SECOND SECTION

Application no. 8656/10 Resmiye KASAP and others against Turkey lodged on 2 February 2010

STATEMENT OF FACTS

The applicants, Ms Resmi ye Kasap , Ms Selma Canpolat , Ms Selda Pan, Ms Vildan Pan, and Ms Şengül Akgünlü are Turkish nationals who were born in 1958, 1974, 1979, 1982 and 1974 respectively and live in Adana. They were represented before the Court by Ms G. Battal , a lawyer practising in Adana .

The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

Murat Kasap was the first applicant ’ s son and the remaining applicants ’ brother.

At around 8.30 p . m . on 29 September 2006, Murat Kasap and his friend R.S. were riding on a motorcycle in Adana district. When they realised that two police officers wanted them to stop, they panicked because they did not have driving licences. They started driving away and the two officers, I.H.Y. and H.B., gave chase until Murat Kasap and R.S. crashed into a wall.

Immediately after the accident, H.B. arrested R.S. but Murat Kasap started to run away, followed by officer I.H.Y.

Meanwhile, in order to make sure that R.S. did not run away, the officer who stayed with him fired two rounds in air. R.S. told the officer that they did not have to open fire, and explained that Murat Kasap was running away because he had panicked. If he were to be allowed to telephone him, his friend would come and surrender. He also added that he knew where Murat Kasap was living.

I.H.Y. heard the shots fired by his colleague, and thought that Murat Kasap might have a gun. According to his statement, he ordered Murat Kasap to stop and fired three shots in the air. While he was running after Murat Kasap he lost his balance and his pistol went off. The bullet hit the ground, ricocheted, and entered the back of the body of Murat Kasap , who died on the way to hospital.

A prosecutor went to the site of the incident the same night and questioned the eyewitness and prepared a scene of incident report.

The same night, R.S. was questioned by two police officers at the Ceyhan Police Headquarters. He described the incident but he was not aware of the death of Murat Kasap .

The same night, the public prosecutor questioned officer H.B. at a police station.

On the same night at 12.45 a . m . , a post-mortem examination was carried out on the body of Murat Kasap . The public prosecutor and the doctor observed a bullet entry wound on his back. The doctor considered that a full autopsy was needed to establish the cause of death.

According to a report pertaining to the crime scene investigation which was drawn up by two police officers under the supervision of the public prosecutor, six bullet cases and a bullet jacket were found at the site of the incident.

On 30 September 2006 a full autopsy was carried out on Murat Kasap ’ s body. The public prosecutor and the experts observed that the cause of death was internal bleeding caused by the entry of a deformed bullet.

The same day officer I.H.Y. was questioned by the Ceyhan public prosecutor. According to his statement, the death of Murat Kasap was due to an accident. He maintained that he had not shot Murat Kasap intentionally but that his pistol had accidentally gone off when he lost his balance.

Also on the same day, and after having been questioned by the Ceyhan public prosecutor, officer I.H.Y. was brought before the Ceyhan Magistrates ’ Court ( Sulh Ceza Mahkemesi ) where he pleaded not guilty and reiterated the statement he had made before the public prosecutor earlier in the day. The Ceyhan Magistrates ’ Court ordered his detention on remand.

On 2 October 2006, the applicants found another bullet case at the site of the incident, and handed it to the public prosecutor.

On 4 October 2006 the parents of Murat Kasap made an official complaint to the Ceyhan public prosecutor, and asked for those responsible for the death of their son to be punished.

On 1 November 2006 the Ceyhan public prosecutor filed an indictment with the Ceyhan Criminal Court of First Instance and charged the officer I.H.Y. with the offence of having caused death by negligence.

On an unspecified date Murat Kasap ’ s parents joined the criminal proceedings against the officers as civil parties ( müdahil ).

On 29 November 2006 the Ceyhan Criminal Court of First Instance considered the possibility that officer I.H.Y. might had acted with intent to kill, and decided that that would necessitate a reclassification of the offence attributed to him. It thus decided to forward the case file to the Ceyhan Assize Court which had jurisdiction to deal with such offences.

The following day , the Ceyhan Criminal Court of First Instance ordered I.H.Y. ’ s release pending trial.

On 19 January 2007 the Ceyhan Assize Court issued a decision of non-jurisdiction, on the ground that the offence attributed to officer I.H.Y. was causing death by negligence. It decided that Ceyhan Criminal Court of First Instance had jurisdiction over this offence. The Assize Court decided also to transfer the case file to the Governor ’ s office for authorisation to be granted in order to prosecute the officer.

The parents of Murat Kasap lodged an objection against the decision of non-jurisdiction and on 19 March 2007 their objection was accepted by Osmaniye Assize Court .

On 29 August 2007 the Governor ’ s office of Ceyhan decided not to grant authorisation for the prosecution of I.H.Y.

On 9 October 2007 the parents of Murat Kasap lodged an objection against the Governor ’ s decision.

On 14 November 2007 Adana Regional Administrative Court quashed the Governor ’ s decision and forwarded the case file to the Ceyhan public prosecutor.

On 11 December 2007, the Ceyhan public prosecutor filed an indictment with the Ceyhan Assize Court and charged officer I.H.Y. with the offence of murder by conditional intent ( dolus eventualis ).

On an unspecified date the Ceyhan Assize Court considered that further ballistic examinations were necessary to establish how the trigger was pulled. On 20 October 2008 the Forensic Medicine Institute issued a report according to which the experts noted that the pistol could only have fired if pressure of from two up to five kilograms had been applied to the trigger.

According to the Forensic Medicine Institute ’ s report dated 12 January 2009, five bullet cases as well as the bullet jacket found in the crime scene belonged to the pistol of the accused police officer.

On 30 June 2009 the Ceyhan Assize Court found that, although officer I.H.Y. had not attempted to kill Murat Kasap , he had used disproportionate force and caused his death by negligence. The Assize Court sentenced the officer to one year and eight months ’ imprisonment but, having regard to Law No. 5728 of 23 January 2008, it suspended the pronouncement of the judgment.

On an unspecified date, the first applicant submitted a petition to the High Disciplinary Council of the Ministry of Interior, and asked for officer I.H.Y. to be dismissed from his job as a civi l servant. By a letter dated 15 July 2009 the first applicant was informed about the suspension of I.H.Y. from his job for a period of ten months .

On 3 July 2009 the applicants lodged an objection against the Ceyhan Assize Court ’ s decision of 30 June 2009.

The objection was rejected by the First Chamber of the Osmaniye Assize Court on 5 October 2009.

Meanwhile, on 10 November 2006 Murat Kasap ’ s parents brought a case before the Adana Administrative Court against the Ministry of the Interior, and requested 200,000 Turkish liras (TRY) compensation for the death of their son. The proceedings are still pending before the same administrative court.

COMPLAINTS

The applicants allege that their relative Murat Kasap was deliberately killed by a police officer in breach of Article 2 of the Convention. They complain that the suspension of pronouncement of judgment in respect of the police officer was not compatible with the obligation to protect the right to life by law within the meaning of Article 2 of the Convention.

Relying on Articles 2 and 13 of the Convention the applicants also complain that there were serious shortcomings in the investigation into the shooting and in the trial of the police officer.

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?

2. In particular, given that although the domestic court concluded that the officer had acted unlawfully it suspended pronouncement of the judgment, have the national authorities ensured the protection of the right to life of the applicant ’ s relative?