EHRM, 25-04-2006, nr. 19807/92

According to the police reports, this apartment was the first to be raided, at 7.00 p.m. on 12 July 1991.

The police reports suggest that there was an armed clash for one and a half hours between police and those inside the building. Two alleged terrorists were killed by the police at this location, namely İbrahim Ilcı and Bilal Karakaya.

A resident (I.G.) who had tried to run away from the scene of the incident was shot and wounded by the police.

The following details of the incident are given in the police reports:

The police reports also contain details of weapons found on the premises:

The autopsy report on İbrahim Ilcı states the cause of death as broken ribs and internal haemorrhage due to bullet wounds. No autopsy report on Bilal Karakaya was made available to the Court.

The police reports suggest that this was the second building to be raided, at 7.45 p.m. on 12 July 1991. They also suggest that there was an armed clash between the police and the alleged terrorists.

Cavit Özkaya and Hasan Eliuygun and three other alleged terrorists, Niyazi Aydın, Zeynep Eda Berk and Nazmi Türkcan, were killed at this address.

The following are the relevant details from the police reports:

The police reports (confirmed by the public prosecutor's reports) contain details of weapons and other materials found on the premises:

The autopsy report on Cavit Özkaya gives his cause of death as an internal haemorrhage, broken shoulder blades and ribs, together with the perforation of internal organs resulting from bullet wounds.

A private forensic pathologist who, at the request of the applicants, inspected the premises after the incident and examined the autopsy reports, commented that the only fatal wound to the front side of Cavit Özkaya was probably the last shot to the body and that it had been fired when the body was on a firm surface, such as the ground. According to the forensic pathologist, three of the fatal shots and two non-fatal shots indicated that the individual had been shot from behind.

The autopsy report on Hasan Eliuygun gives his cause of death as internal haemorrhage caused by bullet wounds. The report indicates that he was shot by five bullets. Five metal fragments also hit his body. No autopsy reports on the other three deceased were made available to the Court.

This was the third building, raided at 10.30 p.m. Two militants were killed at this address: İbrahim Erdoğan and Yücel Şimşek. The official report states that there was an armed clash with the people inside the building.

The following are some relevant details from the police reports:

The police reports (confirmed by the public prosecutor's reports) also contain details of weapons and other materials found on the premises:

The autopsy report on İbrahim Erdoğan gives his cause of death as internal bleeding due to bullet wounds and fractured skull and spinal column. The autopsy report described nine gunshot wounds to the body of İbrahim Erdoğan, of which six were to the back, five of them being jointly fatal. According to the autopsy report on Yücel Şimşek, his death occurred as a result of internal and external haemorrhage, destruction of the brain and skull and broken vertebrae caused by bullets and metallic parts of an explosive material. The report found that the two bullet injuries and four of the shrapnel injuries were of a jointly fatal quality, while the other shrapnel injuries were not of a fatal quality.

According to Professor Pounder, a forensic pathologist who, at the request of the applicants, inspected the premises after the incident, there was no evidence of an exchange of gunfire having occurred inside the apartment; the main room of the apartment shows evidence of a minimum of nine gunshots having been fired; all nine gunshots fired in the main room of the apartment were directed downwards towards the floor with a shooter-to — target distance of about three metres or less; if a person was shot dead within the main room of the apartment, the evidence suggests that the person was on or close to the floor, within three metres of the shooter, and was not firing a weapon at the time of being shot.

As to the injuries sustained by Yücel Şimşek, Professor Pounder expressed the view that the pattern of the four fatal shrapnel injuries implied that he was alive and upright at the moment they were inflicted and that he was thus already fatally injured at the time when he was hit by the two bullets.

The fourth raid took place at this location. One alleged terrorist, Ömer Coşkunırmak, was killed there. His death is not the subject of any application.

On 16 July 1991 the second applicant, Sevgi Erdoğan, filed a complaint with the Public Prosecutor of İstanbul. Her legal representatives claimed that, having regard to the use of grenades during the operation, the presence of explosive fragments found in the bodies of the deceased, the marks on the bodies which indicated that they had been shot at close range, the fact that the operation was carried out within a short space of time and the fact that all of the people living in the raided house had been killed, it was apparent that the security forces had aimed to kill these persons rather than to arrest them. It was further submitted that, as none of the members of the security forces had been injured, it was questionable whether there had really been any clashes. It was requested that criminal proceedings for murder be instituted against the İstanbul Chief of Police and the security personnel involved in the operation.

