MIHDI PERINCEK v. TURKEY - 54915/09 (Judgment : Article 2 - Right to life : Second Section) [2018] ECHR 436 (29 May 2018)

In the case of Mihdi Perinçek v. Turkey,

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

Robert Spano, President,
Paul Lemmens,
Işıl Karakaş,
Nebojša Vučinić,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 7 May 2018,

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

PROCEDURE

1. The case originated in an application (no. 54915/09) 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 Mihdi Perinçek ("the applicant"), on 13 October 2009.

2. The applicant, who had been granted legal aid, was represented by Mr Tugay Bek and Mr Mustafa Çinkılıç, lawyers practising in Adana. The Turkish Government ("the Government") were represented by their Agent.

3. The applicant alleged, in particular, that his son, Şiyar Perinçek, had been killed by police officers in breach of Article 2 of the Convention and that the national authorities had failed to carry out an effective investigation into the killing.

4. On 30 March 2012 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1957 and lives in Diyarbakır.

6. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.

7. According to an incident report prepared by eight police officers on 28 May 2004, the authorities had obtained intelligence which suggested that at 3 p.m. on 28 May 2004 two members of the PKK (Workers' Party of Kurdistan, an armed illegal organisation) would go to Adana, a big city in southern Turkey, on a motorbike in order to carry out terror attacks in shopping malls, the police headquarters and the courthouse. According to the intelligence, the code names of the two persons were "Küçük Şiyar" and "Botan", and before carrying out the attacks they would meet outside a mosque in Adana.

8. Police officers, who had started taking security measures to stop and apprehend the two persons outside the mosque in question, received information at around 2.30 p.m. on 28 May 2004 that a red motorbike with two persons on it had been observed and was on its way towards the mosque. However, on their arrival outside the mosque the persons on the motorbike noticed the police presence in the area and drove on without stopping. The police officers gave chase in police cars and "Küçük Şiyar", who was sitting on the back of the motorbike, drew his pistol and pointed it at a police car. The police car then hit the motorbike and the two persons fell to the ground. "Küçük Şiyar" stood up and fired at the police officers. The police officers returned fire and "Küçük Şiyar" fell to the ground. When the police officers realised that he was injured, they called an ambulance and sent him to hospital. The driver of the motorbike managed to flee the scene after falling from the motorbike.

9. The second suspect, "Botan", was arrested outside the mosque by a number of different police officers while he was waiting for "Küçük Şiyar". He was subsequently identified as M.G.A.

10. It appears from another report prepared by different police officers that at 3 p.m. on the same day a police chief and three police officers arrived at the scene of the incident after "Küçük Şiyar" had been shot but before he was taken to hospital. The four police officers noticed a pistol of 9 mm calibre with five bullets inside lying some 1.5 to 2 metres away from "Küçük Şiyar." When the four police officers searched a bag they noticed on the motorbike they found a hand grenade. According to the report, the pistol, the hand grenade and the motorbike were then taken away by the four officers in order not to hinder the flow of traffic and to prevent panic among the public, as the incident had occurred on a busy street.

11. "Küçük Şiyar" was admitted to the hospital at 3 p.m. The doctors noted a bullet entry wound on his back and considered his condition to be life-threatening. He was taken into the operating theatre. Police officers at the hospital carried out a search of the pockets of the clothes worn by "Küçük Şiyar" and found 900 United States dollars and a handwritten note containing the scribbled words "800 g. potassium chloride" and "susceptible to friction and impact". Neither his name nor his code name was written in any of the hospital records as they were not known to the hospital personnel at the time.

12. Crime-scene investigators arrived at the scene of the incident at 3.10 p.m. on the same day and conducted a search. According to a report prepared by the crime-scene investigators at 6.45 p.m. the same day, the motorbike was still at the scene of the incident on their arrival. During their search the crime-scene investigators found two 9 mm spent bullet cases and secured them as evidence. It was stated in the report that there were no other items of evidence such as "a bullet, blood[stains], [or] bullet marks". It was also stated in the same report that swab samples had been taken from the hands of the injured person after his operation at the hospital.

13. According to a police report, on the same evening the driver of the motorbike, who was subsequently identified as M.N.B., was arrested by police officers. Moreover, on the same evening a certain M.K., who was suspected of having provided logistical support to the two men, was also arrested. M.K., who was shown a photograph of "Küçük Şiyar" that had been taken at the hospital, identified him as a person who had stayed at his house together with M.N.B. on the evening of 27 May 2004.

14. The pistol found next to "Küçük Şiyar" was examined by the forensic authorities and it was established that it had been used in another armed attack in Adana on 18 March 2004. The two spent bullet cases found at the scene (see paragraph 12 above) were also examined and it was established that they had been discharged from that pistol.

15. On 30 May 2004 "Küçük Şiyar" died at the hospital. His body was transferred to the Forensic Medicine Institute in order that a post-mortem examination could be carried out.

