SECOND SECTION

DECISION

Application no. 48292/11 Ömer YAMAN and Seniha YAMAN against Turkey

The European Court of Human Rights (Second Section), sitting on 8 January 2019 as a Chamber composed of:

Robert Spano, President, Paul Lemmens, Işıl Karakaş, Julia Laffranque, Valeriu Griţco, Jon Fridrik Kjølbro, Stéphanie Mourou-Vikström, judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 30 June 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Ömer Yaman and Ms Seniha Yaman, are Turkish nationals, who were born in 1957 and 1964 respectively and live in the village of Balbaşı near the town of Batman in south-east Turkey . They were represented before the Court by Mr Hüseyin Akçara, a lawyer practising in Batman.

2. The Turkish Government (“the Government”) were represented by their Agent.

The circumstances of the case

3. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.

1. The killing of the applicants ’ son and the investigation into the killing

4. In the evening of 12 March 2006 the applicants ’ twelve-year-old son Ferhat Yaman was walking in Batman with three of his relatives when he suddenly fell to the ground. When his relatives tried to lift him up they realised that his face was bleeding and they then noticed a bullet entry hole next to his right eyebrow. They put him in a vehicle and took him to a hospital immediately. He was declared dead on his arrival at the hospital.

5. The same evening a post mortem examination was carried out on the body of Ferhat. The prosecutor was also present during the examination and the bullet lodged inside the victim ’ s head was taken out and secured as evidence. The cause of death was established as destruction of the brain.

6. It appears from a report drawn up by two police officers that the police headquarters were informed that the incident had taken place at around 9 p.m. The authors of this report, who visited the scene of the incident, carried out a search but did not find any evidence; they drew a sketch of the scene of the incident and left. There is no entry in the report showing the date and time of the police officers ’ visit.

7. The scene of the incident was also visited and examined by a number of crime scene officers at 9.45 p.m. the same evening. The crime scene officers were also unable to find any evidence at the scene and left the scene after they had photographed it. They then went to the hospital, secured the bullet removed from Ferhat ’ s body and took swabs from his hands as well as from the hands of the three relatives who had been walking with him at the time of his shooting. This report was drafted and signed at 11 p.m. the same evening.

8. Two of the three relatives who had been walking with Ferhat at the time, a street seller who owned a stall near the scene of the incident, and a resident living nearby were questioned by police officers the same evening. The two relatives told the police officers that they had been visiting a relative in a hospital and had left the hospital at 8.30 p.m. After they had walked in the direction of their homes for a while, Ferhat had fallen to the ground. As they had tried to lift him up they had noticed that he had been injured above his right eyebrow. They had not heard any gunfire prior to Ferhat falling to the ground. One of the two relatives stated that she had heard two to three rounds of gunfire after they had put Ferhat in a car and sent him to hospital. The stall owner told the police officers that he had heard automatic machine gun fire at around 9.30 p.m., followed by another round of firing some two to three minutes later. He added that he had not seen the person or the persons firing. The person living near to the scene of the incident, who is also a relative of the applicants, told the police officers that he had heard two to three rounds of gunfire at around 8.30 p.m.

9. The first applicant Ömer Yaman was questioned by police officers the following day. He told the police officers that his son Ferhat had been a student and living with his elder brother in the town of Batman. He added that, while he was at his home in his village the previous evening he had received a telephone call and been told that his son Ferhat had had an accident. He had immediately gone to the hospital in Batman where he had been informed about the death of his son and where, after the post mortem examination, the body of his son was handed over to him for burial.

10. Swabs taken from the hands of Ferhat and his three relatives who had been walking with him at the time of the shooting (see paragraph 4 above) were sent for forensic examinations. It was subsequently established that none of the four persons had gunpowder residues on their hands.

11. The bullet removed from Ferhat ’ s body (see paragraph 5 above) was also examined by the forensic authorities which established that it had been fired from a Kalashnikov rifle.

