital but was brought back to the prison four days
later, before his treatment was complete.
C. The Government’s submissions on the facts
- The
operation, named “Return to Life”, began at around 4.30
a.m. on 19 December 2000, when members of the security forces
went into the prison through the main entrance. At that moment one of
the inmates tried to close the door and told fellow inmates that the
security forces were there. The inmates then locked and barricaded
the second door of the main hall. The gendarmes heard a gunshot
coming from the barricaded side where the inmates had gathered.
- Despite
a number of warnings given by the security forces, the inmates did
not lift the barricades. The security forces overcame the inmates’
resistance and went into the cells. Seven inmates who were on hunger
strike at the time and a further six who had been injured during the
operation were taken to Gebze State Hospital. The applicant was
wounded by a bullet and was among those who were taken to the
hospital.
- The
operation ended at around 9.00 p.m. the same day. Materials used by
the inmates as weapons, namely wooden sticks and iron bars, were
found in the dormitories and confiscated by the security forces.
D. Documentary evidence submitted by the parties
- The
following information is disclosed by the documents submitted by the
parties.
- According
to two reports drawn up by a prosecutor and gendarmerie personnel on
19 December 2000, the operation in the prison started at 4.30 a.m.
the same day. The reason for the operation was to take a number of
prisoners who were on hunger strike to a hospital. When the inmates
refused to co-operate, force had to be used to remove them from the
prison. According to these reports, a gunshot was heard from behind
the barricades where the inmates were standing.
- After
the operation, a number of inmates who were on hunger strike were
taken to hospital. Furthermore, the applicant and five other inmates
who were injured in the operation were also taken to hospital. A
doctor examined the applicant at Gebze hospital on 20 December 2000,
noted a gunshot wound on his left foot and began treating it.
- No
firearms were found in the prison during the searches carried out in
the immediate aftermath of the operation, or during the searches
carried out on 12 January, 16 January, 18 January, 19 January,
23 March and 25 May 2001.
- In
an official complaint on 15 April 2001 the applicant asked the Gebze
prosecutor to prosecute those responsible for the shooting and the
ill-treatment. He alleged that the gendarmes had opened fire on the
inmates.
- On
16 May 2001 the Gebze prosecutor questioned the applicant about these
complaints. The applicant maintained his complaints and informed the
prosecutor that on his return from the hospital he had been beaten up
again by the gendarmes. He added that according to information he had
obtained subsequently, an officer named either “Abdullah”
or “Abdurrahman” had shot him with his pistol. He also
told the prosecutor that bullet marks were still visible in the
ceiling of the prison.
- An
officer by the name of A.Y. who had taken part in the operation was
questioned by the Gebze prosecutor on 17 July 2001. The officer told
the prosecutor that he had heard a shot from the other side of the
barricades, but added that he had not used his weapon during the
operation. No bullets or spent bullet cases had been found after the
operation.
- In
his indictment of 17 July 2001 the Gebze prosecutor indicted the
applicant and over 200 of his fellow inmates. The inmates were
accused of obstructing law-enforcement personnel in the execution of
their duties and causing criminal damage.
- During
a search conducted at the prison on 29 August 2001 a pistol and seven
bullets were found by the prison authorities.
- On
6 December 2001 gendarme officer S.Y., who had been responsible for
the security of the applicant’s prison, was questioned by the
Gebze prosecutor. Officer S.Y. informed the prosecutor that a total
of three pistols had been found during searches conducted in the
prison some months after the operation. It was possible that the
applicant had been shot with one of those pistols by the inmates
during the operation. Neither officer S.Y. nor any of the gendarmes
under his command had fired shots during the operation.
- Two
more pistols and thirty-three bullets were found in the prison on
22 January 2002.
- Three
other gendarmerie personnel questioned by the prosecutor on 29 March
2002 stated that the gendarmes had not fired shots during the
operation. They all considered that the applicant had probably been
shot by his fellow inmates with one of the pistols found in the
prison.
- In
a statement on 11 June 2002 the applicant repeated his allegations
and gave the prosecutor the names of the four friends who had
assisted him after he had been shot. In a large number of letters
sent between 19 August 2002 and 21 February 2004 the Gebze
prosecutor unsuccessfully requested the authorities to locate and
question these four inmates.
