(Application no. 45388/99)
27 October 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kallis and Androulla Panayi v. Turkey,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 6 October 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The applicants' version of the facts
B. The UN Secretary-General's report
“The third incident took place on 3 June 1996. An unarmed National Guard soldier was shot and killed inside the UN buffer zone in central Nicosia. The investigation has revealed that the lethal round was fired by a Turkish-Cypriot soldier whom UNFICYP had observed entering the buffer zone with his rifle strung across his back. Shortly thereafter a single shot was heard and the Turkish-Cypriot soldier was seen running back in a crouched position to the Turkish ceasefire line holding his rifle in his right hand. UNFICYP soldiers were prevented from reaching the National Guard soldier by Turkish-Cypriot soldiers who fired shots in the direction of the UNFICYP soldiers each time the latter tried to move forward. UNFICYP strongly protested to the Commander of the Turkish forces in Cyprus the unauthorised entry of an armed Turkish Cypriot soldier into the buffer zone, the shooting incident and the hostile action, including live fire against UNFICYP. UNFICYP is pursuing with the Turkish forces in Cyprus and with the Turkish-Cypriot authorities the question of appropriate action and has requested that UNFICYP police investigating the killing be able to interview the Turkish-Cypriot soldier involved in the incident. The military authorities on both sides have been urged once again to respect the UN buffer zone and ensure its integrity.”
C. The Government's version of the facts
D. The documents produced by the Government
(a) a map and some photographs of the area where the incident had taken place;
(b) a list of the “incidents that took place at the Greek-Cypriot Guard Post”, giving details of 69 episodes, including firing into the air, provocation by throwing stones and use of abusive language;
(c) several articles published by Turkish and/or Turkish-Cypriot newspapers concerning the circumstances of the killing of Stelios Kalli Panayi, the differences between the versions of the facts given by the two sides and political reactions to the incident.
(a) A note dated 6 June 1996 from the “TRNC” Ministry of Foreign Affairs and Defence addressed to the Office of the Prime Minister (with a copy to the Director of Intelligence, Counter-Intelligence and Security), which reads as follows:
“Upon being informed that a Greek Cypriot pathologist accompanied by UNFICYP will conduct an investigation at the scene of the incident whereby on 3rd June 1996 a GCNG soldier was shot, the UNFICYP has been contacted so that a pathologist from our side could also conduct a similar investigation at the scene of the incident on the basis of the principle of equality as well as reciprocity.
In accordance with the agreement reached with UNFICYP, the same day Dr. Engin Arkan from Dr. Burhan Nalbantoğlu State Hospital has conducted an investigation at the scene of the incident and the report that he prepared is enclosed herewith.”
(b) The following note dated 6 June 1996 signed by Dr Engin Arkan and addressed to Dr Burhan Nalbantoğlu of Lefkoşa (Nicosia) General Hospital (with a copy to the Director of Intelligence, Counter-Intelligence and Security):
“Regarding the shooting of a Greek-Cypriot soldier today in the buffer zone, accompanied by UNFICYP I went to the scene of the incident. In order to reach the scene of the incident, we crossed the bridge known as the Normandy bridge in the buffer zone by vehicle, went to the vicinity where the GCNG and UNFICYP positions are located and stepped out of the vehicle. From there we proceeded to the north by crossing a wooden bridge and from right after there we reached the scene where the incident took place, which is approximately 50-75 meters from the Turkish positions in the North. At the said place there were [a] trail of blood with 15cm diameter and a GCNG cap. According to the explanation given to me the bullet entered from the side of the right rib cage and exited from the left and it was also explained that the bullet also smashed the right arm from below the shoulder.
Also according to the explanation given to me, the corpse [was] found lying with his head towards North-West and foot South-East direction.
After having this information, accompanied by UNFICYP, [I] returned to Ledra Palace and entered TRNC by walk.”
