Information Note on the Court’s case-law No. 176
July 2014
Ataykaya v. Turkey - 50275/08
Judgment 22.7.2014 [Section II]
Article 2
Article 2-2
Use of force
Fatal injuries caused by tear gas canister fired by member of security forces wearing a balaclava: violation
Article 2-1
Effective investigation
Use of balaclava preventing identification of member of security forces responsible for fatal injuries: violation
Article 46
Article 46-2
Execution of judgment
Measures of a general character
Respondent State required to take general measures to minimise risk of injury or death caused by tear gas canisters
Facts – In March 2006, as he was leaving his place of work, the applicant’s son found himself in the middle of a demonstration and was struck in the head by one of several tear-gas canisters fired by the security forces. He died a few minutes later. Administrative and criminal investigations were carried out, but they failed to identify the person who had fired the fatal shot.
Law – Article 2 (substantive and procedural limbs): It had been established beyond reasonable doubt that a member of the security forces had fired at the applicant’s son using a tear-gas canister launcher, wounding him in the head and causing his death. An investigation had been opened following the complaint lodged by the applicant in March 2006 but was problematic in several respects.
Firstly, the police and administrative investigations had failed to identify – and, consequently, to question – the member of the security forces who had fired the fatal shot, on the ground that his face had been masked by a balaclava. Nor had the investigative authorities been able with any certainty to ascertain how many members of the police force had been authorised to use this type of weapon at the time of the incident. Further, the prosecutor’s office had merely questioned a few members of the security forces, and there had been a lack of cooperation on the part of the police authorities with the prosecutor’s office responsible for the investigation; this was particularly inexplicable given that the latter’s sole aim had been to obtain official information from a State agency.
As a direct result of the decision to wear balaclavas the police officers responsible for the shots had effectively received immunity from prosecution. On account of the balaclavas, it had been impossible for the eye-witnesses to identify the police officer who had fired at the applicant’s son, and impossible to question, as witnesses or suspects, all of the officers who had used canister launchers.
That fact that the eye-witnesses were unable – on account of the balaclava – to identify the officer responsible for the fatal shot was in itself troubling. Where the competent national authorities deployed masked police officers to maintain public order or carry out an arrest, those officers were required to display a distinguishing mark – such as an identification number – which, while preserving their anonymity, w1ould make it possible to identify them for questioning should the conduct of the operation be subsequently challenged.1
Thus, the domestic authorities had deliberately created a situation of impunity which had prevented identification of the officers suspected of having fired the tear-gas canisters without due care, establishment of the senior officers’ responsibilities and the conduct of an effective investigation. In addition, it was troubling that no information on the incident which had caused the death of the applicant’s son had been included in the police records.
There had been virtually no progress in the investigation in the first year after the incident. The prosecutor’s attempts to identify the police officers who had fired tear-gas canisters had not been followed up, or had been followed up only partially and with unacceptable delay. Furthermore, the prosecutor’s office had delayed in questioning the applicant, the few police officers whose identity had been communicated and the eye-witnesses. In addition, the mere fact that appropriate steps had not been taken to reduce the risk of collusion amounted to a significant shortcoming in the adequacy of the investigation.2
Furthermore, despite a request by the applicant, no expert report had been ordered with a view to determining the manner in which the shot had been fired, especially as it appeared that it had been fired directly and in a straight line, rather than at an upward angle, and could not be considered as an appropriate action on the part of the police.3
At the relevant time, Turkish law had not contained any specific provisions regulating the use of non-lethal weapons, such as tear-gas canisters, during demonstrations or any guidelines concerning their use.4 It could be inferred that the police officers had enjoyed a greater autonomy of action and have been left with more opportunities to take ill-considered action than would probably have been the case had they had the benefit of proper training and instructions. Such a situation did not provide the level of protection “by law” of the right to life that was required in modern democratic societies in Europe.
It followed that no meaningful investigation had been conducted at domestic level capable of establishing the circumstances surrounding the death of the applicant’s son and that the Government had not satisfactorily shown that the use of lethal force against the applicant’s son had been absolutely necessary and proportionate. The same applied to the planning and control phases of the operation; the Government had not produced any evidence to suggest that the police had taken appropriate care to ensure that any risk to life was minimised. Further, with regard to their positive obligation under the first sentence of Article 2 § 1 to put in place an adequate legislative and administrative framework, the Turkish authorities had not done all that could be reasonably expected of them, both to afford citizens, and especially those against whom potentially lethal force was used, the requisite level of safeguards and to avoid the real and immediate risk to life which police operations to suppress violent demonstrations were likely to entail.
Having regard to the foregoing considerations, it had not been established that that the use of force to which the applicant’s son had been subjected had not gone beyond what was absolutely necessary. In addition, the investigation had not been effective.
Article 46
(a)  General measures – With regard to the general measures that the State was to adopt in execution of the present judgment, the violation of the right to life of the applicant’s son, as guaranteed by Article 2 of the Convention, had again5 resulted from a lack of safeguards ensuring the correct use of tear-gas canisters. In consequence, the Court stressed the need to strengthen these safeguards without further delay, in order to minimise the risks of death and injury associated with the use of tear-gas canisters. In this respect, and so long as the Turkish system did not comply with the requirements of the Convention, the inappropriate use of these potentially deadly weapons during demonstrations was likely to entail similar violations to that found in the present case.
(b)  Individual measures – With regard to individual measures, given that the investigation file was still open at domestic level and in the light of the documents in its possession, the Court considered that new investigative measures ought to be taken under the supervision of the Committee of Ministers. In particular, the measures required from the domestic authorities in order to combat impunity had to include an effective criminal investigation aimed at the identification and, if appropriate, the punishment of those responsible for the death of the applicant’s son.
Article 41: EUR 65,000 in respect of non-pecuniary damage; claim for pecuniary damage rejected.
1.  Hristovi v. Bulgaria, 42697/05, 11 October 2011, Information Note 145, and Özalp Ulusoy v. Turkey, 9049/06, 4 June 2013.
2.  Ramsahai and Others v. the Netherlands [GC], 52391/99, 15 May 2007, Information Note 97.
3.  Abdullah Yaşa and Others v. Turkey, 44827/08, 16 July 2013, Information Note 165.
4.  See the case of Abdullah Yaşa and Others, op. cit., which concerned an injury caused by a tear-gas canister fired during the same events as those which form the subject of the present case.
5.  See the cases of Abdullah Yaşa and Others (op. cit.) and İzci v. Turkey (42606/05, 23 July 2013, Information Note 165).

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