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THIRD
SECTION
CASE OF GÜLŞENOĞLU v. TURKEY
(Application
no. 16275/02)
JUDGMENT
STRASBOURG
29
November 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 Gülşenoğlu v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs E.
Fura-Sandström,
Mr David Thór Björgvinsson,
Mrs I.
Ziemele,
Mrs I. Berro-Lefèvre, judges,
and Mr S.
Quesada, Section Registrar,
Having
deliberated in private on 8 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16275/02) 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 Can Gülşenoğlu
(“the applicant”), on 12 July 2001.
- The
applicant was represented by Mrs F. Karakaş Doğan and
Mrs Eren Keskin, lawyers practising in Istanbul. The Turkish
Government (“the Government”) did not designate an Agent
for the purposes of the proceedings before the Court.
- On
1 June 2006 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Montreuil (France). The
applicant's brother, Vedathan Gülşenoğlu, was a
nineteen year-old university student at the material time.
- On
22 March 1994 Vedathan Gülşenoğlu participated in a
demonstration in Istanbul during which he allegedly threw Molotov
cocktails at a bank. He was arrested, along with another person named
İ.M., by three traffic police officers, who had been on duty in
the neighbourhood.
- According
to the police officers, Vedathan Gülşenoğlu and İ.M.
had been taken to the Kasımpaşa police station in a taxi,
without being searched or handcuffed. According to İ.M., both he
and Vedathan had had to cover their heads with their jackets.
- At
the police station, Vedathan Gülşenoğlu and İ.M.
were kept in separate rooms. A few minutes later a shot was heard.
Vedathan Gülşenoğlu was shot in the back of his head
by A.B., one of the traffic police officers who had arrested him. He
was taken to the Taksim hospital, where he died while being prepared
for surgery.
- On
the same day, a police officer took a statement from A.B., who
explained that while he was on duty in the Kasımpaşa
neighbourhood, a large group of demonstrators had gathered and thrown
Molotov cocktails at several banks. When he saw three demonstrators,
one holding a gun, running away, he had taken out his gun and started
chasing them with other police officers. The demonstrator holding a
gun had escaped down a side street but they had caught the two
others, Vedathan Gülşenoğlu and İ.M., and taken
them to the police station. When he had tried to search
Vedathan Gülşenoğlu in the station, the latter
had taken out a gun and pointed it at him. There had been a struggle
during which a bullet had been fired from his gun.
- On
the same day, the body was examined by a doctor in the presence of
the public prosecutor. The doctor's report observed two sutured
injuries of 2 x 1 cm. on the right parietal lobe and on the left
occipital lobe and fractures on the cranium. The report further
indicated that Vedathan Gülşenoğlu had been reported
dead following the explosion of a bomb which he had been holding in
his hand. To determine the exact cause of death, the body was sent
for a classical autopsy.
- On
23 March 1994 the autopsy was performed by four forensic medicine
experts from the Cerrahpaşa Faculty of Medicine. The doctors
indicated that the cause of death was a fracture of the cranium and
cerebral haemorrhage due to a gunshot wound. The doctors delivered
their final report on 9 May 1994, which stated that the gun had been
fired from a long distance and that there was a bullet entry hole on
the left side of the occipital lobe.
- Again
on 23 March 1994, the Istanbul provincial criminal police laboratory
carried out a ballistic examination of two weapons, a 7.65 mm calibre
Browning-type, which allegedly belonged to Vedathan Gülşenoğlu,
and a 9 mm Parabellum-type, belonging to officer A.B, as well as a
cartridge found at the site of the incident. The report indicated
that the cartridge had been fired from A.B.'s weapon.
- On
the same day, statements were taken from the other traffic police
officers who had arrested the applicant's brother and İ.M. They
all contended that there had been a struggle between Vedathan
Gülşenoğlu and A.B. and that the former had been shot
during this struggle.
- On
25 March 1994 a scene of incident report was drafted, which was
signed by the Beyoğlu public prosecutor and eight police
officers, including A.B, who were at the Kasımpaşa police
station on 22 March 1994. A sketch plan was also drawn.
- On
the same day, the Beyoğlu public prosecutor took statements from
three police officers who had been on duty at the Kasımpaşa
police station on 22 March 1994 and the three traffic police officers
who had been involved in the arrest of Vedathan Gülşenoğlu.
