(Application no. 45653/99)
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 Andreou v. Turkey,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
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 death of Anastasios Isaak
10. Notwithstanding this, on 11 August 1996 a group of motorcyclists and other civilians proceeded to various points along the United Nations (UN) buffer zone. Violent clashes took place between the demonstrators, the counter-demonstrators and the “TRNC” forces. One of the Greek-Cypriot demonstrators, Anastasios Isaak, was beaten to death in Dherynia. The events concerning the killing of Mr Isaak were brought to the attention of the Court in the context of application no. 44587/98 (Isaak and Others v. Turkey). In its judgment of 24 June 2008 the Court held, inter alia, that there had been a violation of Article 2 of the Convention in respect of the killing of Anastasios Isaak and in respect of the failure to conduct an effective investigation into the circumstances in which he had died.
B. The funeral of Anastasios Isaak and the shooting of the applicant
C. UNFICYP's press release and the UN Secretary-General's report on the events of 14 August 1996
“By 14.20 hours, some 200 Greek Cypriots were inside the UN buffer zone, but UNFICYP was in control of the situation. The demonstrators were being rounded up and moved out of the UN buffer zone. The main group of Greek Cypriots were no closer than about 30 metres from the Turkish forces ceasefire line. ...
At about that time, a Greek-Cypriot male, later identified as Solomos Spyrou Solomou, broke free from the main group [of demonstrators] and ran towards the Turkish-Cypriot checkpoint. He was chased by two UNFICYP soldiers, who caught up with him at the guard post, but the demonstrator broke free again and began to climb the flagpole which was flying the Turkish flag just inside the Turkish-Cypriot checkpoint. The UNFICYP soldiers were pursuing him a few feet behind.
Solomou was some 3 metres off the ground ... when he was shot by a Turkish or Turkish-Cypriot soldier and fell to the ground with blood flowing profusely from his neck (the autopsy later revealed that Solomou was hit by five bullets). Turkish or Turkish-Cypriot soldiers then proceeded to fire some 25 to 50 rounds indiscriminately into the crowd inside the buffer zone. The whole incident was witnessed by the UNFICYP Force Commander and the Commanding Officer of the Austrian Battalion who were in the UN buffer zone some 35 metres from the Turkish forces ceasefire line. They observed uniformed Turkish or Turkish-Cypriot military personnel kneeling down and firing in the direction of the demonstrators inside the UN buffer zone.
As a result of the indiscriminate shooting by Turkish or Turkish-Cypriot soldiers, two British UNFICYP soldiers were shot from behind and two Greek-Cypriot civilians were also hit by gunfire. Three were inside the buffer zone and one of the civilians, who sustained a serious gunshot wound to the abdomen, was standing outside the UN buffer zone close to the National Guard checkpoint. ....
The Force Commander of the UNFICYP accompanied by the Chief of Staff met with the Commander of the Turkish forces in Cyprus late in the afternoon of 14 August to strongly protest the totally unwarranted use of force by Turkish or Turkish-Cypriot military personnel which resulted in the killing of Solomou and in injuries to two peacekeepers and two civilians.”
“On 14 August ... some 200 Greek Cypriots entered the buffer zone at Dherynia and approached the Turkish forces' ceasefire line. Most were stopped by UNFICYP and were about to be moved out of the buffer zone when one demonstrator broke free from the main group [of demonstrators] and ran towards a Turkish-Cypriot checkpoint closely pursued by UNFICYP soldiers. While attempting to climb a flagpole flying a Turkish flag just behind the Turkish forces' ceasefire line, he was shot five times from the Turkish/Turkish-Cypriot side. In addition, Turkish and/or Turkish-Cypriot uniformed personnel proceeded to fire some 25 to 50 rounds indiscriminately into the crowd inside the buffer zone. As a result, two British UNFICYP soldiers and two Greek Cypriots were wounded ... The situation in Cyprus deteriorated in the last six months. There was violence along the ceasefire lines, including unnecessary and disproportionate use of lethal force by the Turkish/Turkish-Cypriot side, to an extent not seen since 1974.”
D. The medical certificates produced by the applicant's heirs
“Based on the hospital's medical records of Georgia Andreou (ID number 18700), aged 59, she was admitted at the Emergency Room of the Larnaca General Hospital on 14/8/1996 due to being shot during a protest in Derinia. She reported that the Turks opened fire and she was shot by a bullet in her back. The patient was wounded by a semiautomatic weapon in her abdominal area and was in shock.
She went to surgery very urgently on 14.8.1996. During the surgery, it was found:
1) Wound on the navel coming from the right kidney area
2) Large amount of blood in the abdominal area with hematoma
3) Right kidney damage
4) Penetration of the large intestine
5) Wound on the backside of the right side of the liver
6) Hematoma of the pancreas
Due to the above, she underwent:
1) Removal of the right kidney
2) Removal of the pancreatic holder
3) Stitching of the liver
5) Wound care
Her post-surgery experience was extremely difficult and during the post-surgery period she developed pleuritis on the left side. She was also assessed by Dr Veresies where she was diagnosed with post-traumatic stress and depression. She was discharged on 2/9/1996.
On 30/9/1996 the patient was readmitted to the hospital due to her colostomy. She went under surgery on 2/10/1996 due to her colostomy. She also went under surgery on 11/10/1996 due to intestinal rupture where a right semicolectomy was conducted and intestine anastomosis. She was discharged from the surgery department on 21/10/1996.”
