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ANDREOU v. TURKEY - 45653/99 [2009] ECHR 1663 (27 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1663.html
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[2009] ECHR 1663
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FOURTH
SECTION
CASE OF ANDREOU v. TURKEY
(Application
no. 45653/99)
JUDGMENT
STRASBOURG
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,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Işıl
Karakaş,
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:
PROCEDURE
The
case originated in an application (no. 45653/99) against the Republic
of Turkey lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a British national, Mrs Georgia Andreou (“the
applicant”), on 12 February 1997.
The
applicant was represented by Mr A. Demetriades and
Ms V. Loizides, lawyers practising in Nicosia. The
Turkish Government (“the Government”) were represented by
their Agent, Mr Z. M. Necatigil.
The
applicant alleged that she was shot and injured during
a demonstration in violation of Articles 2, 3 and 8 of the
Convention.
The
application was transmitted to the Court on 1 November 1998, when
Protocol No. 11 to the Convention came into force (Article 5 § 2
of Protocol No. 11).
By
a decision of 3 June 2008, the Court declared the application
admissible.
The
Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in fine), the
parties replied in writing to each other's observations.
On
12 August 2008 the applicant's representatives informed the Court
that Mrs Georgia Andreou had died on 29 November 2005. No letters of
administration having been granted for her estate, her lawful heirs
were her husband, Mr Andreas Georgiou, and her two children, Mr
Argyris Andreou and Mrs Angela Andreou Panayiotou. On 21 August 2008
the applicant's heirs informed the Court that they wished to pursue
the application on behalf of the deceased.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1936. At the time of the
introduction of her application she was living in Larnaca.
A. The death of Anastasios Isaak
In
1996 the Cyprus Motorcycle Federation (CMF) organised a demonstration
aimed at
protesting against the Turkish occupation of the northern part of
Cyprus. On 2 August 1996 a group of over one hundred Cypriot and
other European motorcyclists set off from Berlin and made their way
through Europe to Cyprus. Tensions arose when the authorities of the
“Turkish Republic of Northern Cyprus” (the “TRNC”)
announced that, should the demonstration take place, they would be
organising “counter-rallies”. The President
of the Republic of Cyprus made a special plea to the motorcyclists to
disperse peacefully.
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
On
14 August 1996 the applicant attended the funeral of Anastasios
Isaak, who was a friend of her son, in Paralimini.
After
the funeral, a number of people went to the vicinity of the site
where the events had taken place to pay their respects. The
applicant's son, daughter and son-in-law were among those persons.
The applicant remained outside the UN buffer zone near Dherynia,
close to the Greek-Cypriot National Guard checkpoint, and observed
the events.
Tension
arose between the Greek-Cypriot demonstrators and the “TRNC”
authorities. One of the demonstrators, Solomos Solomou, crossed the
Turkish-Cypriot ceasefire line and started to climb a flagpole. He
was shot and later died from his injuries. The events concerning the
killing of Mr Solomou were brought to the attention of the Court
in the context of application no. 36832/97 (Solomou 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 Solomos Solomou and in
respect of the failure to conduct an effective investigation into the
circumstances in which he had died.
Immediately
after the shooting of Mr Solomou, the applicant saw soldiers firing
their weapons in the area under the control of the Turkish armed
forces. As a result, a number of people were wounded, including two
British soldiers from the UN Forces in Cyprus (UNFICYP)
and the applicant. The latter was hit by one bullet in the abdomen.
She collapsed and was taken to Larnaca Hospital. She was operated on
but lost one of her kidneys.
The
applicant claimed that her life had been put in serious danger and
had been saved only because she had received prompt medical
attention. Even after the introduction of her application she was
still suffering from her injuries, as a result of which she could not
obtain employment and was under great psychological stress.
C. UNFICYP's press release and the UN
Secretary-General's report on the events of 14 August 1996
The
applicant underlined the following passages from UNFICYP's press
release on the events surrounding the demonstration 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.”
In
his report on the same events, the UN Secretary-General stated, inter
alia:
“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
The
applicant's heirs produced four medical certificates (in their
original Greek version and in a translation into English) assessing
the injuries sustained by Mrs Georgia Andreou and describing the
treatment which had been administered to her.