16. At 6.45 p.m. on 31 May 2004 M.N.B. was questioned at a police station. He told police officers that on 28 May 2004 "Küçük Şiyar" had asked him to give him a lift to Sabancı Mosque and that he had complied with that request. On their way to the mosque, "Küçük Şiyar" had asked him to take him to the courthouse instead, and shortly afterwards their motorbike had been hit by a car from behind and he had fled the scene.

17. On 1 June 2004 the prosecutor sent a letter to the hospital and asked for "the clothes of the as yet unidentified person who [had] died at the hospital on 30 May 2004" to be sent to him so that they could be forwarded to the forensic authorities for examination. On the same day the hospital informed the prosecutor that the clothes had been given to the police officers at the hospital when the injured person had been taken into the operating theatre. On the same day the prosecutor wrote to the police headquarters, asking them to return those clothes to his office urgently. In their reply of 3 June 2004 the police informed the prosecutor that the clothes had not been "handed over to the police headquarters".

18. The police forensic laboratories prepared a report on 2 June 2004 pertaining to the examination of swab samples which had apparently been taken from the hands of M.N.B., M.K., M.G.A and a certain İ.T. and which had been sent to the laboratory "in an envelope". It was established in the report that there were gunpowder residues on the swab samples taken from the hands of M.N.B. and İ.T. No gunpowder residues had been found on the swab samples taken from the hands of M.K. or M.G.A.

19. On 3 June 2004 the applicant went to the hospital, where he was shown the body of "Küçük Şiyar" which he identified as that of his son, Şiyar Perinçek, born in 1979. The applicant stated that his son had been studying at a university in Ankara and that he and his family had not heard from him in six years. The applicant added that he had been informed by an anonymous telephone caller the previous day that his son had been killed in Adana. The body of his son was released to the applicant the same day.

20. On the same day the police informed the prosecutor that the person who had initially been considered to be İ.T. and had been referred to as İ.T. in the Police Laboratory's report of 2 June 2004 (see paragraph 18 above) was in fact the applicant's son, Şiyar Perinçek.

21. Also on the same day, the Adana Branch of the Human Rights Association, a non-governmental organisation, submitted a petition to the prosecutor's office. It was alleged in the petition that the shooting incident had taken place outside its offices and been witnessed by a number of people. According to those eyewitnesses, an unmarked car following a motorbike had drawn up next to the motorbike and the car's door had opened, causing the two passengers on the motorbike to fall to the ground. One of the persons had stood up and started to run away and a person who had come out of the unmarked vehicle had put his knee in the small of the back of the person on the ground and fired two bullets into his back. That person had then collected the two spent bullet cases discharged from his pistol and put them in his coat pocket. Afterwards, according to the Human Rights Association, instead of taking the injured person to hospital, they had hauled him into a car and taken him to a number of locations. The other person on the motorbike, M.N.B., had tried to flee the scene but had been apprehended by the police and taken to a police station, where he had been subjected to serious ill-treatment. The petitioners requested the prosecutor to carry out an in-depth investigation into their allegations and to ensure that a detailed post-mortem examination would be conducted on the body.

22. On 16 June 2004 the prosecutor asked the Adana police headquarters to provide the names of the police officers who had been involved in the shooting incident on 28 May 2004 and to ensure their attendance in his office for questioning. The prosecutor also asked to be provided with copies of the forensic reports pertaining to the examinations conducted on the weapons used during the incident. The prosecutor was subsequently provided with the forensic reports summarised above (see paragraphs 14 and 18). The police also informed the prosecutor that the pistol used by the police officer in the shooting had not been forensically examined.

23. On 6 July 2004 the prosecutor questioned T.S., one of the police officers who had been at the hospital when the applicant's son had been taken there. T.S. told the prosecutor that, although he had secured as evidence the money and the other items found in the pockets of Şiyar Perinçek, he had not taken away his clothes.

24. K.K., also a police officer, who was questioned the following day, told the prosecutor that Şiyar Perinçek's clothes had been removed before Şiyar Perinçek had been taken into the operating theatre and that they had then been taken away by a plainclothes police officer, D.A.Y., in a black plastic bag. K.K. also gave the prosecutor a copy of the hospital ledgers, according to which the clothes had been handed over to a police officer. The prosecutor was subsequently informed on the same day that D.A.Y. had left for his annual leave for a month and could not therefore be questioned.

25. On 7 July 2004 the police headquarters forwarded to the prosecutor the names of the eight officers who had taken part in the incident of 28 May 2004 and who had also prepared the incident report on the same day (see paragraphs 7-�8 above).

