FOURTH SECTION

DECISION

Application no . 21470/10 Derya ERCAN and others against Bulgaria

The European Court of Human Rights ( Fourth Section ), sitting on 16 December 2014 as a Chamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , Ledi Bianku , Nona Tsotsoria , Zdravka Kalaydjieva , Paul Mahoney , Faris Vehabović , judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 24 March 2010 ,

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

Having regard to the comments submitted by the Turkish Government,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Ms Derya Ercan , Ms Kardelen Ercan , Ms Nazmiye Ercan , Mr Zeki Ercan , Ms Nurcan Taçar , Ms Fatma Tutuk , Mr Ali Ercan , Mr Engin Ercan and Mr Zayim Ercan are Turkish nationals who were born in 1982, 2001, 1936, 1961, 1971, 1963, 1959, 1970, and 1965 respectively and live in Kırklareli , Turkey. They were represented before the Court by Mr M. Demir , a lawyer practising in Istanbul.

2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova , of the Ministry of Justice .

3. The Turkish Government, who intervened in the case in accordance with Article 36 § 1 of the Convention, were represented by their Agent .

The circumstances of the case

4. The applicants are relatives of Yalçın Ercan , who died on 17 April 2008 while resisting arrest by Bulgarian coastguards. Mr Ercan was the first applicant ’ s husband, the second applicant ’ s father, the third applicant ’ s son and the remaining applicants ’ brother. He was working as a fisherman off his home village of Beğendik , which is located on the seafront at the north-westernmost point of Turkey, close to the border with Bulgaria.

1. Background

5. Early in 2008 the Regional Border Service in Burgas (“the RBS”) registered numerous incursions into Bulgarian waters in the Black Sea by Turkish fishermen ’ s vessels. In all cases it informed the Turkish border authorities, and the problem was discussed during a bilateral meeting on 13 February 2008. Data collected at the observation and radiolocation station in the border village of Rezovo showed that one of the most frequent trespassers was the fishing vessel Ö mer R eis - 2 domiciled at the mouth of the Rezovska River ( Mutludere ).

6. By order of the Bulgarian Minister of Agriculture the fishing of turbot in Bulgarian territorial waters was prohibited between 15 April and 15 June 2008. In order to prevent possible poaching by Turkish fishermen, on 14 April 2008 the head of the R BS detached to the border area a “Mobile Border Control Group”, which included four coastguards under the command of Chief Inspector N.K.

2. The incident of 17 April 2008

7. At 6.39 a.m. on 17 April 2008 the observation station i n Rezovo registered a fishing vessel, which had penetrated about one nautical mile into Bulgarian territorial waters. The fishermen on board were observed pulling fishing nets out of the water; it appeared that the nets had been placed there earlier.

8. At 6.50 a.m. the Mobile Border Control Group was sent to intercept the vessel. Once the officers approached it, on board an inflatable motorboat, they recognised it as the Ömer Reis-2 . There were three people on board – Yalçı n Ercan and two of his brothers, Engin and Zayim Ercan (the eighth and ninth applicants).

9. When they spotted the coastguard boat, Yalçın and Zayim Ercan , who were on deck, started cutting off the nets, and Engin Ercan , at the helm, directed the Ömer Reis-2 towards Turkish territorial waters. The coastguard boat caught up with their vessel. Using gesture, and once they were nearer, vocally in Bulgarian and English, the coastguards gave orders to the fishermen to stop. The Ömer Reis-2 did not stop. Instead, Ergin Ercan steered it towards the coastguard boat, which was smaller, attempting to overturn and sink it. At the same time, using long wooden boathooks, and once the two boats were close enough, Yalçın and Zayim Ercan repeatedly attempted to hit the coastguards and puncture their boat ’ s inflatable sides.

10. On seeing this, Chief Inspector N.K. gave his officers the order to fire warning shots. More than twenty shots were fired. Although they were aimed into the air and not at anyone, some of them hit the Ömer Reis-2 ’ s port side and the cabin at the helm. They did not injure anybody on board.

11. As this did not make the Ömer Reis-2 stop, and seeing that its crew continued behaving aggressively, attempting to puncture and sink the coastguard boat, Chief Inspector N.K. ordered his officers to board the fishing vessel.

