EHRM, 02-03-2006, nr. 51480/99

The applicant alleged that he had been forced to drink drugged tea and was deliberately thrown out the window by the police officers. As a result of this incident, he was seriously wounded and had to stay in the hospital for three months. The applicant further maintained that the domestic authorities had failed in their obligation to conduct an effective investigation into his allegations.

The Government denied the allegations. They stated that the applicant's allegations were investigated thoroughly by the domestic authorities. The Government further maintained that the applicant's allegations were baseless and that the application was an abuse of the right of petition.

In the present case, the force used against the applicant was not in the end lethal. This, however, does not exclude in principle an examination of the applicant's complaints under Article 2, the text of which, read as a whole, demonstrates that it covers not only intentional killing but also the situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life (see Ýlhan v. Turkey[GC], no. 22277/93, § 75, ECHR 2000-VII, and Makaratzis v. Greece[GC], no. 50385/99, § 49, ECHR 2004‑…). In fact, the Court has already examined complaints under this provision where the alleged victim had not died as a result of the impugned conduct.

The Court observes that although the applicant's fall from the fifth floor of the Pendik Security Directorate Building was not in the end lethal, the applicant suffered from grave injuries and had to stay in the hospital for three months. Moreover it was only fortuitous that he was not killed by the fall. The Court therefore concludes that Article 2 of the Convention is applicable in the instant case.

Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which in peacetime no derogation is permitted under Article 15. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45–46, §§ 146–147).

The Court is sensitive to the subsidiary nature of its role 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, for example, 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, judgment of 22 September 1993, Series A no. 269, p. 18, §§ 29–30). Nonetheless, where allegations are made under Article 2 of the Convention the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, § 32, and Avşar v. Turkey, no. 25657/94, § 283, ECHR 2001-VII) even if certain domestic proceedings and investigations have already taken place.

The Court observes that there are divergent versions as to the circumstances which led to the applicant's fall form the window. While the applicant maintained that he has jumped out the window himself, the applicant's lawyer claimed that he had been thrown out by the police officers. Moreover the eyewitnesses confirmed the fact that the applicant jumped out the window and tried to commit suicide. Accordingly, the public prosecutor concluded that there was no sufficient evidence in support of the lawyer's allegation.

In light of the above, the Court considers that there is an insufficient factual and evidentiary basis on which to conclude that the applicant was thrown out the window by the police officers.

As to the allegation concerning the authorities’ alleged failure to protect the applicant's right to life, the Court recalls that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports 1998-III, p. 1403, § 36). This extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, § 115).

Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise in the context of where the risk to a person derives from self-harm, such as a suicide in custody, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and, if so, that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Keenan v. the United Kingdom, no. 27229/95, §§ 89 and 92, ECHR 2001-III; Margaret Younger v. the United Kingdom (dec.), no. 57420/00, 7 January 2003).

In the context of prisoners, the Court has had previous occasions to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the State to account for any injuries suffered in custody, which obligation is particularly stringent where that individual dies (see, for example, Salman v. Turkey[GC], no. 21986/93, ECHR 2000-VII, § 99).

The Court has recognised that the prison authorities must discharge their duties in a manner compatible with the rights and freedoms of the individual prisoner concerned. There are general measures and precautions which will be available to diminish the opportunities for self-harm, without infringing personal autonomy. Whether any more stringent measures are necessary in respect of a prisoner and whether it is reasonable to apply them will depend on the circumstances of the case (see Keenan, cited above, § 91).

In view of the principles above, the Court is called to determine whether the authorities knew or ought to have known that Erikan Bulut posed a real and immediate risk to his life, and if so, whether they did all that reasonably could have been expected of them to prevent that risk.

The Court recalls that after spending one night in custody, the applicant was seen by a doctor on the day of the incident before being brought to the Pendik Security Directorate Building to be released. There is no mention of a psychological distress in the medical report and it is undisputed that the applicant was aware of the fact that he was about to be released. As a result, the Court concludes that there is no evidence about the applicant's actions or behaviour that ought to have put the authorities on notice that he posed a danger to his life. As regards the allegation that the applicant was brought to an office with no window guards, the Court notes that although it welcomes and encourages authorities to make the greatest efforts to ensure that all detainees are kept in a safe custodial environment, this action of the police officers cannot in itself give rise to a violation of Article 2 of the Convention in the absence of any evidence that the applicant carried a real and immediate suicide risk.

Bearing in mind the particular circumstances of the present case, the Court concludes that it can be reasonably inferred that the relevant authorities did not fail in their positive obligation as required by Article 2.

The Court, therefore, considers that the State's responsibility is not engaged in the present case and finds that there has been no violation of Article 2 in that regard.

The Government contended that there had been no shortcomings in the investigation and that the authorities had taken all the necessary steps to conduct an effective investigation.

The Court recalls that, according to its case-law, the obligation to protect the right to life under Article 2, read in conjunction with the State's 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 as a result of the use of force. 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 Buldan v. Turkey, no. 28298/95, § 83, 20 April 2004; Velikova v. Bulgaria, no. 41488/98, § 80).

Turning to the facts of the present case, the Court notes that immediately after the incident, the authorities commenced an investigation to clarify the circumstances surrounding the applicant's fall from the fifth floor of the Pendik Security Directorate Building.

In this connection, it is observed that following the applicant's fall, the police officers prepared an incident report, drew a sketch map and took statements from the eye-witnesses to the event, namely from four police officers and two civilians (see paragraph 11 above). All of these witnesses gave consistent statements and explained that they had seen the applicant run and jump out the window. Again on the same day, the applicant's statement was taken at the hospital, in which he confirmed that he had run and jumped out the window and that he had no complaints against anyone.

The Court takes note of the fact that it was on 4 September 1998 that the applicant's representative made known his concerns to the Pendik Public Prosecutor that police officers might have thrown the applicant out the window. Upon this complaint, the investigation was broadened and further statements were taken from the police officers, the applicant and the applicant's wife. While the police officers repeated once again that the applicant had run and jumped out, the applicant stated that he did not recall what had happened. The applicant's wife was not an eye-witness to the events (see paragraphs 15–17 above). Basing himself on these statements, the public prosecutor concluded that the applicant had made an attempt to commit suicide and gave a decision of non-prosecution.

It is further observed that the applicant's representative's appeal to the Kadýköy Assize Court was also rejected, as the domestic court found no reason to depart from the findings of the public prosecutor's conclusions (see paragraph 20 above). The Court would like to emphasize at this point that the allegation that the applicant had been given drugged tea was not brought to the attention of the authorities until 28 September 1998. It should also be noted that the applicant's wife had stated that she had overheard the police officers at the police station that the applicant had been given a liquid. The Court therefore finds that lack of a toxicological examination one month later cannot be considered as negligence on the part of the authorities.

In view of the above, the Court concludes that the investigation carried out by the national authorities was effective. It concludes therefore that there has been no violation of Article 2 in this respect.