CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 décembre 2000

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height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }       FOURTH SECTION             CASE OF GÜL v.   TURKEY   ( Application no. 22676/93 )                     JUDGMENT     STRASBOURG   14 December 2000       In the case of Gül v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Mr   G. R ess , President ,   Mr   A. P astor R idruejo ,   Mr   V. B utkevych ,   Mrs   N. V ajić ,   Mr   J. H edigan ,   Mrs   S. B otoucharova , judges ,   Mr   F. G ölcüklü , ad hoc judge, and   Mr   V.   Berger , Section Registrar , Having deliberated in private on 22 June and 21 November 2000, Delivers the following judgment, which was adopted on the last- mentioned date: PROCEDURE 1.     The case was referred to the Court in accordance with the provisions applicable prior to the entry into force of Protocol No.   11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) [1] by the European Commission of Human Rights (“the Commission”) (Article   5   §   4 of Protocol No.   11 and former Articles   47 and   48 of the Convention). 2.     The case originated in an application (no.   22676/93) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article   25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mehmet Gül (“the applicant”), on 25   August 1993. 3.     The applicant was represented by Mr K. Boyle and Ms F. Hampson, lawyers practising in the United Kingdom. The Turkish Government (“the Government”) were represented by their Agent, Mr S. Alpaslan. 4.     The applicant alleged that his son Mehmet Gül had been shot dead by police officers who had fired their weapons through the door of his home without any justification and that he had had no effective access to court or remedy in respect of this. He invoked Articles 2, 6 and 13 of the Convention on behalf of himself, his deceased son and his deceased son’s wife and children. 5.     The application was declared admissible by the Commission on 3   April 1995. In its report of 27 October 1999 (former Article 31 of the Convention), it expressed the opinion unanimously that there had been a violation of Article 2 and Article 13 of the Convention. In accordance with Article   5   §   4 of Protocol No.   11 to the Convention, the case was assigned to the Fourth Section. 6.     The Chamber constituted within the Section included ex officio Mr   R.   Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 26 § 1 (a) of the Rules of Court) and Mr G. Ress, President of the Section (Rules 12 and 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr Pastor Ridruejo, Mr Butkevych, Mrs Vajić, Mr Hedigan and Mrs Botoucharova. 7.     Subsequently, Mr Türmen withdrew from sitting in the Chamber (Rule 28). The Government accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 8.     The applicant and the Government each filed observations on the merits. 9.     On 22 June 2000, having consulted the parties, the Chamber decided that no hearing on the merits was required (Rule   59   §   2 in fine ). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The facts of the case, particularly concerning events on 8 March 1993 when Mehmet Gül, the applicant’s son, was shot dead by police officers firing through the door of his apartment during a search operation in Bozova, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties. The Commission heard witnesses in Ankara from 15 to 19 February 1999. These included the applicant; Filiz Gül, his daughter-in-law and widow of his deceased son; Mustafa Gül, his son; Mustafa Gül, the applicant’s nephew; two neighbours, Mustafa Hakkı Ocakoğlu and Ömer Kaya; Erhan Güder, the Bozova district gendarme commander, who set up the operation on 8 March 1993; Fahrettin İlgun, leader of the special operations team which opened fire; Murat Sönmezyurt, Enis Ünlü, Lüfti Demirtürkoğlu, Recep Doğan and Şener Karamurat, members of the team; Mehmet Meral, Bozova police superintendant, and police officers Mehmet Toprak, Şahin Yakut, Mehmet Telçi and Ömer Avcı, who attended the scene of the incident; Kamil Çetinkaya and Fikret Yılmaz, Bozova public prosecutors involved in the investigation; Ali Rıza Uytun, Şanlıurfa public prosecutor, who attended the autopsy; Ömer Koçaslan, Şanliurfa public prosecutor involved in the criminal trial of the three police officers who opened fire; Güven Sağban, gendarme lieutenant who gave an expert opinion to the court in the criminal trial; Güner Kalkendelen, a police operations expert who gave an opinion in the trial; and Teyfik Ziayeddin Akbulut, the provincial governor of Şanlıurfa, who authorised the operation. 11.     The Commission’s findings of fact are set out in its report of 27   October 1999 and summarised below (Section A). The applicant accepts the Commission’s findings of fact. The Government’s submissions concerning the facts are summarised below (Section B). A.     The Commission’s findings of fact 12.     Bozova was a small town, of about 15-16,000 people, located about 36 km from Şanlıurfa in the south-east region of Turkey. It was close to the Atatürk dam which was perceived as a possible target for the PKK (the Kurdish Workers’ Party). A company of commandos was stationed there. There was no evidence that PKK activity was particularly prevalent in Bozova itself or that there were any significant security problems. 