Information Note on the Court’s case-law No. 94
February 2007
Yüksel Erdoğan and Others v. Turkey - 57049/00
Judgment 15.2.2007 [Section III]
Article 2
Article 2-2
Use of force
Use of lethal force by police officers fired at in a café, and effectiveness of the investigations: no violation, violation
Facts: The application concerned the killing of two of the applicants’ relatives resulting from an armed clash with police officers from an anti-terror branch. There was a two-month investigation into the circumstances of the death. Four police officers were charged with manslaughter and the court‑proceedings lasted more than eight years. It was found established, in particular, that the police officers had fired shots at long range, in response to shots coming from the suspects, after having given the necessary warnings. The trial ended with the acquittal of all of the accused as they had remained within the limits of legitimate self-defence in accordance with applicable law on the duties and legal powers of police. The Court of Cassation upheld the judgment.
Law: Preliminary objections (non-exhaustion and six-month rule) dismissed – Some family members of one of the deceased did not join in the criminal proceedings as civil parties nor lodged a criminal complaint. This was not deemed to be an issue since the prosecuting authorities are under the obligation to act of their own motion without waiting for a next-of-kin to lodge a complaint where an individual has been killed as a result of the use of force by members of the security forces, and since the father of the deceased had joined the proceedings in question and had raised all the issues concerning his son’s killing.
The criminal proceedings had afforded in principle a remedy which the applicants were required to exhaust, but had lasted some eight years. In view of the seriousness of the charges, the substantial delays involved had deprived the remedy of its effectiveness. The applicants had acted reasonably in awaiting developments in the criminal proceedings before lodging their complaint with the Court and the application had been brought within six months of the date when they had become aware or ought to have become aware that the remedy would not be effective.
Article 2(2) – Killings:It had not been sufficiently proved that there was a premeditated plan to kill the applicants’ relatives. The operation was effected “in defence of any person from unlawful violence” and “in order to effect a lawful arrest” within the meaning of Article 2(2). The first gunshot had come from the deceased. The police officers had ordered the deceased to surrender, had given the necessary warnings before shooting and had started shooting, at long range, only after having been fired at. The police officers had believed that it was necessary to continue firing until the suspects stopped firing back. Given the emergency nature of the situation – police officers confronted with armed suspects in a public place – the use of lethal force, however regrettable, had not exceeded what was “absolutely necessary” for the purposes of self-defence and carrying out a lawful arrest.
Conclusion: no violation (six votes to one).
Investigation:The criminal investigation had serious shortcomings, such as the failure to establish whether the deceased had ever handled the firearms found at the scene of the incident and the absence of photographs taken at the scene of the incident or of sketches to give an idea of each police officer’s position in the café at the time of the shootings. One of the police officers who had participated in the operation also had participated in the first examination of the scene of the incident with the Public Prosecutor. These defects in the investigations fundamentally had undermined the domestic court’s ability to establish the accountability for the killings. Other deficiencies had occurred in the course of the proceedings before that court: only six witnesses had made statements, three of whom being police officers who had participated in the police operation and one of whom being the owner of the café, although she had not been present at the time of the incident. Finally, the accused police officers had not attended the inspection conducted on-site. There were also substantial delays in the proceedings.
Conclusion: violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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