12. The coastguards were wearing armoured life jackets, which did not permit them to also wear holsters. That is why, upon boarding the Ömer Reis-2 , they attached their weapons, Scorpio sub-machine guns, to special metal rings on their jackets. As ordered by Chief Inspector N.K. , the guns had their safety catches on. None of the guards had a gun in their hand.

13. Officer M.T. was the first one to board the fishing vessel, followed by Officer N.P. Their task was to immobilise and handcuff Yalçın Ercan . They managed to wrestle him to the ground, after which Officer N.P. advanced towards the helm to attempt to stop the vessel. Officer M.T. and Yalçın Ercan continued struggling on a pile of fishing nets. On several occasions during the fight Yalçın Ercan attempted to grab Officer M.T. ’ s gun, which had come unfastened from the ring on his jacket and was hanging by a short cord. Finally, Officer M.T. managed to immobilise Yalçın Ercan and handcuff him. By that time another officer, Z.P., had immobilised Zayim Ercan , and Officer N.P. was struggling with Ergin Ercan at the helm, attempting to stop the vessel. Chief Inspector N.K. had remained in the coastguard boat. At this point Chief Inspector N.K. received information that the two boats were about to enter Turkish territorial waters, and ordered his men to release the fishermen.

14 . While Officer M.T. was removing Yalçın Ercan ’ s handcuffs, the latter made sudden abrupt movements, pushing the officer back on to the fishing nets. M.T. immediately jumped forward. At the exact moment when he put his hands on Yalçın Ercan , three gunshots were heard. Officer M.T. heard Yalçın Ercan groan and looked at his gun. It was between his legs (he was kneeling), entangled in the fishing nets, its muzzle pointing towards Yalçın Ercan ’ s back. He took it and saw that it was set at automatic fire. He switched the safety catch back on. He stood up and went to the cabin, where he helped Officer N.P. immobilise Ergin Ercan and stop the fishing vessel.

15. Immediately after that the officers took Yalçın Ercan on to their boat and called Rezovo to say that a man had been injured. Once on land, they transferred Yalçın Ercan into the ambulance which had arrived. However, he died on the way to hospital.

16. Later that day the Ömer Reis-2 was towed by a coastguard cutter to the port of Tsarevo .

3. The criminal proceedings

17. Criminal proceedings in connection with Yalçın Ercan ’ s death were opened on 17 April 2008.

(a) Inspections and witness statements

18. On the same day the investigator in charge of the case inspected the two boats involved in the incident. It was noted that the Ömer Reis-2 was 7.4 metres long and 2.4 metres wide. Two dark-red stains were found on the deck. There was also a pile of turbot fishing nets; when they were moved, two cartridge cases fell out of them. On the walls of the small cabin at the helm there were eight bullet holes. Another bullet was found embedded in the vessel ’ s port deck.

19. The coastguard boat was 4.5 metres long and 2 metres wide. Several traces of the impact of hard objects were observed on its left inflatable side.

20. The coastguards who had participated in the operation were interviewed on 17 April 2008. Officer M.T. stated that when the lethal shots were fired he had not initially been aware that they had come from his gun.

21. Officer Z.P. said that after the fatal shots he had seen M.T. ’ s gun caught in the fishing nets.

22. Officer N.P. stated that before boarding the fishing vessel he had been hit by one of the fishermen with a boathook. He had not heard the shots which had injured Yalçın Ercan because at that moment he had been wrestling with Yalçın ’ s brother Ergin . He explained that he and his colleagues had been trained to respond to similar situations. Lastly, he said that he was very familiar with Scorpio sub-machine guns.

23. The group ’ s commander, Chief Inspector N.K. , said that he had judged Scorpio sub-machine guns the most appropriate weapons to take for the operation because of their versatility. He explained that all members of the group had also been carrying smaller guns and that in the boat they had had an electroshock Taser. He said that during the operation he had been in constant contact with the observation station in Rezovo and the RBS . He had sought and obtained the RBS ’ s prior approval before ordering his men to fire warning shots.

