SECOND SECTION

CASE OF ABDULLAH YAÅžA AND OTHERS v. TURKEY

( Application no. 44827/08 )

JUDGMENT

STRASBOURG

16 July 2013

FINAL

16/10/2013

This judgment is final but it may be subject to editorial revision.

In the case of Abdullah YaÅŸa and Others 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, J u d ges,

and Stanley Naismith , Section Registrar ,

Having deliberated in private on 25 June 2013 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 44827/08) 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 three Turkish nationals, Mr Abdullah Yaşa , Mr Eşref Yaşa and Ms Sahile Yaşa (“the applicants”), on 10 September 2008 . The applicant Abdullah Yaşa is the son of Mr Eşref Yaşa and Ms Sahile Yaşa .

2 . The applicants were represented by Ms R. Yalçindağ Baydemir , a lawyer practising in Diyarbak ır . The Turkish Government (“the Government”) were represented by their Agent.

3 . The applicants complained, in particular, of the trauma inflicted on Abdullah YaÅŸa by a tear-gas grenade and of the lack of an effective investigation of the police of fi cers responsible .

4 . On 20 September 2011 the application was declared partly inadmissible in respect of the second and third applicants. Furthermore, the complaint s under Articles 3 and 13 of the Convention concerning the applicant Abdullah Yaşa were communicated to the Gove rnment. I t was also decided that the Chamber would examine the merits of the application at the same time as its admissibility ( Article 29 § 1 of the Convention ).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant , Mr Abdullah Yaşa (“A.Y.”), a Turkish national, w as born in 1993 and live s in Diyarbak ır . He was thirteen years old at the time of the events to which the present case relates.

A. The 29 March 2006 incident

6 . Following the deaths of fourteen memb e r s of the PKK ( the Kurdistan Workers ’ Party ) during an arm e d c lash on 24 M ar ch 2006, numerous unlawful demonstrations took place in Diyarbakır between 28 and 31 M ar ch 2006, during which eleven demonstrators died . I n particula r, two person s, namely T. Atakkaya and M. Mızrak, were killed by tear-gas grenades in the course of these events .

7 . On 29 M ar ch 2006 A.Y., who was at the scene of a demonstr ation, was injured in the nose by a tear-gas grenade fired by the police while he was allegedly on his way to his aunt ’ s house. He was taken to the Diyarbakır public hospital the same day .

8 . On 5 Ap ril 2006 A.Y. left hos pital, where he had undergone an op e ration f or a maxillo -facial trauma on the day of his arrival, according to the discharge r e port.

9 . On 14 Ap ril 2006 the applic ant lodged a complaint with the Diyarbakır public prosecutor ’ s office (the “ public prosecutor ’ s office ” ) against the police offi cers of the Diyarbakır s ecurity police headquarters, alleging assault and abuse of power . He explain ed that he had been hit direct ly on the nose by a tear-gas grenade .

10 . On 2 Augus t 2006 the public prosecutor ’ s office interviewed the applic ant and his father and mother . A.Y. ’ s father said that he had been at work at the time of the incident and demanded the conviction of the police offi c ers responsible for the assault on his son .

11 . In her d e positions the same day , A.Y. ’ s mother stated that she had been at home at the time of the incident , and she also demand ed the conviction of the police offi c ers responsible for her son ’ s injuries .

12 . In substance, A.Y. himself testified as follows : w hile on his way to his aunt ’ s house he had been hit on the nose by an obje c t as he was watching the police of fi cers . A t the time of the incident he had seen the helmeted police of fi c ers shooting a projectile in his direction by means of a shoulder-borne device . He had been unable to identif y his exact position a t the time of the incident , nor had he previously seen anyone throwing obje c t s at the police of fi c ers. He did not think that the police of fi c ers could have shot at him without noticing his pr e sence, since the y had seen him when he had been in the street . He did not know th e police of fi c er who had shot at him . He requested the identifi cation and puni shment of this officer . He had been taken to h os pital by a s tranger .