26. On 9 July 2004 seven of the eight police officers mentioned in the preceding paragraph were questioned by the prosecutor as witnesses, while the eighth officer, D.Ö. - a police chief - was questioned as a suspect. D.Ö. told the prosecutor that the police had received intelligence on the day in question that two terrorists would carry out bomb attacks in Adana and that they had therefore taken the necessary precautionary measures around a mosque, where the two terrorists were to meet. When a motorbike with two persons on it fitting the description given to the police had arrived outside the mosque, the persons on the motorbike had noticed the police presence and driven on without stopping. D.Ö. and his seven colleagues in two unmarked police cars and a police motorbike had then given chase. As the person sitting on the back of the motorbike had drawn his pistol and aimed it at the officers riding on the police motorbike and in the other police car, D.Ö. had asked the driver of the vehicle in which he was travelling to approach the motorbike from its side and to hit it. The driver had complied and the two persons on the motorbike had fallen to the ground. D.Ö. had then got out of the car and told the two persons to surrender. The driver of the motorbike had managed to run away and the second person on the motorbike had fired two rounds towards D.Ö. D.Ö. had then fired towards him and at that moment one of the other police officers had jumped on the person and apprehended him. No other police officer had fired a weapon during the incident. Upon realising that the person had been injured, he and his colleagues had called an ambulance and transferred that person to hospital. D.Ö. denied the allegation that he had put his knee in the small of the back of the person on the ground and fired two bullets into his back (see paragraph 21 above), and told the prosecutor that if he had not shot the person, the person would have shot him. He had therefore acted within the statutory limits regulating the use of force and had not intended to kill the person.

27. The remaining seven officers made similar statements and denied the allegation that M.N.B. had been arrested at the place of the incident or that he had been ill-treated.

28. On 13 July 2004 the applicant joined the criminal investigation as an intervener.

29. A security guard who had been on duty at the hospital on 28 May 2004 told the prosecutor on 14 July 2004 that the applicant's son had been taken into the operating theatre with his clothes on and that shortly afterwards the personnel in the operating theatre had removed those clothes and given them to plainclothes police officers from the anti-terrorism department waiting at the hospital. Although the contents of the applicant's son's pockets had been listed in an official document (see paragraph 11 above) and then handed over to the police officers, the clothes had not been listed in the document.

30. On 16 July 2004 the prosecutor filed an indictment with the Adana Assize Court (hereinafter "the trial court") and charged the police chief, D.Ö. (see paragraph 26 above), with the offence of manslaughter on account of the killing of the applicant's son. In the same indictment the prosecutor charged two other police chiefs with the offence of ill-treatment in respect of M.N.B.'s allegations (see paragraph 21 above). The applicant joined the criminal proceedings as an intervener.

31. On 27 August 2004 Amnesty International urged the national judicial authorities to carry out an effective investigation and to establish the full circumstances of the incident. The United Nations' Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions also requested the Turkish Government to be provided with information concerning the killing.

32. During the hearing held on 21 December 2004 the applicant, with the assistance of the lawyers representing him, submitted his written observations to the trial court. The applicant argued that the version of the events concerning the shooting proffered by the defendant police officer did not represent the truth. He maintained that his son had been unarmed at the time of the shooting and alleged that the police officers had shot him at close range. He alleged that the police officers had been covering their tracks by destroying the evidence and that the clothes his son had been wearing at the time of his shooting had been taken away and lost by the police officers. The applicant also argued that, before the crime-scene officers had arrived at the scene of the incident, important evidence had been removed by another group of police officers (see paragraph 10 above). Moreover, although according to the report prepared by those police officers both pistols, the hand grenades and the motorbike had been taken away by them before the arrival of the crime-scene officers, according to the crime-�scene officers' report the motorbike had still been at the scene on their arrival (see paragraph 12 above).

33. The applicant also criticised the method by which swab samples had been taken from the hands of his son. He argued in that connection that swab samples taken from the hands of a number of persons had been put in the same envelope (see paragraph 18 above) as that containing his son's swab samples, which had caused the various swab samples to contaminate each other. Moreover, the forensic report pertaining to the examination of the swab samples allegedly taken from the hands of his son had not mentioned his son's name but the name of İ.T. It was not possible, therefore, to accept that the swab samples with gunpowder residue had been taken from the hands of his son. The applicant informed the trial court that İ.T. had been on trial for terrorism-related offences and that it would not have been logical for his son to carry a wanted person's identity card. The applicant also informed the trial court that İ.T. had been killed by the security forces on 29 June 2004.

34. The applicant argued that inconsistencies and irregularities such as the foregoing cast doubt on the accuracy and reliability of the investigation and showed that the police officers had manipulated the evidence. In this connection the applicant argued that it was highly suspicious that the bullet and the spent bullet case discharged from the defendant police chief's pistol had not been recovered; in fact, there was no mention in any of the crime scene reports that the forensic authorities had even searched for that bullet or the spent bullet case. Similarly, the defendant police officer's pistol had not been subjected to any forensic examinations after the incident.

