TOPTANIS v. TURKEY - 61170/09 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2016] ECHR 713 (30 August 2016)

In the case of Toptanış v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Julia Laffranque, President,
          Işıl Karakaş,
          Nebojša Vučinić,
          Paul Lemmens,
          Jon Fridrik Kjølbro,
          Stéphanie Mourou-Vikström,
          Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 28 June 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 61170/09) 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 a Turkish national, Mr Abbas Toptanış (“the applicant”), on 11 November 2009.

2. The applicant was represented by Mr Ç. Bingölbalı, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.

3. On 4 April 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1974 and lives in İzmir.

5. At the time of the events giving rise to this application, the applicant was working as a watchman on a construction site located in the vicinity of a military compound housing the 7th Gendarmerie Commando Regiment in Foça, İzmir.

6. On 14 October 2008, sometime between 8 p.m. and 9 p.m., the applicant left the construction site to meet three friends, M.K., N.V., and F.T., who worked on nearby farms. While walking towards his friends, the applicant suddenly collapsed for an unknown reason; his friends immediately took him to hospital. The applicant’s initial medical examination at the Foça State Hospital did not reveal any findings other than a cut measuring 0.5 cm on his back between the tenth and eleventh ribs. However, a lung X-ray taken subsequently showed that a foreign object, which appeared to be a bullet, was lodged between his eleventh and twelfth ribs. The applicant was transferred to the Karşıyaka State Hospital to receive further treatment for serious injuries sustained to his lungs and liver. After undergoing various operations, on 23 October 2008 he was discharged from the hospital. According to a medical report issued on 30 December 2008 by the Karşıyaka State Hospital, it had been decided for medical reasons to leave the bullet inside the applicant’s body, to be extracted only in the event of deterioration in the applicant’s condition. The report also noted that the injuries sustained by the applicant had been life-threatening.

A. The criminal investigation into the incident

7. At 2.30 a.m. on 15 October 2008 two gendarme officers from the crime scene investigation unit of the Menemen Provincial Gendarmerie Command arrived at the site of the incident, which was located by a farm by the name of “Dürüs” (“the Dürüs farm”), to carry out a preliminary investigation and to prepare a scene-of-incident report (on the instructions of the Foça public prosecutor). After photographing the site of the incident, they talked to the witnesses and the gendarmerie patrol unit on duty. According to the information they obtained, the applicant had collapsed abruptly while he was walking to meet his friends. No gunshots had been heard at the site of the incident, but a firing practice had been underway at the relevant time at the nearby military compound housing the 7^th Gendarmerie Commando Regiment. The gendarme officers indicated in their report that there were two shooting ranges within the said military compound: one located 1,780 metres to the north of the Dürüs farm, at an altitude of fifty metres (“the first shooting range”); and the other 1,050 metres to the east, at an altitude of ninety metres (“the second shooting range”). The altitude of the Dürüs farm was forty metres. There were three hills between the Dürüs farm and the first shooting range; the first two hills had an altitude of fifty-five metres, and the third hill had an altitude of ninety metres. No information was provided regarding the terrain between the farm and the second shooting range. Firing practice was carried out with G3 rifles at the first shooting range and with 5.56 mm rifles at the second shooting range. According to a sketch map prepared by the gendarme officers, the site of the incident was approximately 15 degrees to the east of the assumed trajectory of bullets fired from the first shooting range. In the gendarme officers’ opinion, the applicant had been hit by a stray bullet that had ricocheted during firing practice, particularly in view of the fact that no evidence of criminal conduct had been found at the site of the incident. The only evidence collected by the gendarme officers was the jacket that the applicant had been wearing at the time of his shooting, which was handed to the İzmir Gürçeşme Criminal Police Laboratory for examination.

8. The gendarme officers visited the site of the incident once again at approximately 9.45 a.m. on the morning of 15 October 2008 to make further investigations, but did not discover any new evidence. It appears that on the same morning they also went - on the instructions of the Foça public prosecutor - to the military compound to photograph the shooting ranges.

