EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 22880/93
Gülten AYTEKIN
against
Turkey
REPORT OF THE COMMISSION
(adopted on 18 September 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-22) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-17). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 18-22) . . . . . . . . . . . . . . . . . . . . . 3
II. ESTABLISHMENT OF THE FACTS
(paras. 23-73). . . . . . . . . . . . . . . . . . . . . . . . 4
A. The particular circumstances of the case
(paras. 23-30) . . . . . . . . . . . . . . . . . . . . . 4
B. Evidence before the Commission
(paras. 31-58) . . . . . . . . . . . . . . . . . . . . . 5
C. Relevant domestic law and practice
(paras. 59-73) . . . . . . . . . . . . . . . . . . . . 11
III. OPINION OF THE COMMISSION
(paras. 74-118) . . . . . . . . . . . . . . . . . . . . . . 13
A. Complaints declared admissible
(para. 74) . . . . . . . . . . . . . . . . . . . . . . 13
B. Points at issue
(para. 75) . . . . . . . . . . . . . . . . . . . . . . 13
C. Approach to the evidence
(para. 76) . . . . . . . . . . . . . . . . . . . . . . 13
D. Evaluation of the evidence
(paras. 77-87) . . . . . . . . . . . . . . . . . . . . 13
E. As regards Article 2 of the Convention
(paras. 88-110) . . . . . . . . . . . . . . . . . . . 16
CONCLUSION
(para. 111). . . . . . . . . . . . . . . . . . . . . . 21
F. As regards Article 13 of the Convention
(paras. 112-115) . . . . . . . . . . . . . . . . . . . .21
CONCLUSION
(para. 116). . . . . . . . . . . . . . . . . . . . . . 22
G. Recapitulation
(paras. 117-118) . . . . . . . . . . . . . . . . . . . 22
TABLE OF CONTENTS
Page
DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK . . . . . . . . . . . . . .23
APPENDIX I: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF APPLICATION 22880/93. . . . . . 25
APPENDIX II: SKETCH MAP OF SCENE OF THE INCIDENT. . . . . . . 32
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Turkish citizen, born in 1969, and resident
in Istanbul. She was represented before the Commission by Mr K. Boyle
and Ms F. Hampson, both university teachers at the University of Essex,
England. The applicant states that she brings the application on behalf
of Mr. Ali Riza Aytekin, her husband, now deceased.
3. The application is directed against Turkey. The respondent
Government were represented by their Agent, Mr. Bakir Çaglar.
4. The applicant complains that her husband was killed by a gendarme
at a road block on 24 April 1993 and of a lack of adequate
investigation or effective remedy in respect of his death. She invokes
Articles 2 and 13 of the Convention.
B. The proceedings
5. The application was introduced on 22 October 1993 and registered
on 5 November 1993.
6. On 27 June 1994, the Commission decided, pursuant to Rule 47 of
its Rules of Procedure, to give notice of the application to the
respondent Government and to invite the parties to submit written
observations on its admissibility and merits.
7. The Government's observations were submitted on 5 December 1994,
after the expiry of the time-limit set for that purpose. The
applicant's observations in reply were submitted on 13 February 1995.
8. On 15 May 1995, the Commission declared the application
admissible. It requested the Government to provide copies of statements
from the gendarme Tuncay Deniz and other witnesses, as well as copies
of the autopsy and ballistics reports.
9. On 26 September 1995, the Government provided the statements of
two gendarmes and the autopsy report. On 2 October 1995, the
Government forwarded its supplementary observations, inter alia,
invoking Article 29 of the Convention.
10. On 21 October 1995, the Commission decided to ask the Parties to
inform the Commission whether oral evidence should be taken, to request
from the Government the outstanding contents of the investigation files
before the public prosecutor and military authorities and to put
specific questions on the merits to the parties. By letter dated
26 October 1995, the parties were requested to submit their responses
before 20 December 1995.
11. On 20 December 1995, the applicant submitted observations on the
questions. She did not request that any witnesses should be heard.
12. By a letter dated 12 February 1996, the Secretariat reminded the
respondent Government of the Commission's request of 21 October 1995
and requested provision of the outstanding documents and information
by 26 February or an explanation of the failure to provide information.
13. On 2 March 1996, the Commission examined the state of
proceedings. It decided to remind the respondent Government of the
request made on 21 October 1995 and to indicate that the absence of a
response might be taken into account when the Commission proceeded to
adopting its report on the merits. A letter dated 8 March 1996 was sent
to this effect.
14. On 6 January 1997, the Secretariat requested clarification from
the applicant's representatives of material submitted to the Commission
by the applicant's brother. A letter repeating the request was sent on
12 March 1997. By letter dated 24 April 1997, the applicant's
representatives indicated that the documents and information should be
included in the consideration of her application.
15. On 11 June 1997, the Secretariat reminded the Government that
information requested by the Commission had still not been provided and
that the Commission would proceed to an examination of the merits in
its session beginning on 8 September 1997.
16. On 9 September 1997, the Commission decided that there was no
basis on which to apply Article 29 of the Convention.
17. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
18. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
19. The text of this Report was adopted on 18 September 1997 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
20. The purpose of this Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under the
Convention.
21. The Commission's decision on admissibility of the application is
annexed hereto.
22. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
23. The facts of the case, in particular those which relate to the
events of 24 April 1993, are in dispute. In this context, it is with
great regret that the Commission notes that the respondent Government
have failed to comply with requests from the Commission for
documentation and further information and for responses to certain
specific questions asked. The Commission will therefore have to proceed
on the basis of the evidence that has been submitted to it to date.
A. The particular circumstances of the case
1. Concerning events of 24 April 1993
a. Facts submitted by the applicant
24. The applicant's husband, Ali Riza Aytekin, was the assistant
general manager and partner in a building firm with its office at
Diyarbakir. On 24 April 1993, he, his brother, Feyzullah Aytekin (a
building contractor), and his cousins, Salih and Resul Aytekin (both
building workers), travelled in a private car to check the construction
of two bridges near the district of Sason. Ali Riza Aytekin was under
an official contract from the state authorities in connection with the
construction work. He was the driver of the car.
25. At about 13.30 hours, as the vehicle was passing the Yanikkaya
Gendarme station, a gendarme on duty outside signalled to the vehicle
to pull over and stop. The applicant was driving slowly since there
were speed ramps. He pulled over to the side of the road at the order
of the gendarme.
26. The gendarme, Tuncay Deniz, shot in the direction of the vehicle.
The bullet entered through the rear window of the vehicle and hit the
driver, Ali Riza Aytekin, in the skull. He was killed instantly. The
bullet exited through the windscreen.
