CASE OF YÜKSEL ERDOĞAN AND OTHERS v. TURKEY

THIRD SECTION

CASE OF YÜKSEL ERDOĞAN AND OTHERS v. TURKEY

(Application no. 57049/00)

JUDGMENT

STRASBOURG 

15 February 2007

FINAL

15/05/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Yüksel Erdoğan and Others v. Turkey,

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

MrB.M. Zupančič, President,
MrJ. Hedigan,
MrR. Türmen,
MrsA. Gyulumyan,
MrE. Myjer,
MrsI. Ziemele,
MrsI. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,

Having deliberated in private on 25 January 2007,

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

PROCEDURE

1. The case originated in an application (no. 57049/00) 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 nine Turkish nationals, Mr Yüksel Erdoğan, Mrs Meliha Erdoğan, Mr Sinan Erdoğan, Mrs Bahar Sağlam, Mr Şinasi Yalçın, Mr Hüsnü Yalçın, Mr Ali Yalçın, Mr Ramazan Erdoğan and Mrs Raşidiye Erdoğan (“the applicants”), on 25 February 2000.

2. The applicants were represented by Mr B. Aşçı, Mr M. Narin and Mrs A.N. Çelik, Mr M. Köylüoğlu, Mr C. Yücel and Mr H.İ. Türkyılmaz, lawyers practising in Istanbul. The Turkish Government did not designate an Agent for the purposes of the proceedings before the Court.

3. The applicants alleged under Article 2 of the Convention that their relatives, Fuat Erdoğan, Elmas Yalçın and İsmet Erdoğan, had been unlawfully killed by the security forces and that the authorities had failed to conduct an effective investigation into the circumstances of the case. They further maintained under Article 6 of the Convention that the criminal proceedings brought against the police officers had not been concluded within a “reasonable time”.

4. On 11 March 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

5. On 2 May 2005 the Registry requested the applicants' representatives to submit a power of attorney signed by two of the applicants, namely Mr Ramazan Erdoğan and Mrs Raşidiye Erdoğan by 13 May 2005.

6. On 16 May 2005 one of the applicants' representatives requested an extension of one month of the time allowed for submission of the power of attorney on the ground that these applicants lived in another city. On 7 June 2005 the Registry informed the applicants' representatives that the President of the Chamber had agreed to grant the extension requested. The applicants' representatives were also warned that the case might be struck out of the list for lack of interest. In a letter dated 29 September 2006 the applicants' representatives were once again warned that the case might be struck out of the list for lack of interest.

7. No response was received by the Court to the letters of 16 May and 29 September 2006.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8. The applicants' dates of birth and their relationship to the three persons who were killed are described as follows:

Yüksel Erdoğan (1943) and Meliha Erdoğan (1942) are the parents and Sinan Erdoğan (1962) and Bahar Sağlam (1970) are the siblings of the late İsmet Erdoğan. Şinasi Yalçın (1970), Hüsnü Yalçın (1952) and Ali Yalçın (1954) are the brothers of the late Elmas Yalçın. Ramazan Erdoğan and Raşidiye Erdoğan are the parents of the late Fuat Erdoğan.

A. The killing of İsmet Erdoğan, Elmas Yalçın and Fuat Erdoğan and the subsequent investigation into the circumstances of their death

9. On 28 September 1994 Fuat Erdoğan, Elmas Yalçın and İsmet Erdoğan were killed in the Arzum café in Beşiktaş, a central district in Istanbul, by police officers from the Anti-Terror Branch of the Istanbul Security Directorate. According to a report (ihbar tutanağı) drafted by two police officers on the same date at 3.45 pm, the Security Directorate received an anonymous phone call on the Security Directorate's internal telephone number 139. The caller informed the police that he had seen two men and a woman in Beşiktaş and that one of the men had given a weapon to the woman. He also told the police officer that these three persons were in the Arzum café.

10. On the same day, an arrest report (olaylı yakalama ve zaptetme tutanağı) was drawn up by eight police officers from the Anti-Terror Branch of the Istanbul Security Directorate. According to this report, after having received the anonymous phone call, the police officers arrived at the Arzum café. They told the suspects, who were on the second floor of the café, that they were police officers and requested them to submit their identity cards. The suspects started shouting and opened fire. The officers then ordered the suspects to surrender and responded to their firing in order to protect themselves. When they realised that there was no more gunfire coming from the suspects they stopped the fire. They then saw that the three suspects were dead and informed the public prosecutor. The identity cards found on the deceased bore different names to those of the applicants' relatives. Furthermore, two firearms, three chargers, six cartridges of 7,65 mm calibre, five empty cartridges of 7,65 mm calibre, twenty empty cartridges of 9 mm calibre and five bullets were found next to two of the corpses. The police officers also found some documents on one of the male corpses.

11. On the same day, at 8.10 pm, the Istanbul public prosecutor drew up a report, according to which he arrived at the scene of the incident after having received a phone call from the central police station at 5.10 pm. He maintained in the report that a medical doctor from the Forensic Medicine Institute had been invited to examine the corpses. The medical doctor arrived at the scene of the incident at 7.10 pm and examined the corpses, which were then sent to the morgue of the Forensic Medicine Institute. According to the report, the police officers from the Technical Office of the Istanbul Security Directorate took the fingerprints of the deceased in order to determine their identity. The public prosecutor further ordered that the bullets, cartridges and the two firearms that had been found next to the corpses be handed over to the police officers from the Technical Office of the Istanbul Security Directorate. However, they were given to A.B., one of the police officers who had been involved in the police operation in question.

12. On the same day, two police officers took statements from N.A., C.A. and S.A., three persons who ran the Arzum café. N.A. confirmed the arrival of the deceased at the café, but that when the police officers arrived 15 to 20 minutes later, she had not been inside the café. She contended that she had heard the police officers ordering the suspects to surrender and then heard the shooting. N.A. further contended that she had subsequently learned that the suspects had been terrorists and killed in the café during the armed clash. N.A. finally stated that she did not know the deceased.

13. C.A. and S.A. contended that when the police officers arrived they ordered the suspects to surrender. They maintained that they had left the café when the police officers asked them and their clients to leave. While they were leaving they heard gunfire. They contended that they had subsequently learned that the deceased had been terrorists and had died as a result of the armed clash.

14. On 29 September 1994 autopsies were carried out on the deceased. The autopsy reports were drafted on 20 October 1994.