12. On 15 May 2007 the first applicant was questioned by the prosecutor. He repeated the contents of his previous statement (see paragraph 9 above) and asked the prosecutor to find the perpetrator.

13. On 22 May 2007 the Batman prosecutor issued a continuous search order and asked the Batman police headquarters to keep searching for the perpetrator of the killing until expiry of the prescription period on 12 March 2021. On various subsequent dates police officers sent the Batman prosecutor progress reports, stating that their searches had been futile.

14. In the meantime, in another investigation, police officers were informed that fire had been opened in the air in an area of Batman on 14 March 2006, that is two days after the killing of the applicants ’ son. The police officers who went to the scene found twenty-two spent bullet cases discharged from a Kalashnikov rifle and broken beer bottles next to the spent bullet cases from which they were able to lift fingerprints. Both the spent bullet cases and the fingerprints were sent for forensic examinations. It was established on 23 March 2006 that the fingerprints belonged to S.A. It was also established, on 7 April 2006, that the twenty-two spent bullet cases had come from the same rifle which had been used in another incident on 1 March 2006, during which a car had been riddled with bullets.

15. On 31 May 2012 the prosecutor investigating the killing of the applicants ’ son was informed by a forensic expert that the distance between the place where the twenty-two bullet cases had been found and the place where the applicants ’ son had been shot was 1500 metres as the crow flies and there were a number of buildings between the two places. The maximum range of a Kalashnikov rifle was 800 metres but its effective range was between 300-400 metres. Thus, it was highly unlikely that the applicants ’ son had been shot from the place where the twenty-two bullet cases had been found. The only way that could have happened was if the rifle had been fired in the direction of Ferhat and at a certain angle; thus the bullet, if certain weather conditions had also prevailed, could have fallen from its maximum height, gained speed and hit Ferhat.

16. On 5 June 2012 the prosecutor asked for the bullet removed from Ferhat ’ s body to be sent again to the forensic authorities with a view to establishing whether it had become deformed as it went through various bones in Ferhat ’ s body; for information concerning the maximum effective range of a Kalashnikov rifle; for an examination to be made with a view to establishing whether Ferhat could have been shot from the place where the twenty-two bullet cases were found; for S.A. to be arrested and brought before him for questioning; for the three relatives who had been walking with Ferhat at the time of his shooting to be questioned once more with a view to finding out the direction in which Ferhat ’ s face had been facing at the time of the shooting. The same day the prosecutor also asked a number of mobile telephone companies to inform him of any mobile telephone numbers owned by S.A. on 12 March 2006. In the prosecutor ’ s letters S.A. was referred to as the possible suspect in the offence of unlawful killing which was being investigated.

17. The Batman prosecutor was informed that on 30 January 2008 S.A. had been charged with the offences of intentionally endangering public safety and possession of weapons and ammunition without a licence. As it had not been possible to find him, he had been tried in his absence before the Batman Assize Court and acquitted on 14 September 2011 on the ground that there was no eyewitness testimony to prove that he had carried or fired a weapon. The only evidence against him had been the finding of his fingerprints on the beer bottles found in the vicinity of the twenty-two bullet cases; however, that finding had not been sufficient to conclude that he had fired the rifle. The prosecutor had appealed against the acquittal on 2 November 2011 and the appeal proceedings were still pending.

2. The compensation proceedings

18. In the meantime, on 25 June 2006 the applicants claimed compensation from the Ministry of the Interior for the death of their son. When their request was rejected, on 9 June 2008 they brought an administrative action before the administrative courts against the governor of Batman and claimed compensation for their pecuniary damages. That request was rejected on 30 October 2009 and the appeal lodged by the applicants was also rejected on 19 March 2013.

19. On 29 July 2008 the applicants also brought a separate action before the administrative courts against the Ministry of the Interior and claimed compensation for their non-pecuniary damage. That case was rejected on 15 October 2009 and the applicants ’ appeal was also rejected on 20 February 2014.