13 . His lawyer , having confirm ed his statements , requeste d the formulation of a forensic r e port a nd the submiss ion of m e dica l reports from Diyarbakır public hospital . He also requested the identification of the police of fic ers in volved on the day of the incident.

14 . On 6 Novemb e r 2007 the public prosecutor ’ s office issued the follow ing decision not to prosecute :

“ ... It emerged from the inquir i es launched after the complaint ... that A.Y. had not been injured on his way to his aunt ’ s house . According to vid e o recordings ... and photograph s ... the complai nant was injured during a demonstr ation in which he had been active ly participating by chant ing slogans in support of the PKK terrorist organisation and its leader Abdullah Öcalan , and throwing stones , sticks and Molotov cocktails at the police of ficers .

Consequently , the police of ficers were not criminally liable because they had a cted in self- d efenc e within the meaning of A rticle 25 § 1 of the Crimin al Code , and in the exercise of their f u nctions as set out in A rticle 24 of the same C ode. [ They ] had shot tear-gas grenades in order to disperse the demonstrators who had gathered illegally and were atta cking the officers by throwing stones, sticks and Molotov cocktails.

In the light of the foregoing comments ... no action is required against the police of ficers accused of overstepping the bounds of the u s e of force ... . ”

15 . On 13 November 2006 the Diyarbakır D epartment of F orensic M edicine issued a medical report reading as follows:

“... A.Y. underwent operations on a haemorrhage , a facial oedema , a fracture d nose bone and a series of concave incisions.

Conclusion:

Th e patient cannot be treat ed by means of a straightforward operation ,

His condition is not life-threatening ,

The bone fractures constitute moderately se vere damage to the applicant ’ s vital body functions . ”

16 . On 3 December 2007 the applic ant appealed to the Siverek Assize Court ( “ the Assize Court ” ) against th e decision not to prosecute . He denied his alleged participation in the demonstr ation in question and argued that the video recordings and photo graph s on which the decision not to prosecute had been based in no way constituted sufficient evidence of such participation.

17 . By a decision of 31 December 2007, served on the applicant on 10 March 2008, the President of the Assize Court dismissed the appeal . It considered that the police of ficers ’ acts had remained within the framework of the law, since the officers had not acted intentionally but had merely endeavoured to discharge their duties.

B. C riminal proceedings against the applic ant in the Youth Assize Court

18 . It emerges from t he case-file that an investigation was automatically launched in respect of the applic ant f or his alleged participation in an illegal demonstration . On 28 November 2007, as part of this in vestigation , he was question ed by the public prosecutor ’ s office . The relevant parts of his statements m ay be summarised as follows :

“ I completely reject the charges levelled against me . [ On the day of the incident] I had left home to visit my aunt , who lives in Bağlar , when I saw a group of police of fic ers near the street where the clinic is located. The officers launched a tear-gas grenade , which hit me in the nose . I had eight days of medical treatment in hospital . I had been alone during this incident, I had no t thrown any stones , sticks or Molotov cocktails at the police of ficers , I did not chant slogans supporting the terrorist organisation, and I reject the photo graph s taken, the video recordings and the police reports . I agree to have a medical check-up . ”

19 . On 25 Feb r uary 2008 criminal proceedings were brought against the applicant on charges of membership of a terrorist organisation, propaganda in support of that organisation and resisting the police.

20 . In his submissions on the merits of the case the public prosecutor sought the applicant ’ s acquittal for lack of evidence. He stressed in particular that it was not possible, on the basis of the images studied by the Ankara criminal police laboratory, to establish that the applicant had taken part in the demonstration in question .

21 . On 10 July 2008, the Assize Court endorsed the prosecutor ’ s arguments and acquitted A.Y. According to the case file , in the absence of a n appeal on points of law , th at judgment became final .

