CASE OF KASAP AND OTHERS v. TURKEY

SECOND SECTION

CASE OF KASAP AND OTHERS v. TURKEY

(Application no. 8656/10)

JUDGMENT

STRASBOURG

14 January 2014

FINAL

14/04/2014

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

In the case of Kasap and Others v. Turkey,

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

Guido Raimondi, President,
Işıl Karakaş,
Dragoljub Popović,
András Sajó,
Nebojša Vučinić,
Helen Keller,
Egidijus Kūris, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 10 December 2013,

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

PROCEDURE

1. The case originated in an application (no. 8656/10) 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 five Turkish nationals, Ms Resmiye Kasap, Ms Selma Canpolat, Ms Selda Pan, Ms Vildan Pan and Ms Şengül Akgünlü (“the applicants”), on 2 February 2010.

2. The applicants were represented by Ms G. Battal Özmen, Mr A. Özmen and Mr. B. Yavuz, lawyers practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicants alleged, in particular, that their relative Murat Kasap had been deliberately killed by a police officer in breach of Article 2 of the Convention.

4. On 11 June 2012 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1958, 1974, 1979, 1982 and 1974 respectively and live in Adana and Mersin.

6. Murat Kasap was the first applicant’s son and the other applicants’ brother.

7. At around 8.30 p.m. on 29 September 2006, Murat Kasap and his friend R.S. were riding on a motorcycle in the Adana district. When they realised that two police officers wanted them to stop, they panicked because they did not have driving licences. They started driving away and the two officers, I.H.Y. and H.B., gave chase until Murat Kasap and R.S. crashed into a wall.

8. Immediately after the accident, H.B. arrested R.S. but Murat Kasap started to run away, followed by the officer I.H.Y.

9. Meanwhile, R.S. made an attempt to escape. In order to stop him from running away, the officer who stayed with him fired two shots in the air. R.S. told the officer that there was no need to open fire, and explained that Murat Kasap was running away because he had panicked. If he were to be allowed to telephone him, his friend would give himself up. He also stated that he knew where Murat Kasap lived.

10. I.H.Y. heard the shots fired by his colleague and thought that Murat Kasap might have a gun. According to his statement, he ordered Murat Kasap to stop and fired three shots in the air. While he was running after Murat Kasap, he lost his balance and his pistol went off. The bullet hit the ground, ricocheted, and entered the back of the body of Murat Kasap, who died on the way to hospital.

11. The incident was notified to the Ceyhan public prosecutor, who immediately gave instructions for security precautions to be taken. A crime scene examination team arrived at the site of the incident and encircled the crime scene with barrier tape.

12. At 9.15 p.m. on the same night, a prosecutor went to the site of the incident. The prosecutor questioned the eyewitness and prepared an incident report.

13. On the same night, R.S. was questioned by two police officers at the Ceyhan Police Headquarters. He described the incident but was not aware of the death of Murat Kasap.

14. On the same night at 10.50 p.m., the guns of the police officers were seized as evidence.

15. At 12.45 a.m. on the same night, a post-mortem examination was carried out on the body of Murat Kasap. The public prosecutor and the doctor observed a bullet entry wound on his back. The doctor was of the opinion that a full autopsy was needed to establish the cause of death. After the examination, Murat Kasap’s clothes were seized in order to be able to determine the exact shooting range.

16. At 2.15 a.m. on the same night, the public prosecutor questioned the officer H.B. at a police station.

17. According to a crime scene investigation report which was drawn up by two other police officers under the supervision of the public prosecutor, six bullet cases and a bullet jacket were found at the site of the incident.

18. On 30 September 2006 at 7.00 a.m. a complete examination of the motorcycle was carried out.

19. On 30 September 2006 a full autopsy was carried out on Murat Kasap’s body. The public prosecutor and the experts observed that the cause of death was internal bleeding caused by the entry of a deformed bullet.