3. The proceedings before the Constitutional Court

20. After the compensation proceedings mentioned above were concluded, on 1 August 2013 and on 5 December 2014 the applicants introduced two individual applications before the Constitutional Court and complained, inter alia , that the authorities had failed to protect the right to life of their son; that the prosecutor had not conducted an effective investigation into the killing; and that the compensation claims brought by them had not been examined within a reasonable time and had been unreasonably rejected.

21. The Constitutional Court joined the two applications and adopted its decision on 20 April 2016. It held that it could not examine the applicants ’ complaint concerning the killing of their son because it did not have in its possession sufficient evidence to enable it to examine whether the substantive aspect of the complaint concerning the right to life had been breached. Thus, it held that it could only examine the procedural aspect of the complaints concerning the right to life of the applicants ’ son. However, the Constitutional Court also considered that, as the criminal investigation was still pending, the complaint concerning the effectiveness of that criminal investigation was premature and it was therefore unable to examine its effectiveness. The Constitutional Court examined the length of the administrative proceedings from the standpoint of the obligation to carry out an effective investigation and found that those proceedings had not been concluded within a reasonable time and held that it was not compatible with the obligation to carry out prompt investigations. It found a breach of the procedural obligations inherent under Article 17 of the Constitution (right to life) and awarded the applicants 30,000 Turkish liras (TRY; approximately 9,400 euros (EUR)). It also awarded the applicants TRY 1,998 (approximately EUR 625) in respect of their costs and expenses.

22. The parties have not provided the Court with information as to whether any steps were taken in relation to the Batman prosecutor ’ s letter of 5 June 2012 (see paragraph 16 above). Nevertheless, the Court notes from the Constitutional Court ’ s above-mentioned decision that the following steps were taken in response to the Batman prosecutor ’ s request: On 18 June 2012 a forensics laboratory informed the investigating prosecutor that the bullet had entered Ferhat ’ s head on a horizontal trajectory but that only the Forensic Medicine Institute could establish whether the bullet had become deformed as it went through the body. The prosecutor was also informed that after it has reached and exceeded its effective range a Kalashnikov type bullet could continue its travel at high velocity and could still be potentially lethal.

23. The prosecutor was further informed on 18 June 2012 that, according to the information obtained from two of the relatives, Ferhat had fallen to the ground immediately after he had turned his face in the direction of the coach station.

24. On 23 October 2012 the Batman Magistrates ’ Court granted permission for the police to examine S.A. ’ s mobile telephone records on the date of the killing of the applicants ’ son. The police subsequently established that S.A. had made eleven calls from his mobile telephone that day and that the last of those calls had been made at 6.09 p.m. and at a location some two kilometres away from the place where the twenty-two spent bullet cases had been found. The police officers considered, however, that it was still possible for S.A. to have been at that location by 9 p.m. that day.

25. Subsequently an arrest warrant was issued for S.A. but according to a document in the file, it had still not become possible to find S.A. as of 25 September 2014.

26. At the time of the adoption of the Constitutional Court ’ s decision further steps were being taken in the investigation into the killing of the applicants ’ son. For example, a Kalashnikov type rifle had been found in a car and it was established that the rifle had been used in the incident of opening fire on a car (see paragraph 14 above). Further steps were being taken to establish whether that rifle had also been used in the killing of the applicants ’ son.

COMPLAINTS

27. R elying on Article 2 of the Convention the applicants complained that the authorities of the respondent State had failed to take steps to prevent the killing of their son.

28. Under Articles 2 and 13 of the Convention the applicants also complained that no effective investigation had been carried out into the killing of their son.

THE LAW

29. The applicants complained that the killing of their son and the investigations conducted into his killing had been in breach of Article 2 of the Convention.

