CASE OF HASAN KÖSE v. TURKEY

SECOND SECTION

CASE OF HASAN KÖSE v. TURKEY

(Application no. 15014/11)

JUDGMENT

STRASBOURG

18 December 2018

FINAL

06/05/2019

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Hasan Köse v. Turkey,

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

Robert Spano, President,
Ledi Bianku,
Işıl Karakaş,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 27 November 2018,

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

PROCEDURE

1.  The case originated in an application (no. 15014/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Hasan Köse (“the applicant”), on 6 December 2010.

2.  The applicant was represented by Mr Eylem Salık, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.

3.  Relying on Article 2 of the Convention the applicant complained, in particular, that he had been shot by a police officer and seriously injured but that the police officer had not been punished, despite the fact that he had been found guilty by a criminal court of having caused his life-threatening injury.

4.  On 22 March 2012 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1972 and lives in İzmir.

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

7.  The applicant and his brother sell building materials. The applicant claimed that on 8 January 2007, while he and his brother were driving in their van to their place of work in İzmir, a number of plain-clothes police officers on two motorbikes indicated to him that he should pull over. The police officers then told him that he had been driving erratically and asked him to get out of the vehicle. The applicant and his brother had got out of the van and asked to see the police officers’ identity cards. The police officers then became agitated and started hitting the applicant’s brother. When the applicant asked them to stop, they sprayed him with tear gas and he fell to the ground. Then one of the police officers put his fingers in the applicant’s nostrils and pulled him up and the applicant tried to push that police officer away. The applicant then heard one of the police officers cocking his pistol. Thinking that the plain-clothes police officers, who had refused to show him their identity cards, could in fact be robbers, the applicant got hold of a wooden stick from the back of his van to defend himself. At that moment, one of the police officers, C.U., fired three rounds towards the applicant. One of the bullets hit the applicant’s abdomen and he fell to the ground. The police officers then handcuffed the applicant and his brother. One of them grabbed the wooden stick and started hitting the applicant’s brother, while another officer hit and kicked the applicant. Although the applicant’s brother asked the officers to take the applicant to a hospital, they did not listen to him. Instead, the applicant and his brother were taken to a police station, where they were placed in custody. The applicant’s brother had shouted and asked the custody officers to take his brother to a hospital.

8.  The applicant was subsequently taken to the accident and emergency ward of a hospital, where he underwent surgery. The doctors observed a bullet entry hole, five centimetres above his navel, and a corresponding bullet exit hole on the lower lumbar, three centimetres above the sacrum. The doctors noted that, as it travelled through the applicant’s body, the bullet had damaged the applicant’s small and large intestines, and considered his injury to be life-threatening. It was also stated in a medical report that his injury would prevent him from working for a period of forty‑five days. A neurosurgeon who examined the applicant concluded that the applicant’s injuries amounted to a “permanent deterioration in the functioning of one of his organs or his nerves”. It was also established in December 2008 that as a result of having been shot, the applicant had developed “post-traumatic stress disorder” and “severe depression”. Three neurosurgeons who examined the applicant stated in their report of 11 December 2009 that they had observed atrophy (wasting away of the muscle) of the applicant’s thigh muscles and sensory loss on the front of the thighs. Finally, according to a report issued by a hospital in İzmir on 19 April 2010, as a result of the applicant’s injury, his ability to work had been reduced by 27% (see also paragraph 53 below).

9.  On 22 May 2008 a prosecutor filed an indictment with the İzmir Criminal Court of First Instance and charged Officer C.U. with the offence of intentionally causing a life-threatening injury. The same day the prosecutor also decided not to bring any proceedings against Officer C.U. and the remaining officers in respect of the applicant’s complaints of ill-treatment and an objection lodged by the applicant against that decision was rejected on 31 October 2008.

