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SECOND
SECTION
CASE OF ÖZCAN AND OTHERS v. TURKEY
(Application
no. 18893/05)
JUDGMENT
STRASBOURG
20
April 2010
FINAL
20/07/2010
This judgment has become final under Article
44 § 2 of the Convention. It may be subject to editorial
revision.
In the case of Özcan and
Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 30 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18893/05) 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 sixteen Turkish nationals (“the
applicants”) on 29 April 2005. The applicants, whose
particulars are set out in the appendix, are close relatives of
Yılmaz Özcan, who was killed during a military operation on
24 September 2000. At the time of his death Yılmaz Özcan
was forty-two years old.
- The
applicants were represented by Ms Kadriye Doğru, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- Relying,
inter alia, on Articles 2 and 3 of the Convention, the applicants
alleged that Yılmaz Özcan had been severely beaten and then
shot and killed by a first lieutenant. They also argued that the
investigation into the killing had been ineffective.
- On
25 June 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
A. Introduction
- On
26 October 1999 the Koyulhisar Magistrates' Court found Yılmaz
Özcan guilty of violating the Forest Law because the trunks of
unlawfully cut down trees were found in his garden. He was sentenced
to six months' imprisonment. On 13 July 2000 the Koyulhisar
prosecutor issued a warrant for his arrest. What followed,
particularly the events which took place on 24 September 2000,
is disputed by the parties.
- The
facts as presented by the applicants are set out in Section B below
(see paragraph 7). The Government's submissions concerning the
facts are summarised in Section C below (paragraphs 8-10). The
documentary evidence submitted by the applicant and the Government is
summarised in Section D (see paragraphs 11-45).
B. The applicants' submissions on the facts
- Early
in the morning of 24 September 2000 the commander of the Koyulhisar
Gendarme Squadron, first lieutenant Muhammet Sevinç,
non commissioned officer Resul Askerden, Koyulca prosecutor
Mehmet Çömük and a number of gendarme soldiers
arrived at the applicants' house to arrest Yılmaz Özcan.
Yılmaz Özcan was then handcuffed and taken out of the house
and into the garden. Other occupants of the house, who were not
allowed to leave the house, then heard four or five rounds of
gunfire. When they looked out of the window, they saw the first
lieutenant hitting Yılmaz Özcan on the head with the butt
of his rifle. When Yılmaz Özcan asked the first lieutenant
to stop, four or five soldiers began kicking him and hitting him with
the butts of their rifles. The first lieutenant then shouted “kill
him”. When one of the soldiers asked them to stop because
“otherwise they would kill” Yılmaz Özcan, the
first lieutenant told the soldier to shut up, before shooting Yılmaz
Özcan in the back of the neck at close range. The soldiers then
threw Yılmaz Özcan's body over the fence surrounding the
garden and dragged it down the slope. After the incident the soldiers
cleaned up the blood in the garden and took the spent bullet cases
with them.
C. The Government's submissions on the facts
- On
23 September 2000 first lieutenant Muhammet Sevinç put
together a plan to arrest Yılmaz Özcan. The following day
the first lieutenant, accompanied by his soldiers and the Koyulca
prosecutor Mehmet Çömük, left for the applicants'
village. Approximately one kilometre from the village one of the
tyres of the vehicle carrying the prosecutor blew out. As a result,
the prosecutor and his driver remained there. The rest of the group
continued on their way.
- The
soldiers took positions in the form of two circles around
Yılmaz Özcan's house before the first lieutenant
knocked on the door. Yılmaz Özcan opened the door, ran back
inside the house and jumped from the window into the garden at the
rear of the house. There he was met by expert sergeant Ömer
Davut Akyol, who was one of the soldiers forming the first circle
around the house. When Yılmaz Özcan managed to evade him,
the expert sergeant gave chase but was unable to catch up. The expert
sergeant then fired into the air at least twice.
- Yılmaz
Özcan ran down the slope surrounding the garden for
approximately seventy-six metres but was caught by private Fatih
Yılmaz, who was in the second circle and who had by then heard
the gunfire and cocked his rifle. A scuffle then ensued between
private Yılmaz and Yılmaz Özcan and they rolled down
the slope, which was very steep. At some point, private Yılmaz
was lying on his back when Yılmaz Özcan made an attempt to
escape. Private Yılmaz then fired his rifle at least twice. One
of the bullets entered the back of Yılmaz Özcan's neck and
exited his face, killing him instantly. According to the Government,
medical reports revealed that, during their scuffle with Yılmaz
Özcan, expert sergeant Ömer Davut Akyol suffered injuries
which prevented him from working for a period of three days, and
private Fatih Yılmaz suffered injuries which prevented him from
working for five days afterwards.
D. Documentary evidence submitted by the parties
- The
following information appears from the documents submitted by the
parties.
1. Documents pertaining to the criminal investigation
into the killing
- According
to two incident reports prepared by the gendarme soldiers, the
soldiers arrived at the village at around 5.30 a.m. on 24 September
2000. Yılmaz Özcan jumped out of the window of his house,
evaded the expert sergeant Ömer Davut Akyol who had been waiting
in the garden, and started running downhill until he was stopped by
private Fatih Yılmaz. A scuffle then ensued between Yılmaz
Özcan and private Yılmaz. During the scuffle Yılmaz
Özcan attempted to take private Yılmaz's rifle but the
rifle went off. As a result, Yılmaz Özcan was shot in the
neck and died on the spot.