The
first certificate, issued on 3 September 2008 by Dr K. Papakiriakou,
director of the surgical department of Larnaca General Hospital,
reads as follows:
“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
4) Colostomy
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.”
A
second report was issued on an unspecified date by Dr A. Poullos, who
stated:
“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.”
Dr
Giorgos Miliotis, a private practitioner, issued on 8 September 2008
a report entitled “Medical History of Georgia Andreou”.
This document reads as follows:
“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.”
The
last certificate was issued on an unspecified date by Dr Kiriakos
Veresies. It reads as follows:
“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.”
THE LAW
I. PRELIMINARY ISSUES
The
Court notes at the outset that the applicant died on 29 November
2005, after the lodging of her application, while the case was
pending before the Court. Her heirs (her husband and her two
children) informed the Court that they wished to pursue the
application lodged by her (see paragraph 7 above). Although the heirs
of a deceased applicant cannot claim a general right for the
examination of the application brought by the latter to be continued
by the Court (see Scherer v. Switzerland, 25 March 1994,
Series A no. 287), the Court has accepted on a number of
occasions that close relatives of a deceased applicant are entitled
to take his or her place (see Deweer v. Belgium, 27
February 1980, § 37, Series A no. 35, and Raimondo v. Italy,
22 February 1994, § 2, Series A no. 281-A).
For
the purposes of the instant case, the Court is prepared to accept
that the applicant's husband and children can pursue the application
initially brought by Mrs Georgia Andreou (see, mutatis mutandis,
Kirilova and Others v. Bulgaria, nos. 42908/98, 44038/98,
44816/98 and 7319/02, § 85, 9 June 2005, and Nerva and Others
v. the United Kingdom, no. 42295/98, § 33, ECHR
2002 VIII).
The
Court further recalls that in its decision as to the admissibility of
the application it held that the responsibility of the respondent
State under the Convention was engaged. It observed that even though
the applicant had sustained her injuries in territory over which
Turkey exercised no control, the opening of fire on the crowd from
close range, which was the direct and immediate cause of those
injuries, had been such that the applicant should be regarded as
“within [the] jurisdiction” of Turkey within the meaning
of Article 1 of the Convention.
The
Court sees no reason to depart from this conclusion.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicant alleged that her shooting, although not fatal, was
nevertheless a violation of her right to life.
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.”
The
Government disputed this claim.
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.
The
Greek-Cypriot authorities had been irresponsible in encouraging the
violent demonstrations by the Greek-Cypriot motorcyclists. This was
confirmed by the fact that the then Greek-Cypriot President, Mr
Clerides, had been photographed on a motorcycle, flanked by the then
Archbishop of Cyprus, and by the widespread media coverage of the
demonstration of 11 August 1996. The Government emphasised that
the existence of the UN controlled buffer zone separating the
two parts of Cyprus had been internationally recognised. UNFICYP had
asked the Greek-Cypriot authorities to take effective action to
prevent any demonstrators from entering the buffer zone area.
Notwithstanding this, the Greek-Cypriot police had escorted hundreds
of motorcyclists to the ceasefire line and had then deliberately left
the checkpoint unmanned in order to allow demonstrators to enter the
buffer zone, knowing that there were insufficient numbers of UN
personnel to keep the crowd under control. Had they acted
differently, the violence in the area could have been avoided.
The
sole intention of the “TRNC” authorities had been to
prevent demonstrators from making incursions into their territory and
to deter violent acts; this was a right secured to them in
international law.
On
14 August 1996 the Greek-Cypriot demonstration had developed into a
riot and the demonstrators had started rushing towards the
Turkish Cypriot ceasefire line. One of them (Solomos Solomou)
had unsuccessfully tried to run towards a sentry post, and had then
started to climb the flagpole marking the Turkish-Cypriot ceasefire
line. The other demonstrators had thrown stones, bottles, iron bars
and other missiles. According to eyewitnesses, shots had also been
fired from the Greek Cypriot side and at least one demonstrator
posing as a cameraman had been seen with an automatic pistol firing
shots. At this stage, the Turkish-Cypriot police team had come out
from their position and fired in the air in order to stop the advance
of the demonstrators and to prevent the situation getting out of
control. There had then been crossfire as shots were fired from the
Greek-Cypriot side.
