Information Note on the Court’s case-law 189

October 2015

Kavaklıoğlu and Others v. Turkey - 15397/02

Judgment 6.10.2015 [Section II]

Article 2

Article 2-1

Effective investigation

Article 2-2

Use of force

Death of prisoners in major prison operation and failure of the authorities to establish responsibility: violations

Facts – This case chiefly concerned an anti-riot operation conducted on 26 September 1999 i n Ulucanlar Prison, which was in fact the culmination of a long series of clashes between the prison staff and some of the inmates. The hostilities dated back to 1996. Since that time the authorities had been aware of the problems, which included overcrowd ing and the age and unsuitability of the prison complex, which was designed to accommodate remand prisoners rather than those who had been convicted. The demands and actions of the prisoners concerned appear to have focused mainly on the lack of living spa ce in the dormitories. In 1996 a first action plan was drawn up but was not implemented. Between 1996 and 1999 no searches were carried out in the three dormitories under the control of the prisoners who were causing the problem. Searches conducted in the remainder of the prison revealed a large quantity of weapons and defensive structures. The situation was the subject of numerous communications between the various authorities, but no action was taken despite the fact that, among other developments, the pr isoners had taken control of a fourth dormitory in the meantime. The prisoners were refusing at that time to undergo any checks. In 1999 the authorities concluded that the situation in the prison was not an isolated case and that ringleaders in different p risons were communicating freely with one another by mobile phone and were planning a series of simultaneous riots and escapes. The reports repeatedly referred to the prisoners concerned as “terrorists”.

On 26 September 1999 a search operation was carried out in the three dormitories controlled by prisoners. In addition to the auxiliary forces, the operation involved a main squad made up of 250 conscripts and around 70 officers wearing full riot gear and carrying their service weapons, comprising at least 2 9 pistols, 31 submachine guns and 124 automatic assault rifles. The gendarmes entered the premises at around 4 a.m. Following an attack by prisoners on a non-commissioned officer, the violence escalated and rapidly developed into an uprising. The clashes, in the course of which projectiles, tear gas, firearms and makeshift flame throwers were used, continued until 11.30 a.m. Ten prisoners were killed and around 70 were injured, with four of them sustaining life‑threatening injuries. Fifteen members of the s ecurity forces were injured, one of them seriously. There were differing versions of the events after the security forces had regained control, with the prisoners alleging that some of them had been ill-treated.

Several sets of proceedings were opened foll owing these events. Disciplinary proceedings and a criminal investigation were commenced against some members of the prison staff, the gendarmes concerned were prosecuted, full administrative-law actions were brought against the ministerial authorities and a parliamentary inquiry was carried out. Proceedings were also brought against some of the prisoners.

Law – Article 2 ( substantive aspect )

(i) The aim of the use of force – The reason advanced, namely the carrying out of a “general search”, did not feature as such among the grounds provided for by Article 2 § 2 of the Convention. Nevertheless, it had to be interpreted in the light of the request made by the prison manageme nt, based on the apparent need to “protect the prison staff” entrusted with the task of carrying out the search. As the staff members in question had not left the building until after the attack on the non-commissioned officer the Court could accept that, at least initially, the aim pursued by the authorities had been compatible with that set out in Article 2 § 2 (a). Subsequently, the prisoners’ actions had gradually turned into an attempted uprising. From that point onwards, the aim had no longer been to protect the prison officers responsible for carrying out the searches, but rather to quell a potential insurrection. The measures to be taken to that end could therefore entail recourse to potentially lethal force which was apt to be compatible with the ai ms set forth in Article 2 § 2 (a) and (c) of the Convention, with the second sub-paragraph predominating.

Nevertheless, in view of the number of persons killed and injured in the present case, a question arose as to whether the actions complained of had ex ceeded the degree of force that was absolutely necessary. The Court therefore had to examine first and foremost the manner in which the operation had been prepared and supervised.

(ii) Whether the danger had been foreseeable – In view of the highly partic ular circumstances of the case, the issue of foreseeability had to be examined with great care, since the ministerial, prison, judicial and military authorities and the prefecture had been aware of the situation in the prison since at least January 1996. I n that connection, the Government’s acknowledgment of the problems linked to the fact that the prison had no longer been under the control of the authorities since 1996 had no bearing in terms of Article 2, not only because no information had been provided concerning any specific measures that might at least have been considered in order to prevent the problem from escalating over the years, but also because, in any event, these in no way exempted the State from its responsibility with regard to the plannin g and implementation of the operation in question. The effective loss of State control over the prison had been the result of failings in the organisation or normal operation of a public service for which the State alone could be held responsible.

(iii) The authorities’ reluctance to intervene – Several plans of action had been drawn up but none had been put into effect prior to the operation of 26 September, despite the fact that, following the searches carried out elsewhere in the prison, the authoritie s must have been aware of what was concealed in the three dormitories that had not been searched.

(iv) The element of spontaneity and the authorities’ room for manoeuvre – The authorities had possessed a large quantity of information that had been confirm ed repeatedly, and had had approximately 23 days to make a final assessment and carry out the necessary preparations to avert the danger, on the basis of a plan adapted to this type of crisis. Consequently, no phase of the impugned operation could be said in itself to have been spontaneous, nor could any of the State agents or conscripts be considered to have been responding “in the heat of the action” to a perceived threat to their own lives or the lives of others. In the present case, in which several per sons had been injured or had died while under the control of the authorities or of State agents, strong inferences could be drawn from any omission on the Government’s part to provide a satisfactory and convincing explanation.

(v) The action plan and the personnel deployed – The Court lacked the expertise needed to assess whether and to what extent it had been essential to deploy a force of this kind equipped with combat weapons. However, one thing was clear, namely that in January 1996, well before the si tuation had deteriorated, the presence of twenty or so soldiers had been considered sufficient to carry out such searches.