24. Officer M.T. was once again examined on 23 June 2008, and Chief Inspector N.K. and Officers N.P. and Z.P. were examined on 2 July 2008. They reiterated the statements they had made earlier. Chief Inspector N.K. said in addition that he had ordered the warning shots because the fishermen were directly endangering his men ’ s lives. Officer Z.P. explained that he was not very familiar with Scorpio sub-machine guns. He said that he, N.P. and M.T. had found these guns awkward to carry, as it had been impossible to wear holsters and they had had to attach the guns to their jackets.

25. Zayim and Engin Ercan were interviewed on 17 April 2008. They stated that they had not obeyed the coastguards ’ order to stop because they believed that they were still in Turkish territorial waters.

26. They were interviewed again on 22 May 2008. Zayim Ercan stated that he and his brother Yalçın had not attempted to resist arrest. Engin Ercan said once again that he believed that the vessel had not left Turkish territorial waters. Once the coastguard boat had approached, he had aimed to prevent a clash with it. He had not known what his brothers were doing in the rear part of the boat. Like his brother Zayim , he stated that the three of them had done nothing to resist arrest.

27. The two officers who had been on duty at the observation station in Rezovo in the early hours of 17 April 2008 were interviewed on 5 May 2008. They explained that they had observed the Ömer Reis-2 ’ s movements, and had kept Chief Inspector N.K. informed of them. They said that they had transferred to the RBS his request to be authorised to order warning shots, had some time later been told by him that a Turkish fisherman had been wounded, and had then called an ambulance.

(b) Expert reports and reconstructions

28. A post-mortem examination of Yalçın Ercan ’ s body was carried out on 17 April 2008. It found three gunshot wounds, situated close to each other, in the middle part of the back. The bullets had touched the heart, the liver, the lungs and the small intestines, thus causing death. There was another wound on Yalçın Ercan ’ s head, caused by a hard object, which was unrelated to the cause of death.

29. Zayim and Engin Ercan were examined by a doctor on 22 April 2008. He observed a number of small bruises on their bodies. In addition, Zayim Ercan had a black eye and a small cut close to the left eyebrow.

30. Officer N.P. was examined on 18 April 2008. Both his hands were bruised and swollen.

31. A ballistics report was drawn up on 12 June 2008. It confirmed that the shots which had fatally wounded Yalçın Ercan had been fired by the gun used by Officer M.T., and concluded that they had been fired at a distance of between 30 and 60 cm. A combined medico-ballistic expert report dated 28 August 2008 showed in addition that at the moment of the fatal shots Yalçın Ercan had been lying on his right side, with the upper part of his body bent forwards. The report concluded further that the lethal shots had been fired within a very short time frame.

32. Several reconstructions of the scene of the incident staged on board the Ömer Reis-2 showed that Officer M.T. ’ s gun could have fired a shot without anyone touching the trigger, if it was entangled in the fishing nets and at the moment when Officer M.T. was thrusting his body abruptly forwards. It was also shown to be possible, when the gun was being rubbed against a human body, for its switch to move to automatic mode. Lastly, it was shown that a shot could also be fired when the participant playing the role of the victim in the reconstruction attempted to grab the gun with his left arm stretched behind his back.

(c) Discontinuance of the proceedings

33. On 19 June 2008 the prosecutor in charge of the case brought charges against Officer M.T. for causing death through negligence.

34. On 16 October 2008 he decided to discontinue the criminal proceedings, considering that Officer M.T. had not committed any offence and that Yalçın Ercan ’ s death had been a fortuitous event. The prosecutor pointed out, in particular, that Officer M.T. had been unable to foresee or prevent the firing of the shots.

35. The first and third applicants ( Yalçın Ercan ’ s wife and mother), with the assistance of their legal representative in Bulgaria, lodged an appeal. They argued that Officer M.T. had acted with criminal negligence. Upon their appeal, on 3 November 2008 the decision of the prosecution was upheld by the Sliven Military Court. However, upon a further appeal by those applicants, on 23 December 2008 the decision was quashed by the Military Court of Appeal, which considered that it had not been sufficiently reasoned and that further evidence needed to be collected.