15. According to the report concerning Fuat Erdoğan, he had received two bullets to his head and three bullets to other parts of his body. Two bullet entry wounds were observed on the right and left temples. The other three bullets entered in the body from the upper parts of the left and right femur and below the left scapula. The bullet exit wounds were observed next to the xiphoid[1], above the scrotum and next to the pubic bone. The cause of his death was stated as fracture of the skull, internal bleeding and cerebral haemorrhage. The experts further noted that a paraffin test, which was to be conducted to detect gunpowder in the hands of the deceased, could not be carried out as there was ink on both of his hands due to the taking of fingerprints by police officers at the scene of the incident.

16. The report concerning İsmet Erdoğan revealed that he had received two bullets to his body. The bullet entry wounds were seen on the right of the parietal bone and on the scapular line on the back. One bullet exit wound was observed on the left ear. The report concluded that his death resulted from fracture of the skull, cerebral haemorrhage and damage to the cerebral tissue.

17. According to the report regarding Elmas Yalçın, she had received one bullet to her head and one to her abdomen. The bullet entry wounds were seen on the right of the parietal bone and the right of the abdomen. The bullet exit wounds were observed in the middle of her lower lip and on the right gluteus. The cause of her death was also determined as fracture of the skull, cerebral haemorrhage and damage to the cerebral tissue. The experts further noted that there was ink on both of her hands due to the taking of fingerprints by police officers at the scene of the incident.

18. According to the autopsy reports, all of the shots were fired at long range.

19. By a letter dated 30 September 1994 the director of the anti-terror branch sent a Browning firearm, an Unique firearm, two chargers, twenty empty cartridges of 9 mm calibre, five empty cartridges of 7,65 mm calibre, six cartridges, four bullets of 9 mm calibre and one bullet of 7,65 mm calibre to the Istanbul Regional Criminal Police Laboratory for a ballistic examination. The director stated in his letter that these items had been found near the corpses and belonged to the deceased.

20. On 5 October 1994 a ballistic examination of the two firearms, bullets and cartridges found at the scene of the incident was conducted by two experts from the Istanbul Regional Criminal Police Laboratory. According to the report drawn up by these experts, five empty cartridges and a bullet of 7,65 mm calibre were discharged from the two firearms that had been found in the vicinity of the corpses and the remaining twenty cartridges and four bullets of 9 mm calibre were discharged from the police officers' firearms. On the same day, the deputy director of the Criminal Police Laboratory informed the anti-terror branch that the firearms examined had not been previously used in committing any other offence.

21. On 6 October 1994 N.A., S.A. and C.A. made statements before the Istanbul public prosecutor. N.A. maintained that she had not been in the café at the time of the incident and that when she had been contacted on the phone, she had been told that there had been a clash between terrorists and police officers. When she arrived at the Arzum café the clash was already over and the suspects were dead. When the public prosecutor stressed that there had been a contradiction between her statements given before him and those given to the police, N.A. stated that she had not been in the café when the suspects arrived. She contended that while she was leaving the café, she heard some police officers giving orders to surrender.

22. S.A. and C.A. told the public prosecutor that N.A. had not been in the café when the suspects had arrived. They contended that they had been told to leave the café by plainclothes police officers. They then heard the police orders to surrender and went to the neighbouring shop. They stated that they had heard gunfire and had subsequently learned that the three suspects were dead.

23. On 18 October 1994 three experts from the Forensic Medicine Institute conducted an examination of the clothes of the deceased. The experts concluded that the shots were not fired at short range. They further considered that it was not possible to determine the exact range of the shootings.

24. On 1 November 1994 the director of the anti-terror branch of the Istanbul Security Directorate sent the tapes and the transcripts of two television programmes concerning the incident, during which journalists interviewed N.A., the owner of the Arzum café and an unidentified witness. N.A. maintained that she had been outside the café when the police officers arrived at the café, 10 or 15 minutes after the arrival of the deceased. She further contended that she had been told that the police officers had ordered the clients to surrender and that, as the latter had not accepted to surrender, the police officers had opened fire. The other eyewitness stated that the police officers had entered the café and asked the deceased to surrender. He further maintained that the suspects had opened fire first and that the police officers had responded by opening fire, which resulted in a clash. The eyewitness however contended that he had not been in the café at the time of the incident, but outside with other police officers.

25. On 4 November 1994 the Istanbul public prosecutor obtained statements from two police officers, R.A. and H.K. The officers maintained that there had been gunfire coming from the suspects and that they had responded to the fire in order to frighten the suspects and make them stop the firing.

26. On 21 November 1994 the public prosecutor obtained statements from Ş.K and A.B. who contended that the police officers had opened fire in order to frighten the suspects and that they had not had the intention to kill them. A.B. further maintained that police officers wearing bullet-proof vests had entered the café while he and some other police officers had been outside, as they had taken security measures around the café.

B. Criminal proceedings against the police officers

27. On 22 November 1994 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court against four police officers, Ş.K., M.K., R.A. and H.K., from the Anti-Terror Branch of the Istanbul Security Directorate. He issued a non-prosecution decision regarding B.A., another suspected police officer, since he had died. The charges were brought under Articles 450 § 5, 463, 281, 31, 33, 50 and 49 §§ 1 and 3 of the Criminal Code. The defendants were accused of manslaughter - without the actual offender being identified - during an armed clash between the deceased suspects and the security forces.

28. On 29 November 1994 the Istanbul Assize Court held the first hearing.

1. Hearing of 9 February 1995

29. On 9 February 1995 one of the applicants, Yüksel Erdoğan, and Elmas Yalçın's father, Mustafa Yalçın intervened as a civil party (müdahil) to the criminal proceedings brought against the officers. On the same day, the first-instance court ordered the ballistic examination of the empty cartridges and decided that the defendants would not be detained on remand throughout the proceedings in accordance with Article 15 § 1 of the Prevention of Terrorism Act. The court further ordered that the firearms which had been given to A.B. be sent to the custody office (adliye emanet memurluğu) of the Istanbul Courts.

2. Hearings of 5 May and 6 July 1995

30. On 5 May 1995 the accused police officers made statements before the Istanbul Assize Court. They all maintained that when they had arrived at the Arzum café they had taken the two persons who ran the café outside. They then entered the café and told the suspects that they were police officers. The suspects however opened fire. The defendants further contended that there had been gunfire emanating from the suspects and that in order to frighten the latter and protect themselves, they responded to the gunfire. One of the defendants, Ş.K. maintained that he had not opened fire. The defendants all contended that they had not been wearing bullet-proof vests when they had entered the café. On the same day, two witnesses E.M. and N.Ç., police officers from the anti-terror Branch of the Istanbul Security Directorate, also made statements before the court. They contended that they had been outside the café. Therefore, they did not witness the clash but heard the accused police officers ordering the suspects to surrender.

