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SECOND
SECTION
CASE OF GÜLEN v. TURKEY
(Application
no. 28226/02)
JUDGMENT
STRASBOURG
14
October 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gülen v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Antonella
Mularoni,
Ireneu
Cabral Barreto,
Danutė
Jočienė,
Dragoljub
Popović,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 23 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28226/02) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Turkish nationals, Mrs Fatma Gülen and
Mr Necdet Gülen (“the applicants”), on 19 April
2002.
- The
applicants were represented by Mrs F. Karakaş Doğan, a
lawyer practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- The
applicants alleged, in particular, that there had been a violation of
Article 2 of the Convention on account of the unlawful killing
of their daughter, Mrs Ayşe Gülen Uzunhasanoğlu, by
police officers.
- On
16 April 2007 the Court decided to give notice of the application to
the Government. It also decided to examine the merits of the case at
the same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1942 and 1931 respectively and live in
Germany.
- In
connection with an ongoing investigation against activist members of
the illegal armed organisation Devrimci-Sol (the
“Revolutionary Left”), on 17 April 1992 police
officers from the Anti-Terrorism Branch of the Istanbul Security
Directorate conducted an operation in three buildings located in
different areas of Istanbul. The applicants' daughter, Ayşe
Gülen Uzunhasanoğlu, was killed during this operation.
According to the police reports, police officers arrived at the
building located in Erenköy at about 2.30 a.m. Ayşe Gülen
Uzunhasanoğlu was living on the third floor of this building.
The police officers, wearing bulletproof vests, took the necessary
safety measures outside the building. Four of the officers went
upstairs to flat no. 9 and rang the bell. There was no answer, and
the officers forced the door open. Shots were fired from one of the
rooms. Despite the officers' call to surrender, the firing continued
and a clash broke out, lasting approximately thirty minutes. When the
firing ceased, the police found the dead bodies of two women; one in
the bathroom and another in the living room, the latter being later
identified as Ayşe Gülen Uzunhasanoğlu. It was
observed that there was a Beretta gun next to Ayşe Gülen
Uzunhasanoğlu's body. As the police also found explosives in the
flat, a bomb disposal team was called to the scene and the flat was
evacuated. Once the apartment was secured, the Kadıköy
public prosecutor was informed about the incident. The prosecutor
arrived at the scene of the incident at about 9.30 a.m. and prepared
a scene of incident report in which he noted that photographs of the
bodies had been taken; that a sketch map of the flat had been drawn
and that fingerprints of the bodies had been taken. The report
further indicated that a semi-automatic Italian Beretta 7.65 mm
pistol, its magazine and cartridges, 3 Kalashnikov cartridges, 90
cartridges of 7.62 mm, 7 bullet cases of 7.65 mm, 23 bullet cases of
5.56 mm, 90 bullet cases of 9 mm, several hand made bombs
and material to manufacture explosive devices had been found. The
prosecutor further examined the bodies in the presence of a medical
expert. The preliminary examination of the bodies revealed that there
were several bullet entry and exit holes on both corpses. The bodies
were subsequently taken to the Istanbul Forensic Medicine Institute
for autopsy. Following the inspection of the flat by the public
prosecutor, the premises were sealed by the police.
- On
27 April 1992 ballistic examinations of the Beretta pistol, the
bullet cases and cartridges collected from the incident scene were
conducted by two experts from the Regional Criminal Police
Laboratory. According to their report, the seven 7.65 mm bullet cases
had been fired by the Beretta pistol found at the scene of the
incident. The report further concluded that the 52 bullet cases of 9
mm and the 23 bullet cases of 5.56 mm, which had been sent for
examination, had been fired from the guns of the police officers.
- On
28 April 1992 a criminal complaint was filed against Mr Necdet
Menzir, the Head of the Istanbul Security Directorate at the time,
and the police officers who had been involved in the three operations
conducted on 17 April 1992.