35. During the trial M.N.B. maintained that on the day in question he had been about to go to Adana city centre on his motorbike when the applicant's son had asked him for a lift. While riding the motorbike towards the city, he had stopped at a set of traffic lights and at that moment a car had hit them and they had fallen to the ground. At the time he had thought that they were about to be robbed and had panicked. Then he had heard gunfire and seen Şiyar Perinçek falling to the ground. A number of men had then apprehended both him and Şiyar. M.N.B. denied that Şiyar Perinçek had been armed or that he had fired at the police officers or that he had been carrying a bag on the motorbike (see paragraph 10 above).

36. On 3 December 2004 the report pertaining to the post-mortem examination conducted on the body of the applicant's son on 30 May 2004 was forwarded to the trial court. According to the report, there was a bullet entry hole under his left armpit and a bullet exit hole in the right scapula. The doctors considered that death had been caused by the destruction of the internal organs and the ensuing medical complications. It was also stated in the post-mortem report that the applicant's son had been shot through his clothes and that the distance from which he had been shot could not therefore be calculated, since the clothes worn by the deceased at the time of his shooting would have to be examined in order establish that distance.

37. During one of the hearings K.K. - the police officer who had told the prosecutor on 7 July 2004 that Şiyar Perinçek's clothes had been taken away from the hospital by his colleague, D.A.Y. (see paragraph 24 above) - was examined by the trial court. This time K.K. told the trial court that Şiyar Perinçek had gone into the operating theatre with his clothes on and that his clothes had never been handed over to a police officer afterwards. The lawyers representing the applicant argued, in response, that the information in K.K.'s statement of 7 July 2004 had been unambiguous and alleged that K.K. had changed his story to protect his fellow colleagues. They stated that they would lodge a formal complaint against K.K. and his colleagues for obstructing the course of justice.

38. Subsequently the applicant's lawyers informed the trial court that at their instigation an investigation had been opened into their allegations against the police officers and that a number of people working at the hospital at the time of the events had been questioned by a prosecutor. During the questioning the hospital personnel had told the prosecutor that Şiyar Perinçek's clothes had been removed in the operating theatre and handed over to the police officers, who had been very anxious to take them away. The lawyers argued that the insistence of the police officers on taking the clothes away and their subsequently losing them proved that there had not been a shootout between Şiyar Perinçek and the police officers but that the police officers had shot Şiyar Perinçek at close range.

39. The defendant police officer, D.Ö., submitted his final written defence arguments to the trial court and maintained that the lack of burn marks around the bullet entry hole showed that he had not shot Şiyar Perinçek at close range. Şiyar Perinçek had not heeded his warnings to surrender and had instead opened fire on him. Thus, by shooting back he had acted in self-defence.

40. In his submissions to the trial court the prosecutor also argued that the defendant police officer had acted in self-defence.

41. On 6 March 2007 the applicant submitted his final arguments to the trial court. He repeated his earlier arguments and complaints and alleged that his son had been shot at close range. He invited the trial court to examine the autopsy report in detail with a view to establishing the distance from which his son had been shot. He submitted that the clothes his son had been wearing had been taken away by police officers with a view to hiding the fact that they had shot his son at close range. He argued that in the absence of the clothes, the sizes of the bullet entry and exit holes could help to ascertain the distance from which his son had been shot. The applicant also informed the trial court that the police officers working at the hospital had since been indicted and put on trial for neglecting their duties by losing his son's clothes.

42. In its judgment of 6 March 2007 the trial court acquitted the defendant police officer, as it considered that the police officer had acted in self-�defence and had used proportionate force. The trial court concluded that the applicant's son had been a member of a terrorist organisation and had come to Adana to carry out terrorist attacks. When the police officers had given chase to the motorbike, he had fired two rounds towards the police officers. The defendant police officer had then fired one round and injured the applicant's son, and he had subsequently died in hospital. After the incident the police officers had found explosives in a bag on the motorbike. The pistol used by the applicant's son and two spent cartridges had also been recovered at the site of the incident. The clothes worn by the applicant's son at the time of the shooting had got lost during "the commotion at the hospital" and it had not therefore been possible to establish the distance from which he had been shot. However, as there had been no burns or gunpowder on and around the injury, it was apparent that he had not been shot at close range.

43. The applicant appealed against the judgment and repeated his earlier arguments. He complained that his arguments concerning defects in the investigation had not been taken into account by the trial court. Given that there was a large amount of evidence in the file showing that the clothes had been taken away from the hospital by the police officers, the conclusion reached by the trial court, namely that the clothes had got lost during "the commotion at the hospital", was clearly wrong. The applicant also criticised the trial court's conclusion that the shooting had not been carried out at close range because there had been no burn marks around the injury, and argued that no such conclusion could be reached in the absence of the clothes.

44. The appeal lodged by applicant against the judgment was rejected by the Court of Cassation on 5 March 2009. In its one-page decision the Court of Cassation stated that the applicant's arguments that there had been failures in the investigation were not convincing. The decision was returned to the registry of the Adana Assize Court on 15 April 2009.