20. On the same day, the officer I.H.Y. was questioned by the Ceyhan public prosecutor. According to his statement, the death of Murat Kasap was the result of an accident. He maintained that he had not shot Murat Kasap intentionally but that his pistol had gone off accidentally when he lost his balance.

21. Also the same day, and after having been questioned by the Ceyhan public prosecutor, the officer I.H.Y. was brought before the Ceyhan Magistrates’ Court (Sulh Ceza Mahkemesi), where he pleaded not guilty and reiterated the statement he had made before the public prosecutor earlier in the day.

22. Also on 30 September 2006, the Ceyhan Magistrates’ Court ordered I.H.Y.’s detention.

23. On 2 October 2006, the applicants found another bullet case at the site of the incident and handed it to the public prosecutor.

24. On 4 October 2006 the parents of Murat Kasap made an official complaint to the Ceyhan public prosecutor and asked for those responsible for the death of their son to be punished.

25. On 1 November 2006 the Ceyhan public prosecutor filed an indictment with the Ceyhan Criminal Court of First Instance and charged the officer I.H.Y. with the offence of causing death by negligence.

26. On an unspecified date, Murat Kasap’s parents joined the criminal proceedings against the officers as civil parties (müdahil).

27. On 29 November 2006 the Ceyhan Criminal Court of First Instance considered the possibility that the officer I.H.Y. might have acted with intent to kill and decided that that would necessitate a reclassification of the offence attributed to him. It therefore decided to forward the case file to the Ceyhan Assize Court, which has jurisdiction to deal with such offences.

28. Following an objection by the officer I.H.Y., on 30 November 2006 the Ceyhan Assize Court ordered I.H.Y.’s release pending trial.

29. On 19 January 2007 the Ceyhan Assize Court declined jurisdiction to examine the case on the grounds that the offence attributed to the officer I.H.Y. was causing death by negligence. It decided that the Ceyhan Criminal Court of First Instance had jurisdiction over this offence. The Assize Court also decided to transfer the case file to the governor’s office for authorisation to be granted in order to prosecute the officer.

30. The parents of Murat Kasap lodged an objection against the decision of non-jurisdiction and on 19 March 2007 their objection was accepted by Osmaniye Assize Court.

31. On 29 August 2007 the Ceyhan governor’s office decided not to grant authorisation for the prosecution of I.H.Y.

32. On 9 October 2007 Murat Kasap’s parents lodged an objection against the governor’s decision.

33. On 14 November 2007 the Adana Regional Administrative Court quashed the governor’s decision and forwarded the case file to the Ceyhan public prosecutor.

34. On 11 December 2007, the Ceyhan public prosecutor filed an indictment with the Ceyhan Assize Court and charged the officer I.H.Y. with the offence of murder with dolus eventualis (“olası kast”).

35. On an unspecified date, the Ceyhan Assize Court concluded that further ballistic examinations were necessary to establish how the trigger had been pulled. On 20 October 2008 the Forensic Medicine Institute issued a report, in which the experts noted that the pistol could only have been fired if pressure of between two and five kilograms had been applied to the trigger.

36. According to the Forensic Medicine Institute’s report dated 12 January 2009, both the bullet cases and the bullet jacket found at the crime scene came from the accused police officer’s pistol.

37. On 30 June 2009 the Ceyhan Assize Court found that, although the officer I.H.Y. had not attempted to kill Murat Kasap, he had used disproportionate force and caused his death by negligence. The Assize Court sentenced the officer to two years’ imprisonment but then reduced the sentence to one year and eight months’ imprisonment. Moreover, having regard to Article 231 of the Code of Criminal Procedure, it suspended the pronouncement of the judgment.

38. On an unspecified date, the first applicant submitted a petition to the High Disciplinary Council of the Ministry of the Interior asking for the officer I.H.Y. to be dismissed from his job as a civil servant.

39. By a letter dated 15 July 2009 the first applicant was informed that I.H.Y. had been suspended from his job for a period of ten months.