13.     The applicant, a business-man and an official in the local branch of the True Path Party, was well-known in Bozova and a respected citizen, unsuspected of any illicit activities. His son Mehmet Gül was less well-known, running a petrol station for him. There was no evidence prior to the events of 7-8 March 1993 that he was suspected of involvement with the PKK. 14.     On 7   March   1993, Major   Güder, the provincial gendarme commander, received a telephone call from an informant, naming three to four terrorists and indicating the addresses in Bozova where they could be found. Major Güder informed the provincial governor Ziyaeddin Akbulut at about 19.00 to 19.30 hours. The governor authorised the search operation proposed by Major Güder to locate the terrorists and the allocation of personnel from Şanlıurfa to assist, who were to be chosen by the Şanlıurfa police chief Mustafa Cebe. 15.     A meeting was held on the night of 7 March 1993, at about 20.30 hours, at the district gendarme headquarters to plan the search operation, attended by the district governor, Major Güder the district gendarme commander, the deputy police chief of Bozova (Fatih Güner) and possibly a number of other local police officers. The information given at the meeting did not clearly emerge in the evidence before the Commission - the names and code names of the terrorists who had been seen were mentioned and a number of addresses. As a large number of addresses were searched during the night, the search was wider than the addresses originally mentioned by the informant. The basis on which those addresses were chosen was not established. Mehmet Gül had not been named as one of the terrorists by the informant and the reason why his apartment was to be searched was not provided in any of the written or oral evidence. 16.     Between 22.00 and 23.00 hours, a special operations team of twelve officers, assigned by the Şanlıurfa police chief, arrived in Bozova. The acting team leader was Fahrettin İlgun. The team members were briefed by their leader. Their recollection of what they were told varied considerably. It appeared however that they had been given a strong indication that PKK terrorists would be likely to be present at the address. No instructions were given to them about the use of their weapons or the tactics to be used to gain entry to the apartment if there was resistance. No details were given concerning the other people who lived in the Gül apartment block. The Commission found insufficient evidence to support the allegation of the applicant that the special operations team was assigned and instructed for the purpose of carrying out a “point operation”, namely, an operation in which it was planned to use lethal force against an identified target in an extra-judicial execution-type raid. The Commission commented that the lack of contemporaneous documentary evidence concerning the planning of the operation hampered its assessment of this aspect of the case. 17.     The house searches had begun before the arrival of the special operations team. A search report indicated that by 23.20 hours eight searches had been carried out. The house of Mustafa Gül, the applicant’s nephew, who lived 150 metres from the applicant’s apartment block was searched between 22.00 hours and 23.00 hours by local police officers, and proceeded in a polite, unaggressive manner. Nothing was found which supported the information given by the informant earlier in the day. 18.     Shortly before 01.00 hours, the special operations team arrived at the applicant’s apartment block with the intention of carrying out a search of Mehmet Gül’s flat. 19.     The Gül apartment block had streets on three sides and a garden on the fourth. On the ground floor, there were commercial premises; on the first floor, Mustafa Gül and his family lived in a flat on the left-hand side while Mehmet Gül and his family lived in a flat on the right-hand side. There were stairs leading up to the first floor from both the left and right corners of the side of the house facing the garden. The applicant occupied the flat on the second floor which was reached by a flight of stairs, which descended onto the balcony outside Mehmet Gül’s apartment. There was a partition separating the balcony into two areas in front of the two flats respectively. The stairs on each level were open, with railings. The area outside the flat was described as a balcony but there were differing descriptions of its dimensions and, particularly, whether it was a closed or open space. Videotapes provided by the parties did not elucidate the matter as there had been extensive alterations to the building since the events in issue. The videotapes did show that the stairwell to the second floor was located in the area in front of Mehmet Gül’s front door. 20.     The entrance to Mehmet Gül’s flat was an iron door, which was secured by a lock, which was turned by a key, and also by a bolt. The door opened inwards. Outside, on the left of the door, was the kitchen window. Inside, on entering the flat, a hall ran straight ahead 5 metres to the sitting room. Leading from left of the hallway was the kitchen, then a WC and bathroom. On the right of the corridor, there was a bedroom where the children slept, then a spare bedroom and furthest from the entrance the bedroom where Mehmet Gül and his wife slept. 