31. During the hearing, the intervening parties' lawyers requested the court to ask the defendants certain questions concerning the trajectory of the bullets and the range of the shootings. The Istanbul Assize Court dismissed these requests holding that it was not necessary to have responses to these questions.

32. On the same day, the first-instance court ordered that the defendants' firearms be handed over for a ballistic examination. It further ordered that the bullets which had been found at the scene of the incident be subject to an examination with a view to determining which of these bullets and cartridges were discharged from the defendants' weapons.

33. At the end of the hearing of 6 July 1995 the first-instance court once again ordered that the defendants' firearms be sent for a ballistic examination.

3. Hearings of 30 October and 13 December 1995 and the subsequent developments

34. On 30 October 1995 the Istanbul Assize Court further heard four witnesses, A.B., police officer from the Anti-Terror Branch, N.A., C.A. and S.A., three persons who ran the Arzum café. A.B. maintained that he had not been inside the coffee shop and had not witnessed the incident, yet, he had heard the officers warning the suspects. He contended that as soon as the police officers entered the café, he had heard one gun shot and that he did not know whether it was the police officers or the suspects who had fired first. He further contended that he had signed the arrest report and that he could not remember the exact location of the firearms at the scene of the incident. A.B. finally maintained that he did not remember who had given the warnings to the deceased. N.A., the owner of the Arzum café, testified that she had not been in the café on the day of the incident and that she had been informed about the incident by her sister S.A. She further contended that the windows in the café had not been struck by the bullets. When the first-instance court reiterated her statement before the police and emphasised that there was a contradiction between the two statements, she maintained that she had taken tranquillizers before her statements had been taken by the police and that she had signed these statements without having read them. S.A. and C.A contended that they had been told by the police officers to go outside and that they had not witnessed the incident. C.A. maintained that she had heard the officers' warnings but as she had been in another shop she had not heard anything else. She contended that she did not remember how much time after hearing the officers the gunshots had started. S.A. witnessed that she had heard the officers' ordering the suspects to surrender. S.A. further contended that 2 to 3 seconds after hearing the officers speak, she heard gun shots which had lasted 2 to 3 minutes. She maintained that the glass of a cupboard, which had been on the ground floor, had been broken during the incident and that it could not have been broken by a bullet coming from the suspects unless the bullet ricocheted from the wall. S.A. finally stated that she did not have any information as to the position of the corpses on the second floor of the café as the police officers had not authorised her to go upstairs.

35. On the same day, the first-instance court once again ordered that the firearms of the defendants be handed over for ballistic examination following receipt of a letter from the Istanbul Security Directorate refusing to give these firearms on the ground that the defendants would not be secure without their weapons.

36. During the same hearing, the intervening parties requested the court to order the defendants' detention on remand since they failed to attend the hearings without a justification. The public prosecutor opined that the defendants should be requested to state their reasons for not attending the hearings. The defendants' lawyer requested that the defendants be exempted from attending the hearings. The Istanbul Assize Court accepted the latter's request on the ground that the defendants and the witnesses had already been heard. The court further held that an on-site inspection be conducted after receiving the ballistic examination report from the Forensic Medicine Institute.

37. On an unspecified date, the Istanbul Security Directorate sent to the Istanbul Assize Court six firearms which had been used by the accused police officers at the incident on 28 September 1994.

38. On 13 December 1995 the first-instance court decided to send the defendants' firearms as well as the bullets and the empty cartridges found at the scene of the incident and one bullet extracted from İsmet Erdoğan's body to the Forensic Medicine Institute for a ballistic examination with a view to determining which of these bullets and cartridges had been discharged from the defendants' weapons.

39. On 8 January 1996 experts from the Forensic Medicine Institute conducted an examination of the defendants' firearms, two 9 mm calibre bullets that were found at the scene of the incident and one 9 mm calibre bullet that had been extracted from İsmet Erdoğan's body. The experts concluded that neither of the 9 mm calibre bullets had been discharged from the police officers' firearms.

4. Hearing of 22 April 1996 and the subsequent developments

40. On 22 April 1996, the ballistic report was read out before the court. The intervening parties opined that the barrels or the firing pins of the firearms could have been changed and requested that the first-instance court ask for information as to whether there had been any such change. The intervening parties further requested that the empty cartridges also be sent to the Forensic Medicine Institute for examination and that a determination be made as to whether the three 9 mm calibre bullets matched the empty cartridges. They finally asked the court to hold an on-site inspection in the Arzum café as they had been informed that the café would be renovated. The public prosecutor agreed with the intervening parties.

41. On the same day, the Istanbul Assize Court decided that the defendants' firearms as well as the firearms, bullets and cartridges, found near the deceased and extracted from one of the corpses be sent for a new examination. Forensic experts were requested to give information in order to determine whether the three 9 mm calibre bullets matched the empty cartridges and whether the latter had been discharged from one of the firearms belonging to the police officers or the deceased. The court further decided to request the Istanbul Security Directorate to provide information as to whether the barrels or the firing pins of the firearms had been changed after 28 September 1994. It finally decided to hold an on-site inspection in the Arzum café on 18 June 1996.

42. On 31 May and 20 June 1996 the Istanbul Assize Court received two letters from the Istanbul Security Directorate. The letter of 31 May 1996 stated that the Directorate did not have any information as to whether the parts of the firearms had been changed whereas the second letter stated that the firearms' parts had not been changed.

43. On 18 June 1996 the judges of the Istanbul Assize Court, an expert, the four accused police officers and their representative as well as the intervening parties' representatives went to the Arzum café for an on-site inspection. However, as the Arzum café had been renovated in the meantime, the court could not conduct the inspection at the scene of the incident in the absence of the witnesses who had run the café at the time of the incident. The first-instance court therefore decided to hold an on-site inspection in the presence of the witnesses.

5. Hearing of 11 July 1996 and the subsequent developments

44. On 11 July 1996 the Istanbul Assize Court decided to request more information from the Security Directorate as the letters of 31 May and 20 June 1996 were contradictory. It further ordered that a ballistic examination be conducted. The court finally decided to conduct an on-site inspection with the attendance of all defendants, witnesses and intervening parties on 11 October 1996.

45. On 24 July 1996 the deputy director of the Istanbul Security Directorate sent a letter to the Istanbul Assize Court, maintaining that any change in the firearms could only be determined by a criminal laboratory examination and that such a change constituted a criminal offence.