- On
4 May 1992 the first applicant applied to the Kadıköy
public prosecutor and requested that the flat which had been sealed
after the incident be returned to her. On 20 May 1992 the public
prosecutor sent a letter to the Kadıköy Magisrates Court
requesting that the keys of the flat be returned to the applicants.
- On
15 May 1992 three experts from the Forensic Medicine Institute
conducted an examination of Ayşe Gülen Uzunhasanoğlu's
clothes and prepared a report which held that, if short-barrelled
firearms had been used during the incident, Ayşe Gülen
Uzunhasanoğlu had been shot at from a distance of more than
35 40 metres. However, if Ayşe Gülen Uzunhasanoğlu
had been shot at with long-barrelled firearms, then the distance
would have been more than 75 100 metres. The experts further
explained that it was impossible to determine the exact range of the
shootings in view of the information at their disposal.
- On
27 May 1992 the Istanbul Forensic Medicine Institute delivered the
autopsy report on the applicants' daughter. The report described ten
bullet wounds on the body, eight of which had been fatal. It was also
established that the body had not been shot at from point-blank
range. The report concluded that the cause of death was internal
bleeding due to bullet wounds.
- In
the course of the investigation, the public prosecutor took
statements from the police officers who had taken part in the
operation on 17 April 1992, from two neighbours of Ayşe
Gülen Uzunhasanoğlu and from the first applicant.
- On
24 June 1997 the Kadıköy public prosecutor filed a bill of
indictment with the Kadıköy Assize Court against 15 police
officers for having killed Ayse Gülen Uzunhasanoğlu. The
charges were brought under Articles 31, 33, 49, 251, 281, 450
and 463 of the Criminal Code. The applicants intervened in the
proceedings.
- On
14 November 2000 the Kadıköy Assize Court, finding that
there were no grounds for imposing any punishment on the defendants,
acquitted the police officers. The court held that the officers had
acted within the scope of their duties and had remained within the
limits of legitimate self-defence, in accordance with section 16 of
Law no. 2559 on the duties and powers of the police.
- On
14 November 2001 the Court of Cassation denied the applicants leave
to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time and
international law can be found in Erdoğan and Others
v. Turkey (no. 19807/92, §§ 51 58, 25
April 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants complained that the killing of Ayşe Gülen
Uzunhasanoğlu had violated Article 2 of the Convention, which
reads insofar as relevant as follows:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained; ...”
A. Admissibility
- The
Government argued that the applicants had failed to exhaust domestic
remedies within the meaning of Article 35 § 1 of the Convention.
Referring to Article 125 of the Constitution, they stated that the
applicants could have brought civil and administrative proceedings
before lodging their application with the Court.
- The
Court notes that it has already examined and dismissed similar
preliminary objections by the Government in previous cases (see Kaya
and Others v. Turkey (dec.), no. 4451/02, 4 October 2005). It
finds no particular circumstances in the instant case which would
require it to depart from its findings in those applications.
Consequently, it dismisses the Government's preliminary objection.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions of the parties
- The
applicants argued in the first place that their daughter had been
killed intentionally by the police. They further stated that Ayşe
Gülen Uzunhasanoğlu's death had resulted from the use of
lethal force which had been more than absolutely necessary.
- The
Government submitted that the police had used firearms acting in
self-defence and in accordance with the requirements of the Law and
Regulations on the duties and powers of the police. In their view,
the death of Ayşe Gülen Uzunhasanoğlu had resulted
from a use of force which had been no more than absolutely necessary.
They stressed that the domestic courts had established that the
police officers had only fired their guns in order to protect
themselves after the deceased had opened fire. The Government
contended that the authorities had carried out an adequate and
effective investigation into these events.
