SECOND SECTION
CASE OF ABDULLAH YAŞA AND OTHERS v. TURKEY
(Application no. 44827/08)
JUDGMENT
STRASBOURG
16 July 2013
FINAL
16/10/2013
This judgment is final but it may be subject to editorial revision.
In the case of Abdullah Yaşa and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, Judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 25 June 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 44827/08) 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 three Turkish nationals, Mr Abdullah Yaşa, Mr Eşref Yaşa and Ms Sahile Yaşa (“the applicants”), on 10 September 2008. The applicant Abdullah Yaşa is the son of Mr Eşref Yaşa and Ms Sahile Yaşa.
2. The applicants were represented by Ms R. Yalçindağ Baydemir, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicants complained, in particular, of the trauma inflicted on Abdullah Yaşa by a tear-gas grenade and of the lack of an effective investigation of the police officers responsible.
4. On 20 September 2011 the application was declared partly inadmissible in respect of the second and third applicants. Furthermore, the complaints under Articles 3 and 13 of the Convention concerning the applicant Abdullah Yaşa were communicated to the Government. It was also decided that the Chamber would examine the merits of the application at the same time as its admissibility (Article 29 § 1 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant, Mr Abdullah Yaşa (“A.Y.”), a Turkish national, was born in 1993 and lives in Diyarbakır. He was thirteen years old at the time of the events to which the present case relates.
A. The 29 March 2006 incident
6. Following the deaths of fourteen members of the PKK (the Kurdistan Workers’ Party) during an armed clash on 24 March 2006, numerous unlawful demonstrations took place in Diyarbakır between 28 and 31 March 2006, during which eleven demonstrators died. In particular, two persons, namely T. Atakkaya and M. Mızrak, were killed by tear-gas grenades in the course of these events.
7. On 29 March 2006 A.Y., who was at the scene of a demonstration, was injured in the nose by a tear-gas grenade fired by the police while he was allegedly on his way to his aunt’s house. He was taken to the Diyarbakır public hospital the same day.
8. On 5 April 2006 A.Y. left hospital, where he had undergone an operation for a maxillo-facial trauma on the day of his arrival, according to the discharge report.
9. On 14 April 2006 the applicant lodged a complaint with the Diyarbakır public prosecutor’s office (the “public prosecutor’s office”) against the police officers of the Diyarbakır security police headquarters, alleging assault and abuse of power. He explained that he had been hit directly on the nose by a tear-gas grenade.
10. On 2 August 2006 the public prosecutor’s office interviewed the applicant and his father and mother. A.Y.’s father said that he had been at work at the time of the incident and demanded the conviction of the police officers responsible for the assault on his son.
11. In her depositions the same day, A.Y.’s mother stated that she had been at home at the time of the incident, and she also demanded the conviction of the police officers responsible for her son’s injuries.
12. In substance, A.Y. himself testified as follows: while on his way to his aunt’s house he had been hit on the nose by an object as he was watching the police officers. At the time of the incident he had seen the helmeted police officers shooting a projectile in his direction by means of a shoulder-borne device. He had been unable to identify his exact position at the time of the incident, nor had he previously seen anyone throwing objects at the police officers. He did not think that the police officers could have shot at him without noticing his presence, since they had seen him when he had been in the street. He did not know the police officer who had shot at him. He requested the identification and punishment of this officer. He had been taken to hospital by a stranger.
13. His lawyer, having confirmed his statements, requested the formulation of a forensic report and the submission of medical reports from Diyarbakır public hospital. He also requested the identification of the police officers involved on the day of the incident.
14. On 6 November 2007 the public prosecutor’s office issued the following decision not to prosecute:
“... It emerged from the inquiries launched after the complaint ... that A.Y. had not been injured on his way to his aunt’s house. According to video recordings ... and photographs ... the complainant was injured during a demonstration in which he had been actively participating by chanting slogans in support of the PKK terrorist organisation and its leader Abdullah Öcalan, and throwing stones, sticks and Molotov cocktails at the police officers.
