SECOND SECTION

Application no. 58175/10 Ä°hsan Åž EKER and Others against Turkey lodged on 7 July 2010

STATEMENT OF FACTS

THE FACTS

The applicants, Mr İ hsan Ş eker , Ms Sürya Şeker , Ms Şahide Akyıldız , Ms Maide Orbay , Mr Hamdullah Şeker , Mr Mustafa Şeker , Ms Songül Şeker , Ms Naide Şeker , Mr Mehmet Selim Şeker , and Mr Abdullah Şeker , are Turkish nationals who were born in 1963 , 1967, 1983, 1985, 1987, 1989, 1991, 1994, 1997, and 1999 respectively. With the exception of Ms Maide Orbay , who lives Diyarbakır , all the applicants live in Istanbul . Their application was lodged on 7 July 2010. They were represented before the Court by Mr Y usuf Vargün and M s Nuray Vargün , lawyers practising in İstanbul .

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.

On 27 April 2009 a number of armed operations were carried out in Istanbul in order to apprehend members of an illegal organisation.

The operations began at 5.25 a.m. in the Bostancı district of Istanbul when a large number of police officers surrounded a block of flats. When the police officers knocked on the door of the flat where three members of the organisation were believed to be living, a person from inside the flat opened fire through the closed door. The police officers responded by firing towards the door and the shooting lasted for hours. Hand grenades and other explosives were also used. During the operation one police officer was shot and killed and a number of other police officers were injured. The person inside the flat was recovered dead after the operation.

In the course of the shooting the person inside the flat fired indiscriminately towards the street from a window. Police officers on the street and police snipers positioned on top of nearby buildings responded with fire. A cameraman working for a national television channel and another civilian, who were on the pavement near the building, were shot and injured.

The son of the first two applicants and brother of the remaining applicants, Mr Mazlum Åžeker , who was 16 years old at the time, was walking to his place of work when he was hit by one of the bullets. He died immediately.

The examination of the body of Mazlum Åžeker carried out on the same day revealed that the bullet had entered his head below his left ear and exited from the right side of his face.

The two injured persons were questioned by the Kadıköy prosecutor on 6 and 8 May 2009. They told the prosecutor that the street outside the block of flats had not been sealed off; vehicles and civilians had been allowed to use it while the operation was taking place.

On 29 May 2009 the first applicant, Mr İhsan Şeker , made an official complaint to the Kadıköy prosecutor and asked for those responsible for the death of his son to be punished. Mr Şeker told the prosecutor that he had heard that insufficient precautionary measures had been taken by the police outside the building and that that had contributed to the death of his son.

On 21 October 2009 the Kadıköy prosecutor decided not to bring criminal proceedings against anyone in connection with the killing of Mazlum Şeker . The prosecutor considered that sufficient measures had been taken by the police to protect civilians: the entire neighbourhood had been closed to traffic, apart from the street behind the building, which had been left partially open to traffic circulation. The applicants ’ relative and the two injured persons had been on the pavement in that street when they had been shot by a member of the illegal organisation.

The first applicant, with the assistance of his legal representative, lodged an objection against the prosecutor ’ s decision, alleging that for a period of five hours no precautionary measures had been taken in the area. Only after his son had been killed had a police tape been put in place at around 10 am. Despite the fact that there had been intensive firing both towards and from the building and that hand grenades had been used, civilians had been allowed to walk along the streets near the building. The first applicant also complained that the crime-scene officers had not retrieved the spent bullets in the area where his son was killed. Referring to the Court ’ s case-law in cases concerning the positive obligation to protect the right to life, the first applicant asked the Assize Court to quash the prosecutor ’ s decision.

On 8 December 2009 the Üsküdar Assize Court rejected the applicant ’ s request. The decision was communicated to the applicant on 12 January 2010.

In the meantime, on 25 September 2009 the applicants brought an administrative action against the Ministry of the Interior, claiming compensation for the death of Mazlum Åžeker . The proceedings are still continuing.

COMPLAINTS

The applicants complain under Article 2 of the Convention that Mazlum Şeker ’ s death was brought about by the authorities ’ failure to take precautions to avoid the risks to the lives of civilians.

Under Articles 2 and 13 of the Convention the applicants also complain that no effective investigation was conducted by the national authorities into the killing.

QUESTIONS TO THE PARTIES

1. Was the applicants ’ relative ’ s right to life, ensured by Article 2 of the Convention, violated in the present case? In particular, given that the police operation had been planned in advance, what was the reason for not evacuating the civilians from the area and not blocking off the streets around the building?

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?