C. A udio-visual material produced by the parties

22 . During proceedings before the Court , the Government produ ced a CD-ROM containing a police video recording . The CD-ROM shows several phases of the demonstr ations which took place in Diyarbakır on 29 March 2006, and contains images of the period before and after the launch ing of the tear-gas grenade which injured the applic ant ’ s head . It also shows that most of the demonstrators were teenagers , some of them with their faces covered , who were throwing stones . Moreover , it is clear that the event t o ok place on a very busy boulevard . Some sequences show th e applic ant a mong the demonstrators, although it cannot be clear ly ascertained that he was taking part in the demonstration . In the course of the events it can be seen that the applic ant has been hit by a tear-gas grenade. Although it is impossible to make out exactly how the police of ficer fired the tear - gas grenade, it would appear from its impact that it was a direct, flat-trajectory shot ( that is , it had been fired horizontally , or else at an angle of under 45 o ), rather than a high-angle shot (where the launcher is aimed as high as possible so that the tear-gas grenades explode in the air and break up before falling back to earth, thus preventing injur ies to demonstrators in the event of an impact).

II. RELEVANT DOMESTIC LAW AND PRACTICE

23 . The relevant part of section 16 of the Police Powers and Responsibilities Act ( Law n o. 2559 ) enact ed on 4 July 1934 and publi shed in the Official Gazette on 14 July 1934, as in force at the material time , read as follows :

“ ... P olice officers may only use their weapons

( a) in cas es of self- defence ;

...

( h) o r where an individual or group is resisti ng the police force and preventi ng it from discharging its duties , or else in the event of an assault on the police ... ”.

24 . Law No. 5681 as publi shed in the Official Gazette on 14 June 2007 amended section 16 of Law No. 2559. This provis ion now reads as follows :

“ The police

...

( c) may use firearms to arrest an individual who is the subject of an arrest warrant or detention order ... o r a suspect caught red-handed , to the extent required for the purpose .

Before us ing firearms , the police ... must first of all shout ‘ halt ! ’ ... If the individual continue s running , the police may fire a warning shot . If, despite these warning s , the individual continues running and there is no other possible means of stopping him or her, the police may use firearms in order to arrest the individual, to the extent required for the purpose ( kişinin yakalanmasını sağlamak amacıyla ve sağlayacak ölçüde silahla ateş edilebilir ) ... ”.

25 . Section 24 of the Assemblies and Marches Act ( Law n o. 2911 ) provides as follow s :

“ If a gathering or demonstr ation which has begun lawfully ... becomes an unlawful gathering or demonstr ation:

...

( b) The highest local civil ian authority ... shall send one or more loca l security officers to the scene of the incid ents .

This officer shall warn the assembled crow d that it must disperse in accordance with the law and that should it fail to do so , force will be used . If the crowd fails to disperse, it wi ll be dispers ed by the use of force....

In the situations described ... in the event of assault on or actual resist a nce to the se curity fo rces o r the property and persons which they are protecting , force will be used without the need to issue a prior warning .

...

Where a gathering or demonstr ation is unlawful from the outset ... the se curity fo rces ... shall take all necessary precautions . The commanding of ficer shall warn the crowd that it must disperse in accordance with the law and that should it fail to do so, force will be used. If the crowd fails to disperse, it shall be dispersed by the use of force .”

26 . A t the time of the facts , by virtue of A rticle 6 as appended to the Police Powers and Responsibilities Act ( Law n o. 2559 ) :

“ The use of force means recours e to physi cal and material force and weaponry in order to immobilise offenders , in a gradual manner proportionate to [their] characteristics and degree of resistance and aggressiveness.”

Under the terms of this A rticle, in cases of unlawful gatherings o r demonstr ation s necessitating the intervention of the rapid reaction forces, the local civilian authority , the highe st -ranking police officer o r another senior police officer entrusted with this task must first of all address the crowd by means of a loudhailer or other means of communication. He must then warn the crowd that “ that it must disperse in accordance with the law and that should it fail to do so, force will be used. ” This order must be repeated two or three times and a report drawn up to confirm that the warning could be heard from the furthest point in the crowd . The warning is not necessary in the cas e of an actual assault on and resistance to the police o r in the case of an actual atta ck on the property which the police are protecting .