A. The applicants ’ victim status

30. The Court deems it appropriate to deal at the outset with the fact that the Constitutional Court rendered a decision in connection with the subject matter of the present application. The Court notes that, after the exchange of the parties observations had been completed, on 8 March 2018 the Government sent to the Court a copy of the Constitutional Court ’ s above-mentioned decision. This was how the Court became aware that the applicants had applied to the Constitutional Court. The Court forwarded the Constitutional Court ’ s decision to the applicants who, in reply, submitted to the Court additional observations and argued that the subject matter of the application they had lodged with the Court was the effectiveness of the criminal investigation into the killing of their son. The subject matter of the application they had subsequently lodged with the Constitutional Court was the proceedings by which they had sought compensation for the killing of their son. Indeed, the Constitutional Court had rejected their complaints concerning the effectiveness of the criminal investigation on account of the fact that the investigation was still pending.

31. The Government responded to the applicants ’ arguments summarised in the preceding paragraph and argued that the applicants ’ submission that the subject matter of the two applications was not the same was not true. The applicants had applied to the Constitutional Court and brought before that court not only their complaints concerning the length of the administrative proceedings by which they had sought compensation for the killing of their son, but also their allegations that their son ’ s life had not been protected and that no effective criminal investigation had been conducted into the killing.

32. The Court notes that when the present application was introduced with the Court on 30 June 2011, the Constitutional Court had not yet begun accepting individual applications; the Constitutional Court remedy entered into force on 23 September 2012 and it is applicable in respect of all decisions that became final after 23 September 2012. In a number of judgments concerning issues comparable to those in the present case, the Court examined and rejected the respondent Government ’ s arguments that the applicants, who had introduced their applications with the Court before the entry into force of the Constitutional Court remedy and whose cases were still in the process of being examined by the Court after the remedy into question entered into force, had failed to comply with the obligation to exhaust domestic remedies by not applying to the Constitutional Court (see, most recently, İncin v. Turkey , no. 3534/06 , § 22, 9 January 2018 and the cases cited therein).

33. As explained above, however, the applicants in the present application did exhaust the Constitutional Court remedy which had entered into force after they had lodged the present application with the Court. As summarised above (see paragraph 20) and as pointed out by the Government (see paragraph 31 above), in their application lodged with that court the applicants complained about, inter alia , the national authorities ’ alleged failure to take steps to protect the right to life of their son and the investigating authorities ’ alleged failure to carry out an effective investigation into their son ’ s killing. Both of those complaints are also the subject matter of the Court ’ s examination in the present application. It follows, therefore, that the conclusions reached by the Constitutional Court in those respects are relevant for the Court ’ s examination of the applicants ’ allegations.

34. To the extent that it might be argued that the finding of a violation by the Constitutional Court of the right to life of the applicants ’ son amounted to redress for the applicants ’ complaints which are the subject matter of examination in the present application, it is to be noted that that that finding was limited to the excessive length of the administrative proceedings by which the applicants had sought compensation for the killing of their son. As explained above, the Constitutional Court did not examine the alleged shortcomings in the criminal investigation. Moreover, it did not examine either the applicants ’ complaint that the authorities had failed to take steps to protect the right to life of the applicants ’ son because it held that there was in sufficient evidence to enable it to examine whether the substantive aspect of the complaint concerning the right to life had been breached.

35. In the light of the foregoing the Court considers that the applicants can st ill claim to be victims within the meaning of Article 34 of the Convention in respect of their complaints which are the subject matter of the present application.

B. The Government ’ s submissions

36. The Government submitted that an effective investigation had been conducted into the killing of the applicants ’ son and that the national authorities had taken all reasonable measures for the collection of the evidence and carefully examined all information in their possession. In this connection the Batman prosecutor had opened the investigation promptly and two police officers had gone to the area half an hour after the incident had taken place and searched for evidence and photographed the scene. Although the two police officers had mistakenly omitted to put the date and time of their visit on their report (see paragraph 6 above), it was clear that they had gone to the scene immediately after the incident had taken place. Moreover, a number of crime scene investigators had also visited the scene the same evening and completed their examination by 11 p.m. (see paragraph 7 above).