On 28 November 1991 the İstanbul Public Prosecutor's Office referred the matter to the İstanbul Governor's Office to obtain a decision as regards prosecution under the provisions of the Law on the Prosecution of Civil Servants. The İstanbul Provincial Administrative Council subsequently decided that there were no grounds for opening an investigation. No appeal was lodged against this decision.

In an indictment dated 25 February 1992, the Public Prosecutor of İstanbul charged nine policemen, in relation to the events in the three locations referred to in paragraphs 23 to 34 above, with unintentional homicide and causing death in a way which rendered the identification of the perpetrator impossible. The charges were brought under Articles 452 § 1, 463, 50 and 51§ 2 of the Turkish Criminal Code.

During the first hearing, which took place on 21 April 1992, the applicants Sevgi Erdoğan, Nahit Özkaya, Hüseyin Şimşek, Esme Şimşek and Mahmut Eliuygun applied to the court to intervene in the proceedings. In their statement to the court, the applicants submitted that, ‘apart from the so-called calls to surrender, there is no indication of either an intention or a willingness to arrest these people alive … It is essential in this case to investigate whether or not the object of the operation was to arrest these people’. The Court granted their applications at hearings on 7 July and 15 September 1992.

Between 21 April 1992 and 16 June 1993 the defendants made their statements to the Court. Owing to the late appearance of some of the defendants, it took eleven hearings for the Court to complete the taking of oral evidence from all the defendants.

During the course of five hearings held between 23 September 1993 and 3 March 1994, the Court heard some twenty witnesses.

Between 1 June 1994 and 24 November 1994 the Court, at the request of the applicants' legal representatives, adjourned the hearings several times for them to make their final submissions.

In a decision dated 8 February 1995 the Court found no grounds for imposing any punishment on the defendants. The Court referred to the evidence according to which the deceased had participated in various terrorist activities. It also noted the evidence showing that weapons and explosives had been discovered in the flats of the deceased and found it established that the deceased had been members of Dev-Sol. The court noted that it had not carried out an examination at the scenes of the various operations, as requested by the intervening parties, since there had been an initial examination and there was no purpose in any further examination having regard to the time which had elapsed since the events in question. The court held that, according to the oral evidence given by the witnesses, in all three operations the area had first been sealed off and the deceased given warnings many times by megaphone. According to some witnesses, the deceased had started shooting from the windows and the security forces had fired back. Some witnesses had stated that they could not tell clearly who had fired first. However, other witnesses confirmed that they had first heard shooting from the flats. The court therefore found it established that the police had given the necessary warnings and that, on being fired at, had started shooting back. It considered that, in all three cases, the defendants had acted in accordance with their orders and within the scope of their duties. It found that the acts of the accused had remained within the limits of legitimate self-defence.

An intervener, who is a relative of Zeynep Eda Berk who was killed during the operations, appealed against the decision to the Court of Cassation.

On 13 February 1997 the Court of Cassation dismissed the appeal and upheld the judgment.

These proceedings concerned the killing of İbrahim Ilcı and Bilal Karakaya during the police raid at the first location (see paragraphs 18–22 above).

During the preliminary investigation these proceedings were severed from the proceedings relating to the three other locations and the case was referred to the Public Prosecutor of the Şişli District. The case was then referred back to the Public Prosecutor of İstanbul.

In an indictment dated 1 June 1994 the Public Prosecutor of İstanbul charged twelve police officers with intentional homicide and causing death in a way which rendered the identification of the perpetrator impossible. The charges were brought under Articles 450 § 5, 463, 281, 31, 33, 49 §§ 1–3 and 50 of the Turkish Criminal Code.

Between 1 June 1994 and 21 February 1995 all the defendants gave their statements to the İstanbul Criminal Court.

At a hearing on 29 June 1995 the legal representative of the applicant İsmail Hakkı Ilcı, brother of the late İbrahim Ilcı, requested to intervene in the proceedings. At a hearing on 21 September 1995, the court ordered the submission of documents indicating the family relationship between İsmail Hakki Ilcı and İbrahim Ilcı.