- On
24 February 2004 one of the above-mentioned four inmates was found
and questioned by a prosecutor. He told the prosecutor that the
gendarmes had opened fire on the inmates and that the applicant had
been injured by a bullet fired by the gendarmes. Another inmate,
questioned subsequently by the prosecutor, stated that he had not
seen the applicant being shot.
- In
his letter of 27 May 2004 addressed to the Gebze governor the Gebze
prosecutor requested permission to prosecute two gendarmerie officers
allegedly responsible for the applicant’s injury. The Gebze
governor appointed a gendarmerie officer to investigate the
allegations.
- Two
gendarmerie officers questioned by the investigator appointed by the
Governor stated that they had not fired their weapons during the
operation. One of them stated that a ballistic examination of their
weapons would confirm the accuracy of their statements.
- Having
regard to the denials of the gendarmerie personnel, the investigating
officer advised the governor on 19 October 2004 not to grant the
authorisation sought by the prosecutor.
- Acting
on the investigator’s advice the governor refused the request
for authorisation on 21 October 2004.
- On
15 June 2005 the Regional Administrative Court in Sakarya examined
the objection lodged by the applicant against the governor’s
decision on 10 January 2005, and quashed the decision. It held that a
judicial investigation should be carried out.
- On
13 September 2005 the Gebze prosecutor wrote to the Gendarmerie
Command in Gebze Prison and asked for the two officers to be sent to
his office for further questioning. When the prosecutor received no
responses to his letter, he repeated his request on 7 October 2005.
On 15 November 2005 an officer informed the prosecutor that the
two officers were no longer working at the prison.
- On
18 November 2005 the prosecutor decided not to prosecute the two
gendarmes alleged to have fired at the applicant. According to the
prosecutor, there was insufficient evidence that the applicant had
been injured by shots fired by the gendarmes. In his opinion the
applicant had been shot with a bullet fired by inmates.
- The
applicant lodged an objection to the prosecutor’s decision on
26 December 2005. He argued, inter alia, that the
investigation had not been conducted in a timely manner or in an
impartial and independent fashion. He also alleged that the
prosecutor had failed to collect all available evidence, such as TV
footage of the incident, statements by other eyewitnesses and medical
reports.
- The
objection lodged by the applicant was dismissed by the Kartal Assize
Court in Istanbul on 14 March 2006. The decision was communicated to
the applicant on 21 April 2006.
- On
12 March 2009 the case brought against the applicant and his fellow
inmates (see paragraph 21 above), in so far as it concerned the
offence of obstructing law-enforcement officials in the enforcement
of their duties, was rejected as the period of limitation had already
expired.
- In
the meantime, the applicant was released from the prison in 2004.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2, 3, 6 AND 13 OF THE
CONVENTION
- The
applicant complained under Article 2 of the Convention that the
gendarmes had acted in complete disregard of the right to life by
using explosives and firearms and that it was only by pure chance
that he had survived. Under Article 3 of the Convention the applicant
further complained that, having been shot at, beaten up and exposed
to tear gas, he had been subjected to inhuman and degrading
treatment. Relying on Articles 6 and 13 of the Convention, the
applicant submitted that his allegations had not been investigated in
an effective manner at the national level.
- The
Government contested those arguments.
- The
Court notes at the outset that the Government did not challenge the
applicability of Article 2 of the Convention. In any event, the Court
considers that the applicant’s fortuitous survival does not
prevent the Court from examining the complaint under Article 2 of the
Convention, since the use of the firearm in a prison setting was
potentially fatal and put his life at risk (see, mutatis mutandis,
Makaratzis v. Greece [GC], no. 50385/99, §§ 52
and 55, ECHR 2004-XI; Osman v. the United Kingdom, 28
October 1998, §§ 115-122, Reports of Judgments and
Decisions 1998-VIII; and Yaşa v. Turkey,
2 September 1998, §§ 92-108, Reports 1998-VI).
- Indeed,
in a number of cases the Court has examined complaints under this
provision where the alleged victim did not die as a result of the
impugned conduct (see, inter alia, Alkın
v. Turkey, no. 75588/01, § 29,
13 October 2009, and Perişan and Others v. Turkey,
no. 12336/03,
§§ 88-90, 20 May
2010).
- In
light of the above and having made a global assessment of the
security operation, the Court deems it more appropriate to examine
the applicant’s 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.”