27. There was nothing in the vehicle except the tools of their trade,
a map and a calculator.
b. Facts as presented by the respondent Government
28. According to the respondent Government, the vehicle did not stop
at the checkpoint as requested, but gave the impression of attempting
to break through the control post. The car had not stopped despite a
"Stop -Gendarme" warning sign 65 metres in front of the checkpoint. The
gendarme, Tuncay Deniz, had signalled to the vehicle to stop but was
nearly hit by it as it passed. He attempted to stop the vehicle by
opening fire, initially into the air and then at the wheels of the
vehicle. The gendarme did not intend to kill but the bullet ricocheted
off the road, entered the car and hit the driver's head, killing him.
2. Proceedings before the domestic authorities
29. The Public Prosecutor of the Kozluk county commenced an
investigation concerning the incident (file no. 1993/112). However on
8 June 1993 he issued a decision of no jurisdiction and transferred the
file to the military authorities to carry out the investigation. In
their observations the respondent Government have stated that the
investigation has not been concluded and that further information would
be provided to the Commission. The Commission have not been informed
of any developments in this regard.
30. A preliminary investigation was carried out by the Gendarme Major
Cengiz Eryilmaz, commander of Kozluk district gendarme headquarters,
which concluded that the gendarme had not fired with intent to kill and
the outcome was the result of the driver's incorrect conduct. The
report is undated but was provided by the Government as annex to
observations received on 13 December 1994.
B. Evidence before the Commission
31. The parties submitted various documents to the Commission. These
included documents drawn up in the course of the investigation on the
domestic level into the death of the applicant's husband and
statements from the applicant's brother-in-law, Feyzullah Aytekin,
concerning his version of events in the case.
32. The Commission had particular regard to the following documents:
1. Incident report
33. A report on the incident was produced by gendarme major
Cengiz Eryilmaz, commander of Kozluk District Gendarme Headquarters.
This report details the "Witness" as "Tuncay Deniz" a gendarme attached
to Batman Province Gendarme Headquarters, Kozluk District Gendarme
Headquarters. The "Nature of the incident/offence" is detailed as
"death caused when officer opened fire on a vehicle which failed to
observe a 'stop' signal". Under a heading "Evidence", witnesses are
identified as Sergeant Murat Hekim, Expert Sergeant Kutlu Alkurt and
Sergeant Bekir Çakir. Documents are listed as map of the scene, record
of the scene, statements by witnesses, autopsy report, personal file.
Under a heading "Type of Object Lost or Damaged", the Report details
"two 7.62mm cartridges".
34. Under the heading "Details of Events" it is stated (translation):
"On 24 April 1993, a vehicle (make: Kartal; registration
no. 34 Z 9189), which was travelling from Batman in the direction
of Sason, failed to stop despite the 'stop' signal given by
Gendarme Private Tuncay Deniz at the gendarme checkpoint, and the
driver, A. Riza Aytekin, was killed in the ensuing gunfire."
The report concludes (translation):
"The incident occurred when Gendarme Private Tuncay Deniz was
carrying out his duty as instructed, the purpose being to stop
passing cars at the checkpoint. He did not fire with intent to
kill. The outcome was involuntary on the part of the private; it
was the result of the driver's incorrect conduct, which aroused
suspicion."
2. Sketch map of the scene of the incident
35. The sketch map (see Annex II) while dating the incident as
13.35 hours 24 April 1993 was drawn up by hand by Murat Hekim,
commanding officer of Yanikkaya Gendarme Station and is signed by him
but undated. The diagram, described as a "Simplified Map Showing the
Location of the Incident" depicts in plan form the Gendarme station and
surrounding area to include the road before and after the checkpoint
itself. Material details depicted are a "Stop sign" located "65 metres"
from the checkpoint; the distance between the place where the private
gave warning and fired and the checkpoint is drawn as 15 metres; traces
of blood are indicated on the road after the roadblock at a distance
of 55 metres from the place where the private gave a warning; a line
diverging onto the right hand side of the road depicts the car as
having veered off the road to the right for a distance of 11 metres,
coming to rest three metres before a building (house and shop). The
overall distance between the resting place of the vehicle and the place
where the private gave warning sign and fired is indicated as
70 metres.
3. Post mortem and autopsy report dated 24 April 1993
36. The report commences with an explanation that the public
prosecutor and medical personnel drove to the scene following a report
by telephone at about 14.00 hours from the Kozluk district gendarmerie
headquarters to the Chief Public Prosecutor's office that a person had
been killed when soldiers opened fire on a vehicle which had failed to
observe a stop signal in the vicinity of Yanikkaya gendarme station.
37. The report states that the car involved was about 70 metres along
the road from the gendarme station. The rear window of the car had
shattered but part of the bullet entry hole was still visible. It was
established that a bullet had hit the driver in the back of the head
on the right hand side, exiting from the left forehead shattering the
skull and had continued without losing speed through the left hand side
of the windscreen shattering the glass. The bullet was not found.
38. Beyond the bullet injury to the head, no other traces of injury
were found. The conclusion of the medical examiner was that death
occurred when the brain was destroyed and there was no need to perform
a classical autopsy. The time of death was stated as about 13.30 hours.
4. Statement of Private Tuncay Deniz dated 24 April 1993
39. The statement was taken by Major Eryilmaz and is introduced by
the invitation to recount his actions and state what happened in an
incident which occurred at about 13.35 hours on 24 April 1993 when he
was guarding the barracks and the vehicle (Kartal 34Z9189) failed to
stop despite all his warnings.
40. Private Deniz stated that he was guard at the checkpoint outside
the barracks, where road checks and searches were carried out. He
searched all the vehicles which passed through that point. There was
a stop sign about 70 metres from where he stood. At about 13.35, a
Kartal taxi approached from the Batman direction. When it was about
100-150 metres away, he stepped out into the road and signalled it to
stop. The driver saw him but accelerated towards him. He jumped aside
and blew his whistle to summon the sergeant on duty and his commanding
officers and to slow the vehicle down. The vehicle did not stop,
continuing another 20-25 metres. He fired a warning shot in the air.
When it still did not stop, he fired a second shot aiming at the tyres
but since the car was moving the bullet hit the driver. His sole
intention was to stop the car. At that moment the car was about
80 metres from where he was standing and travelling away from him. The
car stopped at a ramp outside a shop on the right hand side of the
road.
5. Statements of Sergeant Bekir Çakir
i. Statement dated 24 April 1993
41. The statement was taken by Major Eryilmaz and is introduced by
the invitation to state what he knew or saw of the incident when
Private Tuncay Deniz opened fire on a vehicle which failed to observe
his signal to stop.