- At
7.00 a.m. the same day Mr Fuzuli Aydoğdu, who was also a
prosecutor in the town of Koyulhisar, arrived at the scene. The
relatives of the deceased complained to Mr Aydoğdu that Yılmaz
Özcan had been shot and killed in the vicinity of the house and
his body had then been dragged down the hill by the soldiers. When
the applicants made that complaint to the prosecutor, the soldiers
who had taken part in the operation examined the area between the
house and the location of the body, and told the prosecutor that
there were no bloodstains or other marks to indicate that the body
had been dragged along the ground. While examining the area the
soldiers found two spent bullet cases discharged from a Kalashnikov
type automatic rifle. It later turned out that the bullets had been
fired from the expert sergeant Ömer Davut Akyol's rifle.
-
The prosecutor, with the assistance of a doctor, examined the body
and observed a large number of injuries on the body as well as a
single bullet entry hole on the back of the neck. The body was then
taken to Sivas hospital for a full post-mortem examination.
- On
the same day the prosecutor Aydoğdu began questioning the
soldiers who had taken part in the operation.
- In
his statement of 24 September 2000 private Fatih Yılmaz
confirmed the version of events set out in the above-mentioned
on-site reports, and added that he did not know how the rifle had
come to be fired. Private Yılmaz was then released by a judge
who considered that the “nature of the offence” and the
fact that private Yılmaz was “performing his military
service” did not require him to be remanded in custody.
- Expert
sergeant Ömer Davut Akyol told the prosecutor the same day that
when Yılmaz Özcan had evaded him and started running down
the hill, he had fired two rounds into the air. He had then given
chase and heard one or two rounds of gunfire emanating from the
bottom of the hill. When he arrived at the scene Yılmaz Özcan
was already dead.
- The
non-commissioned officer Resul Askerden told the prosecutor the same
day that he had heard the expert sergeant fire two or three rounds
into the air. He had then started running downhill after Yılmaz
Özcan and had heard three or four rounds of gunfire coming from
the bottom of the hill. On his arrival at the scene Yılmaz Özcan
had already been killed.
- On
the same day private Fatih Yılmaz and expert sergeant Ömer
Davut Akyol were examined at Koyulhisar State Hospital, where the
doctors observed a number of bruises on their bodies (see
paragraph 10 in fine above).
- The
prosecutor questioned first lieutenant Muhamet Sevinç on
27 September 2000. The first lieutenant told the prosecutor that
on their arrival at his house Yılmaz Özcan had been outside
the house and had lied, saying he was not Yılmaz Özcan and
that Yılmaz Özcan was his father. He had then gone inside
to call his father. The first lieutenant had then heard noises at the
back of the house, then the gunfire, but he had not witnessed the
incident himself.
- Four
gendarme soldiers questioned by the prosecutor on 27 September
2000 stated that on their arrival Yılmaz Özcan had been
outside the house. One of the soldiers said that he had heard a
single gunshot from the bottom of the hill, while another one told
the prosecutor that he had heard three gunshots from the same
direction. The remaining two soldiers were not sure how many gunshots
they had heard.
- On
3 and 4 October 2000 the prosecutor questioned two of the applicants,
who are daughters of the deceased Yılmaz Özcan. They stated
that a number of soldiers had arrived at their house and had taken
their father into the garden. They had then heard their father
begging the soldiers to release him but that the soldiers had shot
and killed him.
- In
the meantime, on 25 September 2000 a post-mortem examination was
carried out on Yılmaz Özcan's body at the Sivas hospital.
It was established that the large number of injuries on Mr Özcan's
body had been caused before his death.
- On
13 October 2000 the Şebinkarahisar prosecutor filed an
indictment with the Şebinkarahisar Assize Court and charged
private Fatih Yılmaz with manslaughter.
- On
22 November 2000 members of the Şebinkarahisar Assize Court and
an expert visited the area where the incident had taken place.
Private Şenel Selcan, who claimed to have been standing next to
private Fatih Yılmaz at the time of the killing of Yılmaz
Özcan, told the expert that at the time of the shooting Yılmaz
Özcan's back had been turned to private Fatih Yılmaz, who
was kneeling down at the time. Private Fatih Yılmaz told the
expert, however, that at the time of the shooting he had been lying
on his back and trying to push Yılmaz Özcan away. Private
Yılmaz also added that during the scuffle he and Yılmaz
Özcan had rolled approximately forty-five metres down the hill.
- The
expert noted in his report that the wife, mother and four daughters
of the deceased had been consistent when they showed him the location
in their garden as the place where they claimed Yılmaz Özcan
was shot and killed. Having regard to the conflicting information
with which he had been provided by privates Şenel Sercan and
Fatih Yılmaz, the expert recommended that the Forensic Medicine
Institute's opinion should be sought, to establish whether the
trajectory travelled by the bullet in Yılmaz Özcan's head
had been compatible with private Fatih Yılmaz's version of
events.
- On
6 February 2001 prosecutor Aydoğdu decided not to prosecute the
gendarmerie personnel – with the exception of private Fatih
Yılmaz – or the prosecutor Çömük because,
“other than the family's abstract allegations”, there was
no evidence implicating them in the killing.
- On
2 March 2001 the Şebinkarahisar prosecutor filed another
indictment with the Şebinkarahisar Assize Court and charged the
remaining gendarmerie personnel, with the exception of
first-lieutenant Muhamet Şevinç, with manslaughter.