46. On 28 August 1996 experts from the Forensic Medicine Institute conducted a new ballistic examination. The ballistic report confirmed the findings of the Istanbul Regional Criminal Police Laboratory's report of 5 October 1994. It further revealed that twenty 9 mm calibre cartridges out of twenty-two, which had been submitted to the experts, were discharged from the firearms numbered MP5-3793, T-1192 and 245 PV 30170. The first firearm belonged to H.K., the second belonged to B.A., and the third weapon belonged to Ş.K. According to the report four 9 mm calibre bullets also matched with B.A.'s firearm numbered T-1192. As regards the 9 mm calibre bullet which had been extracted from İsmet Erdoğan's body and the two other 9 mm calibre bullets found close to the Fuat Erdoğan's corpse, the forensic experts reached a different conclusion than their previous findings. They opined that the first bullet was discharged from the firearm numbered T-1192 and the other two bullets were discharged from the firearms numbered T-1192 and 245 PV 30170. These firearms belonged respectively to B.A. and Ş.K.

47. On 3 September 1996 three of the accused police officers, Ş.K., R.A. and H.K. were served with an order of the Istanbul Assize Court, requesting them to attend the on-site inspection on 11 October 1996. The fourth accused officer, M.K., could not be served on the order as he had been appointed to a post in Erzurum.

48. On 11 October 1996 the judges of the Istanbul Assize Court, an expert, one of the intervening parties, Ali Yalçın, his representative, N.A., S.A. and two police officers who had been heard as witnesses, E.M. and N.Ç. conducted an on-site inspection. During the inspection, N.A. and S.A. contended that the stairs going to the second floor of the café remained unchanged. S.A. further showed the judges the table where the deceased had been sitting and the location of the bullet traces on the walls of the second floor on the day of the incident. The police officers maintained that they had been outside the café at the time of the incident and did not have any information as to how the killing occurred. N.Ç. further maintained that the deceased had not been given the warnings by a megaphone and that he did not remember the position of the corpses on the second floor.

49. Following the on-site inspection, on 22 October 1996, the expert who had been present at the inspection drafted a report and produced a sketch map showing the location of the café, the bullet traces, and the position of the corpses at the time of the incident.

6. Hearings of 23 October and 23 December 1996, 20 February and 5 May 1997

50. On 23 October 1996 two of the applicants, Ali Yalçın and Hüsnü Yalçın, also joined the proceedings as a civil party.

51. On 23 December 1996 the intervening parties requested the first‑instance court to broaden the scope of the investigation, claiming that the sketch map was erroneous and that technical expertise was needed regarding the trajectory of the bullets in the deceased's bodies.

52. On 20 February 1997 one of the applicants, Şinasi Yalçın, joined the criminal proceedings as a civil party. On the same day, the first-instance court held that it was not necessary to correct the sketch maps and requested the intervening parties to submit their observations on the merits of the case during the next hearing.

53. On 5 May 1997 the intervening parties once again requested the first‑instance court to broaden the scope of the investigation. They requested, in particular, that the transcripts of police radio communications of 28 September 1994 be drafted and information be requested from the General Security Directorate as to whether the operation conducted on 29 September 1994 had been one of the “secret” operations that had been told to be conducted by Mehmet Ağar, the Minister of the Interior at the material time. They further requested that the officers who had drafted the autopsy reports be heard as witnesses and that the Türk Telekom be requested to submit information as to whether there had been any call made to the Istanbul Security Directorate as was mentioned in the report drafted at 3.45 pm on 29 September 1994. The intervening parties further requested the first-instance court to hear a pathologist as a witness in order to determine the exact shooting ranges and to order the relevant authorities to submit information as to whether the firearms allegedly found next to the corpses had been the special teams' weapons. The first-instance court requested the public prosecutor to submit his observations on the intervening parties' requests and, therefore, decided to postpone the hearing.

7. Hearings of 10 July and 20 October 1997

54. During the hearing which was held on 10 July 1997 Şinasi Yalçın requested that the accused police officers be ordered to attend the hearings as he wished to question them. He further requested that the police officers be detained on remand as the trajectories of the bullets in the deceased's bodies clearly demonstrated that they had been executed. Another intervening party, Yüksel Erdoğan, requested the court to hold a new on-site inspection in order to determine whether the trajectories of the bullets matched the accused police officers' account of the events. Ş.K.'s lawyer requested that a new ballistic examination be conducted, claiming that Ş.K. had not opened fire. Finally, the Istanbul public prosecutor requested the first-instance court to hear the police officers who had drafted the report at 3.45 pm on 29 September 1994 as witnesses. One of the intervening parties' lawyers submitted the documents concerning other criminal proceedings brought against the accused police officers with the charge of homicide and the judgments of the European Court of Human Rights in cases which concerned actions of the accused police officers. The Istanbul Assize Court postponed the hearing in order to examine the parties' and the public prosecutor's requests.

55. On 20 October 1997 the Istanbul Assize Court dismissed the requests by the intervening parties, accused police officers and the public prosecutor, holding that the evidence in the case-file was sufficient to allow it to establish the facts of the case. The court requested the parties and the public prosecutor to submit their observations on the merits of the case and, as a result, postponed the hearing.

8. Hearing of 21 December 1998 and the Forensic Medicine Institute's report of 15 January 1999

56. On 21 December 1998, upon the requests of the intervening parties and the public prosecutor, the Istanbul Assize Court decided to request the Forensic Medicine Institute to conduct an examination of all firearms, bullets and cartridges in order to resolve the contradictions between the previous ballistic reports and determine whether the bullet entries on the corpses could have been formed as a result of a shooting from downstairs to the second floor and whether the deceased were targeted by the defendants. The court further requested information concerning the range of the shootings.

57. On 15 January 1999 experts from the Forensic Medicine Institute drew up three separate reports concerning the deceased. The relevant paragraphs, which are common to all three reports, read as follows:

“...It is a medically recognised fact that the entry and exit holes in corpses cannot be indicative of the place and the level of the exact place where the shots were fired from since persons are mobile and can change place and position. Therefore, it cannot be medically determined whether the bullets were fired from the ground floor or the stairs or the second floor. Likewise, it cannot be determined whether the deceased were targeted by the accused.

...It has been unanimously concluded that all of the shots were fired at long range and that the exact range of the shootings cannot be determined.”

