CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 16 mars 2021

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF920FE69 { font-family:Arial; color:#f8f8f8 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sF114237 { width:19.02pt; display:inline-block } .sEC241A8 { width:159.87pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s2753FA3F { width:163.53pt; display:inline-block }     SECOND SECTION DECISION Application no. 56907/11 Süleyman ÖZKILINÇ against Turkey   The European Court of Human Rights (Second Section), sitting on 16   March 2021 as a Committee composed of:   Valeriu Griţco, President,   Branko Lubarda,   Pauliine Koskelo, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to the above application lodged on 29 August 2011, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Süleyman Özkılınç, is a Turkish national, who was born in 1952 and lives in İzmir. He was represented before the Court by Mrs   I.G. Kireçkaya, a lawyer practising in Izmir. 2.     The Turkish Government (“the Government”) were represented by their Agent. 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     On 29 September 2010 the applicant’s son, Sinan Özkılınç, was transferred from the Izmir Security Department’s Traffic Police Team to the Motorcycle Team. 5.     On 5 October 2010 he was found dead in the sports hall of the Police Directorate, shot in the head by a firearm. According to the police report issued on the same day, Sinan Özkılınç had shot himself with his own service handgun. The body examination report did not reveal any other signs of trauma. The gun was found on the left side of the body and there was a pool of blood on the floor. A crime scene investigation report was drafted, swaps were taken from the hands of the deceased, his clothes, the gun and the bullet case found at the scene were sealed and sent out for ballistic examinations. The body was taken to the morgue at the Forensic Institute for a full autopsy. 6.     The Izmir Public Prosecutor immediately initiated an investigation into the death of the applicant’s son. In the course of the investigation, statements were taken from the peers of Sinan Özkılınç. No one was a direct witness of the incident, and the officers stated that he had been assigned quite recently to their unit. One witness stated that he had seen him in the morning as he was lying down on one of the benches in the sports hall and when the witness had asked him what had happened, Sinan Özkılınç had replied that “he was feeling sick”. Another witness stated that before the incident, Sinan Özkılınç had said: “I feel suffocated”. 7.     The autopsy carried out at the Forensic Medicine Institute concluded that the death had occurred as a result of a gunshot at point-blank range. Furthermore, traces of Alprazolam substance were found in the blood sample. 8.     The forensic report stated that the fingerprints found on the charger of the gun belonged to Sinan Özkılınç’s right hand ring finger. No other fingerprints were observed on the gun. Furthermore, a report dated 12   October 2010 indicated the presence of gun powder residue on Sinan Özkılınç’s left hand. Moreover, according to the ballistic examination, the bullet had been fired from the applicant’s son’s service handgun and the bullet case that had been found at the crime scene belonged to a bullet fired from that weapon. 9.     On 6 January 2011 the Izmir Public Prosecutor delivered a decision of non-prosecution, holding that the applicant’s son had committed suicide by using his own gun. 10.     The applicant filed an objection against this decision. He argued that there had been certain shortcomings in the investigation. He pointed out that no fingerprints had been found on the gun and that the prosecution had failed to provide any reasons for this absence. The applicant explained that his son had been left-handed and that there should have been gun powder residues on his right hand and/or on the right side of his face. He also argued that certain important witnesses had not been questioned during the investigation and that there had been negligence on the part of the Police Department. He believed that his son’s supervisor should have been questioned as to why his son was not on active duty on the day of the incident. 11.     On 3 March 2011 the Karşıyaka Assize Court rejected the applicant’s objection and without elaborating in detail, decided that the decision not to initiate criminal proceedings was in accordance with the law. 12.     On 15 March 2011 the applicant filed a complaint with the Izmir Governor against the supervisor of his son. He alleged that the supervisor had been negligent in his conduct, arguing that on the day of the incident he had heard a noise but considered that something had fallen and neglected checking what had really happened. The applicant also stated that the supervisor had failed to evaluate the psychological state of his son. 13.     Further to the applicant’s complaint, disciplinary proceedings were initiated against the supervisor. In the course of the investigation, the supervisor denied the allegations and explained that he had been on outside duty at the time of the incident. He also stated that the applicant’s son seemed troubled and that when he had asked about how he was feeling, he had explained that he was sad due to his breakup with his girlfriend. According to the supervisor, the applicant’s son had explained to him that he had seen a psychologist, recommended by his mother, and started taking medication. The supervisor underlined however that he had no reason to suspect a suicidal tendency. During the investigation further statements were taken from police officers from the same team. One of the officers stated that he had informed the applicant about the incident and called him to the hospital. When the applicant arrived, he said “he shot himself didn’t he? I knew he was going to do that”. According to the recollection of this officer, the applicant had stated that his son had been suffering from psychological problems and that his mother had been hiding the gun from him when he was off duty. He implied that his son’s troubles had been caused due to his separation from his girlfriend. 14.     At the end of the disciplinary investigation, on 12 September 2011 it was decided that the supervisor had not failed to comply with his duties and that there was no need to bring charges against him. 15.     In the meantime, following Sinan Özkılınç’s death, in January 2010 the applicant received compensation aids from the government amounting to a total of 16,336.70 Turkish liras (TRY) (approximately 7,600 euros (EUR)). COMPLAINTS 16.     The applicant complained under Articles 2 and 6 of the Convention that his son’s right to life had been breached and that an effective investigation had not been conducted following his death. THE LAW 17.     The applicant complained under Articles 2 and 6 of the Convention that the authorities had failed to protect the right to life of his son and had failed to conduct an effective investigation. In particular, he alleged that there had been severe shortcomings in the investigation. 18.     