2. The Court's assessment
(a) As to the death of Ayse Gülen
Uzunhasanoğlu
(i) General principles
- Article
2, which safeguards the right to life and sets out the circumstances
when deprivation of life may be justified, ranks as one of the most
fundamental provisions in the Convention, from which no derogation is
permitted (see Velikova v. Bulgaria, no. 41488/98, § 68,
ECHR 2000 VI). Together with Article 3, it also enshrines one of
the basic values of the democratic societies making up the Council of
Europe. The circumstances in which deprivation of life may be
justified must therefore be strictly construed (see Salman v.
Turkey [GC], no. 21986/93, § 97, ECHR 2000 VII). The
object and purpose of the Convention as an instrument for the
protection of individual human beings also requires that Article 2 be
interpreted and applied so as to make its safeguards practical and
effective (see McCann and Others v. the United Kingdom,
judgment of 27 September 1995, Series A no. 324, pp. 45 46,
§§ 146 47).
- The
first sentence of Article 2 § 1 enjoins the State not only to
refrain from the intentional and unlawful taking of life, but also to
take appropriate steps within its internal legal order to safeguard
the lives of those within its jurisdiction (see Kiliç v.
Turkey, no. 22492/93, § 62, ECHR 2000 III). This
involves a primary duty on the State to secure the right to life by
putting in place an appropriate legal and administrative framework to
deter the commission of offences against the person, backed up by
law-enforcement machinery for the prevention, suppression and
punishment of breaches of such provisions.
- The
text of Article 2, read as a whole, demonstrates that paragraph 2
does not primarily define instances where it is permitted to
intentionally kill an individual, but describes situations where it
is permitted to “use force” which may result, as an
unintended outcome, in the deprivation of life. The use of force,
however, must be no more than “absolutely necessary” for
the achievement of any of the purposes set out in its subparagraphs.
In this respect the use of the term “absolutely necessary”
in Article 2 § 2 indicates that a stricter and more compelling
test of necessity must be employed than that normally applicable when
determining whether State action is “necessary in a democratic
society” under paragraph 2 of Articles 8 11 of the
Convention. In particular, the force used must be strictly
proportionate to the achievement of the aims set out in the Article
(see McCann and Others, cited above, p. 46, §§
148 49).
- In
this connection, the Court reiterates that it is sensitive to the
subsidiary nature of its role and recognises that it must be cautious
in taking on the role of a first-instance tribunal of facts, where
this is not rendered unavoidable by the circumstances of a particular
case (see, for example, McKerr v. the United Kingdom (dec.),
no. 28883/95, 4 April 2000). Where domestic proceedings have taken
place, it is not the Court's task to substitute its own assessment of
fact for that of the domestic courts and, as a general rule, it is
for those courts to assess the evidence before them. Though the Court
is not bound by the findings of domestic authorities, in normal
circumstances there must be cogent elements to lead it to depart from
the findings of fact reached by those authorities (see, mutatis
mutandis, Klaas v. Germany, judgment of 22 September 1993,
Series A no. 269, p. 18, §§ 29 30).
- However,
the central importance of the protection afforded by Article 2
is such that the Court is required to subject allegations of a breach
of this provision to the most careful scrutiny, taking into
consideration not only the actions of the agents of the State who
actually administered the force, but also all the surrounding
circumstances. This will include such matters as the planning and
control of the actions under examination, even where domestic
proceedings and investigations have already taken place (see Erdoğan
and Others, cited above, § 71).
(ii) Establishment of the facts
- The
Court notes that it is undisputed between the parties that Ayşe
Gülen Uzunhasanoğlu was shot dead by police officers in the
course of a clash between the latter and Devrimci-Sol
militants. However, the parties disagreed on the account of the
events leading up to her death. On the one hand, the applicants
alleged that their daughter was not a member of Devrimci-Sol
and that the police officers had gone to the scene of the incident in
order to kill their daughter. The Government, on the other hand,
claimed that Ayşe Gülen Uzunhasanoğlu was an activist
member of the said armed illegal organisation. It was the applicant's
daughter and her friend who had refused to surrender and opened fire
on the police. The Government contended that the applicants' daughter
had died as a result of an armed clash during which the police
officers had acted in self-defence and in compliance with Law no.
