Information Note on the Court’s case-law No. 165
July 2013
Abdullah Yaşa and Others v. Turkey - 44827/08
Judgment 16.7.2013 [Section II]
Article 3
Degrading treatment
Inhuman treatment
Serious injury to nose caused by tear gas canister fired by police officer: violation
Article 46
Article 46-2
Execution of judgment
Measures of a general character
Respondent State required to take measures to minimise risk of injury or death caused by tear gas canisters
Facts – The first applicant, who was thirteen at the material time, was struck in the face by a tear gas canister which he claimed had been fired directly into the crowd by a law-enforcement officer during a demonstration. The public prosecutor decided to take no further action, without examining whether the force used had been proportionate, on the grounds that the law-enforcement agencies had acted in the interests of maintaining public order and to defend themselves against a hostile crowd.
Law – Article 3 (substantive aspect): The applicant had been injured in the nose by a tear gas canister fired by a police officer and his injuries had unquestionably been serious. The treatment to which the applicant had been subjected had attained the threshold of severity required by Article 3.
It was clear from the video footage and all the evidence in the file that the demonstration had not been peaceful. Accordingly, no particular issue arose under Article 3 on account of the use of tear gas as such to disperse the gathering. However, what was in issue in the present case was not simply the fact that tear gas had been used but the fact that a tear gas canister had been fired directly at the demonstrators. The firing of tear gas canisters using a launcher entailed a risk of causing serious injury, as in the present case, or even of killing someone if the launcher was used improperly. Consequently, given the dangerous nature of the equipment used, the Court considered that its case-law on the use of potentially lethal force should apply mutatis mutandis in the present case. As well as being authorised under national law, policing operations – including the firing of tear gas canisters – had to be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness, abuse of force and avoidable accidents.
In his decision to take no further action, the public prosecutor had merely observed that the applicant had been injured during a demonstration in which he had been actively involved. He noted that the police officers had fired tear gas canisters in order to disperse the demonstrators, but did not take the trouble to examine the manner in which the tear gas had been fired. Such an approach appeared clearly inadequate in the light of the applicant’s allegation that he had been struck directly in the nose by a canister, especially since the demonstration had been taking place on a boulevard with numerous passers-by who could potentially have been hit. In that connection the video footage appeared to show that, as the applicant claimed, the canister had been fired directly and in a straight line rather than at an upward angle. Since the Government had not produced any evidence capable of disproving the applicant’s allegations, the Court accepted that the canister had been fired directly and in a straight line. That could not be considered an appropriate action on the part of the police given that firing tear gas in that way could cause serious or even fatal injury; firing tear gas at an upward angle was generally considered the proper method, in so far as it avoided causing injury or death if someone was hit. Furthermore, at the time of the events, Turkish law had not contained any specific provisions regulating the use of tear gas canisters during demonstrations or any guidelines concerning their use. In view of the fact that two people had been killed by tear gas canisters during the events in question and that the applicant had been injured on that occasion, it could be inferred that the police officers had enjoyed a greater autonomy of action and been left with more opportunities to take unconsidered initiatives than would probably have been the case had they had the benefit of proper training and instructions. Such a situation did not afford the level of protection of individuals’ physical safety that was required in contemporary democratic societies in Europe.
Accordingly, it was not established that the use of force to which the applicant had been subjected had been an appropriate response to the situation from the standpoint of the requirements of Article 3 of the Convention or that it had been proportionate to the aim sought to be achieved, namely the dispersal of a non-peaceful gathering. The seriousness of the applicant’s head injuries was not consistent with the use by the police of a degree of force made strictly necessary by his conduct.
Conclusion: violation (unanimously).
Article 46: There had been a violation of Article 3 of the Convention because it had not been established that the use of force to which the applicant had been subjected had been an appropriate response to the situation. Furthermore, at the material time, Turkish law had not contained any specific provisions regulating the use of tear gas canisters during demonstrations, nor had any guidelines on their use been issued to the law-enforcement agencies. The Court noted that on 15 February 2008 a circular laying down the conditions governing the use of tear gas had been sent to all the security forces. Nevertheless, the safeguards surrounding the proper use of tear gas canisters needed to be strengthened by means of more detailed legislation and/or regulations, in order to minimise the risk of death or injury resulting from their use.
Article 41: EUR 15,000 in respect of pecuniary and non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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