A. Admissibility
- The
Government argued that the applicant had failed to exhaust the
domestic remedies available to him within the meaning of Article 35
§ 1 of the Convention. In this connection they submitted
that there were various civil and administrative remedies provided by
domestic law in respect of persons claiming to be the victims of
ill-treatment and that the applicant could have sought reparation for
the harm he had allegedly suffered.
- The
applicant referred to the Court’s case-law, and maintained that
he had complied with the obligation to exhaust relevant domestic
remedies. In the opinion of the applicant the remedies referred to by
the Government were not effective.
- The
Court reiterates that it has already examined and rejected similar
preliminary objections made in similar cases (see, in particular,
Atalay v. Turkey, no. 1249/03, § 29, 18 September
2008, and Karayiğit v. Turkey (dec.), no. 63181/00,
5 October 2004). The Court reaffirms its earlier conclusions that the
remedies referred to by the Government cannot be regarded as
sufficient for a Contracting State’s obligations under
Article 2 or 3 of the Convention as they are aimed at awarding
damages rather than identifying and punishing those responsible. In
this connection the Court recalls that in cases of wilful
ill-treatment or unlawful use of force resulting in death, the breach
of Article 2 or 3 cannot be remedied exclusively through an award of
compensation to the relatives of the victim (see Leonidis
v. Greece, no. 43326/05, § 46, 8 January 2009). This is so
because, if the authorities could confine their reaction to incidents
of wilful police ill-treatment to the mere payment of compensation,
while not doing enough in the prosecution and punishment of those
responsible, it would be possible in some cases for agents of the
State to abuse the rights of those within their control with virtual
impunity and the general legal prohibitions of killing and torture
and inhuman and degrading treatment, despite their fundamental
importance, would be ineffective in practice (see Nikolova and
Velichkova v. Bulgaria, no. 7888/03, § 55, 20 December 2007
and the cases cited therein).
- The
Court 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.
- The
Court notes that the complaint under Article 2 of the Convention 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
- The
applicant maintained that he had been shot by one of the gendarmes
and then beaten up during and after the operation. Furthermore, the
investigation into his allegations had not been prompt or effective.
In the opinion of the applicant, the allegation that he might have
been shot by one of the pistols found in the prison some months after
the operation (see paragraphs 22-24 above) sat ill with the
official documents drawn up immediately after the operation,
according to which no weapons had been found in the prison during or
after the operation (see paragraph 17 above).
- The
Government denied that the applicant had been shot by the gendarmes,
and argued that he had been shot by one of the inmates. They
submitted that the gendarmes had used reasonable force to counter the
inmates’ resistance. An effective investigation had been
carried out by the judicial authorities, who concluded on the basis
of the evidence in their possession that the applicant had not been
shot by the gendarmes and had not been ill-treated.
- The
Court reiterates that, according to its established case-law, States
bear the burden of providing plausible explanations for injuries and
deaths which occur in custody, failing which a clear issue arises
under Article 3 or 2 of the Convention (see, respectively,
Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V,
and Salman v. Turkey [GC], no. 21986/93, § 99, ECHR
2000–VII). The underlying reason for this is that people in
custody are in a vulnerable position and the authorities are under a
duty to protect them. To the extent that the Government’s
submission that the gunshot had been heard from behind the barricades
(see paragraph 11 above) is to be understood as meaning that the
applicant was not in an area under their control, the Court
reiterates that a failure to ensure the normal functioning of a
prison cannot absolve States from their obligations towards the
inmates (see, mutatis mutandis, İsmail Altun,
cited above, § 70).
- In
order to establish whether the Government have satisfactorily
discharged their burden of explaining the applicant’s injury,
regard must be had to the investigation carried out by the national
authorities and the conclusions reached by them (see Özcan
and Others v. Turkey, no. 18893/05, §§ 61 and 80,
20 April 2010, and Beker v. Turkey, no. 27866/03, §
44, 24 March 2009).
- The
Court will thus examine whether the investigation carried out by the
domestic authorities was capable of establishing the true facts
surrounding the applicant’s injury and whether thus the
Government have satisfactorily discharged their burden of explaining
it (see, mutatis mutandis, Beker,
cited above, § 53, and Özcan
and Others, cited above, § 73).