36. The prosecutor resumed the investigation of the case and in a new decision of 3 July 2009 discontinued the criminal proceedings. On the basis of the evidence described above he concluded that Officer M.T. had not himself pulled the trigger of his gun, and that the lethal shots had been fired when Yalçın Ercan had touched it while wrestling with the officer during his repeated attempts to take hold of the gun, or after the trigger had become entangled in the fishing nets. Either way, Yalçın Ercan ’ s death had been a fortuitous event , which Officer M.T. could not have foreseen or prevented. He had abided by the relevant safety rules, most notably by switching the gun ’ s safety catch on before boarding the Ömer Reis-2 . It was also significant that Yalçın Ercan and his brothers had violently resisted arrest.

37. The first and third applicants appealed, contesting in particular the conclusion that Yalçın Ercan could have pulled the trigger himself. On 12 October 2009 the Sliven Military Court quashed the prosecutor ’ s decision, finding that it was not sufficiently reasoned, and remitted the case.

38. Upon an appeal by the prosecution against the Military Court ’ s decision, on 13 November 2009 the Military Court of Appeal finally upheld the discontinuance of the criminal proceedings. It found that the prosecutor ’ s decision was well reasoned and that there was no indication that Officer M.T. had committed an offence. It also dismissed the first and third applicants ’ argument that Officer M.T. had been negligent because he had not been wearing a holster and, while struggling with Yalçın Ercan , had left his gun hanging in front of him. It pointed out that Officer M.T. ’ s health and life were in danger at the material time. Furthermore, he could not be held responsible for the fact that his gun had become unfastened from the ring on his jacket. The main responsibility for the incident was to be borne by Yalçın Ercan , who had failed to obey the coastguards ’ lawful orders.

4. Public campaign in support of Officer M.T.

39. The bringing of charges against Officer M.T. on 19 June 2008 sparked a wave of protests by nationalists, who called the prosecutor in charge of the case “a traitor” and Officer M.T. “a hero”. Journalists in Burgas created an “initiative committee” in defence of the officer and adopted a declaration, stating that the bringing of charges against him “would have a demotivating effect” on the border police. On unspecified dates in July 2008 this declaration was sent to the Chief Public Prosecutor, the President of the Republic, the Speaker of Parliament, and other bodies. The “initiative committee” also started collecting signatures in support of Officer M.T. According to reports in the local media more than 200,000 people signed the petition. According to the same reports, the mayors of Burgas and Tsarevo and the president of the municipal council of Burgas also signed the document.

40. In July 2008 the municipal council of Burgas made Officer M.T., as well as his colleagues who had participated in the operation of 17 April 2008, honorary citizens of the city.

41. In January 2009, following the Military Court of Appeal ’ s decision of 23 December 2008 remitting the case for further investigation (see paragraph 35 above), members of Parliament representing the Burgas constituency sent a letter to the Inspectorate of the Supreme Judicial Council, urging it to intervene in the criminal proceedings. Also in January 2009 the local newspaper Chernomorski F ar claimed that the President of the Republic had met Officer M.T. ’ s father and had promised to do whatever was in his power to ensure that his son would not be brought to trial.

5. Convictions of Zayim and Engin Ercan

42. The Tsarevo District Court, in a judgment of 2 October 2008, upheld by the Burgas Regional Court on 12 January 2009, convicted Zayim and Engin Ercan of disorderly conduct and poaching on 17 April 2008. Zayim Ercan was also convicted of causing a minor bodily injury to Officer N.P., whom he had hit with a wooden boathook. Both brothers were sentenced to one year ’ s imprisonment, suspended for three years. Zayim Ercan was ordered to pay Officer N.P. 1,000 Bulgarian levs (BGN) in compensation for non-pecuniary damage.

COMPLAINTS

43. The applicants complain ed that the circumstances in which their relative had been killed were in breach of Article 2 of the Convention.

44. Relying on Article 6 of the Convention, they also complain ed that the domestic authorities had failed to conduct a thorough inve stigation .