9. At approximately 10.15 a.m. on 15 October 2008 the Foça public prosecutor visited the site of the incident together with a police expert, H.Ö. The public prosecutor noted that the investigation had not thus far revealed any spent cartridges, bullet shells, arms or any other such material on or around the site of the incident, nor had any suspects who might have shot at the applicant been identified. According to the information provided by the applicant’s three friends to the public prosecutor, the applicant had collapsed right before their eyes and there had been no one else present at the relevant time. They also told the public prosecutor that they often heard gunfire coming from the military compound during shooting practice and that gunfire had also been audible at the time of the incident, although they had not heard gun shots emanating from anywhere nearby.

10. According to the information in the case file, the applicant was still in a critical condition on the morning of 15 October 2008. Nevertheless, at 3 p.m. on that day, he was interviewed by two gendarme officers in the office of the security team commander (Asayiş Tim Komutanı) of the local gendarmerie. It is not clear whether this office was located inside the hospital or outside. Prior to the commencement of the interview, the applicant was informed of his right to request the appointment of a lawyer from the local bar association to assist him, but it appears that he did not exercise that right. The applicant told the gendarme officers that at approximately 8.45 p.m. on 14 October 2008, he had left his house to check up on the construction site where he worked as a watchman. As he had been walking towards the site, he had heard whizzing sounds above his head. He had continued to hear the same sounds on his way out of the construction site, along with the sound of gunfire from the military compound located nearby. Then, all of a sudden, he had felt a sharp pain in his back and had collapsed to the ground. He had not known what had happened until he had been told in the hospital that he had been shot in the back with a firearm. When the gendarme officers asked the applicant whether he had been in ongoing conflict with anyone and whether he had heard any gunshots at the time of the incident, he replied that he had not been in any conflict and that the only shots he had heard had been those coming from the military compound, which he had been hearing for the past week. The applicant also stated that he did not wish to press charges against anyone regarding the incident.

11. On 16 October 2008 H.Ö., the police expert who had accompanied the Foça public prosecutor during his examination of the site of the incident, issued a report of his findings. He indicated in his report that the distance between the site of the incident and the military shooting ranges, which were spread over hilly terrain, was approximately one and a half kilometres. Having regard to the witness statements, and to the absence of any other factors that might explain the applicant’s injury, the police expert opined that the injury had probably been caused by a bullet that had ricocheted during the firing practice at the military compound. He submitted a simple sketch map of the site of the incident along with his report.

12. On 23 October 2008 the applicant was discharged from the hospital.

13. On 12 November 2008 two gendarme officers visited the applicant at his home on the instructions of the Foça public prosecutor to enquire about the bullet that had wounded him. The applicant informed the gendarme officers that the bullet had still not been extracted from his body and that the doctors would re-evaluate the situation once he had fully recovered from the earlier operations. The applicant was requested to inform the authorities in the event that the doctors decided to remove the bullet.

14. On 13 November 2008 the İzmir Criminal Police Laboratory issued a report on the analysis carried out on the applicant’s jacket. According to the report, a hole measuring 0.5 cm in diameter was found in the back of the jacket, but no gunshot residue was found around that hole. Having regard to the shape and other characteristics of the hole, it was decided that it had been caused by a firearm and that the shot had been fired from a long distance.

15. On 14 November 2008 the Foça public prosecutor took the applicant’s statement for the first time. The applicant was reminded of his right to request the assistance of a lawyer, which he once again declined to do. The applicant largely reiterated the statement he had made to the gendarme officers earlier. He also repeated that he did not want to press charges against any particular person, as he did not believe that he had been shot intentionally. He did, however, reserve his right to claim compensation.

16. On 24 November 2008 the Foça public prosecutor delivered a decision not to prosecute. The public prosecutor found firstly that, in view of the statements of the applicant and of the witnesses and the manner in which the incident had occurred, the applicant had not been shot intentionally. He noted secondly that the forensic examination conducted on the applicant’s jacket had revealed that the shot had been fired from a long distance; however, the source of the shot had not been identified, as the bullet had for medical reasons not yet been extracted from the applicant’s body. Nevertheless, having regard to all the information in the case file and to the fact that a military firing practice had been underway a few kilometres away at the time of the incident, the public prosecutor found that the applicant had probably been hit by a stray bullet that had ricocheted during the firing practice. According to the public prosecutor, this offence was to be classified as one of causing bodily harm through negligence (taksir), as opposed to recklessness (bilinçli taksir), in view of the significant distance of the shooting range from the site of the incident. Since the prosecution of the offence of causing bodily harm through negligence required a formal complaint to be made by the victim (which was lacking in the instant case), the Foça public prosecutor decided to close the investigation.