- The
Court considers that the first and the most crucial step to be taken
by the authorities, who had in their hands a prisoner with a gunshot
wound, should have been to search for the evidence, such as the
bullet, the weapon and the spent cartridge, and to locate all
eyewitnesses to the incident immediately afterwards. However, the
Court has not been provided with any information or documents to show
that these most rudimentary steps were taken in the investigation.
- The
Court observes that the national authorities did not act promptly
upon receiving the applicant’s formal complaint on
15 April 2001 (see paragraph 18 above). Neither can it
be said that the investigation was carried out with due diligence and
expedition. A lengthy period, of almost five years, elapsed between
the submission to the authorities of the applicant’s complaint
on 15 April 2001 and the closure of the investigation on 14 March
2006 (see paragraph 36 above). The excessive length of the
investigation is particularly striking given the limited number of
steps taken during that time. The Court observes that, other than
questioning a few gendarmerie personnel (see paragraphs 20, 23 and 25
above) and two of the applicant’s fellow inmates (see paragraph
27 above), no meaningful steps were taken by the prosecutors.
- As
for the steps taken by the military investigator – which, in
any event, were limited to questioning the two gendarme officers
implicated in the events –, the Court reiterates that such
investigations conducted by the superiors of the security force
personnel implicated in the events cannot meet the independence and
impartiality requirement of an effective investigation within the
meaning of the Convention and the Court thus cannot attach any
importance to them. Indeed, it has already held that the
administrative procedure by which the prosecutor sought authorisation
to prosecute the gendarmes could not be regarded as an effective
remedy for the purposes of Article 35 § 1 of the Convention (see
Ümit Gül v. Turkey,
no. 7880/02, §§ 53-57, 29
September 2009).
- Furthermore,
because of the lack of co-operation on the part of the various
authorities, it took the Gebze prosecutor many letters and one and a
half years to locate and question two of the four inmates who,
according to the applicant, had witnessed the incident at first hand
(see paragraph 26 above). No other steps were taken in the
investigation during that period. Furthermore, after the Regional
Court in Sakarya had referred the file to the prosecutor for an
investigation to be carried out, the prosecutor made two unsuccessful
attempts to find the two officers implicated in the applicant’s
shooting, but then decided, without questioning those officers or
taking any further steps, to close the investigation (see paragraphs
33 and 34 above).
- Additionally,
although there were apparently a large number of inmates in the
prison at the time (see paragraph 21 above), only two of them were
questioned by the authorities. Even though the information given by
one of them supported the applicant’s version of the events
(see paragraph 27 above), no weight appears to have been given
to that information by the prosecutors.
- In
the light of the foregoing, the Court considers that the documents in
its possession show that the investigation was not carried out in a
thorough manner and thus failed to meet the requirements of
an effective investigation within the meaning of the Convention. As a
result, the investigation was not capable of establishing the true
circumstances surrounding the applicant’s shooting and the
identity of the perpetrator. Thus, the Government have failed to meet
their responsibility to provide a plausible explanation as to how the
applicant suffered his injury while he was in the prison.
- There
has accordingly been a violation of Article 2 of the Convention.
- Having
regard to the above conclusion, the Court does not deem it necessary
to examine the applicant’s remaining allegations under Articles
3, 6 and 13 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- Lastly,
relying on Article 14 of the Convention, the applicant complained
that he had been subjected to ill-treatment on account of his
political opinions, which did not fit in with the State’s
official policies.
- The
Government contested that argument.
- The Court has examined the applicant’s
allegation in the light of the evidence submitted to it. It considers
that there is insufficient basis in fact to substantiate this
allegation. It therefore follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 95,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered this sum to be excessive and unacceptable.
- The
Court awards the applicant EUR 18,000 in respect of non-pecuniary
damage on account of the violation of Article 2 of the Convention
found above.
B. Costs and expenses
- The
applicant also claimed the sum of EUR 6,760 for costs and expenses
incurred before the Court. This sum included EUR 6,460 in respect of
the fees of his legal representatives. In support of this claim the
applicant submitted to the Court a time sheet showing that his legal
representatives had spent a total of forty-five hours on the case; a
fee agreement signed between the applicant and his legal
representatives; and an official bill showing that the applicant had
already paid his legal representatives approximately EUR 1,650 of the
above-mentioned fees.
- The
remaining EUR 310 was claimed for translation, stationery and postal
expenses in respect of which no documentary evidence was submitted.
- The
Government considered the claims to be vague, unsupported by
documentary evidence and excessive.