Mr
Solomou had been injured during the crossfire and had been
immediately picked up by UN personnel. Greek-Cypriot demonstrators
had prevented the UN from bringing an ambulance to the scene, thus
hindering any chance of his survival. After having waited in the
buffer zone, Mr Solomou had eventually been picked up by a jeep
and taken across to the Greek-Cypriot side. He had later died from
his injuries.
The
Turkish-Cypriot authorities claimed that they were unaware as to how
and under what circumstances the applicant had been hit by a stray
bullet during the riot of 14 August 1996. While it was regrettable
that the applicant had suffered injuries, she could not be regarded
as an “innocent bystander”. She should have known that
attending or watching such a violent demonstration near the
Greek-Cypriot National Guard positions would inevitably carry some
risk. If the purpose of the demonstration had been merely
commemorative, it could have taken place in a church or somewhere
else. There had been no justification for the demonstrators to
commemorate or protest “in the forbidden zone”.
The
Government submitted that the “TRNC” authorities had been
fully justified under paragraph 2 of Article 2 of the Convention in
taking all necessary precautions and using necessary force in order
to avert the danger and protect the lives of others. An assembly of
150 persons throwing missiles at a patrol of soldiers to the point
that they risked serious injury had been considered a “riot”
by the Commission in the case of Stewart v. the United Kingdom
(no. 10044/82, Commission decision of 10 July 1984,
Decisions and Reports (DR) 39, p. 162). In that case, the
Commission had also pointed out that the authorities had no
obligation to retreat when quelling a riot. In any event, as no death
had occurred in the present case, there could be no question of a
violation of Article 2. The positive obligations arising from this
provision entailed protecting “by law” the right to life,
and there was no allegation that the laws of the “TRNC”
failed to afford such protection.
2. The applicant
The
applicant submitted that the Government's version of the facts was
not accurate. In any event, even if that inaccurate account were to
be accepted, there was no doubt that the Turkish forces had
overreacted in a violent and lethal manner, displaying a complete
disregard for life, safety and the principles of the Convention.
The
applicant noted that the photograph showing the President of Cyprus
on a motorbike had been taken at a State Fair in May 1996 at the
Harley Davidson stand. Moreover, the “near-apocalyptic”
version of the Government, who had described the demonstration as a
riot, was contradicted both by UNFICYP's press release and by the UN
Secretary General's report, which stated that UNFICYP had been
in control of the situation, that the main group of demonstrators had
been positioned 30 metres from the Turkish forces' ceasefire
line and that they had been about to be transferred out of the buffer
zone. Under these circumstances, it could not be argued that a riot
was taking place and/or that there were reasonable grounds to believe
that it was necessary to protect any person from unlawful violence.
In any event, the Turkish armed forces or the forces under their
control could not take “lawful” actions in Cyprus without
the permission of the Republic of Cyprus and their reaction could not
be regarded as “absolutely necessary” within the meaning
of the Court's case-law. Moreover, prior to the shooting, UNFICYP had
contacted the Turkish armed forces and had requested them “to
exercise restraint and not overreact”.
UNFICYP's
press release and the UN Secretary-General's report also contradicted
the Government's assertion that at the material time, shots had been
fired from the Greek-Cypriot side and that this had resulted in
crossfire which had led to the death of Solomos Solomou and injuries
to four others. These documents clearly showed that there had been
deliberate and indiscriminate firing by the members of the Turkish
armed forces into a small crowd of unarmed civilians.
As
the applicant had been watching the demonstration outside the buffer
zone, she was the quintessential “innocent bystander”.
The firing had been totally unwarranted; it had been so unnecessary
and disproportionate that neither the demonstrators nor the applicant
could have foreseen it.
The
applicant also noted that according to the Court's case-law (she
cited, in particular, L.C.B. v. the United Kingdom, 9 June
1998, Reports of Judgments and Decisions 1998-III), the
question of a violation of Article 2 could arise even when no death
occurred. She pointed out that none of those directly or indirectly
involved in the “outrage of 14 August 1996” had been
punished by the respondent Government. Furthermore, even assuming
that the shooting had not been planned in advance, the deployment of
fully armed military personnel trained to shoot and “trigger-happy”
had created a “real and immediate risk” to the life and
physical integrity of the persons present in the area.