9. Hearings between 24 March 1999 and 5 December 2001 and the Forensic Institute's report of 19 September 2001

58. On different dates, the Istanbul Assize Court requested the Forensic Medicine Institute to conduct a new ballistic examination on all the firearms, bullets and cartridges in order to resolve the contradictions between its reports of 8 January and 28 August 1996 with a view to determining whether any bullets had been discharged from Ş.K.'s firearm. The first-instance court, however, had to postpone the hearings between 24 March 1999 and 27 March 2001 as the firearm of deceased police officer B.A. was not submitted for the ballistic examination.

59. On 27 March 2001 the first-instance court sent the firearms, bullets and cartridges to the Forensic Medicine Institute.

60. On 19 September 2001 experts from the Forensic Medicine Institute drafted a ballistic report. The conclusions of the experts read as follows:

“As was determined in the report of 28 August 1996:

1- Three of the 7,65 mm calibre bullets were discharged from the Browning make firearm numbered 241716. Two of the 7,65 mm calibre bullets were discharged from the Unique firearm numbered 855392.

2- Out of the twenty 9 mm empty cartridges:

a) Nine of them were discharged from the firearm numbered MP5-3793, eight of them were discharged from the Ceska firearm numbered T‑1192 and three of them were discharged from the Browning firearm numbered 245 PV 30170.

b) Furthermore, two 9 mm empty cartridges were not discharged from the firearms submitted. They were discharged from two different 9 mm calibre automatic or semi‑automatic firearms.

3- Out of the three 9 mm bullets:

a) the one which was sent in an envelope marked “İbrahim Korkmaz” was discharged from the Ceska 9 mm calibre firearm numbered T-1192;

b) one of the two bullets which were sent in an envelope marked ... “Fuat Erdoğan” was discharged from the Ceska 9 mm calibre firearm numbered T-1192 and the other was discharged from the Browning firearm numbered 245 PV 30170.

4- Three 9 mm calibre bullets may belong to the 9 mm empty cartridges sent. However, it cannot be determined with certainty whether they matched or not.

...”

10. The Istanbul Assize Court's judgment of 7 February 2002

61. On 7 February 2002 the Istanbul Assize Court rendered its judgment in the case and acquitted the accused police officers of the charges brought against them. The first-instance court noted that the deceased İsmet Erdoğan, Fuat Erdoğan and Elmas Yalçın had been members of the DHKP‑C, an illegal organisation, who had used forged identity cards on the day of the incident and that there had been detention orders and search warrants in their respect. It further noted that an armed clash had broken out between the deceased and the police officers and that five bullets had been discharged from the two firearms (numbered 241716 and 855392) found near the corpses after the incident. All three deceased had weapons that were used during the armed clash. In the light of the findings of the Forensic Medicine Institute's report of 19 September 2001, the assize court found it established that the accused police officers, including Ş.K., had used their firearms during the clash. In view of the conclusion of the Forensic Medicine Institute's report of 15 January 1999, the assize court further established that the police officers had fired shots at long range. It noted the experts' conclusion that the position of the police officers and the deceased could not be established. The court considered that it should be accepted that the police officers had approached the stairs leading up to the second floor and had fired in response to the shots coming from the deceased on the second floor. The court further noted that there was no evidence in the case file which proved that the police officers had killed the deceased although the latter had not resisted, or that the parts of their firearms had been changed. The Istanbul Assize Court further found it established, in the light of the witnesses' statements, that the accused police officers had given the necessary warnings and that, on being fired at, had retaliated by shooting back. The court concluded that the police officers had acted within the scope of their duties and in order to protect their own lives. It found that the accused had remained within the limits of legitimate self‑defence in accordance with Article 16 of Law no. 2559 on the duties and legal powers of police.

11. The Court of Cassation's decision of 7 July 2003

62. On 7 July 2003 the Court of Cassation upheld the judgment of the Istanbul Assize Court. It found it established that the accused police officers had remained within the limits of legitimate self-defence in accordance with Article 16 (a) and (g) of Law no. 2559.

II. RELEVANT INTERNATIONAL AND DOMESTIC LAW

63. A description of the relevant domestic law at the material time and the international law can be found in Erdoğan and Others v. Turkey (no. 19807/92, §§ 51-58, 25 April 2006).

THE LAW

I. AS REGARDS THE APPLICANTS RAMAZAN ERDOĞAN AND RAŞİDİYE ERDOĞAN

64. The Court notes that the applicants' representatives did not submit a power of attorney signed by Ramazan and Raşidiye Erdoğan while introducing the application on 25 February 2000. On 16 May and 7 June 2005 the Registry requested the applicants' representatives to submit such an authorisation which was essential to establish the validity of the application insofar as brought by these two applicants. On 7 June 2005 and 29 September 2006 the applicants' representatives were also warned that Ramazan and Raşidiye Erdoğan's application might be struck out of the list. No response was received to the letters of 7 June 2005 and 29 September 2006 (see paragraphs 5, 6 and 7 above).

65. In these circumstances, taking into account the lack of diligence of the applicants' representatives and the absence of a serious indication that the applicants themselves wished to lodge or pursue the application, the Court concludes that it is no longer justified to continue the examination of the application brought on behalf of Ramazan Erdoğan and Raşidiye Erdoğan within the meaning of Article 37 § 1 (c) of the Convention. Furthermore, the Court finds no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the examination of this part of the application by virtue of that Article.

66. The Court therefore decides to strike the application, insofar as it has been brought on behalf of Ramazan Erdoğan and Raşidiye Erdoğan in respect of the killing of Fuat Erdoğan, out of its list of cases under Article 37 § 1 (a) of the Convention.

II. ALLEGED VIOLATIONS OF ARTICLES 2 AND 6 OF THE CONVENTION BY YÜKSEL ERDOĞAN, MELİHA ERDOĞAN, SİNAN ERDOĞAN, BAHAR SAĞLAM, ŞİNASİ YALÇIN, HÜSNÜ YALÇIN AND ALİ YALÇIN

67. The applicants complained, under Article 2 of the Convention, that the use of force employed by the security forces against İsmet Erdoğan and Elmas Yalçın was disproportionate and resulted in their unlawful killing. They further complained, under the same head, that the investigation and the subsequent criminal proceedings brought against the four police officers were fundamentally flawed and, as a result, were not capable of being effective, in violation of the procedural obligations under Article 2 of the Convention. They further complained, under Article 6 of the Convention, that the proceedings in question were not concluded within a reasonable time.