17. On 12 January 2009, after medical complications had arisen, the bullet was extracted from the applicant’s body and handed over to the hospital police. On 6 February 2009 it was registered in the custody of the Foça public prosecutor’s office.

18. In the meantime, on 16 January 2009 the applicant lodged an objection against the decision of the Foça public prosecutor, with the assistance of his lawyer. The applicant’s lawyer stated that the decision to close the investigation had been taken prematurely, before the investigation process had been completed and the gun from which the bullet had been fired and the identity of the shooter had been identified. There had also not been an attempt to establish whether the bodily harm had been caused through negligence, recklessness, lack of experience or breach of duty or with intent. Moreover, requesting the victim to indicate whether he wanted to press charges without first having established the perpetrator and the nature of the offence did not comply with due procedure.

19. The applicant’s objection was rejected by the İzmir Assize Court on 24 April 2009. The assize court did not provide any justification for its decision, apart from stating that the Foça public prosecutor’s decision had been in compliance with the law. This decision was served on the applicant on 20 May 2009.

B. Compensation proceedings before the administrative courts

20. On 3 March 2009 the applicant lodged a request with the Ministry of the Interior (“the Ministry”) for pecuniary and non-pecuniary damages in respect of his wounding. The Ministry refused the request; the applicant then brought an action for compensation before the İzmir Administrative Court.

21. On 22 February 2012 the İzmir Administrative Court dismissed the applicant’s action. It held that while it was not disputed that the applicant had been wounded by a bullet, there was no tangible evidence to prove that the bullet in question had in any way been connected to the firing practice held by the 7th Gendarmerie Commando Regiment in Foça on the date in question. The criminal investigation into the incident had been closed on account of the applicant’s decision not to bring an official complaint, and the bullet extracted from his body after the closing of the investigation had therefore not been subjected to a ballistic examination. In these circumstances, by not pursuing his complaints the applicant had hindered the collecting of evidence that could have proved a causal link between the administrative act (idari eylem) and the damage sustained. In the administrative court’s opinion, the applicant had thus not proved his allegations.

22. On 22 October 2015 the Supreme Administrative Court upheld the judgment of the İzmir Administrative Court.

C. Internal administrative inquiry

23. An internal administrative inquiry was also conducted by the military authorities into the applicant’s shooting. During the course of that inquiry thirteen gendarme officers of various ranks who had attended the firing practice in question were interviewed on 15 October 2008 by a lieutenant-colonel. The officers stated, in virtually identical words, that a firing practice had been held on 14 October 2008 between 7 p.m. and 10 p.m. with G3 rifles, that all necessary security measures had been taken at the shooting range prior to the commencement of the practice, in line with the applicable laws and instructions, that all rifles had been fired under the supervision of senior officers, that no firing had been permitted outside the designated shooting areas, and that, in view of the security measures in place and the distance of the applicant from the shooting range, the applicant should not have been affected by bullets fired during the practice.

24. On 22 October 2008 a report was issued on the findings of the administrative inquiry. According to this report, all requisite safety measures had been implemented at the shooting range on the date in question, in compliance with the relevant security regulations, and no fault or negligence had been found on the part of the military officers who had participated in the firing practice. The report indicated that additional security precautions had nevertheless been taken on the shooting range in the aftermath of the incident, such as adding to the sand bags and barrels behind the target boards, and building barriers in order to reduce the incidence of ricochets, and surrounding the gun-target line with additional barrels.

II. RELEVANT DOMESTIC LAW

25. Article 89 of the Turkish Criminal Code (Law no. 5237) on the offence of causing bodily harm by negligence provides as follows:

“(1) Anyone who, through negligence, inflicts bodily pain on another person or who impairs another’s health or senses shall be punished by imprisonment for a term of three months to one year, or by a judicial fine.

...

(5) The investigation and prosecution of the offence of causing bodily harm through negligence shall be [conditional upon the lodging of] a formal complaint. However, except for cases of wounding that fall under paragraph (1), no formal complaint is required if the offence is committed through recklessness.”

