CEDH · PRESS;GCJUDGMENTS;ENG — 20 mai 1999

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TURKEY       In a judgment delivered at Strasbourg on 20 May 1999 in the case of Oğur v.   Turkey (application no.   21594/93), the European Court of Human Rights held that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights as regards the planning and execution of the operation that had led to the death of the applicant’s son (16 votes to 1) and as regards the investigations carried out by the national authorities (unanimously). Under Article 41 of the Convention, the Court awarded the applicant a specified sum for non-pecuniary damage and legal costs and expenses.     1.   Principal facts     The applicant, Mrs Sariye Oğur, a Turkish national, was born in 1923 and lives in Sariyaprak, a district in the province of Siirt, where a state of emergency is in force.     On 24 December 1990 security forces carried out an armed operation at a site belonging to a mining company some six kilometres from the village of Dağkonak. The applicant’s son, Musa Oğur, who worked at the mine as a night-watchman, was killed at about 6.30 a.m. as he was about to come off duty.     On 26 December 1990 the public prosecutor’s office declared that it had no jurisdiction to institute proceedings against civil servants and forwarded the file to the Administrative Council of the province of Şırnak. On 15 August 1991 the Administrative Council delivered a decision in which it concluded that no proceedings should be brought in the criminal courts against the members of the security forces who had taken part in the operation of 24 December 1990. In its view, the victim had died after warning shots had been fired during the operation in question. Neither the evidence in the file nor taking statements from witnesses would make it possible, however, to identify with any certainty the person who had fired. On 19 September 1991 the Supreme Administrative Court upheld that decision.     2.   Procedure and composition of the Court     The application to the European Commission of Human Rights, which was lodged on 16 March 1993, was declared admissible on 30 August 1994. Having attempted unsuccessfully to secure a friendly settlement, the Commission adopted a report on 30 October 1997 in which it established the facts and expressed the opinion that there had been a violation of Article 2 (32 votes to 1).     It referred the case to the Court on 15 December 1997.     Under the transitional provisions of Protocol No. 11 to the Convention, the case was referred to the Grand Chamber of the European Court of Human Rights on the entry into force of the Protocol, on 1 November 1998. Judgment was given by a Grand Chamber of seventeen judges, composed as follows:   Luzius Wildhaber (Swiss), President , Antonio Pastor Ridruejo (Spanish), Giovanni Bonello (Maltese), Jerzy Makarczyk (Polish), Pranas Kūris (Lithuanian), Jean-Paul Costa (French), Françoise Tulkens (Belgian), Viera Strážnická (Slovakian), Marc Fischbach (Luxemburger), Volodymyr Butkevych (Ukrainian), Josep Casadevall (Andorran), Nina Vajić (Croatian), Hanne Sophie Greve (Norwegian), András Baka (Hungarian), Rait Maruste (Estonian), Snejana Botoucharova (Bulgarian), Judges , Feyyaz Gölcüklü (Turkish), ad hoc judge ,   and also Paul Mahoney and Maud de   Boer-Buquicchio , Deputy Registrars .     3.   Summary of the judgment [1]     Complaint     The applicant complained of a violation of the right to life guaranteed under Article 2 of the Convention.       Decision of the Court   I   Article 2 of the Convention     A.   The Government’s preliminary objections       (1)   Failure to exhaust domestic remedies     The Government had maintained before the Court that the applicant had not exhausted the domestic remedies afforded her by Turkish law.   The Court pointed out that in its judgment of 2 September 1998 in the case of Yaşa v.   Turkey it had held that the applicant was not required to bring the same civil and administrative proceedings as those relied on by the Government before the Court. The Court saw no reason to depart from those conclusions in the case before it.     As to the fact that the criminal proceedings had been instituted not by the applicant herself but by the victim’s employer, the Court reiterated that the purpose of the rule that domestic remedies must be exhausted was to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those violations were submitted to the Court. In the case before it, the requirement was satisfied, seeing that the complaint lodged by the victim’s employer had had the same effect as one that could have been lodged by the applicant, namely that a criminal investigation had been opened.       (2)   Estoppel     The Government had also submitted that the applicant was “estopped from making her allegations” as she had not appeared before the Commission’s delegation responsible for taking statements from the witnesses in Ankara, although she had been invited to do so.     The Court noted that the Government could themselves be regarded as estopped from raising that objection before it, since they had not done so before the Commission. As to the merits of the issue, the Court considered that in principle the fact that an applicant had not appeared personally before the Convention institutions did not affect the validity of complaints he had raised before them in good time, provided that he maintained his application, as the applicant had manifestly done in the case before it.     In conclusion, the Government’s preliminary objections had to be dismissed.       B.   