The Court considers that the applicant’s complaints should be examined solely from the standpoint of Article 2, bearing in mind that, since it is master of the characterisation to be given in law to the facts of the case, it is not bound by the characterisation given by an applicant or a government (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, ECHR 2018). 19.     Article 2 of the Convention, in so far as relevant to the present case, 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.” 20.     The Government argued that the application should be rejected due to failure to exhaust domestic remedies since the applicant had not initiated administrative proceedings. 21.     The Court does not deem it necessary to rule on the Government’s preliminary objection, as the application is in any event inadmissible for being manifestly ill-founded for the following reasons. 22.     The Government submitted that the death of the applicant’s son had been investigated thoroughly by an independent and impartial authority. They argued that all necessary steps had been taken to clarify the circumstances surrounding the death. They also pointed out the fact that the applicant had full access to the investigation file and that he had been able to raise his concerns before the domestic authorities. They concluded that there were no inconsistencies between the evidence in the case file and that it was at the discretion of the domestic authorities to evaluate the evidence before them. 23.     At the outset, the Court notes that at no stage of the proceedings, the applicant alleged that his son had been killed. His complaint solely concerned the alleged negligence of his son’s supervisor in failing to notice that his son had a suicidal tendency and the alleged ineffectiveness of the investigation, which in his opinion was conducted with the prejudice that his son had committed suicide. 24.     According to the Court’s case-law, Article 2 may imply, in certain circumstances, a positive obligation on the authorities to take preventive operational measures to protect an individual even from himself (see   Renolde v. France , no. 5608/05, §81, ECHR 2008 (extracts), and Haas v.   Switzerland , no. 31322/07, §   54, ECHR   2011). For a positive obligation to arise however, it must be established that the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual and, if so, that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to prevent that risk from materialising (see Keenan v.   the United Kingdom , no.   27229/95, §§ 89 and 92, ECHR 2001-III). 25.     Concerning suicide risks in particular, the Grand Chamber has recently identified some common factors which could aid in establishing whether the authorities’ positive obligation to protect was triggered (s ee   Fernandes de Oliveira v. Portugal [GC], no. 78103/14, § 115, 31   January 2019 and the references therein). 26.     The Court should therefore consider whether the circumstances surrounding the suicide of the applicant’s son had required the authorities to take preventative measures and thus triggered the respondent state’s positive obligations under Article 2 of the Convention. 27.     The Court observes that the applicant’s son had joined the team one week prior to the incident and the case file reveals no particular circumstances which could have alerted the authorities to the fact that he had a suicidal tendency. The Court reiterates that in this type of case, the unpredictability of human conduct must not be ignored, and the State’s positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 245, ECHR 2011 (extracts)). In these circumstances, although the applicant’s son had demonstrated certain signs such as lower mood and distress, there was no element to signal a suicidal tendency. Thus, there is no sufficient evidence for the Court to conclude beyond a reasonable doubt that the authorities knew or ought to have known of the existence of a real and immediate risk to the life of the applicant’s son, and that the suicide was not foreseeable to the domestic authorities. Thus, this part of the complaint is unsubstantiated (see Özcan v.   Turkey (dec.), no.41557/98, 9 November 2004). 28.     As for the effectiveness of the investigation into the death of the applicant’s son, the Court notes that the applicant was dissatisfied with the outcome of the investigation which had found it established that his son had committed suicide. He referred in particular to the fact that there had been no fingerprints on the gun. However, other than the aforementioned allegation, he did not point to any particular omissions or deficiencies which could have rendered the investigation inadequate. 29.     The Court reiterates that where a positive obligation to safeguard the life of a persons is at stake, the system required by Article 2 must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness. In such cases, the competent authorities must act with exemplary diligence and promptness, and must, of their own motion, initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved. The requirement of public scrutiny is also relevant in this context (see, for instance, McKerr v. the United Kingdom , no. 28883/95, § 148, ECHR 2001-III). However, Article 2 does not entail the right for an applicant to have third parties prosecuted or sentenced for a criminal offence, or an absolute obligation for all prosecutions to result in conviction or a particular sentence (see Öneryıldız v. Turkey [GC], no.   48939/99, §   96, ECHR 2004 ‑ XII). The general principles concerning effective investigation are well established in the Court’s case law (see   Mustafa Tunç and Fecire Tunç v. Turkey [GC], no.   24014/05, §§   169 ‑ 182, 14   April 2015). 30.     In the present case, the authorities immediately opened a criminal investigation into the death of the applicant’s son, questioned a significant number of witnesses, and obtained relevant forensic examinations. The investigation established no elements of a criminal offence in the circumstances of the death of the applicant’s son, which was clearly established as suicide. The prosecution ended about five months after being initiated. Thus, the investigation was sufficiently prompt. It established the relevant facts, and there is no reason to doubt the conclusions which it reached. There is no reason to question the independence of the investigation either. It appears that the applicant had no issues in accessing the material of the criminal investigation. 31.     Based on the foregoing, it cannot be said that the domestic authorities accepted without questioning that the incident was a suicide. Furthermore, the fact that no fingerprint was found on the gun was not in itself such as to make further investigation necessary given that it was for the domestic authorities to assess the pertinence of the explanations provided in the forensic reports. This fact alone cannot adversely affect the effectiveness of the investigation (see Giuliani and Gaggio , cited above , §   323). 32.     The Court therefore concludes that the investigation into the death of the applicant’s son was effective. 33.     In view of the above, the Court finds that the applicant’s complaints under Article 2 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 8 April 2021.   {signature_p_2}   Hasan Bakırcı   Valeriu Griţco   Deputy Registrar   President