21.     As the search operation at the flat commenced, two police officers, Meral and Avcı, were in position outside the house, in the street where they could see who entered and left the building. Six of the special operation team ensured the security of the house - Cahıt İnal, Sadık Ergüler, Hasan Söylemez, Bülent Torent, Murat Avan and Nurettin Yıldız. None of these men were in a position in which they had a view of the first floor of the house. Six of the special operations officers (Fahrettin İlgün, the team leader, Murat Sönmezyurt, Recep Doğan, Enis Ünlü, Lüfti Demirtürkoğlu, Şener Karamurat) went up the stairs to the first floor. The positions of these officers were obscure. Their oral and written evidence was in many instances inconsistent. It appeared that Fahrettin İlgun, in position near the door of Mustafa Gül’s flat was not able to see clearly what occurred in front of Mehmet Gül’s flat. Murat Sönmezyurt was either on the stairs leading to the second floor or the ground floor and also unable to see what occurred. Şener Karamurat claimed that he was watching up the staircase towards a window and did not see anything, as he was behind an iron partition to the right of the door. There was however general agreement that Enis Ünlü was on the left side of the door to Mehmet Gül’s flat, while Recep Doğan and Lüfti Demirtürkoğlu were nearby, providing him with cover. 22.     Many of the details surrounding what occurred next were in dispute. The Commission found considerable difficulties attaching to the evidence of the three special team officers at the door, who alleged that, after Enis Ünlü had knocked on the door giving loud warnings to open up, the door had swung abruptly open, Mehmet Gül had fired a shot through the door with a pistol and closed the door again. They had then opened fire on the door with a view to forcing it open, accidentally inflicting multiple wounds on Mehmet Gül who was behind the door. The Commission found their testimony lacking in reliability and credibility and that it was in some respects incredible. Their account gave an impression of being embroidered to present as exculpatory a picture as possible. On the other hand, it found the evidence of Filiz Gül and Mustafa Gül, who were immediate witnesses of events, to be on the whole consistent, credible and convincing. Their accounts were in many respects supported by the testimony of the applicant and the other non-official witnesses. 23.     On the basis of its assessment of the evidence, the Commission found that there was no prolonged knocking on the door or any verbal warning given to those inside the flat. Mehmet Gül came to the door in answer to a light knocking. It was highly probable that the officers outside started firing through the door, as Mehmet Gül was in the process of opening the lock. It was possible that the click of the key turning sounded like a gun being cocked and that this triggered their reaction. The intensity of the firing destroyed fingers on Mehmet Gül’s right hand and inflicted numerous wounds. As he turned away from the door, a bullet struck him in the back inflicting a fatal injury. He staggered back up the corridor, leaving blood stains against the wall. His wife, Filiz Gül, collided with him in the doorway of the bedroom and he collapsed on a sofa bed in that room. Meanwhile, in the flat next door, Mustafa Gül had heard the shooting and after opening his door briefly, he realised that it was the police and came out. He was forced onto the ground with a gun to his head. When the applicant came downstairs, he saw Mustafa on the ground held at gunpoint by a security officer. He also saw that the lights were out and switched the mains switch back on. The applicant and Mustafa participated in the efforts to open the door by physical force as the lock had jammed under the force of the bullets and Filiz Gül had been unable to open it from the inside. When the door was kicked open, the applicant and Mustafa entered the flat to find his injured son at the same time as, or shortly after, police officers entered. 24.     The applicant and other members of the family carried the severely injured Mehmet Gül downstairs and carried him to the local health centre in the applicant’s car. There, he was transferred to an ambulance which took him to Şanlıurfa hospital. He died however prior to his arrival. His body was taken to the morgue. 25.     Meanwhile, a search was carried out at Mehmet Gül’s flat. An incident report, and numerous statements of police officers, recorded that two guns were found in the flat - a Browning cocked with a bullet in the barrel and a French 10 rounder - and that a 9 mm empty cartridge was found in the corridor near the front door. These documents did not identify which of the signatories in fact witnessed the finding of these objects. The oral testimonies of the officers were confused and contradictory. No one was able to say who had found the French 10 rounder as alleged in a wardrobe. While Telçi claimed to have found the Browning, he was unable to recall whether it was bloodstained or not. There was no evidence that any precautions were taken in handling the guns with a view to preserving any forensic evidence. The finding of the guns was not properly recorded. They were not delivered to the public prosecutor until 12 March, three days later. The photograph taken of the guns shows them sitting on a desk, either at the police station or the prosecutor’s office. The Commission did not find it established that the guns were found in the flat as alleged by the officers. 