Communicated on 26 January 2015

SECOND SECTION

Application no. 64727/11 Melese ERDEM and Mahmut ERDEM against Turkey lodged on 21 September 2011

STATEMENT OF FACTS

The applicants, Mrs Melese Erdem and Mr Mahmut Erdem , are Turkish nationals of Kurdish origin who were born in 1967 and 1969 respectively and live in Mardin . They are represented before the Court by Ms Rehşan Bataray Saman , a lawyer practising in Diyarbakır.

The circumstances of the case

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

A demonstration took place on 6 December 2009 to protest against the dissolution by the Constitutional Court of Demokratik Toplum Partisi (Democratic Society Party; a political party), outside the party ’ s headquarters in Diyarbakır.

Police officers attempted to disperse the crowds and when the demonstrators refused to leave, they sprayed them with tear gas and fired at the crowds with their firearms.

The applicants ’ 23 year-old son Aydın Erdem , a university student, was among the demonstrators and was shot by a bullet fired, according to the applicants, by a police officer. He was taken by his fellow demonstrators to hospital, where he died shortly afterwards.

According to a report drawn up by twenty-six police officers at 4 p.m. the same day, a large number of people had gathered to protest against the detention conditions of Abdullah Öcalan . The demonstrators had thrown stones, Molotov cocktails and various other objects at the police officers, injuring police officers C.D. and H.A. in the course of doing so. The police officers had shouted warnings and when the demonstrators had failed to heed to those warnings, the police officers had had to resort to the use of physical force and tear gas. When a group of 150-200 demonstrators had advanced towards the police officers, one officer had drawn his pistol and fired four rounds in the air.

It appears from another report prepared the same day that scene-of-crime officers had been requested to visit a police station in Diyarbakır because police officers working at that station had noticed a number of spent bullet cases inside a toilet. The scene-of-crime officers recovered five spent bullet cases from the toilet and took them away for forensic examination.

Fifty-eight of the sixty-one firearms carried by the police officers who had taken part in the demonstration, the five spent bullet cases discovered in the toilet, and another spent bullet case which was apparently found in the place where the demonstration had taken place, were examined by forensic experts on 7 December 2009. It was established that the spent bullet case found in the demonstration area and one of the five spent bullet cases found in the toilet had been discharged from police officer H.İ. ’ s pistol. Three of the remaining four spent bullet cases had been discharged from officer M.T. ’ s pistol, and the remaining spent bullet case had been discharged from officer V.Ö. ’ s pistol.

A post mortem examination was carried out on the body of the applicants ’ son Aydın Erdem on 6 December 2009. The pathologists observed a bullet entry hole on the right scapula and a bullet exit hole on the left shoulder. It was established that the bullet had followed a rising trajectory of approximately fifteen degrees. The pathologists considered that both the person firing the pistol and the victim had been standing on the same level at the time of firing. However, as the bullet had also hit a bone shortly after it had entered into the body, the pathologists considered that there was a theoretical possibility that the bullet ’ s trajectory had been altered, which would explain its rising trajectory.

The pathologists also observed various cuts and lesions on Aydın Erdem ’ s face. It was established that death had been caused by the bullet, which had gone through the lungs and the artery. It was also stated in the report that Aydın Erdem ’ s clothes needed to be examined in order to establish the firing distance.

It appears that another search was conducted at the place of the demonstrations by scene-of-crime officers who, by using metal detectors, found a deformed bullet and seven more spent bullet cases. It was established in subsequent forensic examinations that the seven bullet cases had been discharged from the firearm owned by police officer S.B. The forensic authorities established that the deformed bullet had not been fired from any of the sixty-one firearms carried by the police officers who had taken part in the demonstration. The experts noted that the diameter of the deformed bullet ‐ a nine-millimetre ‐ would have made it impossible for it to have been fired from a Kalashnikov rifle.

On 8 December 2012 the Diyarbakır public prosecutor took a statement from the person who had taken the applicant ’ s son to hospital. He stated that he had been in the vicinity of the demonstration and had heard three or four rounds of gunfire. He had then seen Aydın Erdem on the ground, injured, and had put him in a car and taken him to hospital. He had not seen who had shot him.

On 21 December 2009 the Diyarbakır public prosecutor questioned as suspects the four police officers, namely H.İ., M.T., V.Ö. and S.B., who, according to the above-mentioned forensic reports, had fired their weapons during the demonstrations. The officers stated that they had fired in the air and never towards the demonstrators. They had not seen how or by whom Aydın Erdem had been shot. The officers told the prosecutor that after firing their pistols they would sometimes collect the spent bullet cases in order to hand them in to their duty stations. By doing so they would also prevent persons with “ulterior motives” from finding them and using them for “other purposes”.

Officer V.Ö. stated that he had collected one spent bullet case from the place and given it to officer M.T. It was possible that one of the spent bullet cases found in the toilet which had been fired from his pistol was the one he had given to officer M.T.

Officer M.T. told the prosecutor that he had fired three rounds in the air during the demonstration. He had then put the three spent bullet cases, as well as the spent bullet case given to him by officer V.Ö., in his pocket. Later the same day, while he was sitting on the toilet in the police station, he had seen “one or two” other spent bullet cases on the floor. At that moment the spent bullet cases in his pocket had fallen into the toilet. As “they had got dirty and as it had not been necessary” he had not picked them up from the toilet. He had then proceeded to throw into the toilet the two other bullet cases he had seen on the floor. He had not acted with the intention of destroying them; had he wanted to do so he would have destroyed them in some other manner.