B. The Court's assessment
1. Applicability of Article 2 of the Convention
In
the present case, the force used against the applicant was not in the
event lethal. This, however, does not exclude in principle an
examination of the applicant's complaints under Article 2, as it is
established in the Court's case-law that physical ill-treatment by
State agents which does not result in death may disclose a violation
of that provision. In particular, the Court must determine whether
the force used against the applicant was potentially lethal and what
kind of impact the conduct of the officials concerned had not only on
her physical integrity but also on the interest the right to life is
intended to protect. In relation to this, the degree and type of
force used and the intention or aim behind the use of force may,
among other factors, be relevant (see Makaratzis v. Greece
[GC], no 50385/99, §§ 49-52, ECHR
2004-XI, and Evrіm Őktem v. Turkey, no. 9207/03,
§§ 39-40, 4 November 2008).
In
the present case, it results from the UNFICYP's press release (see
paragraph 16 above) that, immediately after the shooting of Solomos
Solomou, Turkish or Turkish-Cypriot soldiers proceeded to fire some
25 to 50 rounds indiscriminately into the crowd inside the buffer
zone. The UNFICYP Force Commander and the Commanding Officer of the
Austrian Battalion saw 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, two British
UNFICYP soldiers and two Greek-Cypriot civilians (one of whom was the
applicant) were hit by gunfire. This version of events is confirmed
by the UN Secretary-General's reports on the events of 14 August
1996 (see paragraph 17 above).
The
Court has no reason to doubt the independence and trustworthiness of
sources such as UNFICYP and the UN Secretary General. Moreover,
their description of the events of 14 August 1996 is based on
eyewitnesses' statements and is not contradicted by any objective
fact put forward by the respondent Government.
Before
the Court, the Government argued that the use of force was necessary
in order to protect the lives of others and/or for the purpose of
quelling a riot (see paragraph 35 above), these being two of the
instances contemplated by the second paragraph of Article 2 when the
resort to lethal, or potentially lethal, force may be legitimate
(see, mutatis mutandis, Makaratzis cited above, § 53,
and Evrіm Őktem cited above, § 42).
The
Court is of the opinion that the indiscriminate and unwarranted
firing of rounds into the crowd which was gathering inside and
outside the buffer zone put at serious risk the lives of a number of
persons, including the applicant. The fact that the latter was not
killed was fortuitous (see, mutatis mutandis, Makaratzis
cited above, § 54). The seriousness of her injuries is
not in dispute between the parties. As shown by the medical
certificates produced by her heirs (see paragraphs 18-22 above), she
had to undergo three surgical operations, which included removal of
the right kidney and of pancreatic tissue, stitching of the liver and
a colostomy. She developed pleuritis and also post-traumatic stress
and depression.
In
the light of the above circumstances, and in particular the degree
and type of force used, the Court concludes that, irrespective of
whether or not the soldiers actually intended to kill her, the
applicant was the victim of conduct which, by its very nature, put
her life at risk, even though, in the event, she survived. Article 2
is thus applicable in the instant case. Furthermore, given the
context in which her life was put at risk and the nature of the
impugned conduct of the State agents concerned, the Court is
satisfied that the facts call for examination under 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
The
Court reiterates that Article 2, which safeguards the right to life
and sets out those circumstances in which deprivation of life may be
justified, ranks as one of the most fundamental provisions in the
Convention, to which no derogation is permitted. Together with
Article 3, it also enshrines one of the basic values of the
democratic societies making up the Council of Europe. The
circumstances in which deprivation of life may be justified must
therefore be strictly construed. The object and purpose of the
Convention as an instrument for the protection of individual human
beings also requires that Article 2 be interpreted and applied
so as to make its safeguards practical and effective (see McCann
and Others v. the United Kingdom, 27 September
1995, §§ 146-147, Series A no. 324).
The
exceptions delineated in paragraph 2 indicate that this provision
extends to, but is not concerned exclusively with, intentional
killing. The text of Article 2, read as a whole, demonstrates that
paragraph 2 does not primarily define instances where it is permitted
intentionally to kill an individual, but describes the situations
where it is permitted to "use force" which may result, as
an unintended outcome, in the deprivation of life. The use of force,
however, must be no more than "absolutely necessary" for
the achievement of one of the purposes set out in sub-paragraphs (a),
(b) or (c) (ibid., § 148).