Consequently, the police officers were not criminally liable because they had acted in self-defence within the meaning of Article 25 § 1 of the Criminal Code, and in the exercise of their functions as set out in Article 24 of the same Code. [They] had shot tear-gas grenades in order to disperse the demonstrators who had gathered illegally and were attacking the officers by throwing stones, sticks and Molotov cocktails.
In the light of the foregoing comments ... no action is required against the police officers accused of overstepping the bounds of the use of force ....”
15. On 13 November 2006 the Diyarbakır Department of Forensic Medicine issued a medical report reading as follows:
“... A.Y. underwent operations on a haemorrhage, a facial oedema, a fractured nose bone and a series of concave incisions.
Conclusion:
The patient cannot be treated by means of a straightforward operation,
His condition is not life-threatening,
The bone fractures constitute moderately severe damage to the applicant’s vital body functions.”
16. On 3 December 2007 the applicant appealed to the Siverek Assize Court (“the Assize Court”) against the decision not to prosecute. He denied his alleged participation in the demonstration in question and argued that the video recordings and photographs on which the decision not to prosecute had been based in no way constituted sufficient evidence of such participation.
17. By a decision of 31 December 2007, served on the applicant on 10 March 2008, the President of the Assize Court dismissed the appeal. It considered that the police officers’ acts had remained within the framework of the law, since the officers had not acted intentionally but had merely endeavoured to discharge their duties.
B. Criminal proceedings against the applicant in the Youth Assize Court
18. It emerges from the case-file that an investigation was automatically launched in respect of the applicant for his alleged participation in an illegal demonstration. On 28 November 2007, as part of this investigation, he was questioned by the public prosecutor’s office. The relevant parts of his statements may be summarised as follows:
“I completely reject the charges levelled against me. [On the day of the incident] I had left home to visit my aunt, who lives in Bağlar, when I saw a group of police officers near the street where the clinic is located. The officers launched a tear-gas grenade, which hit me in the nose. I had eight days of medical treatment in hospital. I had been alone during this incident, I had not thrown any stones, sticks or Molotov cocktails at the police officers, I did not chant slogans supporting the terrorist organisation, and I reject the photographs taken, the video recordings and the police reports. I agree to have a medical check-up.”
19. On 25 February 2008 criminal proceedings were brought against the applicant on charges of membership of a terrorist organisation, propaganda in support of that organisation and resisting the police.
20. In his submissions on the merits of the case the public prosecutor sought the applicant’s acquittal for lack of evidence. He stressed in particular that it was not possible, on the basis of the images studied by the Ankara criminal police laboratory, to establish that the applicant had taken part in the demonstration in question.
21. On 10 July 2008, the Assize Court endorsed the prosecutor’s arguments and acquitted A.Y. According to the case file, in the absence of an appeal on points of law, that judgment became final.
C. Audio-visual material produced by the parties
22. During proceedings before the Court, the Government produced a CD-ROM containing a police video recording. The CD-ROM shows several phases of the demonstrations which took place in Diyarbakır on 29 March 2006, and contains images of the period before and after the launching of the tear-gas grenade which injured the applicant’s head. It also shows that most of the demonstrators were teenagers, some of them with their faces covered, who were throwing stones. Moreover, it is clear that the event took place on a very busy boulevard. Some sequences show the applicant among the demonstrators, although it cannot be clearly ascertained that he was taking part in the demonstration. In the course of the events it can be seen that the applicant has been hit by a tear-gas grenade. Although it is impossible to make out exactly how the police officer fired the tear-gas grenade, it would appear from its impact that it was a direct, flat-trajectory shot (that is, it had been fired horizontally, or else at an angle of under 45o), rather than a high-angle shot (where the launcher is aimed as high as possible so that the tear-gas grenades explode in the air and break up before falling back to earth, thus preventing injuries to demonstrators in the event of an impact).