Should the crowd fail to dispers e despite the warning given , use i s to be made , in a gradual manner , of physical force, material force and weapons , depending on the nature of the crowd ’ s movements , the degree of violence , threats or assaults , or of the resistance put up by the offenders .

Where dispers al has been plan ned and is being carried out by use of force, several exit routes must be left for the crowd so that it can disperse . No attempt must be made to disperse the crowd until such exit routes are available .

28 . On 15 February 2008 a c ircular setting out the conditions for using tear ga s ( E.G.M. Genelge No. 19 ) was sent by the Director General of Security ( Emniyet Genel Müdürü ) to all national security services. This c ircular referred to a d irective concerning the use of tear-gas weapons and munitions ( Göz Yaşartıcı Gaz Silahları ve Mühimmatları Kullanım Talimatı ) issued in February 2008.

This d irective expl ains the characteristics of tear-gas weapons and the physiologi cal effects of the gas used . The relevant sections of th e d irective m ay be summarised as follows :

“ ...

( 2) Instructions for the use of tear-gas weapons and munitions

 Tear-gas weapons and munitions must not be u sed for purposes other than those specified in the rules or before the necessary measures ( such as ensuring the presence of medical personnel) have been taken ;

 Prior to the u se of te ar gas , the crowd must be audibly warned that in the event of non-dispers al , use will be made of such gas ;

 The gas shall b e u sed in accordance with tactics and dos ag es determined by the h ead of the tear- gas intervention team following an assessment of the situation by the latter ;

 Unit s which lack suitably trained personnel may not apply for tear- gas supplies ;

 In order to increase the effectiveness of the tear- gas canisters , regard must be had to wind direction and speed , a nd also to air temperature and other meteorological factors ;

 Tear-gas dosage may be increased in a gradual manner in proportion to the characteristics and degree of resistance of the crowd or individual [ in question] ;

 No tear- gas projectile may be launched directly at a human body ;

 The upper and lower lids of the gas filters ... may not be opened and filters may not be place d on the gasmasks unless so ordered ;

 Gas sprays may be u sed in a gradual manner in proportion to the degree of re sistance ; they should not be used from a distance of under 1 metre ;

 Tear gas m ust never be used against persons who have ce ased to put up resistance o r show aggression ;

 P ersonnel called upon to u se munitions [ of this type] shall be in structed in their use and informed of the warnings issued by their manufacturers .

3. Instruction for the use of weapons and munitions in open and confined spaces

a) Open space s

Tear gas may be u sed to disperse crowds by splitting them up and disrupting communication with a view to isol ating agitators from the rest of the crowd . Where tear gas is use d during socia l events , the following points must be taken into account .

 Wind direction must be ascertained and targets pinpointed to ensure that the crowd is affect ed by the tear gas...

 Security forces must be supplied with gasmasks in view of the fact that the gas could affect them following a change in wind direction .

 Evacuation routes for persons affect ed by tear gas must not be blo cked . If the evacuation routes are blo cked the crowd is liable to become more aggressive . Furthermore , the evacuation routes must be properly marked. The crowd might cause damage to business or residential areas, in which case the areas in question can be shut off...

 I t is important to ascertain the range of the munitions and to launch them from an appropriate distance in order to reach the chosen target . Moreover , in the light of the specific characteristics of the social event , appropriate munitions must be used as they might be thrown back [ by demonstrators at the police forces].

 Regard must be had to the characteristics and size of the crowd . Where an item of munition has been launched into a large crowd, it must not be forgotten that demonstrators in the middle of the crowd risk be ing trampled underfoot...