- It
appears from a report drawn up on 2 March 2001 pursuant to the
Ministry of Justice's instructions, that the applicants had lodged a
number of official complaints with that Ministry. The author of the
report, Mr İzzet Sandal, who was an inspector with the
Ministry of Justice, stated in this report that on 11 July 2000 the
Koyulhisar prosecutor Mehmet Çömük (see paragraph 8
above) had drawn up a letter addressed to Yılmaz Özcan
inviting him to give himself up to serve his prison sentence.
Nevertheless, even before that letter was posted, the same prosecutor
had issued an arrest warrant on 13 July 2000 (see paragraph 5 above)
and had then himself taken part in the operation to apprehend Yılmaz
Özcan. According to the information provided to the inspector by
the applicants, the prosecutor Mehmet Çömük himself
had been present when Yılmaz Özcan was allegedly shot and
killed in his garden by the first lieutenant. According to the
inspector's report, the prosecutor Mehmet Çömük
defended himself by telling the inspector that the reason why he
wanted to take part in the operation was because he wanted to visit
the village, as he had never had the opportunity previously. He did
not however go to Yılmaz Özcan's house, and remained with
the vehicle.
- The
inspector concluded that prosecutor Çömük, contrary
to his denials, had been present during the operation and had
neglected his duties by failing to prevent the incident and he had
thus contributed to the death of Yılmaz Özcan.
- The
inspector also noted that the other prosecutor in Koyulhisar,
Mr Fuzuli Aydoğdu (see paragraph 13 above), had given a
decision not to prosecute first lieutenant Muhammet Sevinç or
prosecutor Çömük without first examining the
evidence and eyewitness statements which, in the opinion of the
inspector, were credible and deserved further investigation.
- It
also appears from this report that when members of the Şebinkarahisar
Assize Court visited the village on 22 November 2000 (see
paragraph 25 above), they were assisted by the soldiers who had
taken part in the operation during which Yılmaz Özcan was
killed. When the deceased Yılmaz Özcan's father, wife and
three of his children – that is the applicants Hacı
İbrahim Özcan, Kadriye Özcan, Zeynep Özcan,
Ziynet Özcan and Ömer Özcan – told the
prosecutor Fuzuli Aydoğdu that they did not want the soldiers
who had been involved in the killing of Yılmaz Özcan to
take part in the investigation, criminal proceedings were initiated
against them for obstructing the officials in the execution of their
duties. When one month later these applicants went to make statements
in relation to the charges against them, a judge ordered their
detention on remand in a prison. They were subsequently released on
bail.
- The
inspector also heard a number of eyewitnesses to the events who had
not previously been questioned by the prosecutors. These eyewitnesses
confirmed that they had seen bloodstains in the garden where the
family claimed Yılmaz Özcan was killed. They also stated
that they had seen a trail of blood all the way to the bottom of the
hill where the soldiers claimed Yılmaz Özcan had been
killed by mistake. The inspector also noted that first lieutenant
Sevinç, non-commissioned officer Askerden and expert sergeant
Akyol had given a number of contradictory statements about their
movements during the operation.
- The
inspector recommended that prosecutors Çömük and
Aydoğdu be removed from their duties in the town of Koyulhisar.
He also recommended that criminal prosecutions be brought against
first lieutenant Sevinç and prosecutor Çömük
in relation to the killing of Yılmaz Özcan.
- On
30 May 2001 seven forensic experts working for the Forensic Medicine
Institute, acting on a request from the Şebinkarahisar Assize
Court, concluded that the large number of injuries on Yılmaz
Özcan's head, chest, back, arms and legs could not have been
caused by jumping from a window or by falling down while running.
According to these experts, the injuries had been caused close to the
time of death or shortly before it, by hard objects such as stones,
sticks, rifle butts or boots worn by military personnel, whereas the
lesions on the back of the body had been caused by dragging the body
on the floor. It was also established that Yılmaz Özcan had
been shot at a range of between two and fifteen centimetres.
- On
4 July 2001 the Şebinkarahisar prosecutor filed another
indictment with the Şebinkarahisar Assize Court and charged a
number of soldiers who had taken part in the operation with making
false statements and destroying crucial evidence. On the same day the
Şebinkarahisar Assize Court joined all three cases (see
paragraphs 24 and 28 above).
- On
17 July 2001 the Giresun prosecutor filed an indictment with the
Giresun Assize Court and charged first lieutenant Muhammet Sevinç
and Koyulhisar prosecutor Mehmet Çömük with
manslaughter. On 2 November 2001 the Giresun Assize Court
decided that, on account of prosecutor Çömük's
seniority, the Court of Cassation's Criminal Division had the power
to try him. All cases mentioned above were then joined and sent to
the Court of Cassation's Criminal Division acting as a first instance
court. Subsequently, all officers were acquitted, apart from private
Fatih Yılmaz (see paragraph 42 below).
2. Documents pertaining to the trial
- On
12 June 2003 the First Section of the Court of Cassation's Criminal
Division, sitting as a first-instance court (“the trial
court”), adopted its judgment in relation to all defendants.
According to the judgment, a fourth indictment had apparently also
been filed against the defendants, charging them with ill-treatment.
- It
appears from the judgment that, immediately after the killing, a
number of villagers had seen bloodstains in the garden where the
applicants claimed Yılmaz Özcan was shot and killed. They
had informed the prosecutor about this but the prosecutor had made no
mention of it in his report. The judgment discloses that the
applicants had told the investigating authorities that after the
shooting the soldiers had collected bloodstained soil from their
garden and put it in a box. One villager told the investigating
authorities that he had found the box with the bloodstained soil in
it. This box was subsequently examined for fingerprints but no
matching prints were found.