2559 on the duties and legal powers of the police.
- The
Court observes that a judicial determination of the facts took place
in the course of the criminal proceedings brought against the police
officers before the Kadıköy Assize Court. It notes that no
material has been adduced in the course of the Strasbourg proceedings
which could call into question the findings of fact of the domestic
court or lead the Court to depart from it (see Makaratzis v.
Greece [GC], no. 50385/99, § 47, ECHR 2004 XI). The
Court therefore considers, in the light of all the material presented
to it, that there is a sufficient factual and evidentiary basis on
which to assess the case, taking as a starting point the findings of
the national courts (see Usta and Others v. Turkey, no.
57084/00, § 50, 21 February 2008; Perk and Others
v. Turkey, no. 50739/99, § 57, 28 March 2006).
(iii) Application of these principles to
the present case
- The
Court notes that the applicants' daughter was killed in the course of
an anti-terrorist operation by police officers. Having regard to the
material in its possession, it does not find it sufficiently
established that the police officers had acted from the outset with
the aim of killing Ayşe Gülen Uzunhasanoğlu.
- As
regards the legal framework defining the circumstances in which law
enforcement officials may use firearms, the Court observes that it
has already held that the applicable legislation at the time of the
incident, namely Law no. 2559 enacted in 1934, would not appear
sufficient to provide the level of protection “by law” of
the right to life which is required in present-day democratic
societies in Europe (see Erdoğan and Others, cited above,
§ 77; Usta and Others, cited above, § 52). However,
it is to be noted that, by virtue of Article 17 of the Constitution,
recourse to lethal force can only be justified “in case of
absolute necessity authorised by law”. Thus, in the Court's
view, the difference between the national standard and the standard
of Article 2 of the Convention is not sufficiently great that a
violation of Article 2 § 1 could be found on this ground alone
(see McCann and Others, cited above, p. 47, §§
154 155; Usta and Others, cited above, § 52;
Perk and Others, cited above, § 60).
- In
carrying out its assessment of the planning and control phase of the
operation from the standpoint of Article 2 of the Convention, the
Court must have particular regard to the context in which the
incident occurred as well as to the way in which the situation
developed (see Andronicou and Constantinou v. Cyprus, judgment
of 9 October 1997, Reports of Judgments and Decisions 1997 VI,
§ 182).
- In
this connection, the Court notes that the police officers arrived at
the scene of the incident in connection with an ongoing investigation
against activist members of the illegal organisation Devrimci-Sol.
As stated in the case of Erdoğan and Others (cited above,
§ 76), until it was disbanded, the Devrimci-Sol group had
committed numerous crimes, including the assassination of many police
officers, army officers and public prosecutors. Consequently, the
Court finds in the circumstances of the present case that the police
could reasonably have considered that there would be a need to resort
to the use of their weapons in order to arrest the suspects or
neutralise the threat posed by them.
- Referring
to the findings of the Kadıköy Assize Court, the Court
observes that the use of force by the security forces in the present
case was the direct result of the unlawful violence emanating from
the deceased suspects. In this regard, it notes that the police
officers arrived at the scene of the incident, secured the area
surrounding the flat and asked the suspects to open the door.
However, when the suspects did not do so and the police officers had
to break the door, the suspects opened fire on them. Consequently,
the operation in question must be considered to have been effected
“in defence ... from unlawful violence” and “in
order to effect a lawful arrest” within the meaning of Article
2 § 2 a) ands b) of the Convention.
- The
Court is therefore called upon to determine whether the use of force
in the instant case was no more than absolutely necessary and
strictly proportionate to the achievement of the aforementioned aims.
- The
Court notes that the Kadıköy Assize Court found it
established, on the basis of the evidence before it, that the first
shot had been fired by the deceased. It also observes that when the
police officers were confronted with gunfire from the suspects, they
believed that it was necessary to return fire until the suspects
stopped shooting. Finally, it was also established that Ayşe
Gülen Uzunhasanoğlu had not been shot at point-blank range.
