SECOND SECTION

CASE OF CADIROĞLU v. TURKEY

(Application no. 15762/10)

JUDGMENT

STRASBOURG

3 September 2013

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Cadıroğlu v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Guido Raimondi, President,
	Danutė Jočienė,
	Peer Lorenzen,
	Dragoljub Popović,
	Işıl Karakaş,
	Nebojša Vučinić,
	Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 9 July 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 15762/10) 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 five Turkish nationals, Mr Süleyman Cadıroğlu, Mrs Asiye Cadıroğlu, Mr Şemsettin Cadıroğlu, Mr Enver Cadıroğlu, and Mr İrfan Cadıroğlu (“the applicants”), on 1 March 2010.
2.  The applicants were represented by Mr A. Kıran, a lawyer practising in Van. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 12 September 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicants were born in 1955, 1957, 1977, 1982 and 1989 respectively and live in Van. The first two applicants are the parents and the remaining applicants are the brothers of Mr Şaban Cadıroğlu (Ş.C.), who died in 1999 when he was sixteen years old.
5.  Ş.C. had been working as a street pedlar in Van. On 16 August 1999 two police officers, M.S. and S.D., were patrolling the streets to prevent pedlars. The facts surrounding the incident are in dispute between the parties. According to the applicants, when Ş.C. saw the police officers he started to run away, but he had to return to pick up a pair of spectacles, which he had dropped. One of the police officers kicked Ş.C., causing him to fall down. He hit his head on the edge of the pavement and died instantly. According to the submissions of the Government, Ş.C. started to run away from the police officers but came over faint, collapsed, and died instantly.
6.  On the same day, a doctor examined Ş.C.’s body at the Van State Hospital in the presence of the Van public prosecutor. The examination report noted that there were no signs of ill-treatment on the body and concluded that a classical autopsy was necessary to establish the actual cause of death. Accordingly, the body was transferred to Diyarbakır for an autopsy.
7.  On 17 August 1999 an autopsy was performed at the Diyarbakır State Hospital in the presence of the Diyarbakır public prosecutor. The report stated that there were no signs of traumatic injuries to Ş.C.’s body. Samples of his organs were sent for analysis. The report concluded that the cause of death could not be established and suggested that the case be referred to the Forensic Medicine Institute.
8.  On 4 April 2000 the Forensic Medicine Institute issued its opinion. The report reiterated the findings of the previous reports and concluded that the actual cause of death could not be established. Reference was also made to histopathology and toxicology reports, which had not revealed anything unusual.
9.  On 1 September 1999 the Van public prosecutor, pursuant to the Prosecution of Civil Servants Act, transmitted the investigation file to the Van governor’s office to obtain authorisation to prosecute the accused police officers. Subsequently, on 5 October 1999 a police officer was appointed as the reporting officer in the case. During the investigation, he took statements from ten witnesses. Six of the witnesses stated that Ş.C. had fallen on his own as he was running away from the police officers. Four witnesses testified that they had seen a police officer kick Ş.C. from behind, causing him to fall down and hit his head on the edge of the pavement. On 19 June 2000 the reporting officer submitted his report to the Van Provincial Administrative Council and concluded that there was no evidence to suggest that the accused police officers were responsible for Ş.C.’s death. Accordingly, he proposed that no proceedings should be brought against the police officers.
10.  On 29 June 2000 the Van Provincial Administrative Council reached a different conclusion to that of the reporting officer, deciding that criminal proceedings should be initiated against the two accused police officers for inadvertent and negligent homicide. On 8 May 2003 the Supreme Administrative Court upheld that decision.
11.  Accordingly, criminal proceedings were initiated against the two accused police officers before the Van Criminal Court and the first two applicants intervened in the proceedings.
12.  On 1 February 2005 the Van Criminal Court found that it lacked jurisdiction and transferred the case to the Van Assize Court, holding that the accused police officers should be tried under Article 452 of the former Criminal Code, which governed unintentional homicide.
13.  The proceedings resumed before the Van Assize Court. During the proceedings, the accused police officers’ statements were taken on commission. Both denied the accusations, stating that on the day of the incident they had been patrolling the streets, but denying that they had chased anyone. They maintained that they had not seen Ş.C. and had no idea how he had died.
14.  The Assize Court also heard the statements of twelve witnesses who had been eyewitnesses to the incident. Nine of the witnesses, who were also pedlars, stated that on the day of the incident two police officers had knocked down their stands and chased them. According to their recollection, Ş.C. had first started running away, but had returned to pick up a pair of spectacles, which he had dropped. They all stated that one of the police officers had kicked him, causing him to fall down and hit his head on the edge of the pavement. Two of the witnesses stated that the police officer who had kicked Ş.C. was blond. One of the witnesses indicated that he would be able to identify the blond police officer if he met him in person.
15.  On 3 May 2007 the Van Assize Court delivered its judgment and acquitted the accused police officers of the charges against them for lack of evidence. In its judgment, the court did not take into account the statements of the witnesses who had testified that they had seen a police officer kicking Ş.C.
16.  On 14 December 2009 the Court of Cassation upheld the Assize Court’s judgment.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
