Information Note on the Court’s case-law No. 140
April 2011
Peker v. Turkey (no. 2) - 42136/06
Judgment 12.4.2011 [Section II]
Article 2
Article 2-1
Life
Effective investigation
Failure to provide plausible explanation for a gunshot wound sustained by prisoner during security operation in prison: violation
Facts – In December 2000 a series of security operations were conducted in prisons in Turkey during which many detainees were either killed or injured. The applicant alleges that he was shot in the leg and beaten up by gendarmes during and after one such operation in the prison where he was detained at the time. The gendarmes had gone into the prison and started firing without any warning. The Government claimed that he had in fact been shot by one of his fellow inmates putting up resistance. The official records stated that the applicant and five other injured inmates were taken to hospital and that no weapons had been found in the prison during or after the operation. In April 2001 the applicant lodged a complaint calling for the gendarmes responsible for his shooting and ill-treatment to be prosecuted. The investigation into the case lasted almost five years and, due to lack of evidence, ended with a decision not to prosecute.
Law – Article 2: Based on a global assessment of the security operation conducted in the prison, where the use of the firearm had been potentially fatal and had put the applicant’s life at risk, the Court considered it appropriate, despite the applicant’s fortuitous survival, to examine his complaints solely under Article 2.
The burden of proof was on the State to provide a plausible explanation for injuries and deaths occurring in custody. The Court therefore had to examine whether the investigation carried out by the domestic authorities had been capable of establishing the true facts surrounding the applicant’s injuries and whether the Government had satisfactorily discharged that burden. In that connection, the Court observed that the Government had failed to take even the most rudimentary investigative steps such as searching for the bullet, weapon or spent cartridge and locating eyewitnesses. The investigation had not been carried out with due diligence or expedition, having lasted almost five years, during which time only a limited number of measures had been taken; parts of the investigation had been conducted by the superiors of the personnel implicated in the events, in breach of the requirements of independence and impartiality; the prosecutor had closed the investigation without interviewing the two officers implicated in the shooting and only two of the large number of inmates in the prison at the time had been questioned. In sum, the measures taken had failed to meet the requirements of an effective investigation and had not been capable of establishing the true circumstances surrounding the applicant’s shooting or the identity of the person who had shot him. Accordingly, the Government had failed to provide a plausible explanation as to how the applicant had suffered his injury while in prison.
Conclusion: violation (four votes to three).
Article 41: EUR 18,000 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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