- The
trial court noted that the first time the applicants had given
evidence to the investigating authorities was some ten days after the
killing (see paragraph 22 above). In the opinion of the trial court,
the applicants' failure to make statements in the immediate aftermath
of the events showed that the applicants had not witnessed the
killing, but had made the allegations in order to blame the State for
it. Thus, not only the statements made by the applicants but also the
statements made by their witnesses were not to be relied on in
evidence. On the other hand, there were no legal reasons to disregard
the conclusions of the investigations carried out by the soldiers who
had themselves had taken part in the investigation. It was
“impossible” that the soldiers would collude in order to
protect the first lieutenant by blaming private Fatih Yılmaz.
The fact that the search carried out by those soldiers revealed no
traces of bloodstains in the garden was sufficient to conclude that
Yılmaz Özcan had not been killed as alleged by the
applicants. According to the trial court, a lack of spent bullet
cases discharged from private Fatih Yılmaz's rifle did not
necessarily show that the real perpetrator was somebody else.
- The
trial court also considered that the Forensic Medicine Institute's
above-mentioned conclusion (see paragraph 35) discredited the
applicants' allegation that Yılmaz Özcan had been killed in
the garden by the first lieutenant and that his body had then been
dragged by the soldiers. According to the “experience of the
judiciary”, the injuries could have been caused by Yılmaz
Özcan falling down the hill while he was trying to escape and by
soldiers who were trying to apprehend him. The fact that Yılmaz
Özcan had been involved in a scuffle with the soldiers who tried
to apprehend him was borne out by medical reports showing that the
two soldiers had suffered injuries (see paragraph 10 above).
- With
the exception of private Fatih Yılmaz who had been charged with
manslaughter, the trial court acquitted all the defendants –
that is prosecutor Mehmet Çömük, first lieutenant
Muhammet Sevinç, non-commissioned officer Resul Askerden,
expert sergeant Ömer Davut Akyol and the privates who took part
in the operation. The trial court considered that private Yılmaz
had not acted with an intention to kill; he had pulled the trigger
with the aim of catching Yılmaz Özcan and had considered
that it would only injure him and not kill him. The trial court
sentenced private Fatih Yılmaz to ten years' imprisonment but
reduced it to two years and one month because it considered that
private Yılmaz had killed Yılmaz Özcan in the
execution of his duties as a soldier and had later regretted his
actions. The trial court also concluded that there was no evidence to
show that Yılmaz Özcan had been ill-treated, and acquitted
all the defendants charged with that offence.
- On
20 April 2004 the Joint Penal Chambers of the Court of Cassation
(“the appeal court”) rejected the appeal lodged by the
applicants. Like the trial court, the appeal court also considered
that the Forensic Medicine Institute's conclusions discredited the
applicants' allegations.
- According
to a document submitted to the Court by the applicants, the appeal
court's decision was served on the first applicant Mr Hacı
İbrahim Özcan on 11 November 2004 “in accordance with
the letter of the Court of Cassation's Criminal Division's
President”.
3. Documents pertaining to the compensation proceedings
- In
2001 the applicants brought proceedings against the Ministry of the
Interior and claimed compensation for the killing of Yılmaz
Özcan. On 12 December 2003 the Sivas Administrative Court
observed that Mr Özcan had been killed by a soldier and
there had thus been a connection between the killing and the
compensation claim. It awarded the applicants the sum of
approximately 48,500 euros (EUR) in compensation for their pecuniary
and non-pecuniary damage. This decision became final following the
dismissal by the Supreme Administrative Court on 29 September 2004 of
the appeals lodged by the applicants as well as by the Ministry of
the Interior.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants complained that their relative Yılmaz Özcan had
been deliberately shot and killed by members of the gendarmerie in
violation of Article 2 of the Convention. Relying on Articles 6
and 13 of the Convention, the applicants also argued that the
authorities had failed to conduct a proper and adequate investigation
into their relative's death.
- The
Court considers it appropriate to examine these complaints solely
from the standpoint of Article 2 of the Convention, which 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.
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 contested the applicants' arguments.
A. Admissibility
1. Six months
- The
Government argued that the applicants had failed to comply with the
six-month rule laid down in Article 35 § 1 of the Convention
because they had not introduced their application within six months
of the deposit of the decision of the appeal court with the registry
of the trial court on 25 May 2004.
- The
Court reiterates that where an applicant is entitled to be served ex
officio with a written copy of the final domestic decision, the
object and purpose of Article 35 § 1 of the Convention are best
served by counting the six-month period as running from the date of
service of the written judgment (see Worm v. Austria, 29
August 1997, § 33, Reports of Judgments and Decisions
1997 V). The decision adopted by the Joint Penal Chambers of the
Court of Cassation on 20 April 2004 was served on the first applicant
on 11 November 2004 (see paragraph 44 above). The application was
introduced less than six months thereafter, namely on 29 April
2005.
- It
follows that the Government's objection in this respect should be
rejected.
2. Victim status
- The
Government were of the view that the applicants could no longer claim
to be victims within the meaning of Article 34 of the Convention
because the soldier responsible for the killing had been convicted
and the applicants had applied for and received compensation for the
death of their relative.
- The
Court reiterates that a decision or measure favourable to an
applicant is not in principle sufficient to deprive that individual
of his or her status as a “victim” unless the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for the breach of the Convention (see Nikolova
and Velichkova v. Bulgaria, no. 7888/03, § 49, 20
December 2007, and the case cited therein).