II. RELEVANT DOMESTIC LAW AND PRACTICE
23. The relevant part of section 16 of the Police Powers and Responsibilities Act (Law no. 2559) enacted on 4 July 1934 and published in the Official Gazette on 14 July 1934, as in force at the material time, read as follows:
“... Police officers may only use their weapons
(a) in cases of self-defence;
...
(h) or where an individual or group is resisting the police force and preventing it from discharging its duties, or else in the event of an assault on the police ...”.
24. Law No. 5681 as published in the Official Gazette on 14 June 2007 amended section 16 of Law No. 2559. This provision now reads as follows:
“The police
...
(c) may use firearms to arrest an individual who is the subject of an arrest warrant or detention order ... or a suspect caught red-handed, to the extent required for the purpose.
Before using firearms, the police ... must first of all shout ‘halt!’... If the individual continues running, the police may fire a warning shot. If, despite these warnings, the individual continues running and there is no other possible means of stopping him or her, the police may use firearms in order to arrest the individual, to the extent required for the purpose (kişinin yakalanmasını sağlamak amacıyla ve sağlayacak ölçüde silahla ateş edilebilir) ...”.
25. Section 24 of the Assemblies and Marches Act (Law no. 2911) provides as follows:
“If a gathering or demonstration which has begun lawfully... becomes an unlawful gathering or demonstration:
...
(b) The highest local civilian authority ... shall send one or more local security officers to the scene of the incidents.
This officer shall warn the assembled crowd that it must disperse in accordance with the law and that should it fail to do so, force will be used. If the crowd fails to disperse, it will be dispersed by the use of force....
In the situations described ... in the event of assault on or actual resistance to the security forces or the property and persons which they are protecting, force will be used without the need to issue a prior warning.
...
Where a gathering or demonstration is unlawful from the outset ... the security forces ... shall take all necessary precautions. The commanding officer shall warn the crowd that it must disperse in accordance with the law and that should it fail to do so, force will be used. If the crowd fails to disperse, it shall be dispersed by the use of force.”
26. At the time of the facts, by virtue of Article 6 as appended to the Police Powers and Responsibilities Act (Law no. 2559):
“The use of force means recourse to physical and material force and weaponry in order to immobilise offenders, in a gradual manner proportionate to [their] characteristics and degree of resistance and aggressiveness.”
27. Article 25 of the 30 December 1982 Directive on the rapid reaction forces (Polis Çevik Kuvvet Yönetmeliği) lays down the principles governing surveillance, monitoring and intervention of the rapid reaction forces in the event of demonstrations.
Under the terms of this Article, in cases of unlawful gatherings or demonstrations necessitating the intervention of the rapid reaction forces, the local civilian authority, the highest-ranking police officer or another senior police officer entrusted with this task must first of all address the crowd by means of a loudhailer or other means of communication. He must then warn the crowd that “that it must disperse in accordance with the law and that should it fail to do so, force will be used.” This order must be repeated two or three times and a report drawn up to confirm that the warning could be heard from the furthest point in the crowd. The warning is not necessary in the case of an actual assault on and resistance to the police or in the case of an actual attack on the property which the police are protecting.
Should the crowd fail to disperse despite the warning given, use is to be made, in a gradual manner, of physical force, material force and weapons, depending on the nature of the crowd’s movements, the degree of violence, threats or assaults, or of the resistance put up by the offenders.
Where dispersal has been planned and is being carried out by use of force, several exit routes must be left for the crowd so that it can disperse. No attempt must be made to disperse the crowd until such exit routes are available.
28. On 15 February 2008 a circular setting out the conditions for using tear gas (E.G.M. Genelge No. 19) was sent by the Director General of Security (Emniyet Genel Müdürü) to all national security services. This circular referred to a directive concerning the use of tear-gas weapons and munitions (Göz Yaşartıcı Gaz Silahları ve Mühimmatları Kullanım Talimatı) issued in February 2008.
This directive explains the characteristics of tear-gas weapons and the physiological effects of the gas used. The relevant sections of the directive may be summarised as follows:
“...
(2) Instructions for the use of tear-gas weapo
