Lexploria

Information Note on the Court’s case-law 25

December 2000

Gül v. Turkey - 22676/93

Judgment 14.12.2000 [Section IV]

Article 2

Article 2-1

Life

Shooting by police and effectiveness of investigation: violation

Facts : In 1993 a police operation took place with a view to locating suspected terrorists identified by an informant. In the course of the searches, a special team went to the applicant's son 's house, where three officers fired shots through the front door, hitting the applicant's son, who died from his wounds on the way to hospital. The parties disagree as to the details of the incident, the Government's version being that the applicant's son fired a shot first. The public prosecutor relinquished jurisdiction in favour of the provincial administrative council, which decided that the officers should not be prosecuted. However, the Supreme Administrative Court quashed this decision and a prosecu tion was brought. After receiving the reports of a gendarme lieutenant and three experts, who concluded that the officers had shot the victim by accident while shooting at the lock, the court acquitted the accused. It did not hear any other witnesses.

A de legation of the European Commission of Human Rights took evidence in the case. It found the evidence of the three officers to be unreliable and lacking in credibility, whereas that of the applicant's son and the victim's widow, to the effect that no warnin g had been given, was credible and convincing. The Commission also found that it had not been established that two guns had been found in the house, as claimed by the officers. It further considered that there were serious deficiencies in the subsequent in vestigation, including the autopsy.

Law : Government's preliminary objection (non-exhaustion of domestic remedies) – The applicant was not required to bring an administrative law action under Article 125 of the Constitution, since a remedy leading only to a n award of damages cannot be regarded as an effective remedy in respect of fatal assault, the State being obliged also to conduct an investigation capable of identifying and punishing those responsible. On the other hand, the civil and criminal law remedie s invoked by the Government are closely linked to the issues raised in the complaints under Articles 2 and 13 and must be joined to the merits.

The Court did not accept the Government's criticisms of the Commission's assessment of the evidence but accepted the facts as established by the Commission.

Article 2 (use of lethal force) – The Court accepted the Commission's finding that there was insufficient evidence concerning the planning of the operation to establish that the police were under instructions to use lethal force or that this was the purpose of the operation. Moreover, it did not find it necessary to determine whether the officers had formulated the intention to kill or acted with reckless disregard for life, since it does not fulfil the function of a criminal court. It was satisfied that the officers used a disproportionate degree of force: there was no satisfactory evidence that the victim had fired a shot and in those circumstances the firing of a large number of shots at the door was not justif ied by any reasonable belief that the officers' lives were in danger. They may have mistaken the sound of the lock for a gun being cocked, but the reaction of opening fire with automatic weapons on an unseen target in a residential block inhabited by innoc ent civilians was grossly disproportionate. Consequently, the use of force could not be regarded as absolutely necessary.

Conclusion : violation (unanimously).

In view of the difficulty in making any findings of fact concerning the planning of the operation, the Court made no separate finding of a violation in that respect. Similarly, it considered it inappropriate to make any separate finding of violation with r egard to the alleged lack of assistance in obtaining medical care, the claim that the victim might have survived being largely speculative.

Article 2 (effectiveness of investigation) – There were significant omissions in the investigation, in particular th e absence of any attempt to find the bullet allegedly fired by the victim, the failure to record properly the alleged finding of two guns in the house, the failure to take any photographs and the failure of the autopsy to record the injuries fully; furthe rmore, the prosecutor did not take any statements from those involved. The Court has already found that investigations carried out by administrative councils fail to satisfy the requirements of independence and impartiality and although in this case there was a subsequent prosecution the applicant was not informed of this and the court did not hear any witnesses apart from the three officers. The reports obtained by the court assessed the incident on the basis of an assumption that the officers' version was correct and the acquittal was based entirely on the view expressed in the second report that the officers had not been at fault. The court thus effectively deprived itself of its jurisdiction to decide the factual and legal issues. The authorities failed to conduct an adequate and effective investigation into the circumstances of the death, rendering recourse to civil and criminal remedies equally ineffective. The preliminary objection thus has to be dismissed and there has been a violation of Article 2 al so in this respect.

Conclusion : violation (unanimously).

Articles 6 and 13 – The Court considered it appropriate to examine this complaint only under Article 13. Since it had found a violation of Article 2 in that the Government were responsible for the de ath of the applicant's son, the applicant had arguable complaints and the authorities were under an obligation to carry out an effective investigation. For the reasons given under Article 2, no effective criminal investigation could be considered to have b een conducted and the applicant had therefore been denied an effective remedy and access to any other available remedies.

Conclusion : violation (6 votes to 1).

Article 41 – The Court, considering that there was a direct causal link between the violation of Article 2 and the loss by the victim's widow and children of his financial support, awarded £35,000 (GBP). It also awarded £20,000 in respect of the victim, to be held by the applicant for the widow and children, and £10,000 for the applicant himself in respect of non-pecuniary damage. Finally, the Court made an award in respect of costs and expenses.

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