- Concerning
the Government's objection to the applicants' victim status based on
the issue of compensation the Court reiterates that, in cases
concerning deprivations of life, Contracting States have an
obligation under Article 2 of the Convention to conduct an
effective investigation capable of leading to the identification and
punishment of those responsible. That obligation would be rendered
illusory if, in respect of complaints under Article 2 of the
Convention, an applicant's victim status were to be remedied by
merely awarding damages (see, mutatis mutandis, Yaşa
v. Turkey, 2 September 1998, § 74, Reports 1998 VI;
see also, more recently Nikolova and Velichkova, cited above,
§ 55 and the cases cited therein). Confining the authorities'
reaction to incidents of deprivations of life to the mere payment of
compensation would also make it possible in some cases for agents of
the State to abuse the rights of those within their control with
virtual impunity, and the general legal prohibitions on killing,
despite their fundamental importance, would be ineffective in
practice (see Leonidis v. Greece, no. 43326/05, § 46, 8
January 2009). The Court therefore rejects the Government's objection
in so far as it concerns the issue of compensation.
- As for the Government's objection to the applicants'
victim status based on private Fatih Yılmaz's conviction, the
Court observes that that objection raises issues which are closely
linked to the effectiveness of the investigation into the killing, as
well as to the issue of redress. The Court thus considers it
appropriate to address this point in its examination of the merits of
the applicants' complaint under Article 2 of the Convention (see
paragraph 73 below).
B. Merits
- The
Government submitted that it had been absolutely necessary for the
gendarmes to resort to the use of force against Yılmaz Özcan,
because he had attempted to escape and had attacked the soldiers.
Private Fatih Yılmaz had fired his rifle not to kill Yılmaz
Özcan but to wound him in order to be able to arrest him.
- The
Government were also of the opinion that, according to the Forensic
Medicine Institute's report, the injuries on the body had occurred
prior to his death. This conclusion, according to the Government,
showed that the applicants' allegation concerning the dragging of
Yılmaz Özcan's body after his death was baseless.
- The
Court reiterates that 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 v. the United Kingdom, 27 September 1995, §§ 148 149,
Series A no. 324).
- In
the present case, the Court notes firstly that it is undisputed
between the parties that Yılmaz Özcan was killed by the
gendarmerie. The parties differ as to the events leading up to the
killing and the identity of the killer, however. The applicants
alleged that Yılmaz Özcan had been beaten up, shot and
killed deliberately in the garden by first lieutenant Muhammet Sevinç
and that his body had subsequently been dragged down the hill. The
Government, on the other hand, submitted that after a struggle both
private Yılmaz and Yılmaz Özcan had rolled down a hill
before private Yılmaz had fired his rifle at least twice and one
of the bullets entered the back of Yılmaz Özcan's neck and
exited his face, killing him instantly.
- The
Court has thus been provided with two conflicting versions of the
events. What is not disputed, however, is the fact that the soldiers
went to the applicants' village with a view to apprehending Yılmaz
Özcan, and that Yılmaz Özcan was shot and killed
during the soldiers' visit. Two aspects of the killing are
particularly important for the Court's examination. Firstly, Yılmaz
Özcan was killed by a bullet fired by a member of the armed
forces. Secondly, the killing took place during a planned military
operation, at the beginning of which Yılmaz Özcan's house
was surrounded by armed soldiers who formed two circles around the
house. It follows that the killing lies within the exclusive
knowledge of the authorities and the respondent Government are thus
under an obligation to provide a satisfactory and convincing
explanation of how the killing occurred, failing which an issue under
Article 2 of the Convention will arise (see Akkum and Others
v. Turkey, no. 21894/93, § 211, ECHR 2005 II
(extracts); see also Yasin Ateş v. Turkey, no. 30949/96,
§ 95, 31 May 2005).
- The
Court will therefore examine whether the Government have discharged
their burden of justifying the killing. In doing so, it will have
particular regard to the investigation carried out at the domestic
level in order to establish whether that investigation was effective,
in the sense that it was capable of leading to the establishment of
the cause of death and a determination of whether the force used was
or was not justified in the circumstances, as well as to the
identification and punishment of those responsible.
- In
this connection, the Court reiterates that it is sensitive to the
subsidiary nature of its functions and recognises that it must be
cautious in taking on the role of a first-instance tribunal of facts,
where this is not rendered unavoidable by the circumstances of a
particular case (see McKerr v. the United Kingdom (dec.),
no. 28883/95, 4 April 2000). Where domestic proceedings have taken
place, it is not the Court's task to substitute its own assessment of
facts for that of the domestic courts and, as a general rule, it is
for those courts to assess the evidence before them. Though the Court
is not bound by the findings of domestic authorities, in normal
circumstances it requires cogent elements to lead it to depart from
the findings of fact reached by those authorities (see, mutatis
mutandis, Klaas v. Germany, 22 September 1993,
§§ 29-30, Series A no. 269).
- The
central importance of the protection afforded under Article 2 of
the Convention is such that the Court is required to subject
allegations of a breach of this provision to the most careful
scrutiny, taking into consideration not only the actions of the
agents of the State who actually administered the force but also all
the surrounding circumstances including such matters as the planning
and control of the actions under examination even where domestic
proceedings and investigations have already taken place (see Erdoğan
and Others v. Turkey, no. 19807/92, § 71, 25 April
2006).