THE LAW

A. Preliminary issues

1. The victim status of the second and the fourth to ninth applicants

45. The Bulgarian Government argued that the fourth, fifth, sixth, seventh, eighth and ninth applicants, Yalçın Ercan ’ s siblings, could not claim to be victims of the alleged violations of the Convention, since they “were not directly affected” by his death. The Government argued that the eighth and ninth applicants, Zayim and Engin Ercan , could not claim to be victims also on the ground that they had acted unlawfully by entering Bulgarian territorial waters and then resisting arrest by Bulgarian coastguards, and that they were responsible for the incident of 17 April 2008.

46. The Court is of the view that, in addition to the above, there could also be doubt as to the victim status of the second applicant. It observes that neither that applicant nor the fourth to ninth applicants complained to the Bulgarian authorities or participated in the proceedings concerning Yalçın Ercan ’ s death, as it was only the first and third applicants who took part, made submissions and lodged appeals (see paragraphs 35 and 37 above). However, the Court does not consider it necessary to decide on the matter now, because it considers the present application in any event inadmissible, for the reasons given below.

2. Complaint under Article 14 of the Convention

47. In their submissions made on 24 May 2013 the Turkish Government argued that Article 14 of the Convention, taken in conjunction with Article 2, had also been violated in the case, because the Bulgarian authorities had failed to investigate whether Yalçın Ercan ’ s killing had been motivated by his being of a different nationality.

48. The Court notes that in their initial application the applicants did not raise this complaint (see paragraphs 43-44 above). Even if it is accepted that they raised it after the application ’ s communication, in so far as they stated that they joined the Turkish Government ’ s submissions (see paragraph 54 below), the Court notes that the complaint under Article 14 is not an elaboration of the applicants ’ original complaints, raised under Article 2 and Article 6 of the Convention, but concerns new issues. Accordingly, it is not app ropriate to take up the matter separately at this stage (see Nuray Åžen v. Turkey (no. 2) , no. 25354/94, §§ 199 ‑ 200, 30 March 2004; Melnik v. Ukraine , no. 72286/01, §§ 61 ‑ 63, 28 March 2006; and Shesti Mai Engineering OOD and Others v. Bulgaria , no. 17854/04 , § § 93-94, 20 September 2011 ). The Court will therefore not examine the complaint under Article 14 .

B. Complaints under Article 2 of the Convention

49. The Court is of the view that the complaints raised by the applicants (see paragraphs 43-44 above) are most appropriately examined under Article 2 of the Convention alone, the relevant part of which reads as follows:

“1. Everyone ’ s right to life shall be protected by law ...

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

1. Arguments of the parties

(a) The Bulgarian Government

50. The Government contested the complaints. Under the substantive aspect of Article 2 of the Convention, they pointed out that the domestic investigation had established the cause of Yalçın Ercan ’ s death and had also established that the Bulgarian coastguards could not be held responsible for it. The Government pointed out in addition that the guards had had to respond to a complex situation, which had arisen abruptly and had progressed rapidly, and that they had acted with the conviction that they were defending their lives. The Government contended that the Bulgarian coastguards, and in particular Officer M.T., had not used excessive force, had not breached the domestic rules regulating the use of force by the police, and had taken measures to protect the lives of the crew of the Ömer Reis-2 . Lastly, the Government pointed out that the domestic law contained provisions protecting in an effective manner the right to life.

51. As regards the alleged lack of effective investigation, the Government stated that the investigation carried out by the Bulgarian authorities had been comprehensive and thorough, and that it had adequately established the circumstances of Yalçın Ercan ’ s death. Numerous pieces of evidence had been collected, and the prosecutor ’ s decision to discontinue the criminal proceedings with the conclusion that no offence had been committed had been correct.