The police officers, who had been on duty at the police station,
maintained that they had not witnessed the shooting. The traffic
police officers, however, all contended that there had been a
struggle between A.B. and Vedathan Gülşenoğlu.
- On
25 March 1994 the Beyoğlu public prosecutor again questioned
A.B., who reiterated his statements of 22 March 1994.
- On
28 March 1994 the Beyoğlu public prosecutor took a statement
from İ.M., who contended that the police officers had not
carried out a body search when they had arrested him. He further
maintained that he had covered his head with his jacket. He had been
waiting at the entrance of the police station when he heard the
gunshot. He explained that he had not witnessed the shooting of
Vedathan Gülşenoğlu.
- On
3 June 1994 the Beyoğlu public prosecutor filed an indictment
with the Beyoğlu Assize Court, charging A.B. with homicide under
Article 448 of the Criminal Code. The public prosecutor
considered that Vedathan Gülşenoğlu had taken out a
gun at the police station and that A.B. had shot him at long range.
- On
8 September 1994 the Beyoğlu Assize Court held the first hearing
in the case and heard evidence from three witnesses.
- On
24 October 1994 the Beyoğlu Assize Court heard evidence from
A.B., who reiterated his previous statements.
- On
1 November 1994 the applicant joined the criminal proceedings as an
intervening party. On the same day, the first-instance court heard
evidence from two more witnesses.
- On
22 December 1994 two more witnesses made statements before the
Beyoğlu Assize Court. On the same day, the court issued
summonses, requiring other witnesses to give evidence.
- On
15 December 1995 statements were taken from another witness.
- Between
21 September 1995 and 4 July 1996, the first-instance court postponed
the hearings due to the absence of two witnesses, M.T., a watchman,
and M.B., a traffic police officer who had arrested Vedathan
Gülşenoğlu along with A.B.
- On
4 July 1996 the first-instance court heard evidence from M.T.
- Between
4 July 1996 and 18 January 2000, the Beyoğlu Assize Court
postponed twelve hearings as M.B. could not be located.
- On
18 January 2000 M.B. made statements before the assize court. On the
same day, the court ordered A.B.'s pre-trial detention.
- On
12 January 2001 A.B. gave himself up. He requested that the
provisions of Law no. 4616 be applied in his respect and that he be
released pending trial. The court dismissed the request and ordered
his pre-trial detention.
- On
23 January 2001 A.B. maintained before the first-instance court that
he had been using the 9 mm Parabellum-type weapon until 12 January
2001.
- On
13 April 2001 the Beyoğlu Assize Court ordered A.B.'s release
pending trial.
- Throughout
the proceedings, the applicant maintained that his brother had not
possessed a firearm. In this connection, he claimed that both his
brother and İ.M. had had their jackets over their heads and
that, if they had been carrying firearms, the officers would have
seen them. The applicant alleged that his brother had been shot from
a long range in the back of his head, which demonstrated that the
killing had been deliberate.
- On
28 June 2001 the Beyoğlu Assize Court convicted A.B. as charged
and sentenced him to twenty years' imprisonment. In its judgment,
based on witness statements and medical reports, the court held that
if A.B. had shot the applicant's brother during a struggle as he
alleged, the deceased would have been shot at close range, not from a
long distance. The court further decided that the provisions of Law
no. 4616 applied in respect of the execution of A.B.'s sentence.
- On
13 November 2001 the applicant appealed.
- On
2 October 2002 the Court of Cassation quashed the judgment of the
first-instance court on procedural grounds.
- On
9 October 2003 the Beyoğlu Assize Court once again convicted
A.B. of homicide and sentenced him to twenty years' imprisonment,
following rectification of the procedural defects.
- On
24 December 2003 the applicant appealed.
- On
21 October 2004 the Court of Cassation quashed the judgment of
9 October 2003. It considered that the first instance court
had not sufficiently examined the question of whether Vedathan
Gülşenoğlu had had a firearm and whether he had
attempted to use it. The case file was subsequently referred to the
Beyoğlu Assize Court.
- According
to the information available from the case file and the information
provided by the parties to date, the criminal proceedings against
A.B. are apparently still pending before the Beyoğlu Assize
Court.