THE LAW

I. PRELIMINARY ISSUE

26. The Government submitted that contrary to the requirements of Rule 47 § 1 of the Rules of Court, the applicant had not indicated his nationality in the application form submitted to the Court. They therefore asked the Court to reject the application for failing to meet the requirements of Article 47 of the Rules of Court.

27. The Court reiterates that it has already examined and dismissed similar objections by the respondent Government (see, for instance, Öner Aktaş v. Turkey, no. 59860/10, § 29, 29 October 2013; Yüksel v. Turkey ((dec.), no. 49756/09, § 42, 1 October 2013; and T. and A. v. Turkey, no. 47146/11, § 41, 21 October 2014). In the present case, the Court finds no reason to depart from that conclusion. The Government’s arguments on this point should therefore be rejected.

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

28. The applicant complained under Articles 6 § 1 and 13 of the Convention that the investigation conducted into his shooting had not been effective. He complained in particular that the investigation had been closed before the bullet extracted from his body had been subjected to a ballistic examination and the weapon from which it had been fired had been identified, and that a decision as to whether the incident had constituted an attack on his physical integrity should have been taken only after the identification of the perpetrator.

29. The Court considers that the applicant’s complaint relates solely to the effectiveness of the investigation carried out by the national authorities into his shooting and, as such, falls to be examined under the procedural aspect of Article 2 of the Convention alone (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 73, 20 December 2007), the relevant part of which reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally ...”

30. The Court acknowledges in this connection that the applicant fortuitously survived the shooting. However, the fact that he suffered a life-threatening injury resulting from the use of a potentially lethal firearm is sufficient to attract the applicability of Article 2 of the Convention (see Yaşa v. Turkey, 2 September 1998, § 100, Reports of Judgments and Decisions 1998-VI; Makaratzis v. Greece [GC], no. 50385/99, §§ 49-55, ECHR 2004-XI; Goncharuk v. Russia, no. 58643/00, § 74, 4 October 2007; Alkın v. Turkey, no. 75588/01, § 29, 13 October 2009; Pankov v. Bulgaria, no. 12773/03, § 49, 7 October 2010; and Bozkurt v. Turkey, no. 20620/10, § 48, 23 June 2015). The Court will therefore examine his complaint solely under that provision.

A. Admissibility

31. The Government submitted that the applicant had not exhausted the available domestic remedies in relation to his complaints within the meaning of Article 35 § 1 of the Convention. They stated in this connection that by not choosing to lodge an official complaint with the competent authorities in relation to his shooting, he had in effect brought the investigation to a close before the perpetrator or perpetrators could be identified. The Government explained that under the Criminal Code, as in force at the material time, the prosecution of an assault causing bodily harm required the lodging of an official criminal complaint within six months of the incident in question; in the absence of such a complaint, no criminal proceedings could be pursued.

32. The applicant argued firstly that the Government had acknowledged in their observations that the State authorities had failed in their duty to establish the facts, but had held him responsible for this failure, without explaining why the bullet extracted from his body could not be subjected to a ballistic examination. He also argued that the fact that he had been asked to decide whether he wanted to press charges prior to the conduct of a ballistic examination, and while he was still in a fragile medical condition, demonstrated the ineffectiveness of the investigation conducted into the incident.

33. The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the complaint regarding the ineffectiveness of the investigation in question. The Court therefore finds it necessary to join the Government’s objection to the merits of the complaint under Article 2 of the Convention (see, mutatis mutandis, Yusupova and Others v. Russia, no. 5428/05, § 58, 9 July 2009).

34. The Court further finds that the applicant’s complaint under Article 2 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is, moreover, not inadmissible on any other grounds. The Court therefore declares it admissible.

B. Merits

1. The parties’ submissions

35. In addition to the claims noted in paragraph 32 above, the applicant complained that the State authorities had, on the one hand, relied on the assumption that he had been accidentally shot by a bullet originating from the military shooting range in closing the investigation, and had on the other hand denied any responsibility for the incident on account of the absence of any evidence to establish a causal link between the military firing practice and his wounding. The remaining uncertainty as to the circumstances of his shooting demonstrated the State authorities’ failure to carry out an effective and adequate investigation into the incident.

