Information Note on the Court’s case-law No. 161
March 2013
Aydan v. Turkey - 16281/10
Judgment 12.3.2013 [Section II]
Article 2
Positive obligations
Article 2-2
Use of force
Gendarme accused of accidental killing by machine-gun fire during violent demonstration not given criminal penalty: violations
Facts – The applicants are the widow and mother of A. Aydan, who was fatally wounded on 6 September 2005 by shots fired from a military jeep while he was waiting for a bus close to a demonstration. In July 2006 the Assize Court decided not to impose a criminal penalty on the person who had fired the shots, finding it established that he had exceeded the limits of self-defence while in an excusable state of emotion, fear or panic. The Court of Cassation, followed by the plenary Court of Cassation, upheld that decision.
Law – Article 2 (substantive aspect)
(a) Whether the use of lethal force had been “absolutely necessary” – The gendarme G.Y., who had fired the fatal shot and who had not been involved in the security operation surrounding the demonstration, had been driving the jeep, accompanied by two of his colleagues, when it had come under attack by demonstrators. G.Y. stated that he had fired through the left window of the vehicle after issuing a verbal warning; however, as his weapon had been on the automatic setting, there had been a burst of seven shots. The Assize Court and the Court of Cassation had considered that G.Y. should not be given a criminal penalty since he had exceeded the limits of self-defence while in an excusable state of emotion, fear or panic within the meaning of Article 27 § 2 of the Criminal Code. That situation was entirely distinct from a case in which an agent had recourse to lethal force based on an honest belief which was perceived to be valid at the time but which subsequently turned out to be mistaken. It was not sufficiently established that the danger created by the demonstrators’ attack had been extremely violent; hence, it could not be concluded that G.Y. had acted in the honest belief that his own life and physical integrity, and the lives of his colleagues, had been in danger. This was especially so since there was no evidence in the file that would justify the use of a potentially lethal means of defence such as the firing of random shots into the crowd. Furthermore, while G.Y. claimed to have fired into the air by way of warning in order to avoid injuring anyone, the evidence in the file showed that three bullet marks had been found on a private vehicle. The fourth bullet had struck A. Aydan. It was by no means established that G.Y. had fired a warning shot into the air. In view of the bullet marks, there was no doubt that the burst of gunfire had been capable of causing a tragedy of much greater proportions. Hence, the force used to disperse the demonstrators, which had resulted in the death of A. Aydan, had not been absolutely necessary within the meaning of Article 2.
Conclusion: violation (unanimously).
(b) Whether the respondent State had taken the necessary measures to reduce as far as possible the adverse consequences of the use of force – Although it had been acknowledged that G.Y. had knowingly exceeded the limits of self-defence by firing at random into the crowd while in a state of emotion, fear or panic, the domestic courts had decided not to impose a penalty, a decision which amounted neither to a finding of guilt nor to an acquittal. Such an approach was liable to have very dangerous and damaging consequences as it allowed the use of lethal force by agents of the State while in a state of emotion, fear or panic, even though the Court acknowledged that the notion of exceeding the limits of self-defence as such was not unknown in European criminal law. While law-enforcement agents were not de jure barred from exceeding the limits of self-defence, their status and function were factors which could be taken into consideration in examining the case.
The Court could not agree with the conclusion of the plenary Court of Cassation according to which the widespread danger created by terrorist acts committed in the region in which the demonstration took place, allied to the “violence of the attack on the accused and his two colleagues” and “the death threats that accompanied it”, justified the decision not to convict the person who had fired the fatal shot. With regard to the widespread danger in the region, law-enforcement officials had to possess the appropriate moral, physical and psychological qualities for the effective exercise of their functions (Principle 18 of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted in 1990). This applied a fortiori to members of the security forces operating in a region which was marked by extreme tension at the material time and where such disturbances were to be expected. Moreover, the decision not to impose criminal sanctions on a gendarme who had made unjustified use of his firearm was liable to be interpreted as giving carte blanche to the members of the security forces operating in that region, who had a duty to ensure that such weapons were used only in the appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm (Principle 11(b)). Likewise, the way in which the Criminal Code had been applied was incompatible with the terms of Article 2 of the Convention, according to which the use of force had to be absolutely necessary and strictly proportionate to the aims referred to therein. It would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity. In conclusion, the respondent State had failed in its obligation to safeguard the right to life.
Conclusion: violation (unanimously).
The Court also found a violation of Article 2 in its procedural aspect on account of the lack of an effective investigation, and a violation of Article 6 § 1 on account of the length of the proceedings.
Article 41: EUR 15,000 to the first applicant in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage; EUR 15,000 to the second applicant in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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