37. The Government argued that prosecutors in Turkey did not have to go to the scene of an incident because there was no legal obligation for them to do so. In any event, Ferhat Yaman had been taken to hospital immediately and there was therefore no reason for the prosecutor to be at the scene. Moreover, the prosecutor had already ordered the necessary steps to be taken at the scene and had attended the post mortem examination himself.

38. Police officers had questioned two nearby residents and two of the persons walking with Ferhat Yaman at the time. Although there were no obvious links between the twenty-two spent bullet cases and the opening of fire at a car and the killing of the applicants ’ son, the authorities had kept an open mind, extended the investigation to cover all aspects surrounding the shooting and considered all possibilities.

C. The applicants ’ submissions

39. The applicants replied to the Government ’ s foregoing submissions and alleged that the incident had taken place at 8.30 p.m. but that the crime scene officers had not gone to the scene until 9.45 p.m. There was no time or date on the report prepared by the two police officers to suggest that they had visited the scene immediately. In any event, those two police officers had not been trained as crime scene officers.

40. The scene of the incident and the surrounding areas had not been searched in order to find the bullet case discharged from the rifle used in the killing of their son and the prosecutor had not gone to the scene of the incident.

41. Moreover, the investigating authorities had not made real efforts to find eyewitnesses to the incident; in the opinion of the applicants the investigating authorities should have questioned tens of persons with a view to finding out if any of them had seen anything.

42. In support of their allegation that the authorities had failed to conduct an effective investigation the applicants referred to the case of Babat and Others v. Turkey (no. 44936/04, 12 January 2010) and argued that the killing of their son and the failures in the investigation into his killing were similar to those which were the subject matter of the Court ’ s judgment in that case.

43. The applicants also submitted that, prior to the Court ’ s giving notice of their application to the respondent Government on 18 April 2012, no links had been established by the investigating authorities between the killing of their son and the discovery of the twenty-two bullet cases (see paragraph 15 above). The authorities had attempted to link those two incidents with a view to giving the Court the impression that an effective investigation had been conducted. In any event, that incident had taken place some two days after the killing of their son and at a distance of 1500 metres away from the place where their son had been killed.

44. Similarly, the incident concerning the opening of fire on a car (see paragraph 14 above) had taken place eleven days before the killing of their son and at a location which was approximately five kilometres away. It was not clear, therefore, why that incident had been mentioned by the Government in their observations.

D. The Court ’ s assessment

1. The complaint concerning the national authorities ’ alleged failure to protect the right to life of the applicants ’ son

46. 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. Accordingly, not every alleged 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, 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 prevent that risk from materialising (see Keenan v. the United Kingdom , no. 27229/95, § 89 ECHR 2001-III and the judgment cited therein).

47. Turning to the facts of the present application, the Court notes that the applicants did not specify why their son had been at particular risk necessitating the taking of pre-emptive steps by the authorities to protect his life. Indeed, the applicants did not argue and did not submit any documents to the Court to show that they or their son had previously approached the national authorities and asked for protection or that the authorities themselves had been aware of any risks to his life.

2. The complaint concerning the effectiveness of the investigation into the killing

49. The Court reiterates that 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 Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05 , § 169, 14 April 2015 and the case cited therein). In that connection, the Court points out that this obligation is not confined to cases where it is apparent that the killing was caused by an agent of the State (see Salman v. Turkey [GC], no. 21986/93, § 105, ECHR 2000-VII).

50. Having examined the documents submitted to it by the parties which are summarised above, the Court considers that, contrary to what was submitted by the applicants, a sufficiently effective investigation was carried out by the national authorities to investigate the killing.

51. The steps taken by the investigating authorities were summarised above (see paragraphs 5 and 17). The Court will limit its examination to the specific aspects of the investigation which were highlighted by the applicants.