10.  On 4 June 2008 the İzmir Criminal Court of First Instance considered the possibility that the offence attributed to Officer C.U. could be reclassified as “attempted murder”, and forwarded the case file to the İzmir Assize Court, which had jurisdiction to deal with such offences.

11.  In the course of the investigation and the trial, Officer C.U. maintained that he had not shot the applicant intentionally and that his pistol had accidentally fired when he and the applicant had had a scuffle.

12.  The Forensic Medicine Institute concluded that the applicant had not been shot at close range.

13.  On 15 March 2010 the First Chamber of the İzmir Assize Court found that Officer C.U. had fired in the air twice before firing in the direction of the applicant without aiming at a particular part of his body. Contrary to what was claimed by Officer C.U., there had been no scuffle between him and the applicant when Officer C.U. had fired his weapon. It also found that, although Officer C.U. had not attempted to kill the applicant, he had used disproportionate force and caused an injury which had threatened the applicant’s life. The Assize Court sentenced Officer C.U. to five months’ imprisonment but suspended the pronouncement of his conviction under Article 231 of the Criminal Code of Procedure (see “Relevant Domestic Law” below).

14.  The applicant lodged an objection against the Assize Court’s decision and argued, in particular, that the decision to suspend the pronouncement of the conviction would encourage other police officers to carry out similar acts against members of the public.

15.  The objection was rejected by the Second Chamber of the İzmir Assize Court on 7 June 2010.

16.  In the meantime, the applicant instituted proceedings against the Ministry of the Interior before the İzmir Administrative Court and claimed 11,000 Turkish liras (TRY) in respect of pecuniary damage and TRY 50,000 in respect of non-pecuniary damage. In its decision of 17 June 2010 the İzmir Administrative Court found the Ministry responsible for the damage suffered by the applicant and awarded him TRY 712 (approximately 370 euros (EUR) at the time) in respect of pecuniary damage and TRY 50,000 (approximately EUR 26,000) in respect of non‑pecuniary damage, plus statutory interest. The Ministry of the Interior appealed against the decision.

17.  On 21 April 2014 the Supreme Administrative Court upheld the İzmir Administrative Court’s decision insofar as it concerned the pecuniary damage but quashed the part of the decision concerning the non-pecuniary damage because it considered that the applicant had also been partly responsible for the incident.

18.  The case file was returned to the İzmir Administrative Court which decided on 24 February 2016 to award the applicant TRY 20,000 (approximately EUR 6,200 at the time) plus statutory interest in respect of non-pecuniary damage. The appeal lodged by the applicant against this finding is currently pending.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

19.  Suspension of the pronouncement of a judgment is regulated by Article 231 of the Code of Criminal Procedure, as amended by Laws nos. 5560 and 5728. At the time of the trial in the present case, the relevant paragraphs of Article 231 read as follows:

“...

(5) If, at the end of the trial, the defendant is sentenced to the payment of a fine or to a term of imprisonment shorter than two years, the trial court may decide to suspend the pronouncement of the judgment ... Suspension of the pronouncement of a judgment means that the suspended judgment has no legal consequences for the defendant.

(6) Suspension of the pronouncement of a judgment may be decided provided that:

a) the defendant has not previously been found guilty of an offence committed with intent;

b) the court is convinced, after taking into account the defendant’s personality and his behaviour during the criminal proceedings, that the defendant is unlikely to reoffend; and

c) the damage caused to the victim or to society has been repaired by way of restitution or compensation. Pronouncement of the judgment may be suspended only if the defendant does not object to it.

...

(8) If the pronouncement of the judgment is suspended, the defendant shall be kept under supervision for the following five years ...

...

(10) If the defendant does not commit another offence with intent and abides by the conditions of the supervision order, the judgment of which the pronouncement has been suspended shall be annulled and the case discontinued.

(11) If the defendant commits an offence with intent or acts in violation of the obligations stipulated by the supervision order, the court shall proceed to pronounce the sentence. Nevertheless, the court may assess the defendant’s situation and may decide that a certain part of the sentence – no more than half of the total sentence – shall not be executed. If the conditions so permit, the court may also suspend the execution of a sentence of imprisonment or commute it to another optional measure.

