Information Note on the Court’s case-law No. 113
November 2008
Evrim Öktem v. Turkey - 9207/03
Judgment 4.11.2008 [Section II]
Article 2
Article 2-2
Use of force
Serious injury caused by stray bullet fired from a police officer's gun during an operation to break up a demonstration: violation
Facts: According to the Turkish authorities, three plain-clothes police officers, one of whom was R.Ç., were on patrol in the vicinity of a school when they noticed some youths hanging a political banner on the school railings. They ordered them to stop, but to no avail. Instead, they were threatened with iron bars and sticks. The police fired warning shots in the air. The demonstrators dispersed down alleyways pursued by the police, who continued firing warning shots. It was then that R.Ç. noticed the applicant, who had been injured below the knee by a stray bullet. The applicant said that she just happened to have been passing by when the bullet hit her. R.Ç. immediately took her to hospital, where the bullet was found to have caused multiple fractures. Forensic tests identified R.Ç.’s service weapon as the weapon from which the shot had been fired. The final medical report confirmed that the applicant had sustained a bullet wound incapacitating her for 60 days.
The applicant’s father lodged a criminal complaint against the police officer. When questioned, R.Ç. stated that when confronted with the demonstrators he had first requested reinforcements, but the demonstrators had rapidly become aggressive. He added that he had had to fire shots in the air in an effort to discourage them, and that he had also fired at the ground and a bullet had ricocheted and hit the applicant. Criminal proceedings were then instituted against R.Ç. for causing bodily harm with a firearm. The court acquitted him, considering that the applicant should not have continued to flee in spite of the warning shots. It considered that in view of the nature of the incident, the behaviour of the protestors and their refusal to comply, the defendant had been justified in using his weapon and had done so in accordance with the regulations. He had not used excessive force. The applicant appealed on points of law. The Court of Cassation quashed the impugned decision, on the grounds that it was incompatible with Law no. 4616, passed on 22 December 2000, which provided for the deferral of conviction in respect of certain offences committed before 23 April 1999. The Criminal Court re-examined the case and decided to defer pronouncement of the verdict. An objection by the applicant was dismissed.
Law: a) The substantive aspect of Article 2 – The Court could not agree with the Government’s argument that the impugned protest would have degenerated into an insurrection. Nothing in the case file indicated by what criminal behaviour the protestors might have endangered the lives of innocent bystanders present at the time of the police officers’ intervention. It also found it difficult to understand how the police officers could have hoped to use their authority to control the situation satisfactorily when they were in an unmarked car and in plain clothes. As to the threats from iron bars and sticks and the purported attempt by one of the protestors to attack the police, these were uncorroborated claims unsupported by any judicial finding.
Even assuming that they did have good reason to fear for their lives, the police should not have gone so far as to upset the necessary balance between the aims and the means. In the absence of any clear escalation in the damage done or any serious threat to people’s safety, it would surely have been preferable for them to wait for reinforcements better equipped to deal with such difficulties and thereby avoid unnecessarily provoking the crowd, bearing in mind that at the time they had no power of dissuasion other than their weapons. Instead, the three police officers had launched an impromptu operation on their own initiative, which had led to developments to which R.Ç. had reacted with the use of his weapon in a manner which was both uncontrolled and dangerous. That being so, the Court could not accept that the use of force in the present case had been based on the police officer’s honest belief that he was under genuine threat from the few demonstrators in question, still less the applicant, who was 14 years old at the time. Nor, in all probability, had R.Ç.’s approach met the criteria laid down in the relevant Turkish regulations.
R.Ç. had enjoyed a great autonomy of action and taken unconsidered initiatives, which would probably not have been the case if he had had the benefit of proper training and instructions or, at least, if the department from which he had requested reinforcements had given him clear and adequate directives. If the situation had degenerated in that way, it was doubtless because at the relevant time the system in place did not afford clear guidelines and criteria governing the use of force in peacetime by police officers individually or in the course of pursuit operations. Taken together, these circumstances engaged the responsibility of the State, without it being able legitimately to rely on the difficult task incumbent on the police in modern societies, the unpredictability of human behaviour and the operational choices that must inevitably be made in terms of priorities and resources.
Conclusion: violation (unanimously).
b) Procedural aspect of Article 2 – Notwithstanding the judicial delays, which in themselves contravened the positive obligations at issue in this case, it was sufficient for the Court to observe that the proceedings against the police officer had been discontinued under Law no. 4616, thus affording him de facto impunity. Far from being rigorous, the Turkish criminal system as applied in the present case had had no dissuasive effect capable of ensuring the effective prevention of the illegal acts complained of by the applicant.
Conclusion: violation (unanimously).
Article 41 – EUR 16,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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