40. On 3 July 2009 the applicants lodged an objection against the Ceyhan Assize Court’s decision of 30 June 2009.

41. The objection was dismissed by the First Division of the Osmaniye Assize Court on 5 October 2009.

42. Meanwhile, on 20 July 2007 Murat Kasap’s parents had brought a case before the Adana Administrative Court against the Ministry of the Interior, requesting 200,000 Turkish liras (TRY) in compensation for the death of their son.

43. On 17 November 2009 the Adana Administrative Court allowed the claim in part and awarded Murat Kasap’s parents TRY 6,975 (approximately 3,150 euros (EUR) at the time) for pecuniary damage. The administrative court also awarded them TRY 20,000 (approximately EUR 9,000 at the time) in respect of non-pecuniary damage.

44. On an unspecified date, Murat Kasap’s parents lodged an appeal against the Adana Administrative Court’s decision. The examination of the appeal is still continuing before the Supreme Administrative Court.

45. After the Government had been notified of the present case, on 7 March 2013 the Human Rights Department of the Ministry of Justice applied to the General Directorate of Criminal Affairs of the Ministry of Justice requesting that a written order be issued pursuant to Article 309 of the Criminal Code to quash the judgment of the Ceyhan Assize Court dated 30 June 2009. As is apparent from the documents submitted to the Court, no such order was issued by the Ministry.

II. RELEVANT DOMESTIC LAW AND PRACTICE

46. The suspension of the pronouncement of the judgment is regulated by Article 231 of the Code of Criminal Procedure, the relevant paragraphs of which read as follows:

“...

(5) If the accused, after being tried on the charges against him, is sentenced to a judicial fine or to imprisonment for less than two years, the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment means that the judgment does not have any legal consequences for the offender.

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

a) the offender has never been found guilty of a wilful offence;

b) the court is convinced, taking into account the offender’s personality traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; and

c) the damage caused to the victim or to society has been repaired by way of restitution or compensation.

...

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

...

(10) If the offender does not commit another wilful offence and abides by the obligations set out in the supervision order, the judgment of which the pronouncement has been suspended shall be annulled and the case discontinued.

(11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court shall impose the sentence. Nevertheless, the court may assess the offender’s situation and may decide that a certain part of the sentence, up to the half of the total sentence, will not be executed. If the conditions so permit, the court may also suspend the execution of a sentence of imprisonment or commute it to other optional measures.

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

47. Article 309 of the Code of Criminal Procedure, concerning references to the Court of Cassation by written order of the Ministry of Justice (Kanun yararına bozma), provides:

“Where the Ministry of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, it may issue a formal order to the Chief Public Prosecutor requiring him to ask the Court of Cassation to set aside the judgment concerned ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE CONVENTION

48. The applicants alleged that their relative had been deliberately killed by a police officer in breach of Article 2 of the Convention. They complained that the suspension of pronouncement of the judgment in respect of the police officer was not compatible with the obligation to protect the right to life by law within the meaning of Article 2 of the Convention. Relying on Articles 2 and 13 of the Convention, the applicants also complained that there had been serious shortcomings in the investigation into the shooting and in the trial of the police officer.

49. The Government contested that argument.

50. The Court considers that the essence of the applicants’ complaints concerns the deprivation of their relative’s right to life and the effectiveness of the investigation into the killing. The Court thus considers it appropriate to examine all of the above complaints solely from the standpoint of Article 2 of the Convention, which reads as follows:

“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 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

51. The Government argued that the applicants had not submitted the application form in a short and compendious manner as required by Rule 47 of the Rules of Court and Paragraph 11 of the Practice Direction on the Institution of Proceedings, appended to Rules 45 and 47 of the Rules of Court and issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 1 November 2003 and amended most recently on 24 June 2009.

52. The Court notes that the admissibility rules are set out in Articles 34 and 35 of the Convention. It considers that submitting a summary of the information provided on the application form does not constitute an admissibility criterion as laid down in these Articles. Therefore, the Government’s objection must consequently be dismissed.