(12) An objection may be lodged against the decision to suspend the pronouncement of the judgment ...”

20.  In its judgment in the case of Mehmet Şah Araş and Others (application no. 2014/798, 28 September 2016), which concerned the beating up of some of the applicants in that case by a number of police officers, the Constitutional Court of Turkey noted that the trial court had found four of the police officers guilty of having injured some of the applicants and sentenced them to five months and eighteen days’ imprisonment. However, noting that the trial court had then suspended the pronouncement of its judgment, the Constitutional Court concluded that the suspended judgment could neither be regarded as a deterrent punishment for the police officers nor as adequate redress as regards the applicants’ complaints of ill-treatment. It also concluded that the suspension of the pronouncement of the judgment had resulted in impunity and rendered the investigation ineffective because one of the important requirements of an effective investigation was to ensure that perpetrators of such offences were subjected to punishments which corresponded to the seriousness of their offences.

21.  Similarly, in its judgment in the case of Seyfullah Turan and Others (application no. 2014/1982, 9 November 2017), which concerned the severe beating up of a young boy by a police officer with the butt of his rifle as a result of which the boy suffered a brain haemorrhage, the Constitutional Court noted that the police officer had been sentenced to six months and seven days’ imprisonment but that the pronouncement of the judgment had been suspended. The Constitutional Court concluded that by suspending the pronouncement of its judgment the trial court had not only used its power of discretion to lessen the consequences of a serious criminal act, rather than to show that such acts could in no way be tolerated, but had also acted in breach of the obligation to conduct an effective investigation capable of leading to the punishment of those responsible for life-threatening offences. It therefore found that the applicant’s right to life had been breached.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

22.  The applicant complained under Articles 2 and 6 of the Convention that he had been shot by a police officer and that the perpetrator had been protected by the trial court’s decision to suspend the pronouncement of the judgment.

23.  The Government contested that argument and argued that the police officers had not resorted to the use of force with a view to endangering the applicant’s life.

24.  The Court considers that the applicant’s fortuitous survival does not prevent it from examining the complaint under Article 2 of the Convention, since the use of force against him and the ensuing injury were potentially fatal and, as established by the doctors and the national courts (see paragraphs 8 and 13 above), put his life at risk (see, mutatis mutandis, Makaratzis v. Greece [GC], no. 50385/99, §§ 52 and 55, ECHR 2004-XI, and Peker v. Turkey (no. 2), no. 42136/06, §§ 41-42, 12 April 2011 and the cases cited therein).

25.  The Court also considers that the applicant’s complaints can be examined solely from the standpoint of Article 2 of the Convention, the relevant parts of which read as follows:

“1.  Everyone’s right to life shall be protected by law...

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

A.  Admissibility

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

B.  Merits

27.  The applicant argued that the selection and appointment procedure pertaining to police recruits in Turkey was inadequate. In a profession in which protecting human life should be regarded as paramount, it had instead become the norm to select police officers from ill-suited candidates and on the basis of their membership of certain groups. This had created a situation which threatened the well-being of the public, rather than protecting it. Statutory regulations to remedy that situation were lacking. Instead of imposing on offending police officers the requisite punishment with a view to ensuring that they act in accordance with their profession’s requirements, they were rewarded with trivial punishments in the hope of strengthening the authority of the State. This, in turn, was not only damaging the public’s trust in the State and in the police force, but was also creating an atmosphere of fear and panic in which beatings and shootings by firearms perpetrated by the police were being regarded as normal.

28.  The applicant argued that he had been a victim of the shortcomings highlighted in the preceding paragraph. The police officer who had shot and injured him had been sentenced to a pitiful five months’ imprisonment which, in any event, had not been enforced.

