Communicated on 3 June 2020 Published on 22 June 2020

SECOND SECTION

Application no. 64937/19 Sami ELVAN and Others against Turkey lodged on 29 November 2019

SUBJECT MATTER OF THE CASE

The first two applicants ’ son and the remaining applicants ’ brother, Berkin Elvan, who was fourteen years old at the time, was shot in the head by a tear-gas canister that was fired by a police officer in June 2013 during the Gezi Park events in Istanbul. He died as a result of his injuries after a coma of almost nine months. On 15 November 2013, the applicants filed separate complaints before the Istanbul Public Prosecutor against the police officers who had allegedly used disproportionate force, and also against Government officials, namely the Prime Minister, the Minister of Interior, the Istanbul Governor and the Director of the Istanbul Security Department. In this connection:

- On 6 December 2016 criminal proceedings were initiated against the police officer who had fired the gas canister and shot Berkin Elvan. According to the information in the file, the criminal proceedings are still pending before the Istanbul Assize Court (no. 2016/325E).

- In so far as the complaint lodged against the Prime Minister and the Minister of Interior, the Public Prosecutor decided that this part of the complaints should be examined separately under a different file number, as the applicable procedure was different. The case file does not contain any information about the outcome of this investigation.

- The applicants ’ complaint against the Istanbul Governor and the Director of the Istanbul Security Department were twofold. As to the part concerning the alleged involvement of the two officials in the delay encountered in the course of the criminal proceedings against the accused police officer, on 25 December 2014 the public prosecutor delivered a decision of non-prosecution, holding that the applicants did not have an arguable claim to substantiate their allegation. On 9 February 2015 the Istanbul Magistrates ’ Court dismissed the applicants ’ objection.

As to the applicants ’ complaint concerning the alleged failure of the high level officials in providing guidelines and training to the police officers when using force to disperse violent demonstrators, on 3 February 2014, pursuant to Law no. 4483, the Ministry of Interior refused to give permission to the public prosecutor to initiate an investigation into these allegations. On 28 May 2014 the Supreme Administrative Court dismissed the applicants ’ objection.

- Subsequently, following the applicants ’ individual application, on 9 May 2019 the Constitutional Court decided that the right to life of the applicants ’ relative ’ s had not been breached, holding that the applicants had failed to establish a causal link between the death and the Government officials. This decision was served on the applicants on 31 May 2019.

The applicants complained that the death of Berkin Elvan had been caused by an excessive use of force. In their view, domestic law and the authorities did not regulate, in a manner that was compatible with the Convention, the use of firearms by State agents and they failed in providing sufficient guidelines and training to avoid any risk to right to life. Referring to the delay in the criminal proceedings against the accused police officer, the applicants further complained that the authorities had not carried out an effective investigation into the incident. The applicants further complained about the suffering that they had to endure as a result of Berkin Elvan ’ s death, following a coma for 269 days. In respect of their complaints, they relied on Articles 2, 3, 10, 11 and 13 of the Convention.

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; Abdullah YaÅŸa and Others v. Turkey , no. 44827/08, § 48, 16 July 2013)?

Did the domestic legislation, as in force at the time, provide specific provisions regarding the use of tear-gas canisters during demonstrations or were the police officers provided with any guidelines and training regarding the use of such material?

3 . Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, 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 Berkin Elvan ’ s death was the result of the failure of the authorities in providing the requisite guidelines and training to the police officers on the use of force when dispersing violent demonstrations, and their alleged connivance and acquiescence towards excessive force used by the security forces in dispersing the Gezi Park demonstrations, can the refusal of the domestic authorities to initiate proceedings against Government officials be considered as capable of providing sufficient redress to the applicants? Moreover, taking into account the length of the criminal proceedings that are still pending against the police officer who had allegedly fired the gas canister, 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

Birth date

Nationality

Place of residence

1Sami ELVAN

1969Turkish

Istanbul

2Gülsüm ELVAN

1972Turkish

Istanbul

3Gamze ELVAN

1996Turkish

Istanbul

4Özge ELVAN

1998Turkish

Istanbul