17.  The applicants alleged that their relative Ş.C. had died in circumstances engaging the responsibility of the State. They further complained that the investigation into his death had been ineffective and inadequate. In particular, they maintained that the criminal proceedings against the accused police officers had been unreasonably long, relying on Articles 2 and 6 of the Convention.
18.  The Court considers that these complaints should be examined from the standpoint of Article 2 alone, which reads:
“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.”
A.  Admissibility
19.  The Government argued that the application should be rejected for non-exhaustion of domestic remedies in respect of three applicants, namely Mr Şemsettin Cadıroğlu, Mr Enver Cadıroğlu and Mr İrfan Cadıroğlu. In this connection, they maintained that these applicants had failed to intervene in the criminal proceedings against the accused police officers.
20.  The applicants stated that following Ş.C.’s death, an investigation was opened and criminal proceedings were instituted against the police officers. They further stated that the first and second applicants, the remaining applicants’ parents, had intervened in the proceedings.
21.  The Court observes that this objection is closely linked to the Government’s positive obligation under Article 2 to conduct an effective investigation. Accordingly, it decides to join it to the merits. It further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  The applicants’ relative’s death
(a)  The parties’ submission
22.  The applicants alleged that Ş.C.’s death had been caused by the police officers. According to their submission, Ş.C., who was a minor and had been working as a street pedlar, had been chased by two police officers who had knocked down some stands. As he tried to run away, one of the officers had kicked him, causing him to fall down and hit his head on the edge of the pavement.
23.  The Government denied the allegations. They stated that as the applicants’ relative tried to run away from the police officers, he had come over faint and died instantly.
(b)  The Court’s assessment
24.  The Court reiterates that the required evidentiary standard of proof for the purposes of the Convention is that of “beyond reasonable doubt”, and that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). As regards the assessment of evidence, the Court reiterates that its role is of a subsidiary nature, and that it must be cautious in taking on the role of a first instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Ülkü Ekinci v. Turkey, no. 27602/95, § 142, 16 July 2002, and 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 the facts for that of the domestic courts, and as a general rule it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). Though the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Klaas, cited above, § 30). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply particularly thorough scrutiny (see Avşar v. Turkey, no. 25657/94, § 283, ECHR 2001‑VII) even if certain domestic proceedings and investigations have already taken place.
25.  The Court firstly points out that the situation in the present case cannot be compared to a death in custody, where the burden may be regarded as resting on the Government to provide a satisfactory and plausible explanation. In this connection, the Court observes that there are divergent versions as to the circumstances which led to Ş.C.’s death. In this connection, it notes that according to the applicants, Ş.C., a minor who had been working as a street pedlar, had been chased by two police officers. One of the police officers had kicked him, causing him to fall down and hit his head on the edge of the pavement. However, the Government denied the allegations, stating that Ş.C. had come over faint and died suddenly, as he was trying to run away from the police officers. The Court further notes that at the end of the criminal proceedings, the two accused police officers were acquitted of the charges against them for lack of evidence.
26.  Bearing in mind its subsidiary role, when examining the instant case, the Court should rely on the documentary material provided by the parties to reach a conclusion as to who was responsible for Ş.C.’s death. In this connection, it takes note of the autopsy report which stated that there were no traumatic injuries to Ş.C.’s body. Furthermore, it was also indicated in the report that the toxicology and histopathology reports revealed nothing unusual. Despite these steps having been taken, the actual cause of death could not be established. Having said this, the Court also notes that there were nine witnesses who had testified that they had seen a police officer kicking Ş.C. However, it appears that in delivering its acquittal decision, the trial court did not take these statements into consideration. In the Court’s opinion, for the reasons explained below (see paragraphs 32-36), there were several shortcomings in the investigation of the incident. Because of these shortcomings, the actual circumstances in which the applicants’ relative, Ş.C., died remain a matter of speculation and assumption, and there is insufficient evidence on which to conclude beyond reasonable doubt that he died in circumstances engaging the responsibility of the State.
27.  In view of the above, the Court concludes that there has been no violation of Article 2 of the Convention in its substantive aspect on that account.
2.  The alleged inadequacy of the investigation
(a)  The parties’ submission
28.  The applicants alleged that the domestic authorities’ investigation into their relative’s death and the subsequent criminal proceedings against the accused police officers had been neither prompt nor effective.
29.  The Government contended that there had been no shortcomings and that the authorities had taken all the necessary steps to conduct an effective investigation.
(b)  The Court’s assessment