29.  The applicant submitted that persons accused of committing offences against the State or against agents of the State in Turkey were remanded in custody for as much as five to ten years while waiting for the proceedings against them to be completed. However, the authorities had acted indifferently in his case and had been content to impose a very light sentence on a police officer who had seriously injured him and then to suspend the pronouncement of the judgment. This, in the opinion of the applicant, amounted to double standards and was not compatible with the notion of justice.

30.  The Government argued that it had been the applicant and his brother who had attacked the police officers and that the police officers had defended themselves. The Government admitted, however, that their judicial authorities had concluded that the force used by the police officers had been disproportionate. The Government expressed their regret for the incident and left it to the Court’s discretion to assess the facts of the case.

31.  The Government also argued that the procedure of suspension of judgments was not meant to constitute an amnesty. Rather, it was aimed at, inter alia, rehabilitating offenders and repairing the damage caused by them to the victim. The procedure was consistent with the approach adopted by modern criminal justice systems; indeed, many countries had similar procedures in their judicial systems. In the opinion of the Government, imprisonment should be reserved as a last resort and only for the most serious offences.

32.  The Court observes that, as agreed by the Government (see paragraph 30 above), it has already been established by the First Chamber of the İzmir Assize Court that police officer C.U. used disproportionate force and caused an injury which threatened the applicant’s life (see paragraph 13 above).

33.  The Court considers that the Assize Court’s conclusion amounts to an acknowledgment in substance that the injury caused to the applicant was in breach of Article 2 of the Convention. This makes it unnecessary to determine whether the force used by the police officer was absolutely necessary, proportionate and, therefore, justified under Article 2 § 2 of the Convention. The Court’s examination of the applicant’s complaint will therefore be limited to ascertaining whether or not the national authorities afforded appropriate and sufficient redress for the violation and whether they have thus complied with their substantive and procedural obligations under Article 2 of the Convention (see Kasap and Others v. Turkey, no. 8656/10, § 56, 14 January 2014, and the cases cited therein).

34.  The Court reiterates that the State’s positive obligation under Article 2 of the Convention to protect life by law requires the domestic legal system to demonstrate its capacity to enforce the criminal law against those who have unlawfully taken the life of another (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005‑VII). In order to examine whether that obligation has been satisfied, it is for the Court to review whether and to what extent the national courts, in reaching their conclusions, may be deemed to have submitted the case to the careful scrutiny required by Article 2 of the Convention, so that the deterrent effect of the judicial system that is in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined (see Ali and Ayşe Duran v. Turkey, no. 42942/02, § 62, 8 April 2008).

35.  The Court reiterates that, although there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow life-endangering offences, including those arising from the negligence of agents that leads to a death, to go unpunished. This is essential for maintaining public confidence, ensuring adherence to the rule of law and preventing any appearance of tolerance of or collusion in unlawful acts (see mutatis mutandis, Öneryıldız v. Turkey [GC], no. 48939/99, § 96, ECHR 2004‑XII; Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006‑XII (extracts); and Türkmen v. Turkey, no. 43124/98, § 51, 19 December 2006).

36.  Although the Court should grant substantial deference to the national courts in the choice of appropriate sanctions for ill-treatment and homicide by State agents, it must exercise a certain power of review and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 61, 20 December 2007 and Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 238, 30 March 2016 and the cases cited therein).

37.  In the present case, the Court notes that the trial court found the police officer guilty of the offence of causing a life-threatening injury by using excessive force. However, the Court observes that the domestic law permitted the trial court to suspend the pronouncement of the judgment for that offence. By its decision, the trial court used its power of discretion to lessen the consequences of a serious criminal act, rather than to show that such acts could in no way be tolerated (see Okkalı, cited above, § 75). The Court has already held in a number of cases that the procedure regulated by Article 231 of the Criminal Code of Procedure permitting suspension of the pronouncement of judgments concerning agents of the State results in the impunity of the perpetrators (see Eski v. Turkey, no. 8354/04, § 36, 5 June 2012; Taylan v. Turkey, no. 32051/09, § 46, 3 July 2012; Böber v. Turkey, no. 62590/09, § 35, 9 April 2013; Kasap and Others, cited above, § 60; and Ateşoğlu v. Turkey, no. 53645/10, § 28, 20 January 2015; see also, a contrario, Çalışkan v. Turkey ((dec.) no. 47936/11, § 47, 1 December 2015).