68. The Court considers that these complaints should be examined from the standpoint of Article 2 of the Convention alone, which 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 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

1. Submissions of the parties

69. The Government argued that Meliha Erdoğan, Sinan Erdoğan and Bahar Sağlam had failed to exhaust the domestic remedies available to them within the meaning of Article 35 § 1 of the Convention as they had not joined the proceedings against the accused police officers as civil parties. Alternatively, they alleged that the application was submitted out of time as the applicants' relatives had been killed on 29 September 1994 whereas the application was introduced only on 25 February 2000. They argued that if the applicants considered the domestic remedies ineffective, they should have submitted their application to the Court within six months from 29 September 1994, the date on which the alleged violation took place.

70. The applicants contended that Meliha Erdoğan, Sinan Erdoğan and Bahar Sağlam had not been required to intervene in the criminal proceedings as the other applicants had already joined the proceedings concerning the killing of İsmet Erdoğan and Elmas Yalçın. They further maintained that they had lodged their application with the Court when they had become aware of the ineffectiveness of the criminal proceedings brought against the police officers and that, therefore, they had complied with the six-month rule.

2. The Court's assessment

71. As regards the Government's argument that Meliha Erdoğan, Sinan Erdoğan and Bahar Sağlam had failed to exhaust the domestic remedies, the Court reiterates at the outset that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged (see Hugh Jordan v. the United Kingdom (dec.), no. 24746/94, 4 April 2000).

72. Nevertheless, the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. The Court has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000‑VII).

73. Moreover, the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] 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. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see McKerr v. the United Kingdom, no. 28883/95, § 111, ECHR 2001‑III).

74. The Court further recalls that in its decision of Erdoğan and Others v. Turkey ((dec.), no. 19807/92, 16 January 1996), where the facts of the case and the Government's arguments were similar to those in the present case, the Commission considered that two applicants, who had not intervened in the criminal proceedings brought against police officers who had been charged with killing the applicants' relatives, were absolved from the need to join to these proceedings since the other applicants had intervened in the proceedings and were able to raise all the issues concerning their killing.

75. In the present case, the Court observes that Meliha Erdoğan, Sinan Erdoğan and Bahar Sağlam, the family members of the late İsmet Erdoğan, did not join to the criminal proceedings as a civil party. Nor did they lodge a criminal complaint with the prosecuting authorities. However, in the light of the aforementioned principle that the prosecuting authorities are under the obligation to act on their own motion without waiting for a next of kin to lodge a complaint where an individual has been killed as a result of the use of force by members of the security forces and having regard to the fact that Yüksel Erdoğan, who was the father of İsmet Erdoğan, joined the proceedings in question and raised all the issues concerning his son's killing, the Court considers that Meliha Erdoğan, Sinan Erdoğan and Bahar Sağlam were not required to become intervening parties in the criminal proceedings in question.

76. As to the Government's alternative argument that the applicants failed to comply with the six-month's rule, the Court reiterates that where an applicant avails himself of, or relies on, an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it is appropriate to take as the start of the six month period the date when he or she first became aware or ought to have become aware of those circumstances (see Acar and Others and Akay and Others v. Turkey (dec.), nos. 38417/97 and 36088/97, 27 November 2001; and Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).

77. In the present case, the Court considers that the criminal proceedings relating to the killing of the applicants' relatives afforded in principle a remedy which the applicants were required to exhaust (see Acar and Others and Akay and Others, cited above). It notes in this connection that a criminal investigation was opened into the killing of the applicants' relatives immediately after the incident and that, on 22 November 1994, criminal proceedings were instituted against the four police officers. However, these proceedings resulted in the acquittal of all the defendants on 7 July 2003, some eight years and nine months after the date of the killings. The Court considers, in view of the seriousness of the charges, that the substantial delays involved deprived the remedy of its effectiveness. The Court finds that the applicants acted reasonably in awaiting developments in the criminal proceedings before lodging their complaint with the Court and that the application was brought within six months of the date when the applicants became aware or ought to have become aware that the remedy would not be effective (see Acar and Others and Akay and Others, cited above).

78. Consequently, the application cannot be rejected for non-exhaustion of domestic remedies or for non-compliance with the six-month rule.

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

B. Merits

1. Submissions of the parties

80. The applicants submitted first that no real attempt had been made to capture their relatives alive. In this connection, they contended that the police officers had known the identity of the victims when they arrived at the café and that there was a premeditated plan to kill them rather than to effect their lawful arrest. They further maintained that there were several indications of this aim, such as the facts that the police officers had been wearing bullet-proof vests and that the bullets followed a downward trajectory within the victims' bodies. They further contended that the security forces' claim that there had been an armed clash was unsubstantiated as neither of the police officers had been injured. The applicants maintained that their relatives had been killed as a result of use of force which was not absolutely necessary.

81. As to the investigation conducted in the present case, the applicants argued that there were serious flaws both at the preliminary investigation stage and after the proceedings brought against the police officers. They maintained, in that respect, that the public prosecutor had not been present after the incident when the police officers who had participated in the police operation collected the evidence and that, therefore, there was no independent evidence. Furthermore, no photographs of the scene of the incident had been taken. Nor were the premises filmed. The applicants complained that the on-site inspection was conducted twenty-five months after the killing of their relatives. They further contended that the first‑instance court rejected their requests to broaden the scope of the investigation and to put certain questions to the accused police officers. The applicants finally maintained that the proceedings against the police officers lasted an unreasonably long time and that the accused had not been suspended from duty, even though criminal proceedings had been brought against them.

82. The Government submitted, in reply, that the death of the applicants' relatives resulted from a use of force which was no more than absolutely necessary. They maintained that it was established by the domestic courts that the police officers had started firing only after the deceased had opened fire and in order to protect themselves. They contended that, as was stated in the Istanbul Assize Court's judgment of 7 February 2002, the deaths had resulted from self-defence and in accordance with Article 16 of Law no. 2559 on the duties and legal powers of police.

83. The Government further maintained that the investigation conducted into the killing of the applicants' relatives and the subsequent criminal proceedings brought against the police officers had been effective. They submitted, in this respect, that the authorities had conducted autopsies, ballistic examinations and an on-site inspection and that the trial court had taken into consideration all the evidence, in particular, the ballistic reports, before rendering its judgment. The Government finally made submissions as regards the length of the criminal proceedings brought against the accused police officers and maintained that the proceedings had been completed within a reasonable time in view of the complexity of the case.

2. The Court's assessment

a. As to the alleged violation of the right to life of İsmet Erdoğan and Elmas Yalçın

i. General principles

84. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted (see Velikova v. Bulgaria, no. 41488/98, § 68, ECHR 2000-VI). Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed (see Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000‑VII). The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-47).