26.     The special operations team returned to Şanlıurfa after the search. They were not required to hand in their guns for examination or to account for the bullets expended during the operation. 27.     The body of Mehmet Gül was examined by a doctor at Şanlıurfa hospital at about 02.00 hours in the presence of the Şanlıurfa public prosecutor Ali Rıza Uytun. The report which was drawn up was brief. It did not number the injuries on the body, giving only a general reference to grazes, cuts and erosions. No sketch was made of the location of injuries nor were any photographs taken. His family - Mustafa Gül the son and Mustafa Gül the nephew - described the body as showing numerous bullet injuries, from the waist downwards. There was no full autopsy carried out, nor any X-rays taken. The public prosecutor Uytun considered that this was unnecessary as the cause of death - the bullet injury to the right kidney - was clear. He considered it was evident from the body that there were no bullets or fragments of bullets inside and that it was not necessary to give details of the grazes as these did not contribute to the death. The Commission found the report to be seriously deficient - it failed to describe the extent of Mehmet Gül’s injuries and to provide any useful medical or forensic detail for the purpose of assessing the proportionality of the force used by the security forces, the necessity for which evidence should have been apparent to the public prosecutor in the case of the killing of an individual by police officers. 28.     In addition to the lack of proper recording of the finding of the guns and cartridge at the scene of the incident (i.e. no photographs, sketch map or record of the officers who found them), the procedures at the scene were deficient in a number of other respects. Although the public prosecutor noted 50-55 bullet holes in the door, only 30 cartridges were found.   Though the Browning was tested to see if it had been recently fired, no testing was carried out to establish that it had been fired by Mehmet Gül, i.e. by way of fingerprinting or analysis of blood traces. If the gun had been used by Mehmet Gül as alleged, there was a high probability that blood traces would have been present (he was right handed, his right hand was shattered by bullets and blood smears were evident throughout the apartment where he had come into contact with walls and furniture). The photograph of the guns showed no visible stains however. Nor were Mehmet Gül’s hands tested for traces of firing. Though it was alleged by prosecutor Uytun that this test was pointless, this assertion did not accord with the practices adopted in other Turkish cases examined by the Commission and utilised by police forces in other member States. The explanations given variously for not employing these tests (shortness of time, the desire to avoid upsetting the family) were not convincing. While the body was buried rapidly, there was nothing to stop the prosecutor delaying the release of the body to the relatives until the necessary tests had been carried out. 29.     Though it was alleged that Mehmet Gül had fired a shot at the officers, no steps appeared to have been taken to check for a strike mark outside the flat or to find the bullet. The evidence before the Commission including the videotapes indicated that the staircase to the second floor was at the front of the balcony and potentially in the line of fire depending on the angle. The Commission was not convinced by the explanation that, assuming the bullet was fired into an open space over the balcony or stairway, it was not worth searching the garden for it. The fact that the gathering of forensic evidence was frequently a time-consuming and painstaking task did not relieve the authorities of the responsibility to make efforts to locate and preserve such evidence. 30.     As regarded the gathering of evidence from witnesses, the public prosecutor in Bozova took statements from the applicant, family members and neighbours shortly after the events. They maintained that there had been no warnings given and that Mehmet Gül had not fired any gun at the officers. However, no statements were taken from any of the police officers involved until 8 May 1993, two months later. No statements were taken from any gendarme officers involved, nor the other persons who might have been involved in the planning of the operation. No enquiries were made of the special operations team department as to the weapons used or number of bullets expended on the operation. 31.     