38.  The Court reiterates that it has already found that the procedure of suspension of judgments was one of the three main practices adopted by the national judicial authorities in Turkey that have enabled the perpetrators of similar offences to escape punishment (see Uğur v. Turkey, no. 37308/05, §§ 98-101, 13 January 2015). That is because the application of that provision deprives the judgment of all its legal consequences, including the sentence, provided that the offender abides by the supervision order.

39.  In conclusion, the Court considers that the criminal-law system, as applied in the present case, proved to be far from rigorous and had little deterrent effect capable of ensuring the effective prevention of unlawful acts, such as those complained of by the applicant.

40.  In the light of the foregoing, the Court finds that there has been a violation of Article 2 of the Convention (see Külah and Koyuncu v. Turkey, no. 24827/05, § 44, 23 April 2013, and Ateşoğlu, cited above, §§ 21 and 30).

II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

41.  The applicant also complained of a violation of Article 3 of the Convention on the grounds that he had been beaten up, shot and sprayed with tear gas and that the perpetrators had been protected by the trial court’s decision to suspend the pronouncement of the judgment.

42.  The Government contested that argument.

43.  Having regard to its finding relating to Article 2 (see paragraph 40 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 3 of the Convention. In this connection, the Court observes that it has already examined a very large number of applications concerning police violence and the unnecessary and excessive use of tear gas by police officers in Turkey (see, in particular, İzci v. Turkey, no. 42606/05, 23 July 2013 and the cases cited therein).

III.  ARTICLE 46 OF THE CONVENTION

44.  The relevant parts of Article 46 of the Convention provide as follows:

“1.  The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2.  The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”

45.  The Court points out that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and to make reparation for its consequences in such a way as to restore, to the fullest extent possible, the situation existing before the breach. If, on the other hand, national law does not allow – or allows only partial – reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate. It follows, inter alia, that a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to make all feasible reparation for its consequences in such a way as to restore, as far as possible, the situation existing before the breach (see Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004‑II).

46.  As the Court’s judgments are essentially declaratory, the respondent State remains free, subject to the supervision of the Committee of Ministers, to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII).

47.  However, exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46 of the Convention, the Court will seek to indicate the type of measure that might be taken in order to put an end to a situation it has found to exist (see, for example, Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V, and Burdov v. Russia (no. 2), no. 33509/04, § 141, ECHR 2009). In a number of exceptional cases, where the very nature of the violation found was such as to leave no real choice between measures capable of remedying it, the Court has indicated the necessary measures in its judgments (see, among other authorities, Abuyeva and Others v. Russia, no. 27065/05, § 237, 2 December 2010 and the cases cited therein, and Nihayet Arıcı and Others v. Turkey, nos. 24604/04 and 16855/05, §§ 173-76, 23 October 2012).

48.  In the present case the applicant expressed the wish that the conclusion reached by the Court in his application would lead to the taking of necessary steps at national level with a view to preventing similar breaches of the Convention in future, in particular by ensuring that police officers found guilty of such offences would be subjected to punishments which correspond to the seriousness of their offences.

49.  As set out above (see paragraph 37), the Court has examined a number of comparable cases against Turkey in which agents of the State who had been found guilty of unlawfully killing or ill-treating individuals had then remained unpunished when the pronouncement of their convictions was suspended. In those cases the Court found violations of Articles 2 or 3 of the Convention.