30.  The Court reiterates that, according to its case-law, the obligation to protect the right to life under Article 2, read in conjunction with the State’s general duty under Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have died in suspicious circumstances. This obligation is not confined to cases where it has been established that the death was caused by an agent of the State. Nor is it decisive whether members of the deceased’s family or others have lodged a formal complaint about the death with the competent investigation authority. The mere fact that the authorities were informed of the death will give rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances in which it occurred (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101 and 103, ECHR 1999-IV; Al Fayed v France (dec.), no. 38501/02, § 73, 27 September 2007). The nature and degree of scrutiny which satisfies the minimum threshold of an investigation’s effectiveness depends on the circumstances of each particular case. It must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000-VI). Whatever mode is employed to fulfil that purpose, the authorities must act of their own motion, once the matter has come to their attention, and they cannot leave it to the initiative of the victim’s relatives (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002‑II; Al Fayed, cited above, § 74).
31.  There is also a requirement of promptness and reasonable expedition implicit in this context (see Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87 and 106, ECHR 1999-IV, and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-07, ECHR 2000-III). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force or a disappearance may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see McKerr, cited above, §§ 108-15, and Avşar, cited above, §§ 390-395).
32.  The Court notes that after the incident, the authorities commenced an investigation to clarify the circumstances surrounding Ş.C.’s death. However, there were significant shortcomings in the conduct of the investigation and the ensuing criminal proceedings initiated against the police officers.
33.  Firstly, despite the seriousness of the allegations, the judicial authorities failed to conduct the investigation promptly. In this connection, it is observed that although Van Provincial Administrative Council authorised the opening of the criminal proceedings against the police officers on 29 June 2000, it took the Supreme Administrative Court almost three years to uphold that decision. Furthermore, the Van Assize Court waited for approximately two years, until 1 February 2005, before declaring that it lacked jurisdiction. As a result of this delay, the criminal proceedings against the accused police officers did not commence until six years after Ş.C.’s death.
34.  Furthermore, during the criminal proceedings nine witnesses testified in court that they had seen a police officer kick Ş.C. One of these witnesses stated repeatedly that he would be able to identify the blond police officer who had kicked Ş.C. if he met him face to face. Nevertheless, the domestic courts failed to take the necessary steps for the witnesses to confront the accused officers in person. The Court is also struck by the fact that in its acquittal decision, the trial court made no reference to the statements of the witnesses who had maintained that they had seen a police officer kick Ş.C. No explanation was given for why these statements were not taken into consideration.
35.  In view of the above, and having regard in particular to the authorities’ failure to conduct the investigation with due expedition, the Court concludes that the investigation cannot be considered as effective, as required by Article 2 of the Convention.
36.  Finally, referring to the principles cited in paragraph 30 above, and recalling in particular that the mere fact that the authorities were informed of the death had given rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances in which it occurred, the Court dismisses the preliminary objection of the Government regarding exhaustion of domestic remedies and holds that there has been a violation of Article 2 of the Convention under its procedural aspect.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
A.  Damage
37.  The applicants claimed a total of 126,000 euros (EUR) in respect of pecuniary damage and EUR 163,000 in respect of non-pecuniary damage.
38.  The Government contested the claims.
39.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As regards the claim in respect of non-pecuniary damage, the Court considers that the applicants must have suffered anguish and distress on account of the domestic authorities’ failure to conduct a prompt and effective investigation into their relative’s death. Ruling on an equitable basis, it awards the applicants jointly EUR 20,000 in respect of non-pecuniary damage.
B.  Costs and expenses
40.  The applicants’ lawyer did not submit a specific claim for costs and expenses. He did however request the Court to award a lump sum for the costs and expenses incurred during the proceedings. Leaving the amount to the discretion of the Court, he stated that he had been acting for the applicants since 1999 and that he had never received any payment from them.
41.  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, since the applicants did not submit any supporting documents in respect of their claim, the Court cannot make any award in respect of legal fees.
C.  Default interest
42.  The Court considers it appropriate that the default interest rate 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
1.  Joins to the merits the Government’s preliminary objection and dismisses it;

2. Declares the application admissible;

3.  Holds that there has been no violation of Article 2 of the Convention in its substantive aspect;

4.  Holds that there has been a violation of Article 2 of the Convention in its procedural aspect on account of the failure of the authorities to conduct an effective and prompt investigation into the circumstances surrounding the death of the applicants’ relative;

5.  Holds
(a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into currency of the respondent State at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 3 September 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stanley Naismith	Guido Raimondi
	Registrar	President