SECOND SECTION

Application no. 15055/11 Selami ATALAY against Turkey lodged on 27 December 2010

STATEMENT OF FACTS

The applicant, Mr Selami Atalay , is a Turkish national who was born in 1978 and lives in Ä°zmir . He is represented before the Court by Ms Nezahat PaÅŸa Bayraktar and Mr Mehmet Bayraktar , lawyers practising in Ä°zmir .

The circumstances of the case

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

At around 8 p.m. on 14 August 2003 the applicant was watching a game of football in the grounds of a school located within his neighbourhood in Ä°zmir when a fight broke out between the players and residents of nearby flats. A number of police officers arrived at the scene and started hitting the people with their truncheons. A person who was hit by the police officers passed out and fell to the ground.

Police officers then opened fire on the crowd. The applicant and another person were shot. The police officers did not make any attempts to take the applicant or the other injured persons to hospital and, as a result, members of the public put them in vehicles and took them to a hospital.

According to a medical report pertaining to the applicant ’ s examination at the hospital, the bullet entered through his back, damaged his spinal cord, and became lodged in his body. The doctors considered that the injury was life-threatening. The injury left the applicant permanently paralysed from the waist down.

The following day the police officers who had participated in the incident were questioned in their capacities as “complainants” by a number of other police officers. A police chief was reported as having stated that one of the persons in the crowd had snatched his pistol and fired six shots in the air. He had then taken his pistol back and fired one round in the air himself. During the searches carried out after the incident, only one spent bullet case discharged from the police chief ’ s pistol was found in the area.

Another police officer, Mr M.B., stated that he had fired in the air once and, while he was putting his pistol back in the holster, the pistol had fired once more by accident.

No civilian eyewitnesses to the incident were questioned by the national authorities.

The police officers who went to the hospital to question the applicant were informed that the applicant was in intensive care and unable to be questioned.

The evidence collected by the police officers and other documents were forwarded to the prosecutor on 15 August 2003.

On 16 August 2003 a lawyer representing the applicant submitted an official complaint to the prosecutor. The lawyer drew the prosecutor ’ s attention to the fact that the investigation was being carried out by the police officers who had taken part in the events. The lawyer also argued that forensic and ballistic examination results of the police officers ’ weapons and bullets had not yet been forwarded to the prosecutor. He asked the prosecutor to take over the investigation at once and, if necessary, to order the detention of the police officers to avoid the risk of crucial evidence being destroyed by them. The requests were rejected by the prosecutor the same day.

On 25 August 2003 the prosecutor filed an indictment with the Criminal Court of First Instance of the Karşıyaka District of İzmir , and charged the applicant and a number of other persons with the offence of resisting police officers in the execution of their duties. In the same indictment officer M.B. and another police officer were accused of causing bodily harm “with unidentified firearms”. The file was subsequently sent to the Karşıyaka Assize Court (hereinafter “the trial court”) which conducted the trial.

During the trial a number of civilian eyewitnesses identified the police officer M.B. as the person who had shot the applicant. Officer M.B. told the trial court that he had fired in the air twice and, while he was putting his pistol in its holster, the pistol had accidentally fired once more.

During the proceedings the applicant requested that the bullet still lodged in his body be taken out and forensically examined in order to prove that it had been fired from officer M.B. ’ s pistol. Subsequently the bullet was removed and examined by the Forensic Institute, which established that it could have been fired from one of the pistols used by the officers during the incident. However, as the bullet had by then become rusty, it was not possible to establish from which of the pistols it had been fired.

In the course of the criminal proceedings the applicant repeatedly argued before the trial court that the initial investigative steps had been taken by the police officers implicated in the events and that they had thus distorted the version of the events. He also argued that the police officers should have been charged with the offence of attempted murder. His requests were not accepted by the trial court.

On 2 April 2007 the trial court found it established that the applicant had been shot by the defendant police officers, but decided that the incident had taken place while the two defendant police officers had been carrying out their duties in accordance with section 16(h) of the Law on the Duties and Powers of the Police (Law no. 2559) and that there was thus no call for any punishment to be imposed on them. The trial court found the applicant and the remaining civilian defendants guilty of the offence of resisting police officers in the execution of their duties.

The applicant appealed against the judgment and once again challenged the reliability of the evidence collected by the police officers. He also argued that, although he had risked his life and asked for the bullet to be removed with a view to Nezahat PaÅŸa Bayraktar establishing the truth, the trial court had not even allowed his request to visit and inspect the place of the incident.

On 5 May 2010 the Court of Appeal rejected the appeal and upheld the trial court ’ s conclusion as regards the two police officers. The applicant became aware of the Court of Appeal ’ s decision on 28 July 2010.

COMPLAINTS

Relying on Articles 1, 2, 3, 5, 6, 7, 8, 13, 14 and 17 of the Convention and Article 2 of Protocol No. 7 to the Convention, the applicant complains that he was shot and injured by a police officer and that there were serious shortcomings in the investigation into the shooting and in the trial of the police officers.

QUESTIONS TO THE PARTIES

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

In particular, was it absolutely necessary, for the purposes of Article 2 § 2 (a) - (c), to resort to the use of force which threatened the applicant ’ s life?

In this connection did the national courts, which concluded that the police officers ’ actions had been in compliance with section 16(h) of the Law on the Duties and Powers of the Police (no. 2559), make an assessment as to whether the resort to the use of firearms by those police officers had been absolutely necessary and strictly proportionate to the achievement of the aims set out in Article 2 § 2 of the Convention? In your response to this question your Government are requested to deal with the following issues in their observations:

– In the aftermath of the events on 14 August 2003 was the evidence secured by persons independent of those implicated in the events (see, in this connection, Bektaş and Özalp v. Turkey , no. 10036/03 , § 66, 20 April 2010 )?

– Were the police officers who fired their weapons during the incident questioned by a prosecutor in a timely fashion (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 330, ECHR 2007 ‑ II)?

– Were the weapons used by the police officers secured immediately by independent authorities and their details recorded in official documents?

– What attempts have been made to eliminate the apparently conflicting information given by police officer M.B. as to the number of times he shot his pistol during the incident?

The Government are requested to submit documentary evidence in support of their answers to the questions above.

2. 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?