4. Levels of use of tear gas

The following are the tear- gas munitions which should be selected depending on the distance between the crowd and the police:

( a) Level 1 : Short range (1-15 metres ). Intervention with gas in the form of spray s and model 5 gas cylinders . ...

( b) Level 2 : M edium range (15-30 metres ). Intervention with hand-held tear-gas grenades. This is possible where the group refuses to disperse and remains aggressive , despite the level-1 intervention. A hand-held tear-gas grenade can be effective at over 50 metres , depending on meteorological conditions .

( c) Level 3 : Long range (30-150 metres ) 37/38 mm. Intervention with grenade launcher . This intervention is geared to dispers ing gatherings occurring after the intervention described under Level 2 above . A grenade launched at a 45 o angle to the body of the officer concerned under appropri ate meteorological conditions has a range of over 150 metres ... ”

III. USE OF TEAR GA S : RELEVANT INTERNATIONA L PRINCIPLES AND DOCUMENTS

29 . Tear gas has been used by police forces in Europe for many years . Regulations on the use of tear gas vary according to the form in which it is u sed . Tear gas is u sed either in the form of spray s or grenades shot from a launcher . If the grenade launcher is improperly u sed , the grenade can kill or cause serious injuries .

According to this instrum ent , tear gas and “ pepper spray ” are not considered to be chemical weapon s. It is, however, well-known that the u se of this product can cause temporary discomfort , with, for instance, breathing difficulties , nausea , vomi ting , irritation of the respiratory tract , irritation of the tear ducts and eyes , spasms , chest pains , dermatit i s and allergies. In high dose s it can cause necrosis of the tissue in the respiratory tract and the digestive system , pulmonary oedema and intern al bleeding ( haemorrhaging of the suprarenal glands ).

Under the CWC, use of such resources is authorised for the purposes of law enforcement, including domestic riot control (Article II § 9, d) – see also ÇiloÄŸlu and Others v. Turkey , no. 73333/01, §§ 18-19, 6 March 2007, and Oya Ataman v. Turkey , no. 74552/01, §§ 17-18, ECHR 2006 ‑ XIII).

THE LA W

I. ALLEGED VIOLATION OF ARTICLE S 3 AND 13 OF THE CONVENTION

31 . The applicant, A.Y., complain ed of unjustified use of force by police officers and the lack of an effective investigation into their actions . He relied on A rticles 3 and 13 of the Convention.

The Cour t consider s that the complaints in question d o not call for examination under A rticle 13 , given that the applicant has not com plain ed of a n inabilit y to have recourse to the system of financial compens ation which must be put in place under the terms of this provision , in conjunction with A rticle 3 ( see Keser and Kömürcü v . Tur key , n o. 5981/03, § 37, 23 June 2009).

Ar ticle 3 of the Convention reads as follows :

“ No one shall be subjected to torture or inhuman o r degrading treatment or punishment .”

32 . Th e Government conteste d the applicant ’ s arguments .

A. Admissibility

33 . The Court note s that this complaint i s not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further note s that it i s not inadmissible on any other grounds . It must therefore be declared admissible.

B. Merits

34 . The applicant reiterate d his allegations .

35 . The Government d id not contest the use of tear-gas grenades in the instant case, but submitted that the police forces had acted in conformity with the relevant l egislation , namely section 16 of the Police Powers and Responsibilities Act ( Law n o. 2559 ) , in order to pacify the demonstrators , who had been displaying violent behaviour .

36 . In the Government ’ s submission , the police action had been proportion ate and geared to dispersi ng a group which had gathered for an unlawful demonstration and had attacked the police offic ers. In their view , the use of force had been necessary and the dispers al had been intended to protect the whole as semble d crowd from incidents which would have proved much more damaging than those which had result ed from the use of force. Furthermore , the injuries complained of had been a mere consequence of this use of force, legitimated in the Government ’ s view by the need to contain the crowd in th e main street and thus prevent disturbances .