In a judgment of 13 November 1997 the İstanbul Fourth Assize Court acquitted the police officers charged with the killing of İbrahim Ilcı and Bilal Karakaya. The Assize Court noted that, while the defendants had been performing their duties, the deceased had started firing at them and that the defendants had fired back in self-defence. The court found that there were no grounds for imposing any punishment on the defendants

On 23 February 1999 the Court of Cassation upheld this judgment. It rejected the applications' allegations that the killings in this case had been extra-judicial. The evidence showed that the defendants had fired back in self-defence while performing their official duties, and had acted to protect their own lives and the lives of others.

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (‘UN Force and Firearms Principles’) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Paragraph 9 of the Principles provides:

Paragraph 5 of the Principles provides, inter alia, that law enforcement officials shall ‘;act in proportion to the seriousness of the offence and the legitimate objective to be achieved’. In accordance with paragraph 7, ‘governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law’. Paragraph 11 (b) states that national rules and regulations on the use of firearms should ‘ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm’ (see, further, Makaratzis v. Greece[GC], no. 50385/99, §§ 28–32, 20 December 2004).

Under Section 16 of Law no. 2559 on the duties and legal powers of police, enacted on 4 July 1934 and published in the Official Journal on 14 July 1934, police are entitled to use a weapon in the following circumstances:

Furthermore, pursuant to Article 17 of the Police (Duty and Power) Regulations, ‘Section 16 of Law no. 2559 shall be relied on exclusively to govern the use of a weapon by police when there is no other alternative. In such cases the police shall use the weapon to endeavour to capture the offender by inflicting minor rather than fatal injury and to avoid using the weapon in densely populated areas’.

The applicants submitted first that no real attempt had been made to arrest their relatives and that the intention had rather been to kill them. Alternatively, they submitted that their relatives' deaths had resulted from a use of lethal force that had been more than absolutely necessary. They noted that there was conflicting evidence as to whether the security forces had given a warning that the suspects should surrender. The security forces had not been issued with non-lethal weapons, such as CS gas and/or stun grenades. Furthermore, it was unclear as to whether the firing had come from inside or outside the building. In at least one location, there was no evidence of firing by those within the premises.

As to the investigation conducted in the present case, the applicants argued that the public prosecutor had not been present when the premises were searched for the first time and that there was no independent evidence of what had been found in the premises. According to the applicants, no photographs of the scene of the incidents had been taken and there was no visual indication of the position of those killed in the four locations. Neither was there any information in the investigation file about which members of the security forces had been in each location at different times, and no statements of these members had been taken. No fingerprints had been taken, not even those on the weapons. Weapons allegedly found at the victims' premises and weapons of the security forces had not been sent to forensic laboratories. Spent cartridges and grenade shrapnel inside or outside the premises had not been looked for. The clothes of those killed were missing from the investigation file.

The Government contended that the deceased had been members of a left-wing terrorist organisation and had participated in various terrorist activities, as the Assize Court dealing with the case had noted. Substantial quantities of weapons and explosives had been discovered in their flats.

The Government pointed out that, according to the oral evidence given by the witnesses before the criminal court, in all three operations the area had first been sealed off by the police officers and the deceased had been given many warnings by megaphone. It had been established that the deceased had started shooting from the windows and the security forces had fired back. Some witnesses had even stated that they could not tell clearly who had fired first; others could confirm that they had first heard shooting from the flats.

The Government maintained that in all cases the police officers had acted in accordance with their orders and within the scope of their duties, and that they had made no more use of lethal force than was absolutely necessary. They had acted within the limits of legitimate self-defence to protect their own lives and the lives of others and to safeguard public order against these armed militants.

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, from which no derogation is permitted (see Velikova v. Bulgaria, no. 41488/98, § 68, ECHR 2000-VI). 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 (see Salman v. Turkey[GC], no. 21986/93, § 97, ECHR 2000-VII). 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, §§ 146–47).

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 within its internal legal order to safeguard the lives of those within its jurisdiction (see Kiliç v. Turkey, no. 22492/93, § 62, ECHR 2000-III). This involves a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions.

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, cited above, p. 46, §§ 148–9).

