CEDH · CASELAW;CLIN;ENG — 26 février 2008

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Turkey - 43443/98 Judgment 26.2.2008 [Section III] Article 2 Article 2-2 Use of force Undisputed use of lethal force by State agents and effectiveness of the investigation: violation   Article 3 Degrading treatment Inhuman treatment Allegations of ill-treatment during an operation by security forces against the PKK in a state-of-emergency region: violation   Facts : The case concerned, in particular, the killing of the applicants’ son and ill-treatment inflicted on the second applicant, Mrs   Mansuroğlu, during an anti-terrorist operation against the PKK conducted by the security forces in a region in which a state of emergency had at that time been declared. The parties agreed that the son’s death had been the result of an intentional use of force by members of the security forces, but disagreed as to the exact circumstances. An investigation was opened in 1996 and three autopsies were carried out. The examinations determined that death had occurred from internal and external haemorrhaging caused by bullet wounds. The trajectory of the bullets showed that he had been hit in the back. Their impact suggested that he could not have been shot at point-blank range, but the distances from which the shots had been fired could not be determined because it would have been necessary to carry out ballistic tests on the deceased’s clothing, and the first autopsy team, which was not specialised in forensic medicine, had not been aware of the need to preserve those items. In 1997 the administrative committee dealing with the case under the law on criminal proceedings against public servants informed the applicants’ lawyer that his clients could not be informed of progress in the case as they had not applied to join the proceedings as interveners. All the requests from the applicants for evidence to be taken from prosecution witnesses were refused. In 1998 the administrative committee discontinued the proceedings on the ground that it had been established that the victim was a member of the PKK and that he had been “captured dead during an armed clash between the security forces and terrorists”. The committee concluded that the allegation to the effect that the victim had been unlawfully imprisoned and then subjected to an extrajudicial execution was unfounded. The Supreme Administrative Court upheld the decision to discontinue the proceedings. In the meantime, Mrs Mansuroğlu underwent a medical examination. The final medical report concluded that she was unfit for work for five days and required a total recovery time of ten days. She made an official complaint against police officers for ill-treating her. Ultimately, the Turkish authorities decided not to prosecute them. She appealed but was unsuccessful. Law: Article 2 § 2 – (a)     Establishments of the facts and the burden of proof : Faced with an allegation that the undisputed use of lethal force by State agents in circumstances under their control entailed a breach of Article 2 § 2, it was for the respondent Government to establish that the force in question had not exceeded what was “absolutely necessary” and that it was “strictly proportionate” to one of the aims authorised by that provision. (b)     As to the death : At a time when terrorist attacks were raging in south-eastern Turkey and in respect of three individuals who had been denounced by name as PKK militants, the Court was prepared to accept that the operation complained of could be regarded as the result of an “honest and plausible belief” that it was necessary. However, it was not satisfied, in the light of the material in the file, that the operation, involving thirty-seven police officers armed with assault weapons and explosives such as grenades, had been planned in such a way as to reduce to a minimum the need to resort to lethal force. Nor did the Court accept the Turkish Government’s argument that there had been an armed clash of such great violence as to require the police officers to resort to self-defence. It noted, on the other hand, a number of serious defects in the determination of the source of the fatal shots. In particular, the weapons used by the police officers had not been examined by experts and a ballistic report on the victim’s clothes had been made impossible. On that point, the Court observed that a non-specialist should not have had the authority to decide what was or was not usable evidence, with the power to dispose of unwanted items. Another glaring omission identified by the Court was the fact that the 37 police officers who had taken part in the operation were not questioned about the way it had been conducted. In those conditions, the authorities could not be deemed to have made a real effort to identify the officer or officers who might be in a position to shed light on the exact circumstances which had allegedly made the death complained of inevitable. As regards the victim’s conduct, there was nothing to show that at the relevant time he had used a weapon against the police officers. Consequently, it was impossible to understand how they could have found it absolutely necessary to respond with such force – including bullets and explosive weapons – as to cause numerous extremely serious injuries, nor how, in the course of an exchange of fire, all the fatal bullets had struck the victim in the back. The Turkish Government had therefore failed to establish that the lethal force used against the applicants’ son was “absolutely necessary” or “strictly proportionate”. (c)     As to the investigation : The authorities had not conducted an investigation capable of establishing the circumstances of the death, still less of identifying who might have been responsible. Even before the case was referred by the public prosecutor to the administrative committee, the applicants had been practically kept in the dark about the investigation.The proceedings before the administrative committee had revealed a determination to exclude the applicants from the investigation and, as a result, to ensure unconditional acceptance of the denials of the security personnel under suspicion. That confirmed the Court’s serious doubts about investigations conducted by administrative bodies, such as the one involved in the applicants’ case, in that they were not independent of the executive. Conclusion : violation of Article 2 (unanimously) on account of the murder of the applicants’ son by police officers and the absence of an adequate and effective investigation into his death. Article 3 concerning Mrs Mansuroğlu – The Court noted that here again it was for the Turkish Government to explain the circumstances that had given rise to the applicant’s allegation of ill-treatment. The medical report mentioned “injuries” that were sufficiently severe to render Mrs Mansuroğlu unfit for work for five days and to require a ten-day convalescence period. As regards the investigation carried out in this connection, the Court could see nothing to cast doubt on the applicant’s allegations. On the contrary, it noted the lack of any determination on the part of the authorities to gather evidence supporting her complaint, or even to verify the existing evidence, with the result that they ran the risk of increasing people’s feeling of vulnerability at the hands of State agents that was current at the time. The Court considered that the Government had relied on the results of administrative inquiries which were as ineffective as they were inappropriate, and had accordingly not been able to explain the facts complained of by the applicant, in violation of Article 3. Conclusion : violation (unanimously). Article 41 – 5,000   euros   (EUR) plus 150   United States dollars   (USD) was awarded to the applicants in respect of pecuniary damage; EUR   9,000 to Mr Mansuroğlu and EUR   13,000   to Mrs Mansuroğlu in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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