42. The witness stated that he was on duty that day. At 13.20, he
changed the guards. Some time later he was outside the canteen,
opposite the checkpoint. He saw the guard Tuncay Deniz signal to a
vehicle to stop. A moment later, the car went straight for Tuncay Deniz
who jumped aside and took out his whistle to give a warning. The
witness rushed over. At that moment, Tuncay fired a warning shot into
the air. He immediately fired another shot without taking aim. The car
came to a halt 75-80 metres down the road in front of a shop, on a
ramp.
ii. Statement dated 5 May 1993
43. The statement was taken by Major Eryilmaz and is introduced by
the invitation to state what he knew or saw of the incident when
Private Tuncay Deniz opened fire on a vehicle which failed to observe
his signal to stop.
44. The witness stated that he was the sergeant on duty that day.
He replaced the barracks guard Kaplan with Tuncay at 13.20 hours.
Tuncay was to stay on duty from 13.20 to 16.20 hours. The witness then
went to the canteen. After 15 minutes, when he was leaning on the wall
of the canteen sunning himself, he saw Tuncay walk out into the road
and signal to a vehicle coming from Batman. A moment later, Tuncay
rushed to the side of the road, blowing his whistle as the car passed.
The car did not stop. The witness began to run towards the checkpoint.
Tuncay fired a shot into the air. The car did not stop. Tuncay aimed
at the tyres of the car and fired another shot, which went through the
rear window of the car. The car stopped about 80 metres down the road
in front of a shop, crashing into a part that jutted out.
6. Statement of Expert Sergeant Kutlu Alkurt dated 5 May 1993
45. The statement was taken by Major Eryilmaz and is introduced by
the invitation to state what he knew or saw of the incident when
Private Tuncay Deniz opened fire on a vehicle which failed to observe
his signal to stop.
46. On the day of the incident, the witness was sitting with Murat
Hekim, the commanding officer, in his office. They heard the sound of
a whistle from checkpoint no. 1 and then gunfire. Both of them left the
office and asked Tuncay Deniz at checkpoint no. 1 what had happened.
Deniz said that he had warned the vehicle, but that it had not stopped
and had tried to drive through the checkpoint. He said that he had
therefore fired a warning shot in the air, then aimed a shot at the
wheel of the car and the vehicle had come to a halt 75-80 metres
further on.
7. Statement of Sergeant Murat Hekim dated 5 May 1993
47. The statement was taken by Major Eryilmaz and is introduced by
the invitation to state what he knew or saw of the incident when
Private Tuncay Deniz opened fire on a vehicle which failed to stop
despite his "stop" warning.
48. The witness stated that the non-commissioned officer, sergeant
and checkpoint private were on duty at the scene of the incident for
the purpose of ensuring general security and public order, and to carry
out road checks, since there is widespread smuggling in the area of
weapons, ammunition, firewood and tobacco. The guards on duty signalled
to cars to stop, the non-commissioned officer and the sergeant blew
their whistles as warnings and the road check was carried out.
49. On the day of the incident, the witness was in his office with
the non-commissioned officer on duty, Kutlu Altkurt. At about
13.35 hours, they heard a whistle and gunfire. When they went outside,
people were shouting and weeping. There was a car, with a smashed rear
window, 70-75 metres down the road, which had swerved off the road to
the left. He asked Private Tuncay Deniz what had happened. Deniz stated
that he had signalled the car to stop, that it had approached at high
speed and he had blown his whistle as a warning and then fired a
warning shot into the air. The vehicle still did not stop, and he had
then fired at the wheel of the vehicle but the bullet had gone through
the rear window.
8. Statements of Feyzullah Aytekin
i. Statement dated 30 April 1993
50. On 24 March 1993, Feyzullah Aytekin, together with his cousin
Salih Aytekin, his cousin Resul Aytekin, and his brother
Ali Riza Aytekin, set off at about 13.00 hours in a car to drop two of
them off at a bridge site in Sason. He was sitting in the back on the
right and his brother was driving. At about 13.30 hours they passed
Yanikkaya gendarme station, driving very slowly. The speed bumps made
it impossible to drive quickly. There was no warning sign at the
entrance to the station. A signal to stop was made by a soldier, and
his brother pulled over to the right to stop and they stopped. At that
moment, the soldier fired at them. His brother was hit in the skull and
died instantly.
51. They had been doing nothing wrong or suspicious, carrying nothing
in the car save the tool of their trade, a map and a calculator. They
had not been trying to escape from the scene but had drawn into the
right and stopped. Anyway there should have been a warning shot but
they were aimed and fired at without any warning shot.
ii. Statement dated 7 April 1993 taken by the Diyarbakir Human
Rights Association (HRA)
52. This report, which has been misdated, refers to Feyzullah Aytekin
making an application to the HRA on that date. Feyzullah Aytekin stated
that they set off in a private car to go to construction sites in Sason
district and arrived in front of Yanikkaya gendarme station, slowing
down because of the barrier. The soldiers asked them to stop. They drew
into the right and stopped but at that moment they were fired on and
his brother was killed. In an examination of the vehicle, it is stated
that the bullet appeared to have entered through the rear window and
exited through the windscreen.
iii. Statement dated 14 October 1993 taken by the HRA
53. Feyzullah Aytekin made, inter alia, the following declarations:
- The firing had occurred after the vehicle had stopped.
There was no warning. They stopped because they became
aware that the road ahead was going to a precipice. The
firing at the car was a single shot from behind.
- As the three other men got out of the car, the gendarme
raised his weapon as if to fire at them, but when other
gendarmes, about thirty in all, came out of the station and
surrounded the vehicle he changed his mind and came towards
the vehicle. The survivors, deeply shocked, began to shout
and curse.
- The three survivors were taken to the vicinity of the
station and held there for several hours, though without
being accused or arrested.
- An hour or two after the incident a lieutenant colonel
arrived at the scene from Batman. A State prosecutor also
arrived and the applicants made statements in which they
stated that the soldier had shot from behind without
warning and that the soldier was guilty.
- The applicant and Feyzullah Aytekin made a petition to the
state prosecution, the Kozluk district governor and the
Batman provincial governor.
iv. Statement dated 22 August 1995
54. On 24 April 1993 at about 11.30 hours, they started out in a
private car to the Batman Sason II bridge construction, which belonged
to the General Directorate of Road Works. On leaving Batman, they were
stopped by Special Teams, who questioned them. They said they were
going to their building site and had construction material in the car.
Their number plate was noted. When passing in front of Yanikkaya
station, they were subjected to sudden indiscriminate firing. His
brother was murdered and he himself was seriously wounded. The incident
was carried out knowingly and intentionally, because there was a white
vehicle ahead of them. It was midday about 12.00 hours.
9. Statement of the applicant dated 30 April 1993 taken by the HRA
55. Her husband was a partner in and assistant general manager in two
businesses (Aytekin Contractors and Trade Limited Company and
Architectural Industry Limited Company) at Diyarbakir. The applicant
lived in Istanbul, where she was on the day of the incident. The day
before, her husband had told her on the telephone that he, Feyzullah
and two workmates were going to check the construction of two bridges
in Sason district. Five or six hours after the incident, Feyzullah
telephoned her to say that her husband had been killed by a soldier a
few metres from Yanikkaya gendarme station, even though he should have
been protected by the State as he was on official work.