53. Moreover, the Court notes that the application 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

54. The applicants maintained that their relative had been killed in circumstances which were in breach of Article 2 of the Convention and that the national authorities had failed to conduct an effective investigation into the killing.

55. The Government argued that the applicants’ relative had not been killed intentionally and that an effective investigation had been carried out.

56. The Court observes that it has already been established by the Ceyhan Assize Court that police officer I.H.Y. had exceeded the limits of his powers and unlawfully caused the death of Murat Kasap. The Court considers that this conclusion amounts to an acknowledgment in substance that the death of Murat Kasap was in breach of Article 2 of the Convention and makes it unnecessary to determine whether the force used by the police officer was absolutely necessary and justified under Article 2 § 2 of the Convention. The Court’s examination of the applicants’ complaint will therefore be limited to ascertaining whether or not the national authorities afforded appropriate and sufficient redress for the violation (see Fadime and Turan Karabulut v. Turkey, no. 23872/04, § 43, 27 May 2010 and Külah and Koyuncu v. Turkey, no. 24827/05, § 38, 23 April 2013) and whether they have complied with their substantive and procedural obligations under Article 2 of the Convention. In this connection the Court notes that, although the officer I.H.Y., who killed Murat Kasap, was found guilty of the offences of using disproportionate force and manslaughter by negligence, he was sentenced to one year and eight months’ imprisonment and the pronouncement of the judgment was suspended.

57. 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).

58. It must be emphasised 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).

59. 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).

60. In the present case, the Court reiterates that the trial court found the police officer guilty for causing the death of the applicants’ relative by negligence. In other words, the trial court concluded that, even though the police officer has not acted with intent to kill, the death of Murat Kasap was unlawful (see paragraph 56 above). However, the Court observes that the domestic law permitted the trial court to suspend the pronouncement of the judgment for the offence of unlawful killing. By this 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 notes that the suspension of the pronouncement of the judgment, regulated by Article 231 of the Code of Criminal Procedure, results in the impunity of the perpetrators. That is because the application of this provision deprives the judgment of all its legal consequences, including the sentence, provided that the offender abides by the supervision order. The Court therefore considers that the impugned court decision suggests that the judges exercised their discretion to minimise the consequences of an unlawful act, rather than showing that such acts could in no way be tolerated (see mutatis mutandis, Eski v. Turkey, no. 8354/04, § 36, 5 June 2012).

61. In conclusion, the Court considers that the criminal-law system, as applied to the killing of Murat Kasap, 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 applicants.

62. In the light of the foregoing, the Court finds that there has been a violation of Article 2 of the Convention (see mutatis mutandis, Külah and Koyuncu, cited above, § 44).

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

63. 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. Pecuniary Damage

64. The first applicant claimed EUR 50,000 in respect of pecuniary damage. The other applicants each claimed EUR 40,000 under this head.

65. The Government considered the claim for pecuniary damage to be unsubstantiated.

66. The Court observes that the applicants have not submitted any documents in support of their claim for pecuniary damage; it therefore dismisses this claim.

B. Non-Pecuniary Damage

67. The applicants each claimed EUR 50,000 in respect of non‑pecuniary damage.

68. The Government considered that the claim for non-pecuniary damage was excessive.

69. The Court finds that the applicants suffered non‑pecuniary damage which cannot entirely be compensated for by the finding of violations. It therefore awards EUR 30,000 to the first applicant and EUR 10,000 jointly to the other applicants in respect of non‑pecuniary damage.

C. Costs and expenses

70. The applicants also claimed EUR 34,272 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. In support of their claims, the applicants referred to the Turkish Bar Association’s tariff of lawyers’ fees.

71. The Government contested the claim.

72. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicants have not substantiated that they actually incurred the costs claimed. Accordingly, the Court makes no award under this head.

D. Default interest

73. 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 application admissible;

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

3. Holds

(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 30,000 (thirty thousand euros) to the first applicant and EUR 10,000 (ten thousand euros) jointly to the other applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;

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

4. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 14 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithGuido Raimondi
RegistrarPresident

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