45. In the meantime, the criminal proceedings which had been brought against three police officers and a private security guard for having neglected their duties by losing Şiyar Perinçek's clothes ended in their acquittal on 7 February 2007. The applicant appealed against their acquittal on 8 February 2007. On 6 June 2011 the Court of Cassation declined to examine the appeal as the offence in question had become statute-barred, and discontinued the criminal proceedings.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

46. The applicant complained that his son had been killed unlawfully and that no effective investigation had been conducted into his killing, in breach of Articles 2, 6 and 13 of the Convention.

47. The Court considers it appropriate to examine the applicant's complaints solely from the standpoint of Article 2 of the Convention, the relevant parts of which read as follows:

"1. Everyone's right to life shall be protected 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;

48. The Government contested that argument.

A. Admissibility

49. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The applicant

50. The applicant complained that his son had been unarmed at the time of the incident and had been deliberately killed after being apprehended. He alleged that the police officers had destroyed crucial evidence in order to cover up their tracks and that the investigation and the trial had not been conducted in an effective fashion.

2. The Government

51. The Government argued that when the applicant's son had pointed his pistol towards the police officers, the police chief, D.Ö., had shouted and warned him to "stop, police, surrender!". However, the applicant's son had pointed his pistol towards the police officers again and fired two rounds. Then D.Ö. had fired a single shot and injured the applicant's son. In the opinion of the Government, the security forces resorting to the use of force in the instant case had become absolutely necessary and the degree of force had been proportionate to the aim pursued. Thus, the conditions "to protect someone against illegal violence or to ensure that a person is apprehended in line with the procedures specified in Article 2 § 2 (a) and (b) of the Convention" had been met in the present case.

52. Indeed, the Adana Assize Court had acquitted the police chief on the grounds that he had used his pistol in self-defence, within the meaning of the Turkish Criminal Code. The Assize Court had reached its conclusion cautiously and had also examined whether the police officer had shot the applicant's son at point-blank range or from a short distance.

53. A separate investigation had been conducted by the prosecutor in order to find the clothes the applicant's son had been wearing during the incident. In this connection, the obligation to conduct an effective investigation was not an obligation of result but of means; the prosecutor had taken all reasonable measures to find the clothes.

54. The applicant's son's pistol had been secured after the incident and when the two spent bullet cases found at the crime scene had been forensically examined, it had been established that they had been fired from the applicant's son's pistol. The bomb found at the scene had also been examined and dismantled by bomb disposal experts.

55. The authorities had carried out all necessary procedures required by the case-�law of the Court. The investigation had been promptly instigated and conducted by an independent and impartial prosecutor in a transparent manner and within two months. Initial crime scene examinations had been carried out by police officers who had not been among the officers involved in the incident; thus it had been ensured that the police officers involved in the incident would not exercise influence over the investigation. The police officers involved in the incident had been working in the intelligence branch of the police, whereas the police officers who had collected the evidence from the scene had been from the anti-terrorism department, which was a separate unit. Subsequently the crime scene examination team had arrived and carried out a thorough examination of the scene, upon the instructions of the prosecutor. Thus, the applicant's claim that the evidence had been destroyed by police officers had not reflected the reality.

56. In the course of the investigation the crime scene had been secured and subjected to a detailed examination. Swab samples had been taken from the hands of the applicant's son. The prosecutor had personally interrogated a number of people, including the police officers and other persons involved in the incident. A criminal trial had been initiated before the Assize Court.

57. In the course of the investigation and the trial the applicant had been able to make requests of the prosecutors and of the national courts with the assistance of his lawyers and to exercise his right of appeal against the decisions taken by the authorities.

3. The Court's assessment

58. The Court reiterates that the text of Article 2 of the Convention, 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 subparagraphs (a), (b) or (c). 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 subparagraphs of the Article (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 148-�149, Series A no. 324). It must also be reiterated in this connection that law-enforcement personnel in a democratic society are expected to show a degree of caution in the use of firearms even when dealing with dangerous terrorists (ibid., § 212).

59. The Court should also reiterate that 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 (ibid., § 161-�63). In order to be "effective", as this expression is to be understood in the context of Article 2 of the Convention, an investigation must be adequate. 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 (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 172, 14 April 2015 and the case cited therein).

60. Turning to the circumstances of the present case, the Court notes that it is undisputed between the parties that the applicant's son was killed by a police officer. It follows that the Government bear the burden of proving that the force used by the police officer was no more than absolutely necessary and was strictly proportionate to the achievement of the aims set out in the sub-paragraphs of Article 2 § 2 of the Convention.