36. The Government, for their part, acknowledged the obligation of the State authorities under Article 2 to conduct an effective official investigation into the applicant’s shooting and argued that the responsible authorities had duly discharged this obligation. They submitted in this connection that an investigation had been initiated immediately after the incident by the Foça public prosecutor, which was an independent and impartial authority, without waiting for an official complaint to be lodged by the applicant, and that the investigation had been accessible to the applicant at all times. The investigation had, moreover, been conducted with sufficient swiftness and diligence, and all the necessary investigative steps had been taken, apart from a ballistic examination of the bullet that had wounded the applicant, which could not be performed as the bullet was still in his body while the investigation was ongoing. The investigation had, however, eventually been closed on account of the applicant’s decision not to lodge a formal complaint in relation to the incident; in cases involving the type of offence in question, it was necessary for such a complaint to be made for an investigation to proceed. By choosing not to bring an official complaint, the applicant had therefore prevented the submission of the bullet eventually extracted from his body for a ballistic examination and the interrogation of any possible suspects.

2. The Court’s assessment

(a) General principles

37. The Court notes that the basic principles concerning a State’s obligations under Article 2 of the Convention have been recently recapitulated by the Grand Chamber in the case of Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 169-182, 14 April 2015).

38. The Court notes that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction, Article 2 imposes a duty on that State to secure the right to life by putting in place effective criminal-law provisions 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. This obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances, even where the presumed perpetrator of the fatal attack is not a State agent (see mutatis mutandis, Ergi v. Turkey, 28 July 1998, § 82, Reports 1998-IV; Yaşa v. Turkey, 2 September 1998, § 100, Reports 1998-VI; Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V; Slimani v. France, no. 57671/00, § 47-48, ECHR 2004-IX (extracts); Pereira Henriques v. Luxembourg, no. 60255/00, § 56, 9 May 2006; and Yotova v. Bulgaria, no. 43606/04, § 68, 23 October 2012). In such cases, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see Ergi, cited above; Yaşa, cited above, §§ 99 and 100; İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII; Menson and Others, cited above; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 111, ECHR 2005-VII; Feyzi Yıldırım v. Turkey, no. 40074/98, §§ 74 and 76, 19 July 2007; and Angelova and Iliev v. Bulgaria, no. 55523/00, § 96, 26 July 2007).

39. In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007-II). That is to say it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible.

40. The Court stresses that the obligation to conduct an effective investigation is an obligation not of result but of means: the authorities must take the reasonable measures available to them to secure evidence concerning the incident at issue, including eyewitness testimony, forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Jaloud v. the Netherlands [GC], no. 47708/08, § 186, ECHR 2014, and Nachova, cited above, § 113). In particular, the investigation’s conclusions must be based on a thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation’s ability to establish the circumstances of the case and, where appropriate, the identity of those responsible (see Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009).

41. The Court considers that the above-mentioned basic procedural requirements apply with equal force to the conduct of an investigation into a life-threatening attack on an individual, regardless of whether or not death results (see, mutatis mutandis, Yaşa, cited above, 100; Menson and Others, cited above; and Angelova and Iliev, cited above, § 98).

(b) Application of the above principles to the present case

42. It was not disputed in the instant case that the applicant was wounded in suspicious circumstances and that the authorities were therefore under an obligation to commence an investigation on their own motion into the circumstances of his shooting upon being informed of the incident.

43. The Court notes in this connection that an investigation was indeed initiated promptly after the incident: eyewitness testimonies were taken and the vicinity of the incident was searched for firearms, spent cartridges, bullet shells and any other relevant evidence that might shed light on the circumstances of the applicant’s shooting. The site of the incident was photographed, sketch maps were prepared, and the jacket that the applicant was wearing at the time of the shooting was sent to a criminal police laboratory for forensic examination. It appears, however, that apart from the results of the forensic examination of the jacket, which found that the applicant had been shot from long range, the preliminary investigation conducted around the site of the incident did not reveal sufficient evidence to establish the circumstances in which the incident had taken place. The only pertinent information obtained from the eyewitnesses was that no gunshots had been heard in the immediate vicinity of the site of the incident, but that a firing practice had been ongoing at the nearby military facility at the material time. This allegation was corroborated by officers from the Menemen Provincial Gendarmerie Command during their on-site examination.

