Published on 1 0 May 202 1

SECOND SECTION

Application no. 17231/17 Hatice CÖMERT and Others against Turkey lodged on 22 January 2017 communicated on 19 April 2021

SUBJECT MATTER OF THE CASE

The first two applicants ’ son and the remaining applicants ’ brother, Abdullah Cömert , was shot in the head by a tear-gas canister that was fired by a police officer in June 2013 during a demonstration in Hatay , which was organised in support of the Gezi Park events. In October 2014, the applicants filed a complaint with the Hatay Public Prosecutor ’ s office against the police officers (B.A.Ş. and Y.A.) who had been in the vehicle from which the gas canister had been fired and also against the Hatay Security Department who had ordered the use of force against the demonstrators. On 24 March 2014 the Hatay Public Prosecutor delivered a non-prosecution decision, which was subsequently upheld by the Hatay Assize Court. In his decision, the public prosecutor stated that there was no causal link between the death of the applicants ’ relative and the public officials who had given the order to intervene. As to the officers B.A.Ş and Y.A., the prosecutor decided that they could not be held responsible as they had not fired the gas canister who had caused the death of the applicants ’ relative. A separate criminal investigation was initiated against the police officer (A.K.) who had fired the gas canister from the vehicle. This case is pending before the Hatay Assize Court (no. 2014/250E).

Subsequently, on 13 July 2016, the Constitutional Court dismissed the application (no. 2014/19406) for non-exhaustion of domestic remedies, referring to the fact that the criminal proceedings against the police officer who had fired the gas canister were still pending.

The applicants complained that the death of Abdullah Cömert had been caused by an excessive use of force. In respect of their complaints, they relied on Articles 2, 6 and 13 of the Convention and maintained that by refusing to initiate criminal proceedings against the public officials who had ordered to use force against the demonstrators, the domestic courts had created an impunity for those who were responsible and thus failed in their duty to investigate whether the intervention was regulated and organised in such a way to minimise to the greatest extent possible any risk to life.

QUESTIONS TO THE PARTIES

1. Has the applicants ’ relative ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, did the applicants ’ relative ’ s death result from a use of force which was absolutely necessary for the purposes of paragraph 2 of this Article (see Güleç v. Turkey , 27 July 1998, §§ 69-73, Reports of Judgments and Decisions 1998 ‑ IV)?

2. Were all necessary steps taken by the domestic authorities in organising and regulating the operation with a view to minimising to the greatest extent possible any risk to the right to life (see Makaratzis v. Greece [GC], no. 50385/99, § 60, ECHR 2004 ‑ XI)? Notably, did the authorities do all that could be reasonably expected of them to afford citizens the requisite level of protection where, as in the present case, potentially lethal force was used and to avoid any real and immediate risk to life which might arise in the context of police operations dealing with violent demonstrations (see Ataykaya v. Turkey , no. 50275/08, § 57, 22 July 2014 , and Abdullah YaÅŸa and Others v. Turkey , no. 44827/08, § 48, 16 July 2013)?

3. Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention? In particular, bearing in mind that the applicants alleged that Abdullah Cömert ’ s death was the result of the an alleged use of excessive force the security forces in dispersing the demonstrations, can the refusal of the domestic authorities to initiate proceedings against public officials, who had ordered to use force, be considered as capable of providing sufficient redress to the applicants? Moreover, taking into account the fact that the criminal proceedings against the police officer who had fired the cannister are still pending, can the mere criminal responsibility of a police officer be considered as an adequate investigation into the circumstances of the death of the applicants ’ relative (see AvÅŸar v. Turkey , no. 25657/94, § 404-406, ECHR 2001 ‑ VII (extracts)?

Appendix

No.

Applicant ’ s Name

Year of birth/registration

Nationality

Place of residence

1.Hatice CÖMERT

1957Turkish

Hatay

2.Edip CÖMERT

1951Turkish

Hatay

3.Adnan CÖMERT

1976Turkish

Hatay

4.Meryem CÖMERT

1985Turkish

Hatay

5.Zafer CÖMERT

1982Turkish

Hatay

6.Fatma KARTAL

1984Turkish

Hatay