On 17 March 1993, the Bozova public prosecutor issued a decision of lack of jurisdiction, which indicated the applicant as complainant, the members of the special operations team as the defendants and the offence as unintentional homicide. It stated that based on intelligence that members of the PKK could be located in certain residences in Bozova, a number of searches were carried out at about 20.30 hours. At 00.01 hours special team officers intended to carry out a search at Mehmet Gül’s house. After giving warning, “Police. Open the door”, they fired at the metal door to gain entry. At that moment, Mehmet Gül was behind the door. He died from the wounds received. During the search of his house, there was found an illegal 7.65 mm French pistol, a Belgian Browning pistol with its hammer drawn back and a bullet in the barrel, 13 bullets and a cartridge. The applicant, father of the deceased, had lodged a criminal complaint. However, as it appeared that the defendants were special team officers and the offence carried out while they were performing their duties, the public prosecutor decided that he lacked jurisdiction and sent the file to the Provincial Governor for the necessary action. 32.     On 29 March 1993, the Şanlıurfa provincial governor requested the appointment of an inspector to carry out an investigation into the incident on behalf of the provincial administrative council. A police inspector, Salih Dost, was appointed. He took statements from the applicant and other family members, the neighbours Omer Kaya and Mustafa Ocakoğlu, the local police officers involved in the search operations that night and all the members of the special operations team. All the statements, save that of Mehmet Telci taken on 11 August 1993, were taken from 8 to 10 May 1993. 33.     On 3 September 1993, the inspector issued his report. It concluded that the officers had not fired to kill but had shown lack of care, which could justify charges being brought against them for causing death from lack of care and precautions, and recommended a disciplinary sanction of 16 months’ suspension. However, a decision not to prosecute was endorsed by the provincial administrative council on 21 October 1993 on the basis that the officers had not intended to kill anyone, that they had only fired after a shot had been fired at them and that they had given a warning. This decision was not communicated to the applicant. 34.     On 18 April 1995, some sixteen months later, the Supreme Administrative Court quashed the decision on 18 April 1995 and ordered the trial of the three officers who had fired at the door – Enis Ünlü, Recep Doğan, Lüfti Demirtürkoğlu. 35.     The three officers were tried for causing death by lack of attention and due precaution (Art. 455 of the TPC). They were not represented by a lawyer during the proceedings, which lasted from 5 July 1995 to 9   September 1996 before Şanlıurfa Criminal Court No. 2. During the trial, the three officers appeared. They maintained their written statements, and only Recep Doğan made any additional comments. No other witnesses were heard. 36.     On 26 February 1996, the court appointed a gendarme lieutenant Güven Sağban as expert. He submitted a report dated 28 February 1996. This stated that from the file it was understood that the officers had called out warnings at the house, that the deceased had come out, fired one shot and shut the door again and that the officers fired at the lock to open it. The deceased, in the line of fire, was wounded and died. A subsequent search revealed the gun which had been fired and another, both unlicensed. It was noted that the complainants and other witnesses essentially disputed the statements of the security officers. It concluded that the defendants were members of a special operations team and had received serious and strict security training. During the incident and operation, conducted on the basis of intelligence information, the deceased fired a shot and the defendants were therefore “preconditioned”. They were primarily concerned to open the door and also to protect themselves and their colleagues. For those reasons, they fired at the lock. The photographs indicated that the defendants’ firing was concentrated round the lock to break it. Also the deceased’s firing was intended to attack more than to defend. This indicated that although the defendants showed the care and attention expected from them, the incident occurred. No fault or ill-intention could be attributed to them. 37.     On 3 April 1996, the court decided to send the file to the Ankara Criminal Court for expert lecturers from the Ankara Police Academy to be selected to prepare a detailed report on the use of weapons and the intention behind the use of weapons. 38.     On 16 July 1996, three experts (Chief Inspectors Güner Kalkendelen and Yılmaz Yaşar and Dr Vahit Bicak, a research fellow at the police academy) issued a report. This stated that they had been requested to give their opinion on the fault, if any, of each accused individually based on the court file. It listed as fact that the security forces acting on intelligence about the presence of PKK members surrounded Mehmet Gül’s house at about 24.00 hours on 7 March 1993. The officers knocked on the door, warning, “Police. Open the door”. The door was slightly opened from the inside, a gun was fired and the door closed. The officers fired aiming at the lock to enter. The deceased who was behind the door was injured. The opinion of gendarme officer Adnan Kulaksiz stated that the 9 mm hand gun found was set to fire and recently used. The report analysis stated that it was believed that the security forces opened fire after the deceased fired due to the stress caused by the situation in the south-east and the psychological tension of the operation. It was significant that they did not shoot wildly but concentrated on the lock of the door. The fatal bullets were in the kidney and intestinal area, the same level as the lock, showing further that there was no intention to injure or kill. It concluded that the deceased was injured by chance and that the accused could not be charged with negligent conduct. 