(c) A statement by the “TRNC” Ministry of Foreign Affairs and Defence, which reads as follows:
“This morning at 6.30 hours in Köşklüçiftlik area of Lefkoşa a fully equipped GCNG soldier was observed approaching the Turkish position in the area, upon which he was warned to stop by our guard first in Turkish, then in Greek and English. GCNG soldier continued to proceed towards our guard and our guard fired two warning shots, one in the air and one to the ground. Despite numerous verbal warnings and warnings by fire, the GCNG soldier continued to proceed and violated the border, a shot was fired and he was observed to fall down. At 7.00 hours with the arrival of UNFICYP ambulance to the scene the GCNG soldier was evacuated.
We protest and condemn this irresponsible act which resulted in the violation of the borders of TRNC and remind once more the necessity for application of required measures by the parties concerned to prevent recurrence of such incidents.”
(d) An “information document on death incident”, a copy of which was addressed to the Director of Intelligence, Counter-Intelligence and Security and which contained the following information:
“1. TYPE OF INCIDENT: Firing on the Greek-Cypriot National Guard (GCNG) soldier who violated the Turkish Contact Line.
2. PLACE OF INCIDENT: Northeast of YILDIRIM Guard Post (317.5 – 931.9).
3. PLACE OF UNIT WHERE INCIDENT OCCURRED: 1st Infantry Regiment 3rd Infantry Battalion 8th Infantry Company.
4. DATE/TIME OF INCIDENT: 030630 C June 1996.
5. DETAILS OF INCIDENT: On the 3rd of June, 1996 at 6:30, the guards situated at the YILDIRIM Guard Post, in the 3rd Infantry Battalion, saw a fully equipped GCNG soldier approaching the wooden bridge on KANLI DERE, which only UNFICYP Patrol is permitted to use. Then, the guards at the post called the Patrol guards, who were 250 meters to the south of the Guard Post and at the same time they verbally warned the GCNG soldier. Since the GCNG soldier suddenly disappeared, one of the guards from the Guard Post moved 10 meters forward from the post and continued observing.
One of the Patrol Guards, who came to the area warned the GCNG soldier verbally and by gun, and then fired and shot him, while he was passing the wooden bridge and violating the TRNC border. After the arrival of UNFICYP and Turkish officers to the area, the GCNG soldier, who fell down, was taken by ambulance at 07:05 and it was found out that he was dead.
The guards of ZYAD Guard Post, which is to the south of the YILDIRIM Guard Post, Infrantry Private Ecevit AKSU and Infantry Private Dogan GURCE observed the acts of UN-60 UNFICYP Guard, when the incident occurred. They stated that the UNFICYP Guard was sitting at the guard post when the incident occurred and he went out after he heard the first gun shot. Then he started to observe the YILDIRIM Guard Post. 3-5 seconds later, he heard 2 gun shots and he ran to the area of the incident. After 5-6 minutes, 2-3 more bullets were fired. The total number of shots heard was 6 or 7.
During the incident, the Patrol Guards Infantry Corporal Zafer Ali SECKIN fired 5 times (one bullet into the air as a warning, one bullet at the ground as a warning, one bullet to the target, and 2 bullets into the air as warning to stop the UNFICYP soldier). The other Patrol Guard Infantry Corporal Ibrahim OGUT fired 2 times (as warning to prevent the UNFICYP soldier from approaching), so 7 bullets were fired in total.
6. THE REASON FOR THE INCIDENT: The GCNG soldier's persistent violation of the Buffer Zone and the Turkish Contact Line despite the verbal warnings and warnings by fire.
7. PERSONNEL INVOLVED IN INCIDENT: The guards of the YILDIRM Guard Post, Infantry Private Kemal GIYINER and Infantry Private Huseyin CUMBUSCU were present during the incident; however, the personnel who fired were Infantry Private Zafer Ali SECKIN, the son of Ahmet, born in 1977 and registered in Magosa, and the other patrol was Corporal Ibrahim OGUT.
8. CONDITION OF THE AFFECTED PERSON: It was observed that the GCNG soldier, who fell down after being shot was taken by ambulance and it was found out that he died.