10. Statement of Dr. Christopher Milroy submitted by the applicant
56. The applicant has submitted as evidence an opinion dated
7 February 1995 by Dr. Christopher Milroy, a registered medical
practitioner, Senior Lecturer in Forensic Pathology at the University
of Sheffield in the United Kingdom and Consultant Pathologist to the
Home Office. He was asked to comment upon the facts as provided by the
respondent Government and the sketch map.
57. Dr. Milroy commented on the official account that the car
allegedly struck 55 metres from where the bullet was fired. and that
the car was travelling 'at speed'. He noted that no details had been
provided on the rifle used by the gendarme. However, he considered that
a bullet fired from 55 metres would traverse the distance in fractions
of a second, therefore a car would not have made any significant
forward movement in that period. Where the bullet was aimed would be
where the bullet hit. Therefore it could not be asserted that the
bullet was correctly aimed at the tyre but because of the car's speed
the bullet struck the road and resulted in a ricochet.
58. Dr. Milroy suggested that the ricochet explanation was
"implausible for a number of reasons":
(a) A ricocheting bullet would not be expected to enter the
passenger compartment of the car. When a bullet ricochets,
it comes off the ricocheting surface at a shallower angle
that the angle it came into the surface.
(b) If the bullet had ricocheted into the car, it is unlikely
to have hit the super structure and not have entered at an
angle to hit the driver but would have struck the under-
surface or boot of the car;
(c) If the driver had been hit by a ricochet, no exit wound
would have been expected. When a bullet ricochets it would
be expected to fragment and it also loses its gyroscopic
stability and tumbles, all of which reduces the bullet's
speed and energy and makes it less likely to enter a body
and most unlikely to exit. It would also cause a different
entrance wound from one gyroscopically stable which
characteristically has a rectangular appearance.
He was of the opinion that the alternative explanation that a
direct shot was aimed deliberately into the car is consistent with the
facts provided.
C. Relevant domestic law and practice
59. In the absence of detailed submissions on domestic law and
practice, the Commission has had regard to the relevant provisions and
submissions made in the context of previous applications concerning
which the Government and the applicant's representatives have also
participated in the proceedings.
60. Article 125 of the Turkish Constitution provides as follows:
(translation)
"All acts or decisions of the Administration are subject to
judicial review ...
The Administration shall be liable for damage caused by its
own acts and measures."
61. This provision is not subject to any restrictions even in a state
of emergency or war. The latter requirement of the provision does not
necessarily require proof of the existence of any fault on the part of
the Administration, whose liability is of an absolute, objective
nature, based on a theory of "social risk". Thus the Administration may
indemnify people who have suffered damage from acts committed by
unknown or terrorist authors when the State may be said to have failed
in its duty to maintain public order and safety, or in its duty to
safeguard individual life and property.
62. The Turkish Criminal Code, as regards unlawful killings, has
provisions dealing with unintentional homicide (Articles 452, 459),
intentional homicide (Article 448) and murder (Article 450). Pursuant
to Section 23 of Decree No. 285 (the Act on the State of Emergency),
security forces, special forces on duty and members of the armed forces
are, under the circumstances stipulated in the relevant Acts, empowered
to use their weapons while carrying out their duties. The security
forces thus empowered are to open fire and to shoot at a person if a
command to surrender is not accepted, disobeyed or met with
counter-fire or if they have to act in self-defence. Pursuant to
Article 4 para. 2 :
(translation)
"members of the security forces on duty are authorised to fire
directly at their targets without hesitation should the latter
fail to heed their orders, are reciprocated with fire or if it
is necessary to do in legitimate self-defence."
63. The plea of self-defence is enacted in Section 49 of the Criminal
Code which, insofar as relevant, provides:
(translation)
"No punishment shall be imposed if the perpetrator acted ...
2. in immediate necessity to repel an unjust assault against his
own or another's person or chastity."
64. For all such offences complaints may be lodged, pursuant to
Articles 151 and 153 of the Code of Criminal Procedure, with the public
prosecutor or the local administrative authorities. The public
prosecutor and the police have a duty to investigate crimes reported
to them, the former deciding whether a prosecution should be initiated,
pursuant to Article 148 of the Code of Criminal Procedure.
A complainant may appeal against the decision of the public prosecutor
not to institute criminal proceedings.
65. If the suspected authors of the contested acts are military
personnel, they may also be prosecuted for causing extensive damage,
endangering human lives or damaging property, if they have not followed
orders in conformity with Articles 86 and 87 of the Military Code.
Proceedings in these circumstances may be initiated by the persons
concerned (non-military) before the competent authority under the Code
of Criminal Procedure, or before the suspected persons' hierarchical
superior (Articles 93 and 95 of Law 353 on the Constitution and the
Procedure of Military Courts).
66. If the alleged author of a crime is a State official or civil
servant, which includes members of the security forces permission to
prosecute must be obtained from local administrative councils (the
Executive Committee of the Provincial Assembly) which carry out a
preliminary investigation (Article 4 (i) of Decree No. 285). The local
council decisions may be appealed to the Council of State; a refusal
to prosecute is subject to an automatic appeal of this kind.
67. Any illegal act by civil servants, be it a crime or a tort, which
causes material or moral damage may be the subject of a claim for
compensation before the ordinary civil courts.
68. Proceedings against the Administration may be brought before the
administrative courts, whose proceedings are in writing.
69. The applicant points to certain legal provisions which in
themselves weaken the protection of the individual which might
otherwise have been afforded by the above general scheme :
70. Articles 13 to 15 of the Constitution provide for fundamental
limitations on constitutional safeguards.
71. Provisional Article 15 of the Constitution provides that there
can be no allegation of unconstitutionality in respect of measures
taken under laws or decrees having the force of law and enacted between
12 September 1980 and 25 October 1983. That includes Law 2935 on the
State of Emergency of 25 October 1983, under which decrees have been
issued which are immune from judicial challenge.
72. Extensive powers have been granted to the Regional Governor of
the State of Emergency by such decrees, especially Decree 285, as
amended by Decrees 424 and 425, and Decree 430.
73. Decree 285 modifies the application of Law 3713, the Anti-Terror
Law (1981), in those areas which are subject to the state of emergency,
with the effect that the decision to prosecute members of the security
forces is removed from the public prosecutor and conferred on local
administrative councils.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
74. The Commission has declared admissible the applicant's complaint
that her husband was killed whilst driving through a checkpoint and
that she has no effective remedy in respect of this.