- The
Court further considers that it is not necessary to speculate on the
question whether using non-lethal methods in order to arrest the
deceased had been a possibility open to the security forces. In this
connection, it observes that in the cases of Andronicou and
Constantinou and Perk and Others, where the applicants'
relatives had been killed as a result of the use of force by the
security forces, it held that it could not with detached reflection
substitute its own assessment of the situation for that of the
officers who were required to react in the heat of the moment. The
Court further considered that, to hold otherwise, would be to impose
an unrealistic burden on the States and on their law enforcement
personnel in the execution of their duty, perhaps to the detriment of
their lives and the lives of others (see Andronicou and
Constantinou, cited above, § 192; Perk and Others,
cited above, § 72; Usta and Others, cited above, §
59). It sees no reason to reach a different conclusion in this case,
where a violent confrontation took place between the parties and the
police officers had to act in self-defence when confronted by two
armed suspects.
- The
Court considers therefore that the use of lethal force in the
circumstances, however regrettable it may have been, did not exceed
what was “absolutely necessary” for the purposes of
self-defence and in order to effect a lawful arrest. Consequently,
the Court concludes that it did not amount to a breach by the
respondent State of their obligations under Article 2 § 2
of the Convention.
- It
follows that there has been no violation of Article 2 of the
Convention as regards the killing of Ayşe Gülen
Uzunhasanoğlu.
(b) As to the alleged inadequacy of the
investigation
- The
obligation to protect the right to life under Article 2 of the
Convention, read in conjunction with the State's general duty under
Article 1 of the Convention to “secure to everyone within
[its] jurisdiction the rights and freedoms defined in [the]
Convention”, requires by implication that there should be some
form of effective official investigation when individuals have been
killed as a result of the use of force (see Çakιcι
v. Turkey [GC], no. 23657/94, § 86, ECHR 1999 IV).
The essential purpose of such an investigation is to secure the
effective implementation of the domestic laws safeguarding the right
to life and, in those cases involving State agents or bodies, to
ensure their accountability for deaths occurring under their
responsibility (see Anguelova v. Bulgaria, no. 38361/97,
§ 137, ECHR 2002 IV). As it is often the case that, in
practice, the true circumstances of the deaths in such cases remain
largely within the knowledge of State officials or authorities, the
bringing of appropriate domestic proceedings, such as a criminal
prosecution, disciplinary proceedings or proceedings for the exercise
of remedies available to victims and their families, will be
conditioned by an adequate official investigation, which must be
independent and impartial. The same reasoning applies in the case
under consideration, where there is no dispute that the deceased were
killed by the police officers in the course of an operation to arrest
them.
- The
investigation must be capable, firstly, of ascertaining the
circumstances in which the incident took place and, secondly, of
leading to the identification and punishment of those responsible.
This is not an obligation of result, but of means. The authorities
must take the reasonable steps available to them to secure the
evidence relating to the incident, including, inter alia,
eyewitness testimony and forensic evidence. A requirement of
promptness and reasonable expedition is implicit in this context. Any
deficiency in the investigation which undermines its capability of
establishing the circumstances of the case or the person responsible
is liable to fall foul of the required standard of effectiveness (see
Kelly and Others v. the United Kingdom, no. 30054/96, §§
96 97, 4 May 2001; Anguelova, cited above, § 139).
- A requirement of promptness and reasonable expedition
is implicit in this context (see Yaşa v. Turkey, judgment
of 2 September 1998, Reports 1998 VI, pp. 2439 40,
§§ 102-104; Çakıcı, cited above, §§
80 87 and 106; Tanrıkulu v. Turkey [GC], no.
23763/94, § 109, ECHR 1999 IV; and Mahmut Kaya v.
Turkey, no. 22535/93, §§ 106 107, ECHR 2000 III).
It must be accepted that there may be obstacles or difficulties which
prevent progress in an investigation in a particular situation.