37 . The Court reiterates that Article 3 enshrine s one of the fundamental values of democratic societies . U nlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 ma k e s no provision for exceptions , and no derogation from i t i s permissible under Article 15 § 2 , even in the event of a public emergency threatening the life of the nation ( see Selmouni v . France [GC], n o. 25803/94, § 95, E CH R 1999–V).

38 . In the instant case, the parties did not dispute the fact that on 29 March 2006 the applicant had been injured i n the nose by a tear-gas grenade launched by a police officer and that the applicant ’ s injuries, namely a facial oedema, a fracture d nose bone and a series of concave incisions, had been acknowledged as having caused moderately severe damage to his vital functions. His injuries were therefore un de niab ly serious . The Court cannot see any reason to cast doubt on the origin of these injuries , which may therefore be considered to have resulted from the launching of a tear-gas grenade by the police offic ers. It therefore consider s that the treatment infli cted on the applic ant attained the level of severity required to fall within the scope of A rticle 3 of the Convention, which none of the parties conteste d .

T he Court therefore has to examine whether the use by the police officers of the tear-gas grenade was an appropriate response to the situation, in the light of the relevant requirements of Article 3 of the Convention.

39 . The Court notes that the moments leading up to and following the use of the tear-gas grenade by the police officers to disperse the demonstrators were filmed ( see paragraph 22 above ). The Court has been able to vi ew these video recordings , the authenticity of which ha s not been challenged .

41 . In this connection , having vi ewed the video recordings and examined all the evidence in the case file , the Court observe s that the demonstr ation was not p e ac eful . In particular, the demonstrators , m ost of whom were teenagers, some with their faces concealed , were throwing stones at the police (paragraph 22 above ). In the instant case the Court consider s that the mere fact of using tear-gas to disperse this gathering does not raise any particular issue un der Article 3 of the Convention; the applicant did not contest this .

42 . However , this case i s very different from previous ones in which the Court examined the effects of the use of tear gas o r pepper spray against demonstrators ( see Çiloğlu and Others and Oya Ataman , both cited above ) o r against persons immobilised by the police ( Ali Güneş and Petruş Iacob , both cited above ). The instant case concerned not only the use of “ tear gas ” but also the launch ing of a tear-gas grenade at the demonstrators . In fact , firing a grenade by means of a launcher generates the risk of causing serious injury , as in the instant case , or indeed of killing someone , if the grenade launcher is u sed improperly .

For that reason, the Court must now consider whether the police offic ers ’ action s were atte nded by sufficient safeguards and whether the launch ing of a tear-gas grenade at the applic ant could be deemed compatible with the requirements of A rticle 3.

44 . The Court observes that according to the Government and the public prosecutor who conducted the in vestigations into the applicant ’ s complaint , the applicant was active ly participating in the demonstr ation in question , chanting slogans in support of a terrorist organisation and throwing stones, sticks and Molotov cocktails at the police offic ers. The applic ant conteste d this contention .

45 . The Court note s that even though the applicant could be seen among the demonstrators on the video recordings, it i s impossible – and the public prosecutor at the Assize Court acknowledged this fact ( see paragraph 20 above) – to establish with any certainty that he was actually taking part in the demonstration. In any event, in the Court ’ s view, this fact i s not decisive in the circumstances of the instant case, given that it was not disputed that the applicant had been present during the event and that he had been hit by a tear-gas grenade launched by a police officer at demonstrators on that occasion .

46 . The applicant had told the public prosecutor that the grenade had been fired directly ( see paragraph 10 above), adding that the police officers had shot a projectile at him by means of a shoulder-borne device ( see paragraphs 10 and 13 above).