THE LAW
I. ADMISSIBILITY
- The Government argued that the applicant had failed to
exhaust domestic remedies. In this connection, they maintained that
the criminal proceedings against the police officer, who had
allegedly shot and killed the applicant's brother, were still pending
before the domestic courts.
- Whether
the criminal proceedings which started in 1994 and are still pending
before the domestic courts could be regarded as effective under the
Convention is closely linked to the substance of the applicant's
complaints. The Court therefore joins the Government's preliminary
objection to the merits.
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant alleged that the killing of his brother,
Vedathan Gülşenoğlu, constituted a violation of
Article 2 of the Convention, which provides as follows:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
- The
Government disputed the applicant's submissions. They maintained that
the criminal proceedings against the police officer, who had shot and
killed the applicant's brother, were still pending before the
domestic courts. Recalling the subsidiary role of the Court, they
maintained that there was no violation of Article 2 in the present
case.
A. 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).
44. 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, §§ 148-149).
- In determining whether the force used is compatible
with Article 2, it may be relevant whether a law enforcement
operation has been planned and controlled so as to minimise to the
greatest extent possible recourse to lethal force or incidental loss
of life (ibid, § 194, and Ergi v. Turkey, judgment
of 28 July 1998, Reports of Judgments and Decisions 1998 IV,
§ 79). Finally, law-enforcement officers, such as the police or
the gendarmerie, should not be left in a vacuum when performing their
duties, whether in the context of a prepared operation or a
spontaneous chase of a person perceived to be dangerous: a legal and
administrative framework should define the limited circumstances in
which law-enforcement officials may use force and firearms, in the
light of the international standards which have been developed in
this respect (see, mutatis mutandis, Makaratzis v. Greece
[GC], no. 50385/99, § 59, ECHR 2004-XI).
- The
Court further recalls that, according to its case-law, the obligation
to protect the right to life under Article 2, read in conjunction
with the State's general duty under Article 1 to “secure to
everyone within [its] jurisdiction the rights and freedoms defined in
[the] Convention”, requires by implication that there should be
some form of effective official investigation when individuals have
been killed as a result of the use of force (see Tanrıkulu v.
Turkey [GC], no. 23763/94, §§ 101 and 103,
ECHR 1999-IV). The essential purpose of such an investigation is
to secure the effective implementation of the domestic laws
safeguarding the right to life and, in those cases involving State
agents or bodies, to ensure their accountability for deaths occurring
under their responsibility (see Ramsahai and Others v. the
Netherlands [GC], no. 52391/99, § 321, ECHR 2007 ...).
The nature and degree of scrutiny which satisfies the minimum
threshold of an investigation's effectiveness depends on the
circumstances of each particular case. It must be assessed on the
basis of all relevant facts and with regard to the practical
realities of investigation work (see Velikova, cited above, §
80; Ülkü Ekinci v. Turkey, no. 27602/95, §144,
16 July 2002).
- There is also a requirement of promptness and
reasonable expedition implicit in this context (Yaşa v.
Turkey, judgment of 2 September 1998, Reports of Judgments and
Decisions 1998 VI, §§ 102-04; Çakıcı
v. Turkey [GC], no. 23657/94, §§ 80, 87 and 106, ECHR
1999-IV; Mahmut Kaya v. Turkey, no. 22535/93, §§
106-07, 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 the use of lethal force may generally be
regarded as essential in maintaining public confidence in their
maintenance of the rule of law and in preventing any appearance of
collusion in or tolerance of unlawful acts (see, in general, Avşar
v. Turkey, no. 25657/94, § 390-395, ECHR 2001 VII
(extracts)).
- The
investigation must also be effective in the sense that it is capable
of leading to a determination of whether the force used was or was
not justified in the circumstances and to the identification and
punishment of those responsible. The authorities must have taken the
reasonable steps available to them to secure the evidence concerning
the incident, including inter alia eye witness testimony and forensic
evidence. The investigation's conclusions must be based on thorough,
objective and impartial analysis of all relevant elements and must
apply a standard comparable to the 'no more than absolutely
necessary' standard required by Article 2 § 2 of the Convention.
Any deficiency in the investigation which undermines its capability
of establishing the circumstances of the case or the person
responsible is liable to fall foul of the required measure of
effectiveness (Ramsaha and Others, cited above, § 321).