B. Points at issue
75. The points at issue in the present case are as follows:
- whether there has been a violation of Article 2 (Art. 2) of
the Convention in respect of the death of the applicant's
husband;
- whether there has been a violation of Article 13 (Art. 13)
of the Convention in respect of the applicant's alleged
lack of an effective remedy before a national authority in
respect of her complaints.
C. Approach to the evidence
76. The Commission has examined the applicant's allegations as to the
violations disclosed by these events on the basis of the written
materials in the file, including the contents of the investigation
files provided at its request by the Government and the response of the
parties made in answer to the questions posed by the Commission. In the
assessment of this material, the Commission has had regard to the
manner in which the parties have contributed to its examination of the
case (mutatis mutandis, Eur. Court HR, Ireland v. United Kingdom
judgment of 18 January 1978, Series A no. 25 p. 65 para. 161).
D. Evaluation of the evidence
77. The Commission makes a number of preliminary observations in
this respect:
i. With the exception of the incident report produced by the
gendarmes, no detailed investigation or judicial finding of facts
on the domestic level as regards the events which occurred at
Yanikkaya Gendarme Station on 24 April 1993 has been concluded.
ii. The Commission has requested, on repeated occasions, copies
of the documents in the investigation files relating to the
incident. It has been provided with the documents summarised in
Section II B of this Report. However, it has not been provided
with any ballistics report or with any statements taken by the
authorities from the other three passengers in the car, although
Feyzullah Aytekin has in a statement to the HRA described the
occupants of the car giving their statements to the public
prosecutor. Nor have any photographs of the scene of the incident
been provided. It has not been informed of the outcome of the
investigation of the military authorities which the Government
stated was pending in December 1994.
78. The Commission notes that the statements taken from the gendarmes
at Yanikkaya station contradict in basic details the version of events
presented by the applicant and her husband's brother. The differing
points include:
1. - the manner in which the car approached the checkpoint and
whether it responded to the order to stop;
2. - whether the gendarme gave any warning prior to firing the
shot which killed the applicant's husband;
3. - whether the gendarme aimed to shoot at the tyres or
directly to kill the applicant's husband.
79. The applicant argues on the first point that the car stopped as
directed, referring to the statements of her brother-in-law. She points
out that there were speed bumps which made it impossible for the car
to drive through the checkpoint at speed as alleged and also emphasised
that there is no plausible explanation for the alleged conduct of her
husband, who was, with his colleagues, on his way to work for a State
construction project. The applicant's brother-in-law denied that there
was a stop sign. She also submits that the gendarmes' versions are not
consistent with the sketch map, since a car travelling at speed would
have travelled more than 55 metres before coming to a halt. She submits
that no reliance can be made on the sketch map which was drawn up by
Murat Hekim, who was not an eye-witness to the events in question.
80. The Government, relying on the statements made by the gendarmes
and the sketch map produced at the scene, assert that the car driven
by the applicant's husband failed to stop when ordered and drove
through the checkpoint at speed, obliging the gendarme to take evasive
action. While in their first set of observations they described the car
stopping 40 metres from the speed bumps, in their second set of
observations they state that the speed bumps were only installed later
in 1994. There was a stop sign before the checkpoint warning drivers
to halt.
81. The Commission notes that the various statements from Feyzullah
Aytekin, the only passenger of the car to give a statement, are not
totally consistent. However, it is apparent that his version
essentially was that the car drove through the checkpoint slowly and
stopped afterwards following a signal from the gendarme. There is no
indication of how far after the checkpoint this was supposed to be.
82. The Commission does not consider it significant that the sketch
map was not drawn up by an eye-witness. It is common for police
arriving later at a scene to draw up incident plans, based on traces
left at a location, including indications of alleged/possible
movements. It observes that this sketch indicates a "barrier" in place
across the entire breadth of the road, using a Turkish phrase
indicating the intention to make cars slow down. It would appear to the
Commission to strongly support the applicant's assertion that speed
bumps were in place, with which the Government initially did not argue.
It would not appear probable that there was a barrier structure in
place across the entire road and there is no mention of such a
structure in the gendarmes' description of the scene. The Government
have also not provided any evidence to substantiate their contradiction
of the applicant's evidence, in particular, by providing photographs
taken at the scene of the incident. The Commission accordingly accepts
the applicant's submission that there were speed bumps at the
checkpoint which would have rendered it difficult and unlikely that the
applicant's husband drove his car across it at any speed. It finds it
unnecessary to consider whether or not there was a warning "Stop" sign,
since on the applicant's version of events, it is not disputed that the
occupants of the car became aware that they had to stop as they passed
the Yanikkaya station.
83. The Commission also places considerable weight on the lack of any
explanation why the applicant's husband would drive in a highly
dangerous and reckless manner through a gendarme checkpoint, there
being no suggestion that he or any occupant in the car had any reason
to fear apprehension or search. The Commission has considered the
possibility that the applicant's husband did not see the checkpoint,
which would contradict the version given by his brother. One
explanation for this might be that he was under the influence of
alcohol. There is however no evidence to support this, and in
particular, the autopsy carried out did not extend to an examination
of his stomach contents or blood alcohol level. There is no reference
in the statements of the gendarmes to any suspicion that the other
occupants of the car were in a state of intoxication. In these
circumstances the Commission finds that the gendarme's account of being
at risk of being hit by the car is unconvincing.
84. As to whether the car had in fact stopped or was still moving
when the gendarme opened fire, the accounts are contradictory. The
applicant's brother states in one version (14 October 1993) that the
firing occurred after the car had pulled in and stopped but in an
earlier statement of 30 April 1993 and an account wrongly dated
7 April 1993 appears to describe the firing occurring at the moment
they stopped. The sketch map which has indications of blood on the road
and portrays the car veering off the road for 11 metres supports the
version that the car was still moving at the moment of impact of the
bullet. The statements of the gendarmes also differ as to whether the
car veered off the road to the right or the left. The Commission finds
that these elements are irreconcilable. It is unable to determine
therefore whether the applicant's husband had in fact stopped the car
on the instruction of the gendarme before the gendarme opened fire.
85. As regards the second point, the gendarme's version that he gave
a warning whistle and fired a first shot, as warning, into the air, is
supported by the another gendarme Bekir Çakir who stated that he
witnessed the incident from outside the canteen. Two other gendarmes
also recounted hearing a whistle followed by shooting. The account
given by Feyzullah Aytekin makes no reference to a whistle and denied,
in the statement of 30 April 1993, that there was a warning shot. He
does confirm however that they were signalled to stop, though it is not
explained of what this signal consisted. The Commission finds that it
is common ground that the gendarme communicated to the car his order
for them to stop. As regards a warning shot, the Commission notes the
absence of a ballistics report verifying the state of the gendarme's
weapon and the number of rounds fired, though reference is made in the
incident report to two missing 7.62 mm cartridges. There is
insufficient material however for the Commission to draw any
conclusions as to whether or not the shot was fired. If there were two
shots however, they would appear to have been fired in rapid
succession, without much interval of time.