44. The applicant was interviewed two times during the course of the investigation. The first interview was conducted by two gendarme officers some eighteen hours after the incident, when the applicant was in a critical medical condition, in the office of a high-ranking gendarme officer. During the interview, the applicant was asked whether he had been in ongoing conflict with anyone and whether he had heard any gunshots at the time of the incident, to which he replied that he had not had been in any conflict and that the only gunshots he had heard were those coming from the firing practice held at the 7th Gendarmerie Commando Regiment. He also stated that he did not wish to press charges against anyone in relation to his wounding. The second interview was conducted by the Foça public prosecutor on 14 November 2008, that is one month after the incident. The applicant largely reiterated his earlier submissions to the gendarme officers before the public prosecutor, and said that since he believed that he had not been shot intentionally, he did not wish to bring a criminal complaint against any particular person.

45. The Court notes that after interviewing the applicant, the Foça public prosecutor decided to close the investigation, without taking any other investigative steps. In the public prosecutor’s opinion, the statements obtained from the applicant and the eyewitnesses, coupled with the other evidence gathered during the preliminary investigation, including the forensic examination conducted on the applicant’s jacket, suggested that the applicant had not been shot intentionally and that the shot had been fired from long range. The public prosecutor explained that since the bullet had at that time not yet been removed from the applicant’s body, it had not been possible to identify the gun from which it had been fired. He concluded, nevertheless, that the applicant had probably been hit by a stray bullet that had ricocheted during the firing practice carried out at the 7th Gendarmerie Commando Regiment at the material time. He further concluded that the applicant’s wounding in such manner had constituted the offence of causing bodily harm through negligence, as opposed to recklessness, the prosecution of which depended on a formal complaint being first lodged by the victim. Since such a complaint was lacking in the instant case, the investigation could not be pursued any further. The applicant’s argument that the investigation had been closed prematurely before many vital elements had been established was subsequently dismissed by the İzmir Assize Court, despite the removal of the bullet from the applicant’s body in the meantime.

46. The Court finds the outcome of the investigation to be unsatisfactory. It notes in this connection that in reaching the decision to close the investigation, the Foça public prosecutor proceeded from two premises: first, that the applicant had been accidentally shot by a stray bullet that had originated from the 7th Gendarmerie Commando Regiment during a firing practice; and second, that the accident had occurred as a result of “negligent” conduct and that there was no element of “recklessness” in it, which would have warranted the prosecution of the offence even in the absence of a formal complaint being made by the victim.

47. The Court notes from the information in the case file that these findings of the public prosecutor, which determined the fate of the investigation, were not based on any tangible evidence, as also noted by the İzmir Administrative Court (see paragraph 21 above). It further considers that the domestic investigative and judicial authorities did not take all reasonable steps to secure such tangible evidence that may have shed light on the circumstances surrounding the applicant’s shooting and thus confirmed or denied suspicions regarding the incident, as required under Article 2 of the Convention.

48. The Court notes firstly in this connection that no ballistic examination was performed on the bullet that injured the applicant. Admittedly, the bullet was still lodged in the applicant’s body while the preliminary investigation was being conducted, with no prospect of its imminent removal, save in the event of medical necessity. That being said, the Court notes that the bullet was in fact removed from the applicant’s body soon after the Foça public prosecutor decided to close the investigation and before that decision became final. Nevertheless, and despite the applicant’s objection to that effect, the İzmir Assize Court did not overturn the public prosecutor’s decision, which could have enabled this key evidence to be added to the investigation file.

49. The Court notes secondly that no forensic examination was conducted on the applicant’s entry wound; such a test might have revealed some important information regarding the nature of the shot, such as the trajectory of the bullet, the direction from which the bullet came and whether the bullet hit the applicant directly or had ricocheted, as assumed.

50. The Court notes thirdly that although the primary suspects in respect of the applicant’s shooting were the gendarme officers who participated in the firing practice held at the 7th Gendarmerie Commando Regiment on the evening of 14 October 2008, at no point during the investigation did the Foça public prosecutor question any military officers, nor did he carry out an on-site examination within the military compound (in particular around the shooting ranges) to secure evidence that might have served to establish the facts, including whether the military authorities had acted recklessly in the planning or undertaking of the firing practice, which possibility was never considered by the Foça public prosecutor.