(b) The Turkish Government

52 . The Turkish Government did not call into doubt the conclusion that the lethal shots killing Yalçın Ercan had been fired accidentally, but were of the view that Article 2 of the Convention was n on etheless breached because the Bulgarian coastguards had used excessive force against Yalçın Ercan and his brothers. This was so, first, in view of the fact that four armed guards had been sent to intercept “a small unarmed fishing vessel”. This was so, second, because before boarding the Ömer Reis-2 the guards had fired more than twenty warning shots, nine of which had hit the fishing vessel. Also, the coastguards ’ actions had not been adequately planned, in particular because they had been carrying sub - machine guns but had been unable to wear holsters; thus, they had had to attach the guns to their life jackets , creating a risk of an accident. It was significant in that respect that they had had other weapons. Lastly, referring to the Court ’ s judgments in the cases of Tzekov v. Bulgaria (no. 45500/99, 23 February 2006) ; Vasil Sashov Petrov v. Bulgaria (no. 63106/00, 10 June 2010) ; and Karandja v. Bulgaria (no. 69180/01, 7 October 2010), the Turkish Government pointed out that the Court had previously criticised the domestic legislation which at the time allowed the use of firearms by the police to effect an arrest, regardless of the seriousness of the offence allegedly committed or the danger which the person concerned represented.

53 . The Turkish G overnment argued that the investigation of Yalçın Ercan ’ s death had been deficient, in particular because the prosecuti ng authorities had not taken into account the bullet holes found on the fishing vessel, had accepted that Officer M.T. ’ s gun had fired accidentally despite the lack of convincing evidence in that regard , had failed to take fingerprints from the gun and in particular from its trigger and to check for traces of gunpowder on Yalçın Ercan ’ s fingers, had failed to account for the wou n d on Yalçın Ercan ’ s head, and had not examined the planning and conduct of the operation of 17 April 2008. Moreover, referring to the facts described in paragraphs 39-41 above, the Turkish Government argued that the investigation had not been independent and had been politically influenced.

(c) The applicants

54. The applicants reiterated their complaints. They stated that they associated themselves with the Turkish Government ’ s position.

2. The Court ’ s assessment

(a) Substantive aspect of Article 2

55. The principles governing the use of force by the authorities have been summarised in the Court ’ s judgment in the Grand Chamber case of Giuliani and Gaggio v. Italy (no. 23458/02, §§ 174-82 and 244-51 , ECHR 2011 (extracts)).

56 . In particular, the Court has noted that Article 2 ranks as one of the most fundamental provisions in the Convention , and that together with Article 3 it enshrines some of the most basic values of the democratic societies making up the Council of Europe.

57 . Paragraph 2 of Article 2 describes the situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life. Such use of force must be no more than “absolutely necessary” for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c).

58. In addition, the Court must examine the planning and control of a policing operation resulting in the death of one or more individuals in order to assess whether, in the particular circumstances of the case, the authorities took appropriate care to ensure that any risk to life was minimised and were not negligent in their choice of action . Accordingly, in assessing the circumstances of each case, the Court will take into consideration not only the actions of the agents of the State who actually administer ed 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 v. the United Kingdom , 27 September 1995, §§ 147-50, Series A no. 324; Andronicou and Constantinou v. Cyprus , 9 October 1997, § 171, Reports of Judgments and Decisions 1997 ‑ VI; Musayev and Others v. Russia , nos. 57941/00, 58699/00 and 60403/00, § 142, 26 July 2007; and Shchiborshch and Kuzmina v. Russia , no. 5269/08, §§ 205-6, 16 January 2014).

59. Turning to the circumstances of the present case, the Court observes that Yalçın Ercan died after being shot three times in the back during a struggle with a Bulgarian coastguard, Officer M.T. The ensuing investigation concluded that the shots had been fired accidentally, either when the gun had become entangled in the fishing nets on the deck or when Yalçın Ercan had touched the trigger when he was trying to take hold of the gun (see paragraphs 36-38 above).

61 . The Turkish Government argued (see paragraph 52 above) that the Bulgarian coastguards were nevertheless responsible for th e accident, because they had boarded the Ömer Reis-2 with their sub - machine guns attached to their safety vests and hanging in front of them, thus creating a risk. As the Court has noted above (see paragraph 58), it is called upon to examine such circumstances as the planning and conduct of the operation at issue, and whether the authorities were negligent in their choice of action.

62. The Court first observes that given the character of their daily tasks coastguards should, in the nature of things, be expected to be armed.