61. As the Court has held in a number of comparable judgments, in cases such as the present one where the respondent Government bear the burden of justifying a killing, the examination of the steps taken in an investigation and trial does not only serve the purpose of assessing whether the investigation was in compliance with the requirements of the procedural obligation to conduct effective investigations (which is mentioned above), but also of deciding whether it was capable of leading to the establishment of whether the force used was or was not justified in the circumstances and whether the Government have thus satisfactorily discharged their burden of justifying the killing (see, inter alia, Beker v. Turkey, no. 27866/03, §§ 44 and 53, 24 March 2009; Özcan and Others v. Turkey, no. 18893/05, § 61, 20 April 2010; Gülbahar Özer and Others v. Turkey, no. 44125/06, § 59, 2 July 2013; Cangöz and Others v. Turkey, no. 7469/06, § 115, 26 April 2016; and Karataş and Others v. Turkey, no. 46820/09, § 69, 12 September 2017).

62. In this connection, the Court stresses that when it comes to establishing the facts, and sensitive to the subsidiary nature of its role, it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. As in the present case, where domestic proceedings have taken place, it is not the Court's task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them. Although the Court is not bound by the findings of domestic courts and remains free to make its own appreciation in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (see Mustafa Tunç and Fecire Tunç, cited above, § 182, and the cases cited therein).

63. As detailed above, the police officer who killed the applicant's son was prosecuted and at the end of the criminal proceedings acquitted on the grounds that he had acted in self-defence and that he had used proportionate force. That conclusion was relied on by the respondent Government in their above-summarised observations (see paragraph 52).

64. The Court has examined the criminal investigation conducted by the Adana prosecutor and subsequently the trial conducted before the trial court and its conclusion and considers that the failures highlighted below have a direct bearing on its assessment of whether the conclusions reached by the national judicial authorities can be relied on by the Court or whether there exist cogent elements to lead the Court to depart from the findings of fact reached by those authorities.

65. The Court notes at the outset that there is no information in the file to suggest that the prosecutor went to the place of the incident to ensure that it had been secured and that the evidence therein was preserved and collected by independent experts. Thus, as has happened in a large number of other cases against Turkey concerning killings by members of the security forces, crucial evidence was removed from the incident site by members of the security forces. As set out above, four police officers arrived at the scene immediately after the incident and removed the pistol, the hand grenade and, allegedly, the motorbike (see paragraph 10 above), even though the crime-scene investigators who arrived at the scene after the four police officers noted that the motorbike was still there (see paragraph 12 above). Even if, as argued by the Government, the four police officers worked for a different unit of the police (see paragraph 55 above), the Court considers that they cannot be regarded as independent and impartial and that their removal of crucial evidence from the scene before the arrival of the independent crime-scene investigators was not justifiable, especially given the fact that the crime-scene officers arrived at the scene only ten minutes after them (see paragraphs 10 and 12 above). Moreover, the Court also remains unconvinced that the alleged rationale for the removal of that evidence from the scene, namely that the flow of traffic not be affected or that doing so would prevent panic among the public (see paragraph 10 above), justified interfering with a crime scene and removing crucial evidence from that scene. Alternative methods, such as setting up a police cordon around the scene and keeping the public away from it would have sufficed to alleviate any concerns that might have been entertained about the welfare of the public.

66. The Court considers that the interference with the crime scene and the removal of crucial evidence from it by those four police officers was not only so serious as to taint the independence of the entirety of the criminal proceedings (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 337-�341, ECHR 2007-�II), but also gave rise to the risk that crucial evidence implicating the police officers in the killing would be contaminated, destroyed or ignored (see Cangöz and Others, cited above, § 126 and the cases cited therein). In its examination below of the evidence collected from the scene and in assessing its corroborative value, the Court will take into account that risk.

67. The pistol which was allegedly found at the scene and removed from the scene by the four police officers does not seem to have been examined with a view to establishing whether it had the applicant's son's fingerprints on it. At the time that notice of the application was given, the Court specifically requested the Government to clarify whether the pistol and the hand grenade, allegedly owned by Şiyar Perinçek, had been examined with a view to establishing whether or not they had been handled by him. In reply, the Government submitted that the pistol had been secured after the incident, and when the pistol and the two spent bullet cases found at the crime scene were forensically examined, it was established that they had been fired from the applicant's son's pistol. The bomb found at the scene had also been examined and dismantled by bomb disposal experts (see paragraph 10 above).

68. The Court has examined and summarised above (see paragraph 14) the forensic report on which the Government base their above-�summarised submissions. It notes that there is no mention in that report - and indeed the Government did not seek to argue - that the pistol had been examined with a view to checking whether it had the applicant's son's fingerprints.