(vi) The gendarmes’ operational capability – The gendarmes and police auxiliary teams could be presumed to have been professionally equipped for this type of action. However, a question arose with regard to the conscripts (of whom there had been around 250). There was nothing to suggest that they had been qualified to take part in the operation.

(vii) The regulatory framework – It was not apparent that the operation in question, albeit authorised under domestic law, had been sufficiently regulated by that law through a system of adequate and effective safeguards against arbitrariness and abuse of force and against avoidable accident. T hat being said, whatever the shortcomings of the rules at the relevant time, there was no reason why they could not have been overcome in practice in the present case by means of the specific instructions issued to the gendarmes both before and during the operation.

(viii) The instructions and briefing – The authorities should not have been content with such rudimentary and imprecise supervision of the operation, which had made the use of lethal force virtually inevitable. In order to fulfil their obligati on to protect the right to life they should have assessed the information they possessed with greater care before issuing instructions to the troops, who they knew were trained to kill and would not hesitate to use their firearms if they believed that they were dealing with formidable opponents in the context of an anti-terrorist operation.

(ix) Alternative strategies – It should not be overlooked that, at that early stage, the prisoners in question, however intolerable their conduct, had not hitherto pres ented a very grave threat such as to seriously endanger the lives of their fellow inmates or the prison staff. The danger they represented could not therefore be equated with that represented by determined terrorists. While the intention had indeed been to restore the State’s authority, the Turkish authorities should nevertheless have borne in mind that there could be no necessity of using lethal force where the individuals concerned posed no threat to life or limb and were not suspected of having committed a violent offence. However, there was nothing to suggest that the administrative or military authorities had actually assessed the nature of the threat posed by the prisoners and made a distinction between lethal and non-lethal methods, or that they had c onsidered negotiating a peaceful surrender.

(x) Use of non-lethal methods – Once the prisoners had been isolated in a part of the prison under the authorities’ control, continuing the use of tear gas – accompanied by the spraying of water and foam – in a controlled manner while awaiting an opportunity to contain the situation, had undoubtedly been a credible option that should have been considered before there was any loss of life. However, the way in which the gendarmes had reacted as soon as the non-comm issioned officer was attacked suggested that they had quite simply not been prepared to adopt a non-lethal strategy of this kind or to await its outcome. The arguments as to the supposed need to afford no respite to the “terrorists” were sufficient to demo nstrate the extent to which the operation had been planned and conducted using a military approach that required unconditional surrender.

(xi) Possibility of negotiation – No negotiation had been attempted either before or during the operation. However, t he gendarmes, who had of course not been trained for such a complex and sensitive operation and had been issued with prior orders to maintain firm psychological pressure on the prisoners and never to talk to them or allow them to influence their actions in any way, had undoubtedly been incapable of such action. In any event they had made a serious miscalculation, as once the first Molotov cocktail had been thrown clashes became likely if not inevitable.

(xii) Preliminary conclusion – The persons in charge of the operation, intent on restoring their authority over the prison, which had long been flouted, and on stigmatising and controlling the lives of certain prisoners in a manner going beyond their physical confinement, had not taken the necessary care to ensure that any risk to life was reduced to a minimum, and had been negligent in their choice of action before and during the operation. As a result of the insufficient attention paid to the information that had been available for years concerning the alar ming situation in the prison, no alternative strategy had been studied or considered, making the use of lethal force almost inevitable. The force deployed had thus not been absolutely necessary for the purposes of Article 2 § 2 of the Convention.

(xiii) The argument that some prisoners had been murdered by their fellow inmates – This argument had been based purely on conjecture. Nevertheless, in so far as it could be said to demonstrate that the murders in question had taken place outside the control of t he authorities, behind the barricades where the gendarmes were failing to control the course of events, the Court noted that the fact that a prison which was placed under the strict control of the State had allegedly eluded its effective control during an operation by the security forces did not in any way relieve the State of its responsibility towards the prisoners.

Conclusion : violation (unanimously).

The Court further held unanimously that there had been a violation of the substantive aspect of Article 2 with regard to those applicants who had not died but who had been victims of the use of firearms or blows with life-threatening consequences. It also held unanimously that there had been a violation of Article 3 on account of the inhuman treatment of th e remaining applicants resulting from the physical violence to which they had been subjected and the fact of witnessing the death of their fellow inmates.

Articles 2 and 3 ( procedural aspect )

(i) The effectiveness of the proceedings against the prison sta ff – The failings on the part of the administrative authorities regarding the running of the prison since 1996 and the presence, among other things, of various types of weapons in the dormitories were factual circumstances which pre-dated the operation and had apparently never been duly examined in the context of the prosecution or the administrative-law actions. Furthermore, the disciplinary investigation appeared to have been bound to fail owing to the intervention of the superior of the officials concern ed, and the criminal investigation had ended in a decision not to prosecute. These factors demonstrated the lack of any willingness on the part of the authorities to identify the members of the prison staff who may have been responsible for the actions com plained of in the present case.

(ii) The effectiveness of the criminal proceedings against the gendarmes – The complexity of the facts and the large number of suspects and victims did not suffice to explain the lack of tangible and solid progress capable of establishing responsibility more than fifteen years after the events. The administrative proceedings for compensation were also still pending. Accordingly, the various investigations and sets of proceedings had not satisfied the requirements of diligenc e and promptness.

Conclusion : violation (unanimously).

The Court also held unanimously that there had been no violation of Article 1 of Protocol No. 1 regarding the alleged destruction of personal property.

Article 41: sums ranging between EUR 5,000 and EU R 50,000 to each applicant in respect of non-pecuniary damage; claims in respect of pecuniary damage dismissed.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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