- As
for the planning of the operation, the Court observes that Yılmaz
Özcan was wanted by the authorities in relation to an offence of
a non-violent nature (see paragraph 5 above). There has never been
any suggestion that he would be armed or that he would pose a danger
to the life or limb of anyone, including the soldiers who went to his
village to arrest him. In fact, the decision to arrest him was taken
and the operation was planned and conducted without Yılmaz Özcan
having had an opportunity to surrender to the authorities, because
the local prosecutor had issued the arrest warrant without first
inviting him to surrender (see paragraph 29 above). The Court thus
has serious misgivings as to whether a military operation of that
scale was really necessary to arrest Yılmaz Özcan without
waiting for him to surrender to the authorities and without trying
other, non-life-threatening methods of arresting him for the minor
offence in question.
- As
for the investigation into the killing, the Court observes at the
outset that the initial and critical phases of the investigation were
carried out by members of the military unit who were responsible for
Yılmaz Özcan's death. The same soldiers also secured the
crucial evidence, such as the spent bullet cases found in the area
(see paragraph 13 above). When the applicants informed the prosecutor
that Yılmaz Özcan had been killed in the garden and his
body dragged down the hill, the same soldiers then searched the area
in question and told the prosecutor that the applicants' allegations
were baseless. The trial court, which considered that there were “no
legal reasons to disregard the investigation” carried out by
those soldiers, relied on that investigation in reaching its
conclusion that Yılmaz Özcan had not been killed as alleged
by the applicants.
- Furthermore,
some two months after the incident, when members of the criminal
court visited the area in question, they were assisted by the same
soldiers who were being tried as defendants before that same criminal
court for the killing of Yılmaz Özcan. Although some of the
applicants drew the investigating authorities' attention to the
inappropriateness of the soldiers' involvement in the investigation,
the authorities' response was to arrest those applicants and detain
them in prison (see paragraph 32 above). The Court considers that
allowing the same soldiers involved in the fatal arrest operation to
take such an active part in the investigation is not only so serious
as to taint the independence of the entirety of the criminal
proceedings (see Ramsahai and Others v. the Netherlands [GC],
no. 52391/99, §§ 339-341, ECHR 2007 ...), but
also entailed the risk that crucial evidence implicating the soldiers
in the killing would be destroyed or ignored.
- Secondly,
first lieutenant Muhammet Sevinç, who was accused by the
applicants as the person who had killed Yılmaz Özcan, was
not questioned until three days after the operation (see paragraph 20
above). This was despite the fact that the same prosecutor had been
informed about the allegations against the first lieutenant within
hours of the killing (see paragraph 13 above). For the Court, a
delay of three days to question a main suspect in an investigation
into a killing did not disclose the necessary diligence required by
Article 2 of the Convention. As well as creating an appearance of
collusion between the judicial authorities and the military, the
failure to question first lieutenant Sevinç promptly is also
conducive to leading the relatives of the deceased – as well as
the public in general – to form the opinion that members of the
security forces operate in a vacuum in which they are not accountable
to the judicial authorities for their actions. Moreover, it cannot be
excluded that the failure to question the officer in a timely
fashion, coupled with the fact that he continued in the meantime to
work as the commander of his military unit, created the risk of
collusion between the first lieutenant and the soldiers under his
command (see, mutatis mutandis, Ramsahai and Others,
cited above, § 330).
- In
this connection the Court also observes that when the investigating
authorities failed to question the applicants – who were
eyewitnesses to the events and who informed the prosecutor of their
allegations within hours of the killing – until some nine days
after the killing (see paragraph 22 above), the trial court used that
failure to substantiate its conclusion that the applicants had not
witnessed the killing themselves and that they had made those
allegations in order to blame the State. The same failure on the part
of the national authorities also led the trial court to conclude that
the statements given by the eyewitnesses to the events which
supported the applicants' version of the killing could not be relied
on in evidence (see paragraph 40 above). By contrast, the statement
taken from the first lieutenant three days after the killing was
considered by the trial court to be credible.
- Thirdly,
the Court is unable to concur with the trial court that the
conclusion reached by the Forensic Medicine Institute discredited the
applicants' allegation that Yılmaz Özcan had been killed in
the garden by the first lieutenant and that his body had then been
dragged by the soldiers. Contrary to the trial court's conclusion,
the Court considers that the detailed report drawn up by forensic
experts working for the Forensic Medicine Institute (see paragraph 35
above), in which it was established that the injuries on Yılmaz
Özcan's body had been caused shortly before or close to the time
of death by hard objects such as stones, sticks, rifle butts or boots
worn by military personnel, and that the lesions on the back of the
body had been caused by dragging the body along the ground, clearly
supports the applicants' version of the events and their allegations.
- It
is also to be observed that the same report is unequivocal in its
conclusions that the injuries could not have been caused by jumping
from a window or by falling down while running. The Court notes with
regret, however, that the trial court disregarded this important
evidence, which was based on detailed scientific examinations.
Instead, it preferred to rely on the “experience of the
judiciary” when concluding that the injuries had been caused by
Yılmaz Özcan falling down the hill while he was trying to
escape and by soldiers who were trying to apprehend him (see
paragraph 41 above).
- In
this connection the Court notes the Government's submissions that the
injuries on the body were caused “before” the death.
This, in the Government's opinion, discredited the applicants'
allegation that Yılmaz Özcan had been killed in the garden
and his body then dragged down the hill. The Court is unable to
accept these submissions. It notes that, according to the forensic
report in question – and contrary to what was suggested by the
Government – the injuries on the body were caused before or
“close to” (see paragraph 35 above) the time of death,
meaning that the lesions on the back of the body, which the Forensic
Medicine Institute considered to have been caused by dragging the
body, could have been caused shortly after the death, as alleged by
the applicants.