63 . It notes also that the domestic authorities, examining the preparation and conduct of the operation, noted that Officer M.T. had abided by the relevant safety rules , as he had switched his gun ’ s safety catch on before boarding the Ömer Reis-2 . Moreover, throughout the struggle with Yalçın Ercan his life had remained in danger, and he could not be held responsible for the fact that his gun had become unfastened from the ring on his jacket (see paragraphs 36 and 38 above). The Court sees no reason not to adhere to this reasoning.

64. In addition, the Court cannot conclude that the decision of Chief Inspector N.K. to arm his men with Scorpio guns was negligent; his explanation in that regard, namely that he had chosen that gun for its versatility (see paragraph 23 above), in addition to the smaller guns the officers were carrying, appear s tenable. Moreover, even though because they needed to wear life jackets the officers could not also wear holsters and had to attach the Scorpio guns to their jackets, the jackets were adapted for that purpose , as they had special rings . It is also significant that Chief Inspector N.K. had ordered his men to switch the guns ’ safety catches on (see paragraph 12 above). In the circumstances of the case it would mean going too far were the Court to take the view that Chief Inspector N.K. should have anticipated the series of fortuitous events which led to Yalçın Ercan ’ s shooting, such as O f ficer M.T. ’ s gun being switch ed to automatic mode, the gun becoming unfastened from the ring on his jacket and entangled in the fishing nets and Yalçın Ercan possibly touching its trigger, and that he should have taken measures to prevent them.

65. The Court does not consider that there was any negligence as regards other aspects of the preparation and conduct of the operation on the part of Chief Inspector N.K., or on the part of the RBS , which exercised control over it.

66. The Court thus concludes that the authorities did not act negligently in the planning and conduct of the operation of 17 April 2008 .

67. It notes also that after Yalçın Ercan was shot the coastguards did all they could to save his life, as they transferred him to the shore in their boat and called an ambulance (see paragraph 15 above).

68. Lastly, the Court observes that t he Turkish Government referred to previous cases against Bulgaria in which it had criticised the domestic legislation, which at the time allowed the use of firearms by the police in order to effect an arrest regardless of the danger the person concerned represented and the nature of the offence he was suspected of (see paragraph 52 above and the cases referred to therein; see also Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, ECHR 2005 ‑ VII, and Vlaevi v. Bulgaria , nos. 272/05 and 890/05, § 79, 2 September 2010 ). However, the Court points out that the present case is not concerned with the application of the rules criticised in th o se cases, which related to deliberate use of force with a view to effecting an arrest, but concerns an ac cident. Accordingly, the Court ’ s conclusions in the above cases, which contributed to its findings of violations of Article 2 of the Convention, are not transposable to the situation in the instant case.

69 . In view of the above, the Court concludes that the applicants ’ complaint under the substantive aspect of Article 2 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

(b) Procedural aspect of Article 2

70. The applicants also complained that the domestic authorities had failed to investigate their relative ’ s death effectively (see paragraph 44 above).

71. The principles governing the State ’ s procedural obligation to carry out an effective investigation where there is an appearance that individuals have been killed as a result of the use of force by agents of the State have been set out in paragraphs 298 ‑ 306 of the Grand Chamber ’ s judgment in the case of Giuliani and Gaggio (cited above).

72. In particular, an investigation must be capable of establishing the cause of death and identifying the person responsible , and the authorities must take whatever reasonable steps they can to secure the relevant evidence. The investigation ’ s conclusions must be based on thorough, objective and impartial analysis of all relevant elements (see Kaya v. Turkey , 19 February 1998, § 87, Reports 1998 ‑ I; Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; and Kolevi v. Bulgaria , no. 1108/02, § 192 , 5 November 2009 ).

73. Turning to the case at hand, the Court observes that the investigation was opened on the day of Yalçın Ercan ’ s death and that the prosecuti ng authorities interviewed a number of witnesses, including all the participants in the events of 17 April 2008, commissioned expert reports and carried out a series of reconstructions to establish the relevant circumstances (see paragraphs 17-32 above). They brought charges against Officer M.T., but on the basis of the evidence collected discontinued the proceedings, finding, in reasoned decisions, that it did not appear that he had committed an offence (see paragraphs 33-38 above). The first and third applicants participated in those proceedings and made objections and appeals.