A different prosecutor in Diyarbakır, with special powers to investigate, inter alia , terrorism-related offences (“the special prosecutor”), decided not to prosecute the four police officers because he considered that there was insufficient evidence to charge them with the offence of murder. In his decision of 20 September 2010 the special prosecutor stated that some of the spent bullet cases discharged from the police officers ’ pistols had been thrown into a toilet so that they would not be acquired by persons with “ulterior motives”.

It appears from the prosecutor ’ s decision that Aydın Erdem ’ s clothes were forensically examined on 10 December 2009 and it was established that he had been shot from some distance. Having regard to the evidence in his possession, the special prosecutor considered that the applicants ’ son had been shot by a person in the crowd whose head and face had been hidden by a scarf; however, it had not been possible to identify and find that person. The special prosecutor also stated in his decision that the applicants had informed him that two persons who had witnessed the killing of their son were willing to give evidence in confidence and wanted to remain anonymous. However, the applicants had not named those witnesses and had not ensured their attendance in his office.

The applicants lodged an objection against the special prosecutor ’ s decision and argued, inter alia , that the special prosecutor had no jurisdiction to carry out the investigation. They argued that initially serious attempts had been made in the investigation to solve the killing and that through forensic examinations potential suspects had been identified. However, the investigation had then been handed over to the special prosecutor and the file had thus been classified as confidential.

In their objection petition the applicants maintained that their son had been killed by a bullet fired by the police officers, who had fired towards the crowd. They also drew attention to the police officers ’ failure to preserve the evidence until the arrival of the judicial authorities at the crime site, and criticised them for attempting to destroy crucial evidence by throwing the spent bullet cases into the toilet. They argued that the police officers ’ actions were scandalous and needed to be investigated separately.

On 22 October 2010 the Malatya Assize Court agreed with the applicants, and noted that the offence in question was the killing of a person by law enforcement personnel. Thus, it was not a terrorism-related offence, and the special prosecutor had not had the requisite jurisdiction to investigate it. The Assize Court thus quashed the special prosecutor ’ s decision closing the investigation.

In his decision of 16 January 2011 the Diyarbakır public prosecutor, to whom the investigation had been transfer r ed after the Assize Court ’ s decision, also decided to close the investigation in a decision identical to the one adopted by the special prosecutor.

The applicants filed an objection against that decision also, and maintained their earlier complaints. They also argued that the public prosecutor had failed to carry out a new investigation after the file had been sent to him following the decision of the Malatya Assize Court and had in effect copied the special prosecutor ’ s decision.

The objection lodged by the applicants was rejected by the Siverek Assize Court on 25 June 2011. The Siverek Assize Court stated in its decision that the camera footage of the events had shown that the applicants ’ son had been killed by a person or persons whose faces had been covered with scarves. In the opinion of the Siverek Assize Court, the spent bullet cases recovered in the toilet had not been relevant in the killing of the applicants ’ son.

COMPLAINTS

The applicants complain under Article 2 of the Convention that the respondent Government were responsible for the killing of their son by members of the security forces. They also argue that, although it would have been possible for the police officers to control the demonstrators by using non-life-threatening methods, they chose to fire at the crowds in an excessive and disproportionate manner. In this connection, the applicants allege that members of the security forces did not show the requisite care and attention in the planning of their operation.

Under the same provision, and relying also on Article 13 of the Convention, the applicants complain that the national authorities did not carry out an effective investigation capable of establishing the circumstances of the killing or leading to the identification and punishment of those responsible, but instead protected the police officers, who made attempts to destroy the evidence in order to cover up their tracks.

QUESTIONS TO THE PARTIES

1. Has the applicants ’ son ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case?

In this connection, was it absolutely necessary for the purposes of Article 2 § 2, for the police officers to resort to a use of force against the demonstrators?

2. 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 this connection:

a) Having regard to the decision taken by the special prosecutor to classify the investigation file as confidential, were the applicants able to obtain documents from that file in order to be able to effectively participate in the investigation?

b) Did the prosecutors question in a timely manner the police officers who, according to the forensic examinations, fired during the demonstration?

c) Were the remaining police officers and members of the public who were in the demonstration area questioned by the prosecutors with a view to finding out whether they had seen anything?

d) What attempts were made by the prosecutors to question police officer M.T. ’ s motives in throwing the spent bullet cases into the toilet?

e) What attempts were made by the prosecutors to question the discrepancy between the number of bullets fired by the police officers which, according to the police report of 6 December 2009, was four but which, according to the subsequent findings by the forensic experts, was thirteen?

f) On what evidence did the Siverek Assize Court base its conclusion, set out in its decision of 25 June 2011, that the spent bullet cases recovered in the toilet had not been relevant in the killing of the applicants ’ son?

The Government are also requested to submit to the Court copies of the following:

i - video recording of the demonstration;

ii- report of 10 December 2009 drawn up by Diyarbakır Police Laboratories pertaining to the examination of the clothes Aydın Erdem had been wearing at the time of his shooting;

iii- report of the crime scene investigation prepared on 8 December 2009; and,

iv- statements taken from the witnesses mentioned in the prosecutors ’ decisions of 20 September 2010 and 16 January 2011.