- The
Court equally regrets that the report prepared by the Ministry of
Justice's inspector, in which a number of serious defects in the
investigation were detailed, did not spur the trial court to take
additional steps in its examination of the case. In particular, no
attempt appears to have been made to eliminate the contradictory
information which the soldiers provided to the national authorities
(see paragraphs 21 and 26 above). Moreover, having regard to the
consistency of the applicants' and a number of other villagers'
eyewitness accounts, the Court agrees with the inspector that the
applicants' allegations concerning the killing of Yılmaz Özcan
were credible and deserved a further and detailed examination (see
paragraph 31 above). The expert appointed by the Şebinkarahisar
Assize Court also drew attention to the defects in the investigation
and stated that the applicants had been consistent when showing him
the place where they claimed Yılmaz Özcan had been killed
(see paragraph 26 above). Nevertheless, as set out above, the
applicants' allegations were cursorily discarded by the trial court
on the ground of the national authorities' own failure to question
the applicants in a timely manner.
- In
view of the above, the Court considers that the investigation and
trial conducted at the domestic level were manifestly inadequate and
left so many obvious questions unanswered that it is unable to rely
on the conclusion that Yılmaz Özcan was killed as described
in the judgment adopted by the trial court (see paragraph 42 above).
Thus, as the investigation and the trial did not prove capable of
leading to the accurate establishment of the cause of death and to a
determination of whether the force used was justified in the
circumstances, the Court cannot conclude that the conviction of
private Fatih Yılmaz deprived the applicants of their victim
status, as suggested by the Government (see paragraph 52 above).
Noting that no other obstacle to its admissibility exists, the Court
declares the complaint admissible and finds that there has been a
violation of Article 2 of the Convention due to the Government's
failure to discharge their burden of proof that the killing had been
justified.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants alleged that Yılmaz Özcan had been severely
beaten before he was killed, in violation of Article 3 of the
Convention which provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The
Government were of the opinion that the injuries on Yılmaz
Özcan's body had been caused while he was trying to escape in
bare feet and during the scuffle he had had with expert sergeant
Akyol and private Yılmaz.
- The
Court observes at the outset that it is not disputed that the
injuries on Yılmaz Özcan's body were caused while he was in
the hands of the soldiers. It follows, therefore, that the Government
should bear the burden of providing a plausible explanation for the
cause of those injuries (see Selmouni v. France [GC], no.
25803/94, § 87, ECHR 1999 V).
- The
Court observes that, according to the report prepared by the Forensic
Medicine Institute, the injuries on Yılmaz Özcan's body
were caused by hard objects such as stones, sticks, rifle butts or
boots worn by military personnel. The Court also notes that the
injuries were very extensive and serious. Having regard to their
nature and location, such as the head, chest, back, arms and legs,
the Court considers that they are not likely to have been caused
accidentally.
- In
this connection the Court observes that the Government's explanation
for the injuries (see paragraph 77 above) is not supported by either
the above-mentioned forensic report or by the conclusions reached at
the end of the domestic investigation and the trial. The forensic
report conclusively rules out that the injuries found on Yılmaz
Özcan's body had been caused by falling down. Furthermore,
having regard to the defects and inconsistencies detailed above, the
Court cannot accept the conclusions reached as regards the injuries
in the investigation and the trial.
- In
light of the foregoing, and having regard to a lack of a plausible
explanation from the Government, the Court concludes that the
Government failed to prove that the injuries on the body of Yılmaz
Özcan had been caused while he was trying to escape in bare feet
and during the scuffle he had had with the soldiers. Having regard to
the Government's failure to
discharge their burden of proof, the Court
considers that these injuries must be considered
attributable to a form of ill-treatment for which the authorities
were responsible (see Süheyla Aydın v. Turkey, no.
25660/94, § 194, 24 May 2005). The Court finds,
therefore, that there has been a breach of Article 3 of the
Convention.
III. 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
applicants claimed 500,000 euros (EUR) in respect of pecuniary and
EUR 750,000 in respect of non-pecuniary damage. The applicants
claimed that, following his death the family had been deprived of
Yılmaz Özcan's financial support. According to the
documents submitted by the applicants, Yılmaz Özcan worked
as a carpenter and a gunsmith.
- The
Government argued that the claim in respect of the pecuniary damage
was not supported by any documentary evidence. Furthermore, they
considered the claim in respect of non-pecuniary damage to be
excessive and submitted that, if awarded, it would lead to unjust
enrichment.
- The
Court's case-law has established that there must be a clear causal
connection between the damages claimed by the applicant and the
violation of the Convention and that this may, in appropriate cases,
include compensation in respect of loss of earnings (see, among other
authorities, Barberà, Messegué and
Jabardo v. Spain (Article 50), 13 June 1994, §§ 16 20,
Series A no. 285 C). The Court has found (see paragraph 73
above) that the authorities were accountable under Article 2 of the
Convention for the death of the applicants' close relative. It also
notes that the applicants' submission that Yılmaz Özcan had
been providing for his family financially was not disputed by the
Government. In these circumstances, a direct causal link has been
established between the violation of Article 2 and the applicants'
loss of the financial support provided by Yılmaz Özcan.
- The
Court notes that at the time of his killing Yılmaz Özcan
was forty-two years of age (see paragraph 1 above), married and
had eight children aged between three and twenty-four years.