86. Concerning whether the gendarme fired at the tyres or directly
at the applicant's husband, the Commission does not find the
Government's account of events as inconsistent as alleged by the
applicant. Reference to a ricochet is not made in their second set of
observations but it is not apparent that their submission that the
gendarme fired at the car to stop it contradicts this. However, the
Commission finds persuasive the opinion of Dr. Milroy, which is
uncontradicted by any ballistics or forensic report, that it is highly
improbable that a ricochet bullet would penetrate the rear windscreen,
enter and exit a human body and smash the front windscreen. It finds
it a reasonable likelihood that the bullet did not ricochet from an
alleged attempt to shoot the tyres but penetrated directly into the
car. This does not resolve whether the gendarme as alleged aimed into
the car. The Commission notes that Bekir Çakir's statements on the
second shot fired are contradictory. In the first, dated 24 April 1993,
he states that the gendarme fired a second shot immediately without
taking aim. In the second, dated 5 May 1993, it is stated that the
gendarme aimed at the tyres. This change of fact, unexplained, would
suggest strongly that Bekir Çakir had been informed of Tuncay Deniz's
own account of shooting at the tyres and casts doubt on its spontaneity
and reliability. Having regard to Dr. Milroy's explanation that a high
velocity bullet of this type would have hit the car at the point at
which it was aimed, the Commission considers that there must be a very
strong inference, either that the gendarme aimed into the back of the
car towards the driver or fired so quickly as to render his aim
inaccurate.
87. The Commission concludes that the car driven by the applicant's
husband was driven slowly up to and through the checkpoint, that the
gendarme signalled it to stop and that very shortly afterwards he
opened fire intending to stop the car, either aiming at the driver or
failing to take proper aim.
E. As regards Article 2 (Art. 2) of the Convention
Article 2 (Art. 2) of the Convention provides:
"1. Everyone's right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for
which this penalty is provided 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 a person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling
a riot or insurrection."
88. The applicant submits that her husband was killed by a deliberate
use of lethal force which cannot be justified under the second
paragraph of Article 2 (Art. 2). Given that her husband was unarmed and
posed no threat of any kind, the action of the gendarme in shooting him
was not absolutely necessary or strictly proportionate. The applicant
also submits that the absence of procedural safeguards, in particular
the failure to conduct an independent, impartial, thorough and careful
examination of the circumstances surrounding the killing, constitutes
an additional violation of Article 2 (Art. 2). Further, the applicant
contends that the provisions of Turkish law governing the use of lethal
force by agents of the State, as exemplified by the circumstances of
this case, do not satisfy the standards of Article 2 (Art. 2).
89. The Government submit that the gendarme acted in a restrained and
proportionate manner in face of an incident which led him to believe
that the car was being driven by terrorists determined to escape. They
point to the situation existing in the south-east region of Turkey,
where terrorists commit frequent outrages and submit that the reaction
of the soldier to a car which deliberately sought to evade control,
involving a warning shot and an aimed shot at the tyres, without the
intention to kill, was compatible with Article 2 (Art. 2). On
procedural aspects, the Government have emphasised that the domestic
investigation before the military authorities was not terminated and
that the possibility of applying for damages in the administrative
courts exists as effective recourse.
90. The Commission has examined the allegations under Article 2
(Art. 2) under three headings: whether the gendarme killed the
applicant in violation of this provision, whether the procedural
requirements implicit in this provision with respect to effective
investigation have been complied with (see eg. Eur. Court HR, cases of
McCann and others v. the United Kingdom, judgment of 27 September 1995,
Series A no. 324, para. 179) and whether the relevant law subsisting
at the time and applicable to the actions of the gendarme was itself
in contravention with the requirements of Article 2 (Art. 2).
As to whether the death of the applicant's husband was caused by
the use of force in breach of article 2
91. The case-law of the Court has established that if recourse to
lethal force is made, even when death is unintended, it must be no more
than absolutely necessary for the achievement of one of the purposes
set out in sub-paragraphs (a), (b) or (c) of Article 2 (Art. 2) (see
Eur. Court HR, McCann and others v. the United Kingdom, op. cit.,
para 148, applying application no. 10044/82, Stewart v. the United
Kingdom, dec. 10.7.84, DR 39, pp. 169-71). In this respect the use of
the term "absolutely necessary" in Article 2 para. 2 (Art. 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 to 11 (Art. 8-2, 9-2, 10-2, 11-2) of the Convention. In
particular, the force used must be strictly proportionate to the
achievement of the aims set out in sub-paragraphs 2(a), (b) and (c) of
Article 2 (Art. 2-a, 2-b, 2-c) (Eur. Court HR, McCann and others v. the
United Kingdom, op. cit., para. 149)
92. The Commission recalls its findings of fact above (paras. 83-88).
It has considered whether, even if the vehicle did not stop at the
checkpoint and promptly respond to the signal of the gendarme to stop,
the circumstances were such that it could be regarded as absolutely
necessary to use the force applied.
93. In their submissions the respondent Government relied on the case
of Kelly v, the United Kingdom (No. 17579/90, dec. 13.03.90, DR 74
p. 139) suggesting that, in that gendarme Tuncay Deniz fired at a car
he assumed to be driven by terrorists trying to break through a
checkpoint, the facts of the case were broadly parallel, so justifying
the resort to force in this case and requiring the Commission to find
no violation of Article 2 (Art. 2) in this respect, since the use of
force was no more than absolutely necessary in order to effect a lawful
arrest within the meaning of Article 2 para. 2(b) (Art. 2-2-b).
94. The applicant has disputed the relevance of Kelly v. the United
Kingdom on the facts, pointing out that the stolen car driven by the
joyriders through a checkpoint in Belfast was driven in a very
different manner and in circumstances giving rise to considerable
suspicion.
95. The Commission recalls that in the Kelly case the soldiers at the
checkpoint had been warned that the car was stolen and had been seen
acting suspiciously, and that on arriving at the checkpoint, the car
was driven in such a manner as to collide with two military vehicles,
trapping one soldier, and that it mounted on the side of the road to
try to make its escape. In the present case, the Commission has found
that the car driven by the applicant's husband approached the
checkpoint at no considerable speed and that it has found the account
of the gendarme that he required to take evasive action to be
unconvincing. Even assuming that the applicant's husband failed to stop
promptly on the signal of the gendarme as he passed the checkpoint, the
Commission finds that this does not disclose any basis for the use of
force, which, deliberately or due to lack of proper aim, was lethal in
its effects. The circumstances do not disclose any level of threat as
would justify such force for any of the aims provided in paragraph 2.