47 . The Court note s that in his decision not to prosecute , the public prosecutor merely pointed out that the applicant had been injured during a demonstration in which he had been actively participating . He noted that the police offic ers had launched tear-gas grenades in order to disperse demonstrators , without bothering to consi der how the grenade in question had been launched . In the Court ’ s view , regardless of whether or not the applic ant had been participating active ly in the demonstr ation, such an approach would appear clearly insufficient in the light of the applicant ’ s contention that he was directly hit on the nose by a grenade , especially since the event t o ok place on a boulevard with many pass ers-by ( see paragraph 22 above ), who thus risked becoming the potential targets o f such a launch .

51 . There has accordingly been a violation of Article 3 of the Convention .

52 . The Court notes that the applic ant also com plain ed that the investigations had been insufficient . I n this connection, i t observes that in its assessment of whether the force used was necessary and proportiona te , it has taken suffi cient account of the manifest lack of diligence on the part of the public prosecutor ’ s office in dealing with the applic ant ’ s allegations ( paragraph 47 above ). Consequently , it is unnecessary to consider the case under the procedural aspect of A rticle 3 of the Convention.

II. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION

53 . Articles 41 and 46 of the Convention provide:

Article 41

“ If the Court finds that there has been a violation of the Convention o r the Protocols thereto , and if the internal law of the H igh C ontract ing Party concerned allows only partial reparation to be made , the Court shall , if necessary , afford just satisfaction to the injured party . ”

Article 46

“ 1. The H igh Contracting Parties undertake to abide by the final judgment of the la Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers , which shall supervise its execution .

... ”

A. Damage

54 . The applicant claimed 20 , 000 euros (EUR) in respect of pecuniary and non-pecuniary damage . In this connection he argued that h e had been thirteen years old at the time of the events and that the injuries which he had suffered had caused moderate ly sever e damage to his vital functions . He explained that he had undergone an operation on his nose and that he was still receiving medical treatment . He produced two CD-ROMs containing the relevant images and medical reports .

55 . The Government contested the amounts claimed by the applicant.

56 . Having regard to the evidence before it and deciding on an equitable basis , as required by Article 41, the Court awards the applicant a total of EUR 15, 000 to cover all damage suffered .

B. Costs and expenses

57 . The applicant also claimed EUR 9 , 723 for the costs and expenses incurred before the Court. He produced a breakdown of the work c arried out by his lawyer.

58 . The Government contested this claim .

59 . According to the Court ’ s case-law, an applicant is entitled to the 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, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5, 000 covering costs under all heads.

C. Default interest

60 . 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.

D. Article 46

61 . Furthermore, the Court observe s that in the instant case it has found a violation of the Convention on the grounds that it had not been established that the use of force against the applic ant had been an appropriate response to the situation, in the light of the requirements of A rticle 3 of the Convention. Moreover , it noted that at the time of the events , Turkish law lacked any specific provisions governing the use of tear-gas grenades during demonstrations and did not lay down any instructions for their utilisation by the police forces ( see paragraph 48 above ). The Court note s that on 15 February 2008 ( see paragraph 28 above ) a circular setting out the conditions for the us e of tear gas was issued to all national security services by the Director General of Security . N evertheless , the Court considers it necessary to reinforce the guarantees on proper use of tear-gas grenades in order to minimise the risks of death and injury stemming from their u se , by adopti ng more detailed legislative and /o r statutory instruments , in accordance with the principles set out in paragraph 48 above .

FOR THESE REASONS, THE COURT , UNANIMOUSLY ,

1. Declares the application admissible;

2. Holds that there has been a violation of the substantive aspect of Article 3 of the Convention;

3. Holds that there is no need to examine the complaint under Article 3 of the Convention in its procedural aspect ;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Turkish lira s at the rate applicable at the date of settlement:

(i) EUR 15 , 000 ( fifteen thousand euros) in respect of all heads of damage , plus any tax that may be chargeable;

(ii) EUR 5 , 000 (five thousand euros), plus any tax that may be chargeable to the applicant , in respect of costs and expenses ;

(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;

5. Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 16 July 2013 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stanley Naismith Guido Raimondi Registrar President