B. Application of these principles in the present case
- In
the present case there is no dispute between the parties that
Vedathan Gülşenoğlu was shot and killed by A.B., the
traffic police officer who had arrested him during a demonstration.
In this connection, the Court observes that A.B. had been accused of
homicide and was convicted as charged and sentenced to twenty years'
imprisonment twice by the first-instance court. These judgments were
subsequently quashed by the Court of Cassation based on procedural
shortcomings and defects in the investigation.
- The
Court recognises that the proceedings are still pending before the
Beyoğlu Assize Court. However, having regard to the length of
the proceedings, the Court considers that the investigation in
question cannot be considered as prompt and effective for the
purposes of the Convention. At this point, the Court observes that
there have been substantial delays in the course of these
proceedings, in particular it cannot overlook the fact that it took
the first-instance court four years and four months to find one of
the witnesses, namely Mr M.B., who was a police officer.
- Furthermore,
the Court notes that there were important shortcomings in the conduct
of the traffic police officer who had chased and arrested the
applicant's brother. As stated above (see paragraph 45), when
performing their duties, whether in the context of a prepared
operation or a spontaneous chase of a person perceived to be
dangerous, police officers should take appropriate precautions
so as to minimise to the greatest extent possible recourse to lethal
force or incidental loss of life. In the present case, however, it is
striking that the traffic police officer in question did not search
or handcuff Vedathan Gülşenoğlu when he
apprehended him. It would also appear irregular that it was a traffic
police officer who stayed with Vedathan Gülşenoğlu in
the interrogation room at the police station. The Court notes that no
explanation has been forthcoming from the Government on this point.
- In
the Court's opinion, the use of lethal force in the instant case
falls squarely within the ambit of Article 2, which requires any such
action to pursue one of the purposes set out in the second paragraph
and to be absolutely necessary to that end. As the Court of Cassation
stated in its decision dated 21 October 2004, a number of key factual
issues still remain to be determined in this case, in particular
whether or not Vedathan Gülşenoğlu had been in
possession of a gun as alleged. In the absence of any findings in
that regard, the Government have failed to provide any convincing
explanation for the events.
- In
view of the above, the Court finds that in the particular
circumstances of the present case, the authorities failed in their
obligation under Article 2 of the Convention. It further concludes
that the Government's preliminary objection regarding the
non-exhaustion of domestic remedies should be dismissed.
- Thus,
there has been a violation of Article 2 in this case.
III. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION
- The
applicant alleged that the domestic authorities failed to conduct an
effective investigation into his brother's death. In respect of his
complaint, he invoked Articles 6 and 13 of the Convention.
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must likewise be declared admissible.
- However,
having regard to the finding relating to Article 2 (see paragraphs
49-55 above), the Court considers that it is not necessary to examine
separately whether, in this case, there has also been a violation of
Articles 6 and 13.
IV. 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 80,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- Deciding
on an equitable basis, the Court awards the applicant EUR 15,000
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant stated that his family lived in Mardin and, in order to
attend the domestic court hearings in Istanbul, they have been
travelling back and forth for the past thirteen years. Without
submitting any documents, he claimed EUR 5,000 under this head. He
also requested EUR 3,000 for costs and EUR 3,000 for legal fees
incurred before the domestic courts. Finally, the applicant requested
to be awarded EUR 3,800 for the expenses incurred before the Court.
In this respect, he referred to the Istanbul Bar Association's scale
of fees and submitted an invoice amounting to 5,000 Turkish Liras
(approximately EUR 2,800).
- The
Government, considering them excessive, contested these claims.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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 information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings and considers it
reasonable to award the sum of EUR 3,000 for the proceedings before
the Court.
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
- Declares unanimously the application admissible;
- Joins to the merits unanimously the Government's
preliminary objection concerning the non-exhaustion of domestic
remedies and dismisses it;
- Holds unanimously that there has been a
violation of Article 2 of the Convention;
- Holds unanimously that there is no need to
examine separately the complaint raised under Articles 6 and 13 of
the Convention;
- Holds by 6 votes to 1
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts to be converted into New Turkish liras at the rate applicable
at the date of settlement and free of any taxes or charges that may
be payable:
(i) EUR
15,000 (fifteen thousand euros) in respect of non-pecuniary damage;
(ii) EUR
3,000 (three thousand euros) in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 29 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