96. Although the Commission accepts the submissions of the respondent
Government with regard to its duty to fight terrorism it observes that
this does not absolve a Contracting State from complying with the
standards imposed by the provisions of the Convention, in particular
Article 2 (Art. 2), which enshrines one of the basic values of the
democratic societies making up the Council of Europe and which admits
no derogation under Article 15 (Art. 15). The fact that the area was
subject to terrorist activity does not of its own accord give the
security forces the right to open fire upon people or persons that they
deem suspicious.
97. The Commission would also note that where security considerations
are considered to require compulsory measures of control at road
checkpoints the authorities are under an obligation to organise and
control these measures in such a manner as to minimise, to the
greatest extent possible, recourse to lethal force (Eur. Court HR,
McCann and others, op. cit., para. 194). In this context, where it is
alleged that the security forces are intending, inter alia, to control
the movement of terrorists, the Commission notes that only one gendarme
was physically present at or near the checkpoint. While it appears that
other officers were on duty, two were carrying out duties in an office
and Bekir Çakir, who stated that he saw the incident, was sunning
himself by the canteen. The presence of one gendarme would have
rendered it difficult for the security forces to respond flexibly or
appropriately to any incident which might arise at the checkpoint. It
further notes that the Government have failed to respond to the request
of the Commission to provide details of the instructions given to
gendarmes at checkpoints with regard to the procedures to be followed
when a car fails to stop, in addition to any written instructions as
to the use of firearms. The Commission has therefore been unable to
satisfy itself that the training and instructions of the gendarme at
the checkpoint were commensurate with the degree of care in the use of
firearms to be expected from law enforcement personnel in a democratic
society.
98. Accordingly the Commission concludes that, in all the
circumstances, the manner in which force was used was neither "strictly
proportionate" nor "absolutely necessary" as required by Article 2
(Art. 2) of the Convention.
As regards the procedural requirements of Article 2 (Art. 2)
99. The applicant submits that there has been no effective
investigation, alleging that such investigation as there was was based
on predetermined assumptions that the firing was in response to a
failure to obey warnings to stop and pointing to the lack of ballistics
report and eye-witness statements and the fact that the investigation,
of a non-public nature and still not concluded, was handed over to
military authorities who cannot be regarded as independent. She also
submits that a lack of criminal prosecution indicates a failure to
protect life.
100. The respondent Government have not replied to the above points
made by the applicant nor to the questions put by the Commission as to
the adequacy of the procedures following the death of the applicant's
husband. They have only made previous general submissions as to their
position that the application is premature since the military
investigation is still pending and that civil and administrative
remedies are available.
101. The Commission recalls that in the case of McCann and others v.
the United Kingdom, the Court held:
"... a general legal prohibition of arbitrary killing by agents
of the State would be ineffective, in practice, if there existed
no procedure for reviewing the lawfulness of the use of lethal
force by State authorities. The obligation to protect the right
to life under this provision, read in conjunction with the
State's general duty under Article 1 (Art. 1) of the Convention
to 'secure to everyone within their 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 by, inter alios, agents of the State."
(op. cit., para. 161)
102. The Commission considers that such investigation, whatever form
it might take, must provide a mechanism whereby the circumstances of
a deprivation of life by the agents of the State may receive a public
and independent scrutiny. Further, to be effective, such investigation
must involve as a minimum an examination of the immediate factual
circumstances of the killing, including the obtaining of relevant
eye-witness testimony and forensic evidence clarifying the cause of
death and the credibility of the accounts given by way of
justification.
103. In the present case, the Commission recalls that the public
prosecutor ceded the investigation to the military authorities, of
which no further information has been forthcoming. While statements
have been taken from the military witnesses, the lack of any civilian
eye-witness statement, despite the presence of at least three
witnesses, in the car itself, discloses a glaring omission. The report
of Major Cengiz Eryilmaz which concludes that the gendarme who fired
was not at fault appears based solely on the evidence gathered from men
under his command. Such investigation as has taken place therefore
would appear, to a reasonable observer, to lack any objectivity or
independence.
104. The authorities' examination also discloses cursoriness, with a
lack of any attempt to scrutinise the circumstances of the shooting.
The explanations of the gendarmes are accepted unquestioningly, without
any apparent attempt to resolve the factual issues as to why the
applicant's husband, an unarmed civilian, would act in such an
allegedly hostile and aggressive manner, or to verify, by means of
ballistics analysis, the way in which the firing occurred. The apparent
absence of photographs of the scene is also to be remarked.
105. The Commission does not find that the possibility for the
applicant to institute administrative or civil proceedings, is
sufficient to satisfy the procedural requirements of Article 2
(Art. 2), where the death was caused by members of the security forces.
This would place the burden on the individual to establish the facts
of an incident, whereas it is the responsibility of a Contracting State
to take the initiative to investigate the use of lethal force by its
agents, and thereby demonstrate its adherence to the rule of law and
maintain public confidence.
106. The Commission considers that the investigation undertaken into
the death of the applicant's husband was so inadequate as to amount to
a failure to protect the right to life.
As regards the allegation that domestic law contravenes Article 2
(Art. 2) of the Convention
107. The applicant further contends that domestic law fails to give
adequate protection to the right to life. She refers to Article 4 (2)
of Decree 285 as permitting the use of force in circumstances falling
outside the exceptions specified under Article 2 (Art. 2) of the
Convention and also alleges a lack of adequate safeguards in respect
of training and instructions given to security force personnel at
checkpoints.
108. The Commission recalls that in the case of McCann (op. cit., para
154) the Court appeared to accept the possibility, subject to
hesitations with respect to the fact that the Convention does not
oblige Contracting Parties to incorporate its provisions into national
law and the Convention's institutions are not to examine in abstracto
the compatibility of national legislative or constitutional
requirements with the Convention, that if there was a significant
difference between the standard required by Article 2 (Art. 2) of the
Convention and that subsisting in domestic law, there might be a
violation of Article 2 (Art. 2).
109. The Commission notes that the provision referred to by the
applicant appears to permit the use of force whenever a person fails
to obey the orders of security forces. It is not apparent however how
this provision is applied in practice in Turkish law nor whether the
shooting of the applicant's husband would be regarded as lawful on this
basis, since there has been no criminal or civil action in this
respect. It does note from the way in which statements of the gendarmes
and the incident report are framed that the justification for the
shooting was the failure of the applicant's husband to observe a stop
sign rather than any alleged necessity to stop a terrorist or to defend
anyone's life. The Commission has however found above that the use of
force in the circumstances was in violation of Article 2 (Art. 2). It
finds it unnecessary in the present case to decide whether in addition
this discloses a direct failing in the standards contained in domestic
law.
Overall assessment
110. Having regard to its conclusions regarding the way in which the
applicant's husband was killed and the minimal and defective nature of
the investigation in this case the Commission finds that there has been
a failure to protect the right to life guaranteed under Article 2
(Art. 2).