In keeping with the importance of Article 2 in a democratic society, where death results from the use of lethal force by the police or security forces, the Court must subject allegations of 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 (see McCann and Others, cited above, p. 46, § 150). In the latter connection, police officers should not be left in a vacuum when exercising their duties, whether in the context of a prepared operation or a spontaneous pursuit of a person perceived to be dangerous: a legal and administrative framework should define the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the international standards which have been developed in this respect (see Makaratzis, cited above, § 59).

Against this background, the Court must examine in the present case not only whether the use of lethal force used against the deceased persons was no more than absolutely necessary but also whether the operation was regulated and organised in such a way as to minimise to the greatest extent possible any risk to life (see Makaratzis, cited above, § 60).

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’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see Çakici v. Turkey[GC], no. 23657/94, § 86, ECHR 1999-IV). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Anguelova v. Bulgaria, no. 38361/97, § 137, ECHR 2002-IV). Since often, in practice, the true circumstances of the death in such cases are largely confined within the knowledge of State officials or authorities, the bringing of appropriate domestic proceedings, such as a criminal prosecution, disciplinary proceedings and proceedings for the exercise of remedies available to victims and their families, will be conditioned by an adequate official investigation, which must be independent and impartial. The same reasoning applies in the case under consideration, where there is no dispute that the deceased were killed by the police officers during an operation to arrest them.

The investigation must be capable, firstly, of ascertaining the circumstances in which the incident took place and, secondly, of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. A requirement of promptness and reasonable expedition is implicit in this context. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required standard of effectiveness (see Kelly and Others v. the United Kingdom, no. 30054/96, §§ 96–97, 4 May 2001, and Anguelova, cited above, § 139).

In the instant case, following the incidents, administrative and judicial investigations were opened. A number of police officers and other witnesses were interviewed. After the investigation criminal prosecutions were brought against twenty-one police officers, who were subsequently acquitted.

However, the Court observes that there were striking omissions in the conduct of the investigation. In the first place, there appears to have been no investigation of the planning of the coordinated operations at the four locations and, in particular, of the instructions given to the police officers participating in them as to the best means of achieving the aim of arresting the suspects without recourse to the use of force and of the reasons why the officers concerned had apparently only been armed with lethal weapons.

The investigation into the manner in which the operations were carried out was also manifestly deficient. In particular, the investigation authorities did not take photographs at the scene of the incidents; nor did they make sketches of the interior or exterior of the premises or prepare a plan showing where each member of the security forces was at the various stages of the operation. As a result there is no indication in the case file of the position of those killed in the apartments and of the position and movements of each police officer in each operation.

It also appears that the investigation authorities did not take fingerprints, in particular, from the weapons allegedly used by the deceased. Nor does it appear that a chemical analysis was carried out on the hands of the deceased to confirm that they had recently handled and fired weapons. Moreover, the weapons themselves were not sent for forensic examination in order to determine whether they had been recently fired. No search was conducted for spent cartridge and grenade shrapnel outside or inside the four apartments. The investigation authorities did not gather any evidence to show whether the firing had come from inside or outside the apartments. These omissions make it impossible to be sure that the suspects opened fire on the security forces first or at all.

In addition, the weapons of the police officers were not submitted for forensic examination. Further, no detailed account of the events was taken from each of the police officers to determine with precision the part played by each officer. The investigation did not thus determine which members of the security forces members had fired which shots and from where. It also appears that the clothing of those killed unaccountably disappeared and was not provided to the forensic specialist for the purpose of determining the range from which the bullets had been fired by the police officers. Nor were photographs taken during the autopsy investigations. These omissions made it impossible to verify the applicants' allegations in the domestic proceedings that the police officers shot some of the suspects while they were lying down, without weapons.

The above omissions seriously undermined the effectiveness of the investigation and the reliability of the findings; it also hampered the domestic courts, in the very protracted criminal proceedings, in making as full findings of fact as they might otherwise have done. In these circumstances the Court cannot accept the Government's assertion that the domestic authorities carried out a complete investigation concerning the incidents.

Having regard to the above considerations, the Court concludes that the authorities failed to carry out an effective investigation into the events leading to the death of the applicants' relatives.

There has accordingly also been a violation of Article 2 of the Convention in this respect.