Merits       (1)   The death of the applicant’s son     The Court noted, first of all, that none of those appearing before it had disputed that the victim had been killed by a bullet fired by the security forces. The disagreement related solely to whether that bullet came from a warning shot or from a shot fired at the victim, and on the circumstances in which the shot was fired.     The Court noted that of all the witnesses interviewed, only the members of the security forces had stated that they had been the target of an armed attack. In the light of the evidence available, the Court considered that there was insufficient evidence to establish that the security forces had come under any armed attack at the scene of the incident.     The Court noted, further, that only one of the witnesses questioned had stated that verbal warnings had been given, while another had indicated that no warning had been given and a third witness had said that he could not remember what had happened. The Court concluded that there was not sufficient evidence to establish that the security forces had given the warnings usual in such cases.     Several witnesses had explained the death of the applicant’s son as having been caused by a warning shot and the Government had added, in their memorial, that as the shot had struck Musa Oğur in the nape of the neck, he had been running away. In that connection, the Court pointed out that, by definition, warning shots were fired into the air, with the gun almost vertical, so as to ensure that the suspect was not hit. That was all the more essential in the instant case as visibility was very poor. It was accordingly difficult to imagine that a genuine warning shot could have struck the victim in the neck. The Court consequently considered that, even supposing that Musa Oğur had been killed by a bullet fired as a warning, the firing of that shot had been badly executed, to the point of constituting gross negligence, whether the victim was running away or not.     In sum, all the deficiencies r noted in the planning and execution of the operation in issue sufficed for it to be concluded that the use of force against Musa Oğur had been neither proportionate nor, accordingly, absolutely necessary in defence of any person from unlawful violence or to arrest the victim. There had therefore been a violation of Article 2 on that account.       (2)   The investigations by the national authorities     The Court reiterated that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, required by implication that there should be some form of effective official investigation when individuals had been killed as a result of the use of force. The investigation should have been capable of leading to the identification and punishment of those responsible.     The Court observed that when he inspected the scene of the incident, the Şırnak public prosecutor confined himself to noting findings in respect of the victim’s body, making an inspection and a sketch of the scene, reconstructing the events and interviewing three witnesses, all of them night-watchmen colleagues of the victim. The Court observed, however, that here, too, a proper examination, in particular a ballistic test, could have revealed exactly when those items had been used.     As to the witnesses questioned at the scene by the prosecutor, they were all members of the night-watchmen’s team. No member of the security forces that had taken part in the operation was interviewed on that occasion. Lastly, the expert report prepared at the prosecutor’s request contained information that was very imprecise and findings mostly unsupported by any established facts.     The subsequent investigation carried out by the administrative investigation authorities had scarcely remedied the deficiencies noted above in that, again, no post-mortem or other forensic examination, notably in the form of ballistic tests, had been ordered and no members of the security forces that had taken part in the operation had been questioned, although their names were known.   It had to be noted, lastly, that during the administrative investigation, the case file had been inaccessible to the victim’s close relatives, who had had no means of learning what was in it. The Supreme Administrative Court had ruled on the decision of 15 August 1991 on the sole basis of the papers in the case, and that part of the proceedings had likewise been inaccessible to the victim’s relatives.     In conclusion, the investigations in the case could not be regarded as effective investigations capable of leading to the identification and punishment of those responsible for the events in question. There had therefore been a violation of Article 2 on that account also.     II.   Article 41 of the Convention     The applicant had claimed 400,000 French francs (FRF) for pecuniary damage, FRF   100,000 for non-pecuniary damage and FRF 240,000 by way of reimbursement of her costs and expenses.     The Court dismissed the claim in respect of pecuniary damage but, ruling on an equitable basis, awarded the applicant FRF 100,000 for non-pecuniary damage and FRF 30,000 for costs and expenses.       Judges Bonello and Gölcüklü expressed dissenting opinions and these are annexed to the judgment.     Judgments are available on the day of delivery on the Court’s Internet site (www.dhcour.coe.fr)     Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to requests for information concerning the work of the Court, and in particular to enquiries from the press.   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contact: Roderick Liddell Telephone: (0)3 88 41 24 92; fax: (0)3 88 41 27 91   1.     This summary by the Registry does not bind the Court.