50.  The Court reiterates that the procedure under Article 231 of the Criminal Code of Procedure permitting the pronouncement of judgments to be suspended may create an atmosphere of impunity for agents of the State who perpetrate such serious offences (see paragraph 37 above) and considers that the application of that procedure in such cases is incompatible with the requirement under Articles 2 and 3 of the Convention to ensure the accountability of agents of the State. In this connection the Court notes the stance taken by the Constitutional Court in comparable cases as regards the procedure of suspending the pronouncement of judgments (see paragraphs 20-21).

51.  In the light of the foregoing the Court considers that in order to execute the present judgment in accordance with its obligations under Article 46 of the Convention, the respondent State will have to adopt general measures to prevent further similar violations in the future. To that end, and without prejudice to any other measures that Turkey might envisage, the Court considers that in order to eliminate this problem, steps must be taken to ensure that the procedure of suspending the pronouncement of judgments, which is set out in Article 231 of the Code of Criminal Procedure, is used with respect to the requirements under Articles 2 and 3 of the Convention, in particular in cases concerning deliberate use of lethal or potentially lethal force by agents of the State, to ensure that the criminal law protection is both effective and deterrent in practice.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

52.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

53.  The applicant claimed 33,761 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage. In support of his claim for pecuniary damage the applicant submitted to the Court an expert report in which it was established that as a result of the applicant’s injury, his ability to work had been reduced by 27% and that this reduction had resulted in the loss of income in the amount of 63,005 Turkish liras (TRY; approximately EUR 28,000 at the time). He also argued that he had also been unable to work at all for a period of ten months after the shooting and this had resulted in an additional loss of income in the amount of EUR 5000.

54.  The Government argued that there was no causal link between the alleged violation of the Convention and the claim for pecuniary damage. They also argued that the expert report submitted by the applicant in support of his claim for pecuniary damage lacked objectivity and should not be taken into account by the Court. They also considered that both claims were excessive and unsubstantiated. Lastly, they submitted that the applicant had already been granted certain sums of money by the İzmir Administrative Court (see paragraphs 16-18 above).

55.  As regards the applicant’s claim for pecuniary damage, the Court’s case-law has established that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention and that this may, in appropriate cases, include compensation in respect of loss of earnings (see, among other authorities, Barberà, Messegué and Jabardo v. Spain (Article 50), 13 June 1994, §§ 16-20, Series A no. 285‑C, and Er and Others v. Turkey, no. 23016/04, §§ 118, 31 July 2012). The Court has found (see paragraph 40 above) that the respondent State was liable under Article 2 of the Convention for the life-threatening injuries caused to the applicant which reduced his ability to work to a certain degree (see paragraph 53 above). Therefore, contrary to what was suggested by the Government, a direct causal link has been established between the violation of Article 2 of the Convention and the applicant’s loss of income (see Er and Others, cited above, § 119).

56.  The Court notes that, as set out above, in support of his claim for pecuniary damage the applicant submitted to the Court an expert report. The Government, without elaborating in what respect, argued that the expert report in question lacked objectivity. It also notes that the Government did not seek to challenge the accuracy of the calculations made in the report or the report’s conclusion.

57.  In the light of the foregoing, and having regard to the documents in its possession, the Court deems it appropriate to award the applicant EUR 28,000 in respect of his claim for pecuniary damage.

58.  Having regard to the violation it has found above, the circumstances surrounding the applicant’s shooting and the ensuing injury, as well as the documents in its possession, the Court also awards the applicant EUR 40,000 in respect of non-pecuniary damage.

B.  Costs and expenses

59.  The applicant did not make a claim for any costs and expenses.

C.  Default interest

60.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the complaint under Article 2 of the Convention admissible;

2.  Holds that there has been a violation of Article 2 of the Convention;

3.  Holds that there is no need to examine the complaints under Article 3 of the Convention;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 28,000 (twenty-eight thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage; and

(ii)  EUR 40,000 (forty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

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

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıRobert Spano
Deputy RegistrarPresident

 

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