SECOND SECTION

Application no. 15014/11 Hasan KÖSE against Turkey lodged on 6 December 2010

STATEMENT OF FACTS

The applicant, Mr Hasan Köse, is a Turkish national who was born in 1972 and lives in İzmir. He is represented before the Court by Mr Eylem Salık, a lawyer practising in İzmir.

The circumstances of the case

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

The applicant and his brother are decorators. On 8 January 2007 they were driving in their van to their place of work in İzmir, when a number of plain-clothes police officers on two motorbikes indicated to the applicant that he should pull over. The police officers then told the applicant that he had been driving erratically and asked him to get out of the vehicle. The applicant and his brother got out of the van and asked to see the police officers ’ identification cards. The police officers got agitated and started hitting the applicant ’ s brother. When the applicant asked them to stop, they sprayed the applicant with tear gas and he fell to the ground. When one of the police officers put his fingers in the applicant ’ s nostrils and pulled him up, the applicant tried to push that police officer away. The applicant heard one of the police officers cocking his pistol. Thinking that the police officers, who were refusing to show him their identification cards, could in fact be robbers, the applicant got hold of a wooden stick from the back of his van to defend himself. At that moment, one of the police officers, Mr U. , fired three rounds towards the applicant. One of the bullets hit the applicant ’ s abdomen and he fell to the ground.

Police officers then handcuffed the applicant and his brother. One of the police officers grabbed the wooden stick and started hitting the applicant ’ s brother, while another officer hit and kicked the applicant. Although the applicant ’ s brother asked the officers to take the applicant to a hospital, they did not listen to him. The applicant and his brother were then taken to a police station, where they were placed in custody. The applicant ’ s brother shouted and asked the custody officers to take his brother to a hospital.

The applicant was subsequently taken to the accident and emergency department at a hospital, where he underwent surgery. The doctors considered his injury to be life-threatening. It was stated in a medical report that his injury would prevent the applicant from working for a period of forty-five days. A neurosurgeon who examined the applicant concluded that the injury had caused permanent deterioration in the functioning of one of the applicant ’ s organs or his nerves. It was also established in December 2008 that as a result of having been shot the applicant had developed “post-traumatic stress disorder” and “severe depression”.

On 22 May 2008 a prosecutor filed an indictment with the Ä°zmir Criminal Court of First Instance and charged Officer U. with the offence of intentionally causing a life-threatening injury. The prosecutor decided not to bring any proceedings against the remaining officers.

On 4 June 2008 the İzmir Criminal Court of First Instance considered the possibility that the offence attributed to Officer U. could be reclassified as “attempted murder”, and forwarded the case file to the İzmir Assize Court , which had jurisdiction to deal with such offences.

In the course of the investigation and the trial Officer U. maintained that he had not shot the applicant intentionally and that his pistol had accidentally fired when he and the applicant had had a scuffle.

The Forensic Medicine Institute concluded that the applicant had not been shot at close range.

On 15 March 2010 the First Chamber of the İzmir Assize Court found that, contrary to what was claimed by Officer U. , there had been no scuffle between him and the applicant. It also found that, although Officer U. had not attempted to kill the applicant, he had used disproportionate force and caused an injury which had threatened the applicant ’ s life. The Assize Court sentenced Officer U. to five months ’ imprisonment but, having regard to the newly enacted Law No. 5728 of 23 January 2008, it suspended the pronouncement of Officer Ulusoy ’ s conviction.

The applicant lodged an objection against the Assize Court ’ s decision and argued that the decision to suspend the pronouncement of the conviction would encourage other police officers to carry out similar acts against members of the public.

The objection was rejected by the Second Chamber of the Ä°zmir Assize Court on 7 June 2010.

COMPLAINTS

The applicant complains under Articles 2, 3 and 6 of the Convention that he was beaten up, shot and sprayed with tear gas. Under the same provisions he also complains about the prosecutor ’ s decision not to prosecute the police officers and the Assize Court ’ s decision to suspend the pronouncement of the officer ’ s conviction.

QUESTIONS

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

In particular, given that the domestic court concluded that the officer had acted unlawfully, have the national authorities afforded adequate redress for the officer ’ s actions which endangered the applicant ’ s life?

To that end, is the suspension of pronouncement of convictions procedure compatible with the obligation to protect the right to life by law, within the meaning of Article 2 of the Convention?

2. Was the applicant beaten up and sprayed with tear gas, in breach of Article 3 of the Convention, by the officers in respect of whom the prosecutor decided to discontinue the investigation?

In this connection, has an effective investigation, as required by Article 3 of the Convention, been conducted into the applicant ’ s complaints of ill-treatment?