However, a prompt response by the authorities in investigating the
use of lethal force may generally be regarded as essential in
maintaining public confidence in their adherence to the rule of law
and in preventing any appearance of collusion in or tolerance of
unlawful acts (see Avşar v. Turkey, no. 25657/94, § 395,
ECHR 2001 VII).
- In
the present case, the Court observes that a comprehensive
investigation was indeed carried out by the authorities into the
circumstances surrounding the killing of the applicants' daughter. In
this connection, it notes that, immediately after the incident, a
report describing the course of events and the state of the flat were
prepared by the police officers. A sketch map of the flat which
indicated the position of the deceased's body was drawn up and
photographs were taken. The weapons used in the clash and the
cartridges retrieved from the scene of the incident were subjected to
ballistics examinations. The cartridges discharged from every weapon
were identified and the range of the shootings was also determined
subsequent to the examination of the clothes of the deceased.
Furthermore, forensic experts carried out a full and comprehensive
autopsy on the body of the deceased (see paragraphs 6 11 above).
- Nevertheless,
the investigation in the present case cannot be considered to have
been effective given the substantial delays involved. In this
connection, the Court notes that the prosecuting authorities waited
more than five years before initiating criminal proceedings against
the accused police officers. Subsequently, the Kadıköy
Assize Court took more than four years in reaching a final judgment
in the proceedings (see paragraphs 13 14 above).
- In
view of the foregoing, the Court considers that the proceedings in
question, which lasted more than nine years, cannot be described as a
prompt response by the authorities in investigating the allegedly
unnecessary and disproportionate use of force. Accordingly, given the
delays in the criminal investigation and the overall duration of the
proceedings, the Court concludes that there has been a violation of
the State's procedural obligation under Article 2 of the Convention.
- There
has therefore been a violation of Article 2 under its procedural
limb.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants further alleged a breach of Articles 3, 6 and 14 of the
Convention and Article 1 of Protocol No. 1. Under Article 3, they
complained about the suffering they had endured as a result of their
daughter's death; under Article 6 they stated that the proceedings
brought against the police officers were unfair; under Article 14
they complained about the non-prosecution of Mr Necdet Menzir, the
Head of the Istanbul Security Directorate at the time; and finally
under Article 1 of Protocol No. 1, they argued that there had
been an interference with their right to peaceful enjoyment of their
possessions as their flat was sealed by the police following the
incident.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention or its Protocols. Furthermore, in respect
of the complaint raised under Article 1 of Protocol No. 1, the Court
had particular regard to the fact that the apartment was returned to
the first applicant on 20 May 1992 on the order of the Kadıköy
Magistrates Court. It follows that this part of the application must
be rejected as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 20,000 euros (EUR) in respect of pecuniary damage
and EUR 50,000 each in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore dismisses this claim.
However, having regard to its finding of a violation of Article 2
under its procedural limb and ruling on an equitable basis, it awards
the applicants EUR 10,000 jointly in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicants also claimed a total of EUR 9,500 for the costs and
expenses incurred before Court. In support of their claim, they
submitted a legal fee agreement for 10,000 new
Turkish liras [approximately EUR 5,200].
- The
Government contested the claim.
- The
Court may make an award in respect of costs and expenses in so far as
these were actually and necessarily incurred and were reasonable as
to quantum (see, for example, Sawicka v. Poland, no. 37645/97,
§ 54, 1 October 2002). Making its own estimate based
on the information available, and having regard to its case-law, the
Court awards the applicants jointly EUR 3,000 for the costs and
expenses claimed.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 2 of
the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been no substantive
violation of Article 2 of the Convention as regards the killing of
Ayşe Gülen Uzunhasanoğlu;
- Holds that there has been a violation of Article
2 of the Convention under its procedural limb;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into new Turkish liras at the rate
applicable at the date of settlement:
(i) EUR
10,000 (ten thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable to
the applicants, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 14 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens Registrar President