51. The Court considers that in the absence of these basic and crucial investigative steps, the Foça public prosecutor’s conclusions regarding the incident were founded on an incomplete analysis of the relevant facts. The Court stresses in this connection that contrary to the Foça public prosecutor’s finding that the applicant had been shot accidentally by a bullet that had ricocheted during the military firing practice, the İzmir Administrative Court found no evidence to establish the causal link between the firing practice and the applicant’s shooting (see paragraph 21 above), despite the lesser standard of proof involved in administrative proceedings for compensation. The Court therefore considers that the investigation conducted by the Foça public prosecutor was not sufficiently thorough and, consequently, the circumstances in which the applicant was wounded continued to remain suspicious.

52. The Court reiterates once again that regardless of how an offence is classified in domestic law and what that classification entails in procedural terms, the national authorities’ obligation under Article 2 to carry out an investigation ex proprio motu persists as long as all reasonable measures have not been taken to establish the facts, regardless of whether or not a formal complaint has been lodged by the victim or his or her next of kin, and regardless of whether or not death results (see Yaşa, cited above, 100; Menson and Others, cited above; and Angelova and Iliev, cited above, § 98). Therefore, the applicant’s stance regarding the investigation did not remove the State authorities’ obligation to ascertain the circumstances in which the incident took place. This is particularly so considering that the applicant’s statement that he did not wish to bring a criminal complaint against any particular person did not necessarily mean that he wished the investigation to be closed altogether before the establishment of the facts, as he made clear in his subsequent objection to the public prosecutor’s decision.

53. In the light of the foregoing, the Court considers that the domestic authorities failed to conduct an effective and adequate investigation into the applicant’s shooting and thus to provide the judicial response required by the incident. The Court further considers that the failure of the investigating authorities to establish the facts surrounding the applicant’s shooting also prevented the latter from pursuing any civil remedies, because - without the benefit of an effective criminal enquiry - the applicant did not have the means to establish civil liability on the part of the military authorities or any other possible suspect, as demonstrated in the proceedings before the İzmir Administrative Court (see Jelić v. Croatia, no. 57856/11, § 64, 12 June 2014, and, a contrario, Stoyanovi v. Bulgaria, no. 42980/04, § 68, 9 November 2010).

54. The Court therefore dismisses the Government’s objection that domestic remedies were not exhausted and concludes that there has been a violation of Article 2 of the Convention in its procedural aspect.

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

55. The applicant also complained of a violation of Article 1 of Protocol No. 1 to the Convention, without, however, substantiating his complaint in any way. In these circumstances, this complaint must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

56. 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

57. The applicant claimed 3,917.16 Turkish liras (TRY), which is the equivalent of approximately 1,690.50 euros (EUR), in respect of pecuniary damage to account for his loss of income during the period between 14 October 2008 and 18 March 2009, when he was not able to work due to his continuing medical treatment. He also claimed EUR 30,000 in respect of non-pecuniary damage.

58. The Government claimed that there was no causal link between the alleged violation of the Convention and the pecuniary compensation claimed by the applicant and that his claim in respect of non-pecuniary damage was ill-founded and excessive.

59. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 20,000 in respect of non-pecuniary damage.

B. Costs and expenses

60. The applicant also claimed TRY 6,000 (the equivalent of approximately EUR 2,590) for lawyer’s fees, in support of which he presented a legal services agreement concluded with his representative. He also claimed EUR 772.33 for translation costs and submitted a document prepared by the translator regarding the total amount due for translation services, which was not accompanied by an invoice or any other document proving that the relevant amount had actually been paid.

61. The Government contested those claims, deeming them unsubstantiated.

62. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,590, covering only the lawyer’s fees.

C. Default interest

63. The Court considers it appropriate that the default interest rate 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,

1. Joins the Government’s objection as to the non-exhaustion of domestic remedies to the merits of the complaint under Article 2 of the Convention and dismisses it;

2. Declares the complaint under Article 2 of the Convention regarding the ineffectiveness of the investigation into the applicant’s shooting admissible and the remainder of the application inadmissible;

3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;

4. Holds

(a) that the respondent State is to pay the applicant, 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 the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,590 (two thousand five hundred and ninety euros), plus any tax that may be chargeable to the applicant, 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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 30 August 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Julia Laffranque
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> TOPTANIS v. TURKEY - 61170/09 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2016] ECHR 713 (30 August 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/713.html Cite as: [2016] ECHR 713