39.     None of the experts visited the scene or requested any further information or evidence but based themselves on the statements in the file. 40.     On 9 December 1996, the court referring to the expert report of 16 July 1996 concluded that the defendants were not at fault and acquitted the three officers. The Commission noted that there was no indication that in any of the proceedings consideration had been given as to whether the accounts of the family were in any respect accurate or on what basis the version of events given by the security forces was to be preferred. It is not apparent that the applicant was informed of the criminal proceedings or afforded the opportunity to join as a party. B.     The Government’s submissions on the facts 41.     The applicant’s son Mehmet Gül was killed during an armed operation intended to effect the arrest of PKK terrorists. That night, having been informed that some PKK terrorists were being sheltered in some houses, including the applicant’s house, security forces arrived at the house at about 01.00 hours to arrest the terrorists believed to be inside. They knocked on the door and asked the occupants to open the door. The door suddenly opened, a gunshot was heard and the door immediately closed again. Upon this, the officers fired three or four shots towards the lock of the door. After these shots, a woman’s voice was heard asking for help. When she tried to open the door, she told those outside that the lock had been jammed. Since it was understood that the matter was urgent, the officers told her to move aside and fired directly on the lock. Then they opened the door, carried out a rough search and let in the applicant. The security forces assisted the applicant and his son Mustafa in carrying the injured Mehmet Gül to a police car, which took him to the local health centre. 42.     Two guns were later found in Mehmet Gül’s apartment, as well as a 9 mm cartridge near the door. 43.     The death of Mehmet Gül was caused accidentally. The three officers who shot at the door were acquitted by the criminal court on the basis that they had not acted negligently. II.     RELEVANT DOMESTIC LAW AND PRACTICE 44.     The principles and procedures relating to liability for acts contrary to the law may be summarised as follows. A.     Criminal prosecutions 45.     Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. It is also an offence for a government employee to subject some-one to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment). The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles   151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutor’s offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article   152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 46.     In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey. 47.     If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court. 48.     If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person’s life by disobeying an order (Article   89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 45 above) or with the offender’s superior. B.     Civil and administrative liability arising out of criminal offences 49.     Under section   13 of Law no.   2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 50.     Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities are subject to judicial review ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 51.     Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 50 above), provides: “No criminal, financial or legal liability may be asserted against … the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 52.     Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles   41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article   50 of the Code of Obligations).   THE LAW I.     THE GOVERNMENT’S PRELIMINARY OBJECTION 53.     The Government objected that the applicant had not exhausted domestic remedies, as required by Article 35 of the Convention, by making proper use of the available redress through the instituting of criminal proceedings, or by bringing claims in the civil or administrative courts. They referred to the Court’s upholding of their preliminary objection in the Aytekin case (the Aytekin v. Turkey judgment of 23 September 1998, Reports 1998-VII, p. 2807). The Government maintained that the applicant could have joined as party to the criminal proceedings brought against the police officers accused of killing his son and, as he was represented by a lawyer, that lawyer was to blame for not informing him of the decision of the Supreme Administrative Court reversing the decision of the Şanlıurfa Administrative Council not to prosecute. The applicant could also have obtained from domestic judicial bodies the compensation which he sought in the present proceedings. 