74. In their submissions, with which the applicants associated themselves , the Turkish Government argued that the investigation carried out by the Bulgarian authorities had failed to meet the requirements of Article 2 (see paragraph 53 above). First, it had not been comprehensive and thorough: the Bulgarian authorities had failed to account for t he bullet holes found on the Ömer Reis-2 and the wou n d on Yalçın Ercan ’ s head; they had accepted that Officer M.T. ’ s gun had fired accidentally despite the lack of convincing evidence in that regard , and had failed to secure fingerprints from the gun and check for traces of gunpowder on Yalçın Ercan ’ s fingers; also, they had not examined the planning and conduct of the operation of 17 April 2008. Second ly , the investigation had not been impartial , as it had been influenced by the public campaign in defence of Officer M.T.

75 . As regards the first argument raised by the Turkish Government, namely that the investigation fell foul of the requirements of thoroughness and comprehensiveness, the Court makes the following observation s . It has already found that the fact that the Bulgarian coastguards had fired warning shots, some of which had hit the deck and the cabin at the helm of the Ömer Reis-2 , was unrelated to the cause of Yalçın Ercan ’ s death (see paragraph 61 above); accordingly, the authorities ’ failure to take these shots into account could not have flawed their reasoning or their findings as to Officer M.T. ’ s guilt. The po s t - mortem examination of Yalçın Ercan showed that the wound on his head was unrelated to the cause of death (see paragraph 28 above); thus, the authorities ’ failure to comment on it did not undermine their conclusions as to the most likely cause of the accident. Next, the Court cannot agree with the Turkish Government ’ s argument that the Bulgarian authorities ’ conclusion that Officer M.T. ’ s gun had been fired accidentally was not supported by the evidence . It observes that this was one of the main circumstances those authorities sought to establish, and that for that purpose they staged a number of reconstructions of the scene of the accident (see paragraph 32 above) ; their conclusions appear to have been based on the results of these reconstructions. Nor can the Court agree with the Turkish Government ’ s assertion that the Bulgarian authorities failed to examine the planning and conduct of the operation of 17 April 2008. In so far as the first and third applicants raised this matter before them, they provided an adequate response (see paragraphs 36 and 38 above). Lastly, the Turkish Government pointed out that the prosecuti ng authorities had failed to secure fingerprints from Officer M.T. ’ s gun and to check for traces of gunpowder on Yalçın Ercan ’ s fingers. The Court notes that this could indeed be an omission, seeing in particular the eventual conclusion of the prosecution that Yalçın Ercan could have touched the trigger of the gun himself (see paragraph 36 above). However, no argument concerning that omission was ever raised at the domestic level , and the Court is thus unable to assess the authorities ’ possible explanation. In addition, it is of the opinion that such an omission could not undermine the effectiveness of the investigation , seen as a whole, in view of the ample other evidence collected. It reiterates once again that the Turkish Government did not challenge the investigation ’ s conclusions as to how the accident which led to Yalçın Ercan ’ s death happened (see paragraph 52 above).

76. Accordingly, the Court is of the opinion that the authorities in the case took sufficient reasonable steps to establish the circumstances of Yalçın Ercan ’ s death , and that t he investigation ’ s conclusions were based on a thorough analysis of all relevant elements. Thus, the investigation did not f a ll foul of the requirements of Article 2 of the Convention in that regard.

77. The Turkish Government argued in addition that the investigation had been biased because of the public campaign in defence of Officer M.T. described in paragraphs 39-41 above. However, the Court sees no element capable of convincing it that the prosecutors and the judges who examined the case and who were professionals, less likely than , for example, a jury or lay judges to be influenced by external pressure , w ere influenced by that campaign (see Dimitrov and Others v. Bulgaria , no. 77938/11 , § 159, 1 July 2014, with further references) . On the contrary, as already discussed, the authorities carried out a thorough investigation of the circumstances of Yalçın Ercan ’ s death , and their conclusions were based on the evidence collected. Accordingly, the Court cannot conclude that the investigation of Yalçın Ercan ’ s death was flawed by partiality and bias.

78 . In view of the above the Court concludes that the applicants ’ complaint under the procedural aspect of Article 2 is also manifestly ill-founded , and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously ,

Declares the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President