69. The Court observes that the failure to carry out fingerprint analyses on weapons found next to the bodies of persons killed by members of the security forces is a recurrent problem in Turkey (see, inter alia, Gülbahar Özer and Others, cited above, § 68; Cangöz and Others, cited above, § 135; Erdoğan and Others v. Turkey, no. 19807/92, § 92, 25 April 2006; Yüksel Erdoğan and Others v. Turkey, no. 57049/00, § 107, 15 February 2007; and Bektaş and Özalp v. Turkey, no. 10036/03, § 68, 20 April 2010). In the opinion of the Court, a search for fingerprints on the pistol should have been the logical starting point for the prosecutor in the investigation. Having regard to the failure to carry out such a simple examination of an item of evidence which played a major role in the trial court reaching its conclusion -�, namely that it had been the applicant's son who had fired first and that the police officer had therefore acted in self-defence and returned fire - the Court harbours doubts about whether the applicant's deceased son handled the pistol and fired at the police officers (see Cangöz and Others, cited above, § 135).

70. Similarly, the Court notes that, apart from a short entry in the crime-scene investigator's report - namely that "swab samples had been taken from the hands of the injured person after his operation at the hospital" - there is no information as to the exact timing or the conditions in which those swab samples were taken. In this connection the Court also observes that the pertinent arguments raised by the applicant about the swab samples taken from four persons having been placed in the same envelope and the fact that the forensic report had mentioned İ.T. (and not the applicant's son) as the person whose hands had had gunpowder residue on them (see paragraph 33 above) were not addressed by the investigating authorities or by the trial court. As a result of those failures, the Court cannot accept the forensic report as unequivocally proving that the applicant's son had fired a weapon (see, mutatis mutandis, Cangöz and Others, cited above, § 122).

71. Another very serious failure in the collection of the evidence was that the defendant police officer's pistol, which was used in the killing of the applicant's son, was never subjected to any forensic examination. Moreover, there is no mention in any of the crime scene reports of the forensic authorities having searched for the bullet or the spent bullet case discharged from that police officer's pistol. Indeed, the applicant raised this failure throughout the proceedings (see paragraph 34, 41 and 43 above) but no reply was given to him. The Court also observes in this connection that there is no information in the file to suggest that the police officer who was charged with the offence of manslaughter on account of the killing of the applicant's son (see paragraph 30 above) was suspended from duty while the trial was being conducted (see, mutatis mutandis, Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004; see also, Savin v. Ukraine, no. 34725/08, § 68, 16 February 2012).

72. In fact, neither the police officer who killed the applicant's son nor the remaining seven police officers who took part in the incident were questioned by the prosecutor until 9 July 2004 - that is some six weeks after the incident. Having reviewed its case-law, the Court observes that one of the common features of investigations conducted by prosecutors in Turkey into killings by members of the security forces is a failure to question the perpetrators in a timely manner or to question them at all (see, most recently, Karataş and Others, cited above, § 77 and the cases cited therein).

73. For the Court, the failure to promptly question the main suspects in an investigation into a killing, as happened in the present case, constitutes not only a serious failure to comply with one of the most important tenets of an effective investigation required by the procedural obligation under Article 2 of the Convention, but also has negative repercussions on the establishment of the truth. The Court also considers that this failure exemplifies the attitudes displayed by the judicial authorities throughout the investigation and the trial, who accepted at face value the information given by the police officers and did not look beyond what was stated in the police reports (see Cangöz and Others, cited above, § 128).

74. Moreover, it cannot be excluded that the failure to question the police officers in a timely manner created an appearance of collusion between the judicial authorities and the police, and was also conducive to leading the relatives of the deceased - as well as the public in general - to form the opinion that members of the security forces operate in a vacuum in which they are not accountable to the judicial authorities for their actions (see Bektaş and Özalp, cited above, § 65 and Ramsahai and Others, cited above, § 330).

75. An equally important failure in the investigation was the loss of the applicant's son's clothes. The Court notes that when brought to the hospital the applicant's son had his clothes on and according to the various statements by personnel on duty at the time, those clothes were removed in the operating theatre. They subsequently went missing and were never found. Although in their statements before the prosecutor the police officers and security guards working at the hospital stated that the clothes had been handed over to the police officers from the anti-terrorism branch (see paragraphs 24 and 29 above), some of them subsequently changed their statements (see paragraph 37 above). The civilian personnel maintained, however, that the clothes had been handed over to police officers (see paragraph 38 above).

76. The criminal proceedings brought against a number of suspects for losing the clothes and thereby neglecting their duties were discontinued on account of alleged offence having become time-barred (see paragraph 45 above). In any event, it is not the Court's task to ascertain whether any individual's actions or omissions led to the disappearance of the clothes; the Court's task in this particular case is to examine whether there existed an adequate mechanism or a system capable of preserving such an important item of evidence in a case of killing perpetrated by an agent of the State. Having examined all the material in its possession, the Court notes that no meaningful steps were taken to secure the clothes which, as the Forensic Medicine Institute remarked in its report, would have been needed to establish the distance from which the applicant's son had been shot (see paragraph 36 above) and to allow for an examination to be made of the accuracy of the allegations raised by the applicant that his son had been killed unlawfully, at close range and without any shootout having taken place (see paragraphs 32, 41 and 43 above). In this connection the Court also cannot but note that the trial court did not make any references to the numerous statements given by the eyewitnesses who saw the clothes being handed over to the police officers at the hospital, but simply concluded that the clothes had got lost "during the commotion at the hospital".

