Information Note on the Court’s case-law No. 80
November 2005
Kakoulli v. Turkey - 38595/97
Judgment 22.11.2005 [Section IV]
Article 2
Article 2-1
Life
Killing by security forces, and effectiveness of the investigation: violation
Facts: The applicants are the widow and children of a Greek Cypriot national who was shot by a Turkish soldier in the buffer zone between northern and southern Cyprus. The facts at issue are in dispute between the parties. According to the applicants, their deceased relative had gone collecting snails and had wandered accidentally into the territory of northern Cyprus. His daughter’s fiancé, who had been with him, alleged that he heard soldiers order him to stop, which he did and raised his hands above his head. Two Turkish soldiers in combat uniform then dropped to battle positions on the ground and aimed their rifles at him. Immediately afterwards, the witness had heard two shots and saw the victim fall to the ground. A few minutes later, while he was still lying on the ground, the witness saw one of the Turkish soldiers move and fire a third shot at him from a distance of about seven to eight metres from where he was lying. The Turkish Government maintained that the applicants’ relative had crossed the ceasefire line and, despite being warned verbally and with hand gestures, did not stop, but ran away towards the borderline. One of the soldiers approached him and fired warning shots in the air and at the ground. As he continued to run away, a third round was fired at him below his waist, which apparently caused the fatal wound. The Government further claimed that a bayonet and a garrotte were found on him. Investigators visited the scene. A sketch map of the location was drawn up, photographs taken and statements taken from a number of police officers, officials and the soldiers on guard duty, including the soldier who had shot the victim. Following a first autopsy, it was concluded that the victim had died as a result of internal bleeding caused by a shot to the heart. A second autopsy conducted found three sets of gunshot wounds to the body and that certain wounds had been inflicted by a shot fired while the victim had his hand raised, and the others while the victim was lying on the ground or crouching down. Following the investigation, no criminal or disciplinary proceedings were brought against the soldier who shot the applicants’ relative, the investigating authorities concluding that the killing was justified in the circumstances. The case was classified as “no case”, meaning that there would be no further investigation or criminal proceedings. The applicants complained that their relative had been intentionally shot and killed by Turkish soldiers in Cyprus, and also contended that the killing involved discrimination, as he was a Greek-Cypriot and Christian.
Law: The Government’s preliminary objection (non-exhaustion): The local remedies advanced by the Government which it sustained were available to the applicants within the judicial system of the “Turkish Republic of Northern Cyprus” (“TRNC”) could not be regarded as “domestic remedies” for Convention purposes. However, that decision was not to be seen as in any way putting in doubt the view of the international community regarding the establishment of the “TRNC” or the fact that the Government of the Republic of Cyprus remained the sole legitimate government of Cyprus (objection dismissed).
Article 2 (concerning the killing of the applicants’ relative) – Noting that at the time of the killing of the applicants’ relative the buffer zone between the two sides in Cyprus was not very peaceful, the Court accepted that border policing undoubtedly presented the authorities with special problems, such as unlawful crossings or violent demonstrations along the borderlines. However, that did not give law-enforcement officials carte blanche to use firearms whenever they were confronted with such problems. On the contrary, they were required to organise their actions carefully with a view to minimising a risk of deprivation of life or bodily harm. States which had ratified the European Convention on Human Rights had a duty to provide effective training to law-enforcement officials operating in border areas and to give them clear and precise instructions as to the manner and circumstances in which they should make use of firearms, with the objective of complying with international standards on human rights and policing. Accordingly, the Turkish Government’s argument for justifying the use of lethal force against civilians who breached the borderlines could not be accepted. Even though it had been subsequently discovered that there were a garrotte and a bayonet in the victim’s boots, there was no basis for the soldiers on guard duty to reasonably consider that there was any need to resort to the use of their weapons in order to stop and neutralise him. Moreover, even assuming that the victim had failed to stop promptly, following the verbal warning from the soldiers as he passed the border line, there was no basis for the use of force which, whether deliberately or owing to lack of proper aim, was lethal in its effects. The prevalent unrest did not of itself give the soldiers the right to open fire upon people they considered to be suspicious. The soldier in question had used lethal force while there was no imminent risk of death or serious harm to himself or others. It was particularly striking that the last shot was fired several minutes after the two shots, which had already wounded the victim and neutralised him, at a time when it could have been possible to carry out an arrest. Therefore, the use of force against applicants’ relative had neither been proportionate nor absolutely necessary for the purpose of “defending any person from unlawful violence” or “effecting a lawful arrest”.
Conclusion: violation (unanimously).
Article 2 (effectiveness of the investigation) – There had been a number of significant omissions which raised doubts about the effectiveness and impartiality of the investigation into the applicants’ relative’s death. It noted in particular that the second autopsy examination failed to record fully his injuries, which hampered an assessment of the extent to which he was caught in the gunfire, and his position in relation to the soldiers on guard duty. Furthermore, the investigating authorities had based their findings solely on the soldiers’ account of the facts and did not seek any further eyewitnesses. They did not inquire into whether the victim could have posed a serious threat to the soldiers from a long distance with the alleged weapons, or whether the soldiers could have avoided using excessive lethal force. Nor did the investigators examine whether the soldier in question had complied with the rules of engagement laid down in the relevant military instructions. In the light of the foregoing, the investigation conducted by the "TRNC" authorities into the killing of the applicants’ relative had been neither effective nor impartial. Hence, there had also been a violation of Article 2 under its procedural limb.
Conclusion: violation (unanimously).
Article 14 – In the light of the evidence submitted to it, the Court found the applicants’ allegation under this provision unsubstantiated.
Conclusion: no violation (unanimously).
Article 41 – The Court awarded the victim’s widow and his three children EUR 20,000 and EUR 3,500, respectively, for non-pecuniary damage. It also made an award for costs and expenses.
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This summary by the Registry does not bind the Court.
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