“The deceased Georgia Andreou was repeatedly admitted to the pathological Department of Larnaca General Hospital after several brain strokes or side effects of previously inflicted brain strokes. As written in her medical folder, she was admitted a total of 7 times in this department at Larnaca General Hospital. It is concerned a familiar high blood pressure patient who was under medical care with reducing blood-pressure medication. The brain strokes resulted in lack of power on her left side, epileptic seizures and psychotic behaviour.
The last and critical episode reoccurred on 18/11/2005 after a serious endoencephalic bleeding. She died on 29/11/2005.”
“Based on my personal memories, she reported nephrectomy on her right side and colectomy after a medical wound from an automatic rifle in 1996. She is a mother of two children. She did not smoke and did not drink. She visited me for the first time on the 5th of September 2001 with symptoms of depression, phobias and paranoid feelings of being chased. Based on the clinical interview, I did not notice any pathological findings. I prescribed Seroxat 20 mg.
On the next visits (25/9/01 and 9/11/01) I noticed a slight improvement of her depression and I recommended the continuation of the medication.
On the 12th of December 2001 she visited me complaining of abdominal pain and constipation. The patient underwent a form of colonoscopy where her previous semicolectomy was identified but without any other pathological findings. Therefore, I determined that the symptoms were due to a malfunction of the intestine due to her previous colectomy. I prescribed Spasverin and Magnesia S. Pellegrino. On 8/7/2002, I prescribed medication for acute laryngitis and pharyngitis. On 7/8/2002, she complained of pain of her right hypochondrio with the movement of her body. She underwent an ultrasound where a small metallic element was detected on the right side of her liver, possibly due to the bullet from the gun. On 4/3/03 I noticed a relapse of her depression. I recommended the continuation of her medication. On 18/11/03 she complained of swelling of her eyelashes. On 30/6/2004 she complained of lack of energy and bodily power due to a change of her anti-depressants from another colleague (keep in mind that throughout this whole period, the patient was being seen by other colleagues at the Larnaca General Hospital). The last assessment I made was done on 15/11/2004 with a new relapse of her depression. I recommended the starting of Seroxat 20 mg again.”
“Subject: Georgia Andreou, DOB 06/12/1936.
The above lady was transferred to Larnaca General Hospital after being wounded from a gunshot that she received from Turkish individuals during the events at Derinia on 14/08/1996. She underwent surgery.
On the 17th of August 1996, I was called by her treating doctors as the psychiatrist of the General Hospital to assess her because they noticed that she was being quiet, reserved and negative concerning communicating with her family, friends and medical personnel. During the clinical interview, she seemed frightened from the events that occurred and very troubled by the surgery and the side effects. I believe there was an intense stressful reaction as well as indication of anxiety and depression. I administered anti-anxiety and anti-depressant medication and sleep-aids for her troubled sleep.
After her dismissal from the hospital, I continued seeing her as an outpatient in Larnaca and Paralimni. She exhibited depression with indication of phobias. Her sleep was disturbed and she developed panic attacks that were very hard to deal with and treat. The events of the shooting were being revisited in her mind and her narration of the stressful, scary and painful events stigmatized her until her death.
Mrs Georgia was under medication management and psychiatric care without significant improvement until the end of her life.”
I. PRELIMINARY ISSUES
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
She relied on Article 2 of the Convention, which reads as follows:
“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.”
A. Arguments of the parties
1. The Government
29. The Government alleged that responsibility for the incidents which led to the applicant's being shot lay with the Greek-Cypriot administration and the Greek Orthodox Church, which had deliberately encouraged the Greek-Cypriot demonstrators to breach the UN buffer zone. It was clear that such an action would inevitably incite hatred and hostility and would get out of control.
2. The applicant
B. The Court's assessment
1. Applicability of Article 2 of the Convention
2. Alleged failure of the authorities to fulfil their positive obligation to protect the applicant's right to life
(a) General principles
(b) Application of the above principles to the present case
(a) Solomos Solomou had been killed by agents of the respondent Government;
(b) the shooting of Mr Solomou had not been justified “in defence of any person from unlawful violence” or “to effect a lawful arrest”;
(c) according to eyewitnesses, the opening of fire had been totally unwarranted and not even preceded by a warning shot;
(d) it was not for the Court to determine which party should bear responsibility for the facts which gave rise to the protest of the Greek-Cypriots and the subsequent demonstration of 14 August 1996;
(e) the demonstrators had sticks and iron bars and had been seen throwing stones at the Turkish forces; this had led to a situation of tension and to a risk of potentially more violent developments;
(f) as Mr Solomou had been the only demonstrator to cross the ceasefire line and had been unarmed, the shots directed at him could hardly be described as measures aimed at calming the violent behaviour of other demonstrators;
(g) potential illegal or violent action from a group of persons could not, as such, justify the immediate shooting and killing of one or more other individuals who were not themselves posing a threat;
(h) in view of the above, the use of force was not justified by any of the exceptions laid down in paragraph 2 of Article 2 of the Convention.
III. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION
59. The applicant claimed that the use of excessive force against her during the shooting had reached the level of severity necessary to constitute inhuman treatment. She further alleged that the permanent effects of the shooting and injuries on her health, employment prospects and enjoyment of her life constituted a serious intrusion upon her physical and mental integrity and thus a violation of her right to respect for her private life.
The applicant relied on Articles 3 and 8 of the Convention. These provisions read as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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.”
A. The parties' submissions
1. The Government
2. The applicant
B. The Court's assessment
IV. 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.”
A. Pecuniary damage
1. The applicant
2. The Government
3. The Court's assessment
B. Non-pecuniary damage
1. The applicant
2. The Government
3. The Court's assessment
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant's heirs, 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 585.68 (five hundred and eighty-five euros sixty-eight cents), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 40,000 (forty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable to the applicant's heirs, 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