CONCLUSION
111. The Commission concludes, by 29 votes to 1, that there has been
a violation of Article 2 (Art. 2) of the Convention.
F. As regards Article 13 (Art. 13) of the Convention
112. Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
113. The applicant complains of the ineffectiveness of domestic
remedies, referring to the inadequacies of the investigation and the
immunity from challenge in domestic law of the provision permitting the
use of force. Insofar as there is a theoretical remedy in
administrative proceedings, she submits that in the absence of criminal
proceedings, this only permits the State to pay for the right to use
unjustifiable lethal force, where in fact the necessity to ensure the
effective protection of life requires implementation of criminal
proceedings.
114. The Government state that there is a pending investigation before
the military authorities. They also submit that the administrative
courts provide adequate and appropriate redress in this type of case,
referring to administrative court jurisprudence on the theory of social
risk. They refer also to the possibility of taking civil proceedings.
115. The Commission recalls its finding above that the absence of any
adequate investigation constituted a breach of Article 2 (Art. 2) of
the Convention (para. 106). Since the absence of any adequate and
effective investigation into the killing of the applicant's husband
also underlies her complaints under Article 13 (Art. 13) of the
Convention, it finds it unnecessary to examine them separately.
CONCLUSION
116. The Commission concludes, by 29 votes to 1, that no separate
issue arises under Article 13 (Art. 13) of the Convention.
G. Recapitulation
117. The Commission concludes, by 29 votes to 1, that there has been
a violation of Article 2 (Art. 2) of the Convention (para. 111 above).
118. The Commission concludes, by 29 votes to 1, that no separate
issue arises under Article 13 (Art. 13) of the Convention (para. 116).
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. French)
OPINION DISSIDENTE DE M. A.S. GÖZÜBÜYÜK
Après mûre réflexion, et tout bien pesé, j'ai décidé de ne pas
me rallier à l'opinion de la majorité de la Commission selon laquelle
il y avait eu, en l'espèce, violation de l'article 2 de la Convention.
En voici les raisons.
Les tragiques événements qui se sont soldés par la mort de
l'époux de la requérante doivent être replacés dans le contexte très
particulier de l'affaire, car ils se sont produits dans une région où,
malheureusement, sévit le terrorisme et où les atteintes aux biens et
aux personnes sont monnaie courante. La tâche des forces de l'ordre
consistant à assurer un ordre public constamment menacé est rendue plus
difficile par le climat d'instabilité qui règne dans la région; d'où
une tension extrême qui pèse sur ceux-là même qui ont la lourde tâche
d'éviter que des atteintes à l'ordre public ne se produisent.
Les faits de la cause sont à ce titre exemplaires: voici le
conducteur d'une voiture qui n'obtempère pas sur le champ à l'ordre qui
lui a été donné de s'arrêter malgré une sommation (tir en l'air) du
gendarme qui se trouvait au poste de contrôle. Quelques dizaines de
mètres après, un deuxième coup est tiré en direction de la voiture. Ce
tir s'avère mortel, car il atteint le conducteur à la nuque.
Les circonstances exactes de l'incident n'ont pu être élucidées.
Une enquête est en cours devant les juridictions turques. Dès lors, il
s'avère pour le moins malaisé pour la Commission de porter un jugement,
comme elle le fait, qui se veut définitif sur les responsabilités qui
se dégagent en l'occurrence.
Je me limiterai simplement à relever qu'il n'est pas exclu que
la voiture n'a jamais arrêté avant le tir mortel. De ce fait, le
gendarme a pu raisonnablement croire que tout danger de voir les
occupants de la voiture se soustraire par la fuite au contrôle n'était
pas à écarter. A-t-il agi de façon intempestive? Les autorités
ont-elles pris toutes les mesures de précaution pour que des incidents
du genre de celui qui est ici en cause ne se produisent? L'enquête en
cours nous le dira, et on peut regretter peut-être qu'elle ne soit pas
plus rapide. Mais, encore une fois, je tiens à souligner qu'il s'agit
là de questions qui ne sauraient être élucidées qu'au plan interne,
d'autant qu'en l'occurrence le gendarme fait actuellement l'objet de
poursuites devant les juridictions pénales. L'impartialité de ces
juridictions ainsi que l'efficacité de leur instruction ne sont
aucunement mises en cause.
Je terminerai par deux remarques qui me paraissent répondre aux
interrogations que l'on est en droit de se poser lorsque de tels
incidents se produisent.
La violence terroriste met à rude épreuve les institutions
démocratiques et oblige les citoyens à redoubler de prudence. Ce qu'a
reconnu implicitement la Commission lorsque, dans une situation somme
toute assez voisine de celle qui est ici en cause, a dans une décision
d'irrecevabilité à laquelle l'avis de la majorité se réfère amplement,
fait siennes les observations du juge national selon lesquelles "si le
risque de blesser gravement les occupants du véhicule était certes
très grand, le type de dommages à éviter (tel que l'estimaient
raisonnablement les soldats) en les empêchant de s'enfuir était encore
plus important, puisqu'il s'agissait de la liberté pour des terroristes
de poursuivre leurs activités de mort et de destruction." (n° 17579/90,
déc. 13.03.90, DR 74 p. 139). J'ajouterai que la difficulté réside
précisément dans le fait que l'on ne sait pas d'avance à qui l'on a
affaire, d'où la prudence extrême dont doivent faire preuve les
citoyens.
Enfin, sur un terrain plus juridique qui concerne l'application
de la Convention, comment ne pas attribuer un poids déterminant à
l'observation de la Cour européenne selon laquelle "il n'entre pas dans
ses attributions de substituer sa propre vision des faits à celle des
cours et tribunaux internes, auxquels il appartient en principe de
peser les données recueillies par eux." (Cour eur. DH, arrêt Klaas du
22 septembre 1993, série A n° 269, par. 29, p. 17). Je rappelle qu'en
l'espèce la Cour avait à se prononcer sur une allégation de mauvais
traitements et qu'elle a estimé sur la base des jugements rendus par
les juridictions nationales, qu' "aucun élément propre à remettre en
cause le constat de ces juridictions" n'avait été fourni et qu'elle
ne possédait "aucune donnée convaincante qui puisse l'amener à
s'écarter des constatations de fait des juges nationaux." (ibid.
par. 30). Ce qui confirme que dans un domaine aussi délicat comme l'est
celui de l'appréciation des responsabilités éventuelles pour des actes
de la nature de ceux qui sont ici en jeu, le juge supranational doit
nécessairement attendre que le juge national se soit prononcé. Il y va
du respect, d'ailleurs, du principe de subsidiarité qui régit la
répartition des compétences entre les Etats et les organes de contrôle
de la Convention.
Full & Egal Universal Law Academy