Information Note on the Court’s case-law No. 99
July 2007
Feyzi Yıldırım v. Turkey - 40074/98
Judgment 19.7.2007 [Section III]
Article 2
Positive obligations
Death allegedly caused by an assault a month earlier by a State agent although no causal link was established at the trial: violation (procedural)
Facts: Law enforcement officers patrolling under the command of Captain A. after shots had been fired at a gendarmerie post in the middle of the night entered the applicant’s father’s shop. The parties disagree about the allegation that the captain violently beat him, but it is not disputed that he hurled abuse at him for being open so late. Less than a month later the applicant’s 67-year-old father was admitted to hospital in a comatose state brought on by an aggravated intracranial haemorrhage. He died four days later. According to the forensic expert who performed the autopsy, a trauma suffered “about a month earlier” could well have been the cause of death. Following a complaint lodged by the applicant and his mother, a charge of manslaughter was brought against Captain A., now a major, in the Assize Court. Referring to the medical opinions, the Assize Court rejected the charge, there being no irrefutable proof that the alleged beating was the cause of death. The major was found guilty of using offensive and defamatory language towards the victim. He was sentenced to the minimum sentence of three months’ imprisonment, and suspended from duty for two and a half months. The prison sentence was reduced for good behaviour, then commuted to a fine of about EUR 0.68, and suspended.
Law: The applicant believed that his father had died as a result of blows inflicted by Captain A.; the respondent Government argued that it was impossible to establish a causal link between the death and the alleged blows. Having been charged with manslaughter, the accused had been convicted of offensive language.
For the Court the main legal question here concerned Article 2, which, read as a whole, also covered situations where the use of force might result, as an unintended outcome, in the deprivation of life. The ground on which the accused had been acquitted of manslaughter was the lack of concordant, compelling proof, particularly medical proof, that the allegations of assault were true. On the basis of the available evidence it was not possible for the Court to establish, beyond reasonable doubt, that the applicant’s father had died as a result of blows inflicted by A. However, the difficulties experienced by the Court and the domestic courts in establishing the exact circumstances of the death were largely due to the following instances of negligence during the judicial proceedings:
The complaint the victim had lodged the day after the incident was not passed on by the competent authority (the superior officer of the alleged aggressor) to the judicial authorities, preventing the timely conduct of investigations to verify the allegations and detect any early signs of dangerous cranial injury; instead, in disregard of his legal obligations, the alleged aggressor’s superior officer organised a meeting between the officer concerned and the victim with a view to conciliation.
The autopsy report had been incomplete, dooming to failure any effort to establish a link between the alleged violence and the victim’s death. The accused had been promoted during the investigation and maintained in post and in his military duties during the investigation and for six months after he was charged.
Three witnesses had withdrawn their testimonies in court, having previously given incriminating evidence to the prosecutor, only subsequently to confirm their initial testimonies, explaining that the accused had threatened them. Their vulnerability entitled them to protection. Article 2 could be considered, under its procedural aspect, to require criminal proceedings to be organised in such a way that the interests of witnesses testifying against agents of the State were not unduly placed in danger, particularly when the interests in question concerned their lives, liberty or security. No steps had been taken to strike a balance between the interests of the accused and those of the witnesses for the prosecution, whose testimonies had carried no weight, and the Assize Court had shown clemency towards the accused for “good behaviour” without verifying the allegations of threats. That being so, although there had been a trial and Captain A. had been convicted of “ill-treatment”, the Court considered that the Turkish criminal justice system as it operated in this case had proved to be far from rigorous and incapable of effectively preventing unlawful acts on the part of agents of the State or of offering appropriate redress for infringements of the principles enshrined in Article 2 of the Convention.
Conclusion: procedural violation of Article 2 (six votes to one). Concurring opinion on the obligation, where necessary, to provide people testifying against agents of the State with special protection.
Article 41 – EUR 15,000 in respect of non-pecuniary damage, i.e. EUR 2,500 for the applicant and EUR 12,500 for the deceased’s other heirs.
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This summary by the Registry does not bind the Court.
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