77. This particular failure is also symptomatic of a pattern of failures the Court has had the occasion to examine in its judgments in cases which concern killings in Turkey by agents of the State. The Court has on a number of occasions noted the practice of destroying or failing to secure in evidence the clothes of individuals killed by law-enforcement officials (see, inter alia, Karataş and Others, cited above, §§ 83-84; Cangöz and Others, cited above, §§ 133 and 134; Erdoğan and Others, cited above, §§ 61, 80 and 93; Gülbahar Özer and Others, cited above, §§ 19 and 67; and Kavaklıoğlu and Others v. Turkey, no. 15397/02, § 86, 6 October 2015).

78. In this connection the Court questions the logic behind the conclusion reached by the trial court, namely that the absence of burns around the bullet entry mark indicated that the applicant's son had not been shot at close range, when according to the Forensic Medicine Institute's expert opinion, the applicant's son had been shot through a clothed part of his body and therefore the clothes would be needed to establish the distance from which the deceased had been shot. It is therefore unconvinced by the Government's above-mentioned submission that the Assize Court had reached its conclusion cautiously after examining whether the police officer had shot the applicant's son at point-�blank range or from a short distance (see paragraph 52 above).

79. Finally, the Court has taken note of the fact that it took the Court of Cassation two years to reject, in a one-page decision, the appeal lodged by the applicant (see paragraph 44 above), without making any attempts to reply to any of the failures in the investigation highlighted by the applicant in his appeal petition (see paragraph 43 above).

80. In the light of the foregoing the Court finds that the investigation and the trial conducted at the national level were so manifestly inadequate and left so many obvious questions unanswered that they are not capable of establishing the true facts surrounding the killing and the Court is unable to rely on the conclusion reached at the end of those proceedings (see Cangöz and Others, cited above, § 138 and the cases cited therein). The Court finds, therefore, that the Government have failed to discharge their burden of proving that the killing of the applicant's son constituted a use of force which was no more than absolutely necessary and that it was a proportionate means of achieving the purposes advanced by them.

81. It follows that there has been a violation of Article 2 of the Convention in its substantive and procedural aspects in respect of the killing of the applicant's son.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

82. The applicant claimed 100,000 euros (EUR) in respect of pecuniary and EUR 50,000 in respect of non-pecuniary damage.

83. The Government were of the opinion that there was no causal link between the alleged violation of the Convention and the claim for pecuniary damage. They also considered that sum to be excessive and ill-�founded. Concerning the claim for non-pecuniary damage, the Government argued that that sum was excessive and that the applicant had failed to prove that he had suffered consequences which could lead to the awarding of the requested non-�pecuniary compensation.

84. Having regard to its above-mentioned conclusion that the applicant's son was killed by a police officer, in breach of Article 2 of the Convention, the Court considers that there could have been a causal link between the violation found and the pecuniary damage alleged. However, having regard to the applicant's failure to submit any evidence or other information in support of his claim for pecuniary damage, the Court rejects his claim.

85. Having regard to the applicant's suffering on account of the killing of his son by the police officer which, contrary to the Government's submissions, does not require substantiation, coupled with the national authorities' failure to conduct an effective investigation into the killing, the Court awards the applicant the sum claimed by him in respect of non-pecuniary damage.

86. The applicant also claimed a total of EUR 3,400 for the costs and expenses incurred before the Court. EUR 2,833 of this sum was claimed in respect of the fees of his lawyers and the remainder in respect of translation costs.

87. The Government argued that the sums claimed by the applicant under this heading were also excessive and unsupported by any documentary evidence.

88. According to the Court's case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the applicant has not substantiated that he has actually incurred the costs claimed. For example, in support of his claim for the fees of his lawyers, he failed to submit documentary evidence, such as a contract, a fee agreement or a breakdown of the hours spent by his lawyers on the case. Similarly, in respect of his claim for translation costs he did not submit any bills. Accordingly, the Court makes no award in respect of the costs and expenses claimed by the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 2 of the Convention in its substantive and procedural aspects;

3. 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, EUR 50,000 (fifty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 29 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıRobert Spano
Deputy RegistrarPresident

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You are here: BAILII >> Databases >> European Court of Human Rights >> MIHDI PERINCEK v. TURKEY - 54915/09 (Judgment : Article 2 - Right to life : Second Section) [2018] ECHR 436 (29 May 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/436.html Cite as: ECLI:CE:ECHR:2018:0529JUD005491509, [2018] ECHR 436, CE:ECHR:2018:0529JUD005491509