Information Note on the Court’s case-law No. 84
March 2006
Perk and Others v. Turkey - 50739/99
Judgment 28.3.2006 [Section II]
Article 2
Positive obligations
Article 2-2
Use of force
Deaths of three persons belonging to an illegal armed organisation during a police operation: no violation
Article 2
Positive obligations
Effectiveness of the investigation into the deaths, during a police operation, of three members of an illegal armed organisation: violation
Facts: The applicants are relatives of three persons who died during a police operation against a radical armed movement. According to the Government, an informant had given the police the address of a flat where the three persons in question were preparing to carry out an armed attack. According to the report drawn up at the end of the operation, damage inside the flat revealed numerous bullet impacts. Around a hundred spent cartridges were found together with several weapons close to the bodies of the three dead persons or in their hands. The same day a preliminary post-mortem was carried out and statements were taken from the caretaker of the block of flats and some of its residents. Two days later a full autopsy was conducted which revealed seven, nineteen and thirteen bullet wounds respectively on the three bodies. The ballistics report prepared a week after the shooting indicated that most of the spent cartridges came from weapons belonging to the security forces. Ballistics tests performed a few weeks later on the dead persons’ clothing showed that the bullets which had struck the victims had not been fired at close range, but did not make it possible to establish the exact distance from which they had been fired.
The authorities instituted criminal proceedings of their own motion against the fifteen police officers who had taken part in the operation, and the public prosecutor obtained statements from them. All the officers said that they had come under fire from the suspected terrorists and had replied with warning shots. The public prosecutor committed them for trial before the Assize Court on charges including murder. At the hearing the Assize Court allowed the applicants’ request to join the proceedings as an intervening civil party and heard evidence from the defendants and several witnesses. However, it rejected the request for a re-enactment of the events made by counsel for the intervening party and also a request for an expert report on whether tear gas should have been used during the operation. Ultimately, in December 1997, it acquitted the defendants, finding that the police officers had acted in self-defence. The applicants appealed on points of law, on the grounds in particular that there had been no re‑enactment of the events nor any reliable sketch of the scene of the operation. In June 1998 the Court of Cassation upheld the Assize Court judgment.
Law: The death of the applicants’ relatives – According to the Court’s case-law the circumstances, set forth in Article 2, in which deprivation of life might be justified had to be strictly construed. The use of lethal force by police officers could be justified in certain circumstances provided that the police operations, in addition to being permitted under domestic law, were sufficiently well defined under that law within a system of adequate and effective safeguards against arbitrary conduct and abuse of force. In particular, the use of force had to be strictly proportionate to the aims set forth in paragraph 2 (a), (b) and (c) of Article 2. Account had to be taken not only of the actions of the agents of the State who actually administered the force but also of all the surrounding circumstances, including such matters as the planning and supervision of the actions in question. In the instant case the evidence before the Court showed that the applicants’ relatives had been killed during an anti‑terrorist operation conducted by a team of fifteen police officers. There was broad agreement between the parties as to the circumstances surrounding the deaths. There was no evidence to support the applicants’ claim that the killings had been premeditated. With regard to the domestic legal framework, Article 17 of the Turkish Constitution permitted the use of lethal force in cases “of absolute necessity or where authorised by the law”. As to the background against which the operation had been conducted, the authorities had undoubtedly been dealing with dangerous suspects belonging to an illegal armed organisation who appeared to be planning an attack that day. The situation had therefore been urgent, as the police officers needed to prevent an armed attack by the three suspects and make a lawful arrest. The operation could therefore be considered to have been conducted “in defence of any person from unlawful violence” and in order to “effect a lawful arrest”. It remained for the Court to consider whether the force used to achieve those aims had been absolutely necessary and in particular whether it had been strictly proportionate. The Assize Court had found it to have been established that the first shot had been fired from inside; that had not been disputed by the applicants. That being the case, it could be accepted that, given the attitude of the suspects and the information available to the police, namely that the suspects were armed and were planning a terrorist attack, the officers could reasonably have considered that it was necessary to enter the flat, disarm the suspects and arrest them, and have judged it necessary to fire until the armed suspects were no longer physically capable of returning fire. It was pointless to speculate in the abstract as to whether it would have been appropriate in this instance to use neutralising techniques, desirable though it was to make greater use of such techniques. Laying down such a requirement in principle without taking account of the circumstances of the case would place an unrealistic burden on the State and its agents, which could result in the loss of their lives and the lives of others, bearing in mind in particular the unpredictability of human nature. Accordingly, the use of lethal force in this case had not exceeded what had been absolutely necessary to achieve the desired aims.
Conclusion: no violation.
Alleged inadequacy of the investigation: The investigation had been instituted promptly by the authorities and they had worked actively on it, taking a large number of investigative measures. Six months after the events the public prosecutor had instituted criminal proceedings against the police officers involved in the armed confrontation, and the applicants had been able to play an active role in the proceedings. The applicants had subsequently lodged an appeal against the Assize Court acquittal, which had been dismissed by the Court of Cassation. However, in the circumstances of the case, the fact that no reliable sketch of the scene had been made by independent experts and that the Assize Court had not deemed it necessary to order an expert report on the use of neutralising techniques amounted to a violation of the procedural requirements of Article 2 of the Convention.
Conclusion: violation.
In the light of that finding and of the circumstances of the case, the Court did not consider it necessary to examine the case under Article 6.
As the applicants had not submitted any claims for just satisfaction, the Court made no award under that head.
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This summary by the Registry does not bind the Court.
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