52. The Court observes at the outset that the applicants criticised, in particular, the lack of an entry in the report prepared by the two police officers to show the date and time of their visit to the scene of the incident. The Court has examined the contents of the report in question and considers that it relates to the visit of the two police officers to the scene of the incident in the immediate aftermath of the shooting. It therefore considers that the police officers ’ failure to mention the date and time of their visit in the report does not amount to a serious failure capable of affecting the overall effectiveness of the investigation. In any event, it is not disputed between the parties that the scene was visited and examined at 9.45 p.m. the same evening by trained crime scene officers (see paragraph 7 above).

53. Furthermore, in the circumstances of the present application, the Court does not consider that the prosecutor ’ s failure to go to the scene of the incident had a negative bearing on the overall effectiveness of the investigation. Admittedly, in a number of its judgments the Court held the prosecutors ’ failure to visit the scenes of the incidents to be a shortcoming. It must be stressed, however, that those cases concerned killings by law enforcement personnel and, as such, the importance of the independence and impartiality of those collecting the evidence and overseeing the collection of the evidence was paramount for the overall effectiveness of the investigations (see, amongst others, Gülbahar Özer and Others v. Turkey , no. 44125/06, §§ 62-63, 2 July 2013; Cangöz and Others v. Turkey , no. 7469/06, §§ 125-126, 26 April 2016; and Mihdi Perinçek v. Turkey , no. 54915/09, § 65, 29 May 2018). In the present case there are no allegations of involvement of any law enforcement personnel in the killing of the applicants ’ son and the applicants do not call into question the independence and impartiality of the police officers or of the crime scene officers who visited the scene and collected the evidence in the absence of the prosecutor.

54. The applicants also alleged that no search had been conducted in the area in order to find the bullet case discharged from the rifle and that the investigating authorities had not made real efforts to find eyewitnesses to the incident. The Court notes that, according to the reports pertaining to the visits of the police officers (see paragraph 6 above) and the crime scene officers (see paragraph 7 above), searches were in fact conducted in the vicinity to find evidence relating to the shooting. Moreover, the authorities questioned two immediate eyewitnesses to the shooting and two further witnesses who were nearby at the time of the shooting (see paragraph 8 above). The Court does not see any reason to doubt that the investigating authorities would have questioned any other persons had they encountered them in the vicinity.

55. The Court has also noted the applicants ’ allegation that prior to the giving notice of their application to the respondent Government on 18 April 2012, no links had been established by the investigating authorities between the killing of their son and the discovery of the twenty-two bullet cases and the opening of fire on a vehicle (see paragraph 43 above). According to the applicants, the authorities had attempted to link those incidents with a view to giving the Court the impression that an effective investigation had been conducted.

56. In reply to that allegation the Court should stress that the steps taken by the investigating authorities between the date of the incident, namely 12 March 2006, and the date on which the prosecutor decided to issue a continuous search order, namely 22 May 2007, are sufficient to illustrate that an effective investigation had been conducted into the killing of the applicants ’ son. Thus, it is not necessary for the Court to draw any inferences from the steps taken by the investigating authorities after notice of the application had been given to the Government. The Court notes in any event that pursuant to the continuous search warrant the investigation into the killing of the applicants ’ son is still open and will remain open until 12 March 2021 (see paragraph 13 above) and it considers the steps taken after 2012 to be meaningful attempts to clarify the circumstances surrounding the killing of the applicants ’ son.

57. Having regard to the entirety of the investigation, in which the applicants were able to take an active part, the Court concludes that the national authorities did all that could be reasonably expected of them to find the perpetrator.

58. The Court concludes, therefore, that the national authorities conducted an effective investigation into the applicants ’ allegations and considers that the fact that the investigation did not yield any results does not mean that the authorities can be reproached. In this connection the Court reiterates that the obligation to conduct an effective investigation is not an obligation of result but of means, and that not every investigation can come to a successful conclusion ( Mikheyev v. Russia , no. 77617/01, § 107, 26 January 2006 and the cases cited therein).

59. In light of the foregoing the Court finds that the applicants ’ complaints are manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 31 January 2019 .

Stanley Naismith Robert Spano Registrar President