- The
Court also notes that the applicants have failed to submit to the
Court an itemised claim detailing the financial loss suffered by
them. However, the fact remains that Yılmaz Özcan had been
providing his family with a living and this has not been disputed by
the Government. Having regard to the family situation of the deceased
Yılmaz Özcan, his age and his professional activities which
provided his wife and eight children with support, as well as taking
into account the domestic award of compensation (see paragraph 45
above), the Court awards EUR 40,000 in respect of pecuniary damage to
the third applicant Mrs Kadriye Özcan, who is the widow of
Yılmaz Özcan, in her personal capacity and to be held by
her for her children for whom she provides financially.
- The
Court observes that it has found that the authorities were
accountable for the death of Yılmaz Özcan and also for the
ill-treatment to which he was subjected prior to his death. The Court
thus accepts that the applicants have suffered non-pecuniary damage.
Noting the domestic award of compensation, and ruling on an equitable
basis, the Court awards the applicants a total of EUR 81,000, to be
divided amongst them as follows:
(a) EUR
2,500 each to the first and second applicants, that is the parents of
the deceased Yılmaz Özcan;
(b) EUR
10,000 to the third applicant, that is the widow of Yılmaz
Özcan;
(c) EUR
7,000 each to the fourth to eleventh applicants, that is the children
of Yılmaz Özcan; and
(d) EUR
2,000 each to the twelfth to sixteenth applicants, that is the
siblings of Yılmaz Özcan.
B. Costs and expenses
- The applicants also claimed EUR 20,000 for the costs
and expenses incurred before the Court. This sum included EUR 10,000
in respect of the fees of their lawyer, in support of which they
referred to the Istanbul Bar Association's scale of fees.
- The
Government were of the opinion that the claims were not supported
with adequate evidence, and invited the Court to reject them.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
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, the applicants have not substantiated
that they have actually incurred the costs claimed. In particular, in
support of their claim for the fees of their lawyer, they failed to
submit documentary evidence, such as a contract, a fee agreement or a
breakdown of the hours spent by their lawyer on the case.
Accordingly, the Court makes no award in respect of the fees of their
lawyer.
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 UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
2 of the Convention in respect of the death of the applicants'
relative Yılmaz Özcan;
- Holds that there has been a violation of Article
3 of the Convention on account of the ill-treatment to which Yılmaz
Özcan was subjected prior to his death;
- Holds
(a) that
the respondent State is to pay, within three months of the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following sums, plus any tax that may be
chargeable, to be converted into Turkish liras at the rate applicable
on the date of settlement:
(i) to
the third applicant, Mrs Kadriye Özcan, EUR 40,000 (forty
thousand euros) in respect of pecuniary damage to be held by her for
her and her children for whom she provides financially;
(ii) to
each of the first and the second applicants, Hacı İbrahim
Özcan and Fatma Özcan, EUR 2,500 (two thousand five hundred
euros) in respect of non-pecuniary damage;
(iii) to
the third applicant, Kadriye Özcan EUR 10,000 (ten thousand
euros) in respect of non-pecuniary damage;
(iv) to
each of the fourth to eleventh applicants, Ömer Özcan,
Nermin Doğan, Zeynep Er, Ali Özcan, Ziynet Ateş, Davut
Özcan, Niğmet Özcan and Kader Özcan, EUR 7,000
(seven thousand euros) in respect of non-pecuniary damage; and
(v) to
each of the twelfth to sixteenth applicants Sunay Doğanay,
Cengiz Özcan, Mustafa Özcan, Arife Özcan and Susan
Yayla, EUR 2,000 (two thousand euros) in respect of
non-pecuniary damage;
(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 the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 20 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
APPENDIX
List of
applicants
1. Hacı
İbrahim Özcan, who was born in 1932, lives in Istanbul and
he is the father of Yılmaz Özcan.
2. Fatma
Özcan, who was born in 1932, lives in Istanbul and she is the
mother of Yılmaz Özcan.
3. Kadriye
Özcan, who was born in 1958, lives in Sivas and she is the wife
of Yılmaz Özcan.
4. Ömer
Özcan, who was born in 1976, lives in Sivas and he is the son of
Yılmaz Özcan.
5. Nermin
Doğan, who was born in 1978, lives in Istanbul and she is the
daughter of Yılmaz Özcan.
6. Zeynep
Er, who was born in 1980, lives in Istanbul and she is the daughter
of Yılmaz Özcan.
7. Ali
Özcan, who was born in 1982, lives in Sivas and he is the son of
Yılmaz Özcan.
8. Ziynet
Ateş, who was born in 1983, lives in Sivas and she is the
daughter of Yılmaz Özcan.
9. Davut
Özcan, who was born in 1984, lives in Sivas and he is the son of
Yılmaz Özcan.
10. Niğmet
Özcan, who was born in 1988, lives in Sivas and she is the
daughter of Yılmaz Özcan.
11. Kader
Özcan, who was born in 1997, lives in Sivas and she is the
daughter of Yılmaz Özcan.
12. Sunay
Doğanay, who was born in 1964, lives in Istanbul and she is the
sister of Yılmaz Özcan.
13. Cengiz
Özcan, who was born in 1962, lives in Istanbul and he is the
brother of Yılmaz Özcan.
14. Mustafa
Özcan, who was born in 1976, lives in Istanbul and he is the
brother of Yılmaz Özcan.
15. Arife
Özcan, who was born in 1974, lives in Istanbul and she is the
sister of Yılmaz Özcan.
16. Susan
Yayla, who was born in 1962, lives in Istanbul and she is the sister
of Yılmaz Özcan.