- According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum. In the present case,
regard being had to the documents in its possession and the above
criteria, the Court considers it reasonable to award the applicant
the sum of EUR 3,500 covering costs under all heads, less the EUR 850
which the applicant received in legal aid from the Council of Europe
(see paragraph 2 above).
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
1. Declares
unanimously the complaint under Article 14
of the Convention inadmissible and the remainder of the application
admissible;
2. Holds
by 4 votes to 3 that there has been a violation of Article 2 of the
Convention;
3. Holds
by 4 votes to 3 that there is no need to examine the complaints under
Article 3;
4. Holds
unanimously that there is no need to examine the complaints under
Articles 6 and 13 of the Convention;
5. Holds
unanimously
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 18,000 (eighteen
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, and EUR 3,500 (three thousand five hundred
euros) in respect of costs and expenses, less the EUR 850 (eight
hundred and fifty euros), granted by way
of legal aid plus any tax that
may be chargeable to the applicant, to be converted into Turkish
liras 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
6. Dismisses
unanimously the remainder of the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 12 April 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinion of
Judges D. Jočienė, A. Sajó and G. Raimondi is
annexed to this judgment:
F.T.
S.H.N.
JOINT DISSENTING OPINION OF JUDGES JOČІENĖ,
SAJÓ AND RAIMONDI
There
is no doubt in our minds that in the present case the applicant’s
rights under Article 3 of the Convention were violated. As an inmate
he suffered injuries during a security operation in Gebze prison.
Those injuries bear out his claim of inhuman and degrading treatment.
Given the improprieties in the investigation following the
applicant’s injury, the Government could not be said to have
satisfactorily discharged their burden of explaining the injuries.
For this reason, we find that Article 3 was violated and we therefore
voted with the majority on the question of non-pecuniary damage.
We
could not, however, follow the majority in regard to its finding of a
violation of Article 2. The facts of the case remain contested. The
applicant was wounded in the foot. This is certainly not
life-threatening, but the nature of the wound alone is not decisive
for the applicability of Article 2 of the Convention. In fact,
in a number of cases the Court has examined complaints under this
provision where the alleged victim did not die as a result of the
impugned conduct (see Makaratzis v. Greece [GC], no. 50385/99,
§ 49, ECHR 2004-XI, and Alkın v. Turkey, no.
75588/01, § 29, 13 October 2009). In such circumstances,
the degree and type of force used and the intention or aim behind the
use of force may, among other factors, be relevant in assessing
whether in a particular case the State agents’ actions in
inflicting injury short of death are such as to bring the facts
within the scope of the safeguard afforded by Article 2 of the
Convention, having regard to the object and purpose pursued by that
Article (see Makaratzis, cited above, § 51).
The
Court has had the opportunity to consider the nature of security
operations in Turkish prisons in the course of prison riots in a
number of cases. Where the intervention resulted in killings, the
Court considered the application under Article 2 (see Gömi
and Others v. Turkey, no. 35962/97, 21 December 2006, and Perişan
and Others v. Turkey, no. 12336/03, 20 May 2010); it did so
even in a case where the applicant survived the injury to his
pancreas (see İsmail Altun v. Turkey, no. 22932/02,
21 September 2010). However, in the case of Perişan and
Others, the complaints under Article 2 of the Convention of those
applicants who did not suffer life-threatening injuries were examined
from the standpoint of Article 3 of the Convention.
In
the absence of the use of firearms, not even the serious injuries of
ten applicants resulted in an Article 2 review (see Satık and
Others v. Turkey, no. 31866/96, 10 October 2000, see further
Kurnaz and Others v. Turkey, no. 36672/97, 24 July 2007). In
the present case, the applicant did not substantiate his claim that
the other injured inmates had been shot or that firearms had been
used on a large scale. The Court did not find established in the
present case any facts which would allow us to conclude that the
nature of the operations, including the use of force, was comparable
to the security operations at Diyarbakır or Bayrampasa prisons.
In the absence of an at least potentially lethal wound there is
nothing in the case file, apart from the unsubstantiated allegations
of the applicant, that would point to a degree and type of force or
an intention or aim behind the use of force that would trigger the
analysis of the facts under Article 2 on an exceptional basis.
Therefore, as no clear issue arises under Article 2 in the present
case, the State has no obligation to bear the burden of providing
plausible explanations in regard to that Article.