54.     The applicant pointed out that he had not been informed by the authorities that a prosecution was taking place and that he had thereby been denied the possibility of participating in the trial. The exclusion of the applicant and his family, who were not called as witnesses, from the proceedings which culminated in a finding that the killing was justified, removed any prospect of recovering compensation in a civil court. The defective nature of the investigation and procedures deprived him of any effective remedy. 55.     The Court reiterates 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. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see the Aksoy v.   Turkey judgment of 18   December   1996, Reports   1996-VI, pp.   2275-76, §§   51-52, and the Akdivar   and   Others   v. Turkey judgment of 16 September 1996, Reports 1996-IV, p.   1210, §§   65-67). 56.     The Court notes that Turkish law provides administrative, civil and criminal remedies against illegal and criminal acts attributable to the State or its agents (see paragraphs 44-52 above). 57.     With respect to an action in administrative law under Article 125 of the Constitution based on the authorities’ strict liability (see paragraph 50 above), the Court recalls that a Contracting State’s obligation under Articles   2 and 13 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assault might be rendered illusory if, in respect of complaints under those Articles, an applicant were to be required to exhaust an administrative-law action leading only to an award of damages (see the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2431, §   74). Consequently, the applicant was not required to bring the administrative proceedings in question and the preliminary objection is in this respect unfounded. 58.     With regard to the criminal-law remedies (paragraph 44 above), the Court notes that the applicant did lodge a complaint with the public prosecutor. The Government does not contest that he was unaware that the decision not to prosecute was reversed by the Supreme Administrative Court. They blame however the applicant’s lawyer for failing to obtain this information and pass it on to the applicant. 59.     The Court emphasises that 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. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It is essential to have regard to the circumstances of the individual case. The Court is not satisfied that the burden lies on the applicant or his representatives to find out whether the Supreme Administrative Court at some further date intervened to quash the decision not to prosecute. The applicant’s identity as a complainant was known to the authorities and it was the responsibility of the authorities to inform him that a prosecution had been ordered in order to provide him with the opportunity of joining as a civil party. 60.     As regards a civil action for redress for damage sustained through illegal acts or patently unlawful conduct on the part of State agents (see paragraph 52 above), the Court notes that in theory it would have been open to the applicant to attempt to take an action against the three police officers for example. It observes however that the applicant claims that the defective nature of the investigation into the incident and the conduct of the proceedings effectively deprived him of any prospect of obtaining a remedy based on a finding of fault by the police officers. 61.     The Court considers that the limb of the Government’s preliminary objection concerning civil and criminal remedies raises issues concerning the effectiveness of the criminal investigation and proceedings that are closely linked to those raised in the applicant’s complaints under Articles 2 and 13 of the Convention. It also observes that this case differs from the Aytekin case relied on by the Government as, in the latter case, the soldier who had shot the applicant’s husband had been convicted of unintentional homicide by the Batman Criminal Court. The appeal which was pending before the Court of Cassation concerned both the applicant’s and the public prosecutor’s claims that he should have been convicted of a more serious degree of homicide. In those circumstances, it could not be said that the investigation conducted by the authorities did not offer reasonable prospects of bringing the person responsible for the death of her husband to justice (Aytekin judgment cited above, p. 2827, § 83). 62.     Consequently, the Court dismisses the Government’s preliminary objection in so far as it relates to the administrative remedy relied on (see paragraphs 49-51 above). It joins the preliminary objection concerning remedies in civil and criminal law to the merits (see paragraphs 102-107 below). II.     the court’s assessment of the facts 63.     The Court reiterates its settled case-law that under the Convention system prior to 1 November 1998 the establishment and verification of the facts was primarily a matter for the Commission (former Articles 28 § 1 and 31). While the Court is not bound by the Commission’s findings of fact a