85. The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps within its internal legal order to safeguard the lives of those within its jurisdiction (see Kiliç v. Turkey, no. 22492/93, § 62, ECHR 2000-III). This involves a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions.

86. The text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted to intentionally kill an individual, but describes situations where it is permitted to “use force” which may result, as an unintended outcome in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of any of the purposes set out in subparagraphs (a), (b) or (c). In this respect the use of the term “absolutely necessary” in Article 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 8-11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in the subparagraphs of the Article (see McCann and Others, cited above, p. 46, §§ 148-9).

87. In this connection, the Court reiterates that it is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first instance tribunal of facts, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Where domestic proceedings have taken place, it is not the Court's task to substitute its own assessment of facts for that of the domestic courts and as a general rule it is for those courts to assess the evidence before them. Though the Court is not bound by the findings of domestic authorities, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those authorities (see, mutatis mutandis, Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, p. 18, §§ 29-30).

88. However, the central importance of the protection afforded under Article 2 is such that the Court is required to subject allegations of breach of this provision to the most careful scrutiny, taking into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination even where domestic proceedings and investigations have already taken place (see Erdoğan and Others, cited above, § 71).

ii. Establishment of the facts

89. In the present case, the Court notes firstly that it is undisputed between the parties that the applicants' relatives were shot and killed by the security forces. The Court is however confronted with fundamentally divergent accounts of how İsmet Erdoğan and Elmas Yalçın were killed. The applicants alleged that the police officers arrived at the café with the aim of killing their relatives and that the alleged identity control had been a pretext. The Government, on the other hand, claimed that the applicants' relatives had refused to submit their identity cards and had opened fire. The Government contended that they had died during an armed clash during which the police officers acted within the scope of Law no. 2559 on the duties and legal powers of police.

90. The Court observes that a judicial determination of the facts took place in the criminal proceedings brought against four police officers before the Istanbul Assize Court. Even if certain facts remain unclear, the Court considers, in the light of all the material produced before it, that there is a sufficient factual and evidentiary basis on which to assess the case, taking as a starting point the findings of the national court (see Makaratzis v. Greece [GC], no. 50385/99, § 47, ECHR 2004‑XI; and Perk and Others v. Turkey, no. 50739/99, § 57, 28 March 2006).

iii. Application of the general principles in the circumstances of the present case

91. The Court observes, on the basis of the material before it, that İsmet Erdoğan and Elmas Yalçın were killed in the course of a police operation by officers from the anti-terror branch of the Istanbul Security Directorate. In this connection, as to the applicants' allegation that there was a premeditated plan to kill their relatives, the Court does not find it sufficiently established, in view of the material provided, that there was such a plan.

92. As regards the legal framework defining the circumstances in which law enforcement officials may use force and firearms, the Court recalls that it has already held that the applicable legislation at the time of the incident, Law no. 2559, enacted in 1934, would not appear sufficient to provide the level of protection “by law” of the right to life that is required in present-day democratic societies in Europe (see Erdoğan and Others, cited above, § 77) but that the difference between the relevant national standard and the standard provided by the expression “absolutely necessary” in Article 2 § 2 of the Convention is not sufficiently great that a violation of Article 2 § 1 could be found on this ground alone (see Perk and Others, cited above, § 60).

93. In carrying out its assessment of the planning and control phase of the operation from the standpoint of Article 2 of the Convention, the Court must have particular regard to the context in which the incident occurred as well as to the way in which the situation developed (see Andronicou and Constantinou v. Cyprus, judgment of 9 October 1997, Reports of Judgments and Decisions 1997‑VI, § 182).

94. The Court observes in this connection that the police officers arrived at the scene of the incident following a phone call received by the police on 29 September 1994 according to which the suspects were carrying at least one firearm in a public place in a central area in Istanbul (see paragraph 9 above). Therefore, this was an emergency situation which demanded that the security forces act with great rapidity.

95. Similar to the Istanbul Assize Court, the Court also observes that in the circumstances of the case, the use of force by the security forces was the direct result of the unlawful violence emanating from the deceased suspects. In this connection, the Court observes that the police officers entered the café, told the civilians to leave the premises and, before going upstairs to where the deceased were, gave the necessary warnings. Consequently, the operation in question should be considered to be effected “in defence of any person from unlawful violence” and “in order to effect a lawful arrest” within the meaning of Article 2 § 2 of the Convention.

96. The Court should therefore determine whether the use of force in the instant case was no more than absolutely necessary and strictly proportionate to the achievement of the aforementioned aims.

97. It is important, in the eyes of the Court, that the Istanbul Assize Court found it established, on the basis of the evidence before it, that the first gunshot came from the deceased. As the statements of the witnesses before the Istanbul public prosecutor and the Istanbul Assize Court demonstrate, the police officers, who entered the café, did order the deceased to surrender and gave the necessary warnings before shooting and they started shooting only after being fired at (see paragraphs 22, 26, 34 and 48 above).

98. The Court accepts, in the circumstances of the case, that when the police officers entered the café and were confronted with the shootings coming from the suspects, they believed that it was necessary to continue firing until the suspects stopped firing back (see Perk and Others, cited above, § 68). In this connection, the Court notes that, according to the ballistic examination reports, five of the bullets found at the scene of the incident had been discharged from the firearms found near to the suspects' corpses and that the police officers' shots had all been fired at long range (see paragraphs 18 and 57 above).

99. The Court further considers that it is not necessary to speculate on the question of the possibility to use non-lethal methods by the security forces in order to arrest the deceased. In this connection, the Court recalls that in the cases of Andronicou and Constantinou and Perk and Others, where the applicants' relatives had been killed as a result of use of force by the security forces, it held that it could not with detached reflection substitute its own assessment of the situation for that of the officers who were required to react in the heat of the moment. The Court further considered that to hold otherwise would be to impose an unrealistic burden on the States and their law‑enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and the lives of others (see Andronicou and Constantinou, cited above, § 192; and Perk and Others, cited above, § 72). The Court sees no reason to reach a different conclusion in this case, where the police officers had to act rapidly when confronted with armed suspects in a public place.

100. The Court considers therefore that the use of lethal force in the circumstances, however regrettable it may have been, did not exceed what was “absolutely necessary” for the purposes of self-defence and effecting a lawful arrest and did not amount to a breach by the respondent State of their obligations under Article 2 § 2 (a) of the Convention.

101. It follows that there has been no violation of Article 2 of the Convention in respect of the killing of İsmet Erdoğan and Elmas Yalçın.

b. As to the alleged inadequacy of the investigation

i. General principles

102. The Court has already held that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] 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, with the purpose of securing the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see paragraph 73 above).

103. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, §§ 81-82; and Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, §§ 83-84).

104. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances (see Kaya v. Turkey, judgment of 19 February 1998, Reports 1998‑I, p. 324, § 87) and to the identification and punishment of those responsible (Oğur, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, concerning autopsies, Salman, cited above, § 106, concerning witnesses, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; concerning forensic evidence, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.

105. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998‑VI, pp. 2439-2440, §§ 102-104; Çakıcı v. Turkey [GC], no. 23657/94, §§ 80-87 and 106, ECHR 1999-IV; Tanrıkulu, cited above, § 109; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-107, ECHR 2000-III). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Avşar v. Turkey, no. 25657/94, § 395, ECHR 2001‑VII (extracts)).

ii. Application of the general principles in the circumstances of the present case

106. In the instant case, an investigation into the incident was indeed carried out by the Istanbul public prosecutor. However, there were important shortcomings in the conduct of the investigation.

107. Among these deficiencies, the Court is particularly struck by the fact that the public prosecutor who inspected the scene of the incident on 29 September 1994 failed to secure evidence which was essential in determining whether the deceased had ever handled the firearms which were found at the scene of the incident. It was in his presence that police officers took fingerprints of the deceased, which subsequently prevented the forensic experts from conducting an examination of the deceased's hands in this respect. Moreover, the firearms allegedly used by the deceased were never subjected to a fingerprint analysis in order to establish whether or not these weapons had ever been handled by the deceased.

108. Furthermore, the investigating authorities did not take photographs at the scene of the incident; nor did they make sketches of the interior or exterior of the premises or prepare a plan showing the position of each member of the security forces in the café at the time of the shootings. A sketch map of the scene of the incident was drawn up as late as 22 October 1996 by an expert following the Istanbul Assize Court's on-site inspection of the café, which had already been renovated after the incident. Moreover, one of the police officers who had participated in the operation, A.B., also participated in the first examination of the scene of the incident with the public prosecutor and was actually given the bullets, cartridges and the two firearms which had been found next to the deceased by the police officers who killed the deceased.

109. The Court is of the opinion that the above elements disclose a significant defect in the reliability and thoroughness of this part of the investigation. It has therefore examined whether this was remedied by the investigation conducted by the assize court during the criminal proceedings.

110. The Court recalls that, in the normal course of events, a criminal trial, with an adversarial procedure before an independent and impartial judge must be regarded as furnishing the strongest safeguards of an effective procedure for the finding of facts and the attribution of criminal responsibility (see McKerr, cited above, § 134). Nonetheless, it cannot be excluded, for example, that defects in an investigation may fundamentally undermine the ability of a court to determine responsibility for a death (see Salman, cited above, §§ 106-109 concerning inadequate autopsy procedures, and Kılıç v. Turkey, no. 22492/93, §§ 79-83, ECHR 2000-III where there was no evidence presented to the trial court linking the suspect to the killing).

111. In the present case, the Court considers that, the shortcomings described in paragraph 126 above were fundamental; that is to say, they had the effect of undermining the Istanbul Assize Court's ability to establish the accountability for the killing of İsmet Erdoğan and Elmas Yalçın.

112. The Court nevertheless observes other deficiencies in the proceedings before the Istanbul Assize Court. Firstly, in the course of the proceedings before this court only six witnesses made statements. Three of these six persons were police officers from the Anti‑Terror Branch, who had participated in the police operation in question. One of them was the owner of the coffee shop who had not been in her café during the incident. It appears from the case-file that the court, like the public prosecutor, took no other step in order to identify possible witnesses, such as the owners of the neighbouring shops.

113. Secondly, the Istanbul Assize Court failed to conduct an on-site inspection earlier than 11 October 1996. On the latter date, when the court finally carried out the inspection, the accused police officers did not attend, thus casting doubt on the reliability of the conclusions drawn from the inspection since only the police officers were present in the interior of the café at the time of the killings. Furthermore, the assize court failed to clarify the vital issue of the possibility of the use of non-lethal methods during the operation.

114. Finally, there have been substantial delays in the proceedings. The court postponed the hearings for almost six months as the Istanbul Security Directorate failed to send the accused police officers' weapons to the Istanbul Assize Court despite the latter's persistent requests. It also postponed the trial between 24 March 1999 and 27 March 2001 as the firearm of the deceased police officer was not submitted to the court. The Court notes that the failure of the authorities to submit the police officers' firearms to the first-instance court cannot be attributed to the applicants. In the circumstances of the case, the Court considers that the proceedings in question, which lasted eight years and nine months, cannot be described as a prompt response by the authorities in investigating the alleged unnecessary and disproportionate use of force.

115. Having regard, therefore, to the duration and serious shortcomings of the criminal investigation and trial proceedings in this case, the Court concludes that there has been a breach of the State's procedural obligation under Article 2 of the Convention.

116. It follows that there has been a violation of Article 2 in this respect.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

117. 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.”

118. The applicants did not submit any claim for just satisfaction under Article 41 of the Convention taken together with Rule 60 of the Rules of Court. In these circumstances, the Court considers that there is no reason to award any sum under Article 41 of the Convention (see Ciucci v. Italy, no. 68345/01, § 33, 1 June 2006).

FOR THESE REASONS, THE COURT

1. Decides unanimously to strike the case out of the list insofar as it was brought on behalf of Ramazan Erdoğan and Raşidiye Erdoğan in respect of the killing of Fuat Erdoğan;

2. Declares unanimously the application admissible insofar as it was brought by Yüksel Erdoğan, Meliha Erdoğan, Sinan Erdoğan, Bahar Sağlam, Şinasi Yalçın, Hüsnü Yalçın and Ali Yalçın;

3. Holds by 6 votes to 1 that there has been no violation of Article 2 of the Convention as regards the death of İsmet Erdoğan and Elmas Yalçın;

4. Holds unanimously that there has been a violation of Article 2 of the Convention as regards the investigations carried out by the national authorities.

Done in English, and notified in writing on 15 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago QuesadaBoštjan M. Zupančič
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the statement of dissent of Mrs I. Berro-Lefèvre is annexed to this judgment.

B.M.Z.
S.Q.

STATEMENT OF DISSENT BY JUDGE BERRO-LEFÈVRE

I am unable to follow the finding of the majority that there has been no violation of Article 2 of the Convention in its substantive aspect as I consider that there was a lack of appropriate care in the control and organisation of the arrest operation.

[1] A bone which is part of the sternum, located at the bottom of the sternum, close to the abdomen.

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