9. THE IDENTIFICATION OF THE AFFECTED PERSON: GCNG soldier was STELYOS PANAYI.
10. PROCEDURE FOLLOWED AFTER INCIDENT:
a. The GCNG soldier who was shot was taken from the place of incident by ambulance and was brought to the Greek-Cypriot Hospital in Southern Cyprus.
b. Rapid Reaction Squad was sent to the place of incident.
c. All units were informed about the incident, steel vests and steel helmets were distributed especially to all the guards at the contact line, guard posts were reinforced and observation activities were increased.”
(e) A note from the “TRNC” Security Forces Command (1st Infantry Regiment) dated 5 June 1996 concerning “the National Guard soldier who was shot for violating the line of contact”, which reads as follows:
“The incident that took place at 06.30 on 3 June 1996 at the YILDIRIM observation post – (coordinates 31750-93190); located within the area under the control of the 8th Infantry Division of the 1st Infantry Regiment's 3rd Infantry Battalion – during which a GCNG soldier was shot dead, is described below.
1. On the day of the incident a fully equipped GCNG soldier, whose weapon was not visible, came out of the GCNG squad post – which is located 100 metres to the west of the YILDIRIM observation post at the Southern Cyprus Greek Administration's line of contact (coordinates 31750-93100) – and entered the buffer zone. He then waved at two guards at the YILDIRIM observation post and called them by saying “come here brother”. The guards warned the GCNG soldier by shouting in Greek “OXİ” and asked him, in Turkish, Greek and English, to stop. After the Greek Cypriot soldier had entered the buffer zone, one of the guards radioed patrols who at the time were 100 metres away to the north, and asked them to come to the area. One of the guards then walked 10 metres to the west of the YILDIRIM observation post in order to be able to observe the GCNG soldier who, by then, had gone into the river bed and was out of sight. In the meantime, the patrols who came from the communication trenches and who took up positions told the guard to return to his post and shouted at the Greek Cypriot soldier to leave the area.
When the Greek Cypriot crossed the wooden bridge, which had been built on Kanlı River in the 1980s for the exclusive use of the P.F. patrol personnel, and started advancing into the TRNC territory, one of the patrols fired two warning shots, first into the air and then at the ground. When the GCNG soldier ignored the warning shots and continued to advance, he was fired upon. When the Greek Cypriot soldier fell to the ground the patrols thought that he had taken up a position and continued to observe him. The patrols also reported the incident to the duty officer by radio.
2. A P.F. soldier at the UN 60 observation post – which is located at approximately 250 metres to the south of the place of the incident – heard the shots and came out of his observation post and then started looking around. He saw our guard, who had been warned by the patrols, running back to the YILDIRIM observation post. [The P.F. soldier], unable to see the incident from his position, advanced in the direction of the shooting and arrived at the place of the incident. The patrols were concerned about a possible attack by the Greek Cypriot soldier and they warned, first orally and then by firing two warning shots into the air, the P.F. soldier who, by then, had been attempting to cross the wooden bridge. [The patrols] thus prevented the P.F. soldier from approaching the place of the incident. A P.F. officer then arrived in the area.
3. At 06.55, when the ambulance arrived at the scene using the P.F. patrol road, it was established that the Greek Cypriot soldier had been injured. With the permission of a Delegation of Guards and the Commanding Officer who had arrived at the scene in the meantime, [the ambulance] was allowed to take the Greek Cypriot soldier away. This was photographed by the Commanding Officer.
4. The subsequent investigation of the place of the incident and of the relevant personnel [revealed that] the GCNG soldier who crossed into the TRNC soil and who was deemed to be carrying an assault weapon which could have posed a risk to our guards, was warned and then shot in accordance with the existing orders, instructions and rules of engagement.”
(f) Two notes which read as follows:
“THE POSSIBILITY OF THE P.F. GUARD AT THE UN 60 GUARD POST WITNESSING THE INCIDENT
The UN 60 guard post is located at a 250 metre distance from the place of the incident and 200 metres away from the YILDIRIM S.F.C. guard post. 3 metre-long reeds covering the river bed and the trees in the area prevent the place of the incident from being seen from the UN guard post. However, the P.F. guard can see the actions of the Turkish soldiers at the YILDIRIM guard post within a radius of 5 metres. At the time of the incident the Turkish guard at the YILDIRIM guard post advanced 10 metres away from his post in order to observe the GCNG soldier and asked the GCNG soldier to stop and leave the area. When the GCNG soldier insisted in continuing, the patrols who arrived at the scene warned the GCNG soldier and asked the Turkish guard – a corporal – to return to his trench. The guard then returned to his guard post. It might have been possible for the P.F. guard to see the Turkish soldier returning to his guard post. The Turkish soldier in ZİYAD guard post, which is at a distance of 20 metres from the UN 60 guard post, saw the P.F. guard sitting in the UN 60 guard post. Both the P.F. guard and the Turkish guards left their posts after the first shot was fired. The P.F. guard, who is said to have witnessed the incident, then continued to observe the incident. Furthermore, it is not possible to go down to the scene of the incident from the YILDIRIM guard post because the river bed is too steep and is covered with 3 metre-long reeds. Even entering the river bed from another direction would not enable the P.F. guard to see.”
“THE TAKING AWAY OF THE GCNG SOLDIER FROM THE AREA BY THE P.F. PERSONNEL
The incident took place at 06.30. As stated in the UN report, the P.F. guard called for an ambulance only at 6.45 and reported the incident. The P.F. personnel arrived in the area at 06.50 and were given permission to approach the scene of the incident by the duty Turkish officer, commander of the duty [soldiers] and the commander of the Division. The ambulance arrived at 7.01, the GCNG soldier was put in the ambulance immediately and the [ambulance] left the area at 7.05.”
E. The UN Force and Firearms Principles
“Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:
(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;
(b) Minimize damage and injury, and respect and preserve human life;
(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;
(d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.”
“Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.”
“Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”
“In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.”
“Rules and regulations on the use of firearms by law enforcement officials should include guidelines that:
(a) Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted;
(b) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm;
(c) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk;
(d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them;
(e) Provide for warnings to be given, if appropriate, when firearms are to be discharged;
(f) Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty.”
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
1. Preliminary remark
2. The Government's objection of non-exhaustion of domestic remedies
(a) Arguments of the parties
(i) The Government
(ii) The applicants
(iii) The third-party intervener
(b) The Court's assessment
3. Other grounds for inadmissibility
1. Arguments of the parties
(b) The Government
(b) The applicants
(a) there had been no attacks on the Turkish armed forces in the period before the incident of 3 June 1996 and the ceasefire line was constantly patrolled by members of UNFICYP;
(b) although wearing the uniform of the National Guard, Stelios Kalli Panayi had approached the position of the Turkish armed forces unarmed, shouting the Turkish word for “friend” and behaving in a manner which no reasonable person could have regarded as posing a threat of violence to anyone;
(c) in any case, the immediate recourse to lethal force had been a wholly inappropriate response which went far beyond what could be regarded as “absolutely necessary”;
(d) no steps had been taken to ensure that the troops on guard duty did not jump too readily to the conclusion that there was a threat and did not have automatic recourse to lethal force;
(e) the decision to prevent medical assistance being given to Stelios Kalli Panayi was taken when any possible threat of violence against the Turkish armed forces had manifestly come to an end.
(c) The third-party intervener
2. The Court's assessment
(a) The alleged killing of Stelios Kalli Panayi
(i) General principles
(ii) Application of the above principles to the present case
(b) The alleged inadequacy of the investigation
(i) General principles
(ii) Application of the above principles to the present case
II. ALLEGED VIOLATION OF ARTICLES 8 AND 14 OF THE CONVENTION
Articles 8 and 14 of the Convention insofar as relevant read as follows:
“1. Everyone has the right to respect for his private and family life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 35,000 (thirty-five thousand euros), plus any tax that may be chargeable, to each applicant in respect of non-pecuniary damage;
(ii) EUR 9,888.30 (nine thousand eight hundred and eighty-eight euros thirty cents), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 27 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
1 Translation into English provided by the Government and revised by the registry of the Court.