The
first sentence of Article 2 § 1 enjoins the State to take
appropriate steps within its internal legal order to safeguard the
lives of those within its jurisdiction (see Kılıç
v. Turkey, no. 22492/93, § 62, ECHR 2000-III). This
involves a primary duty on the State to secure the right to life by
putting in place an appropriate legal and administrative framework to
deter the commission of offences against the person, backed up by
law-enforcement machinery for the prevention, suppression and
punishment of breaches of such provisions (see Makaratzis cited
above, § 57).
As
the text of Article 2 itself shows, the use of lethal force by police
officers may be justified in certain circumstances. Nonetheless,
Article 2 does not grant a carte blanche. Unregulated and
arbitrary action by State agents is incompatible with effective
respect for human rights. This means that, as well as being
authorised under national law, policing operations must be
sufficiently regulated by it, within the framework of a system of
adequate and effective safeguards against arbitrariness and abuse of
force, and even against avoidable accident (see Evrіm Őktem
cited above, § 46, and Hamiyet Kaplan and Others v.
Turkey, no. 36749/97, § 49, 13 September 2005).
In
view of the foregoing, in keeping with the importance of Article 2 in
a democratic society, the Court must subject allegations of a breach
of this provision to the most careful scrutiny, taking into
consideration not only the actions of the agents of the State who
actually administered the force but also all the surrounding
circumstances, including such matters as the planning and control of
the actions under examination (see McCann and Others, cited
above, § 150; Avşar v. Turkey, no. 25657/94, §
391, ECHR 2001-VII; and Musayev and Others v. Russia,
nos. 57941/00, 58699/00 and 60403/00, § 142, 26 July 2007).
(b) Application of the above principles to
the present case
The
Court observes, firstly, that the shooting in which the applicant was
injured took place a few moments after the killing of Solomos
Solomou, who had been hit by five bullets while climbing a flagpole
holding the Turkish flag. In the case of Solomou and Others v.
Turkey the Court examined this incident and came to the following
conclusions (see the judgment, cited above, §§ 69-79):
(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.
The
Court does not see any reason to depart from the conclusions reached
in the Solomou case.
As
to the question whether the shooting was justified by the aim of
quelling a “riot or insurrection”, the Court is of the
opinion that the firing of rounds into the crowd constituted a
disproportionate use of force in the circumstances surrounding the
events of 14 August 1996. Even though the fact that the
demonstrators, who had sticks and iron bars, were throwing stones at
the Turkish forces carried the risk of potentially more violent
developments, such firing could have caused serious injuries to
demonstrators, bystanders or UN forces members. Indeed, the
applicant, another civilian and two peacekeepers were hit by the
bullets. In this connection, the Court attaches a certain weight to
the fact that, according to the eyewitnesses, the opening of fire was
totally unwarranted and not even preceded by a warning shot. It thus
appeared to be a preventive measure, taken in order to discourage any
possible recourse to violence before the crowd had the time to react
to the shooting of Mr Solomou.
The
Court further notes that it cannot be held that the shooting of the
applicant was justified “in defence of any person from unlawful
violence”. Nothing shows that she had been carrying weapons,
had behaved in a violent manner, and offered any resistance to the
police or was posing a threat to public order, let alone to an extent
that could have justified putting her life at risk and inflicting on
her a serious gunshot wound in the abdomen. Nor can it be argued that
she was, at the material time, “lawfully detained” or
that the use of force was “absolutely necessary” to
“effect a lawful arrest”. Indeed, she had not crossed the
ceasefire line and had been hit by the bullet while standing outside
the UN buffer zone close to the National Guard checkpoint (see
paragraph 16 above). It follows that the respondent State's agents
used excessive force against the applicant which had not been
rendered strictly necessary by the state of heightened tension
surrounding the demonstration of 14 August 1996 and/or by the
applicant's own behaviour.
Finally,
the Court observes that the respondent Government failed to indicate
whether the members of its security forces had been given clear
instructions and appropriate training in order to avoid and arbitrary
and/or abusive use of potentially lethal force.
3. Conclusion
In
the light of the above, the Court is of the opinion that the use
of potentially lethal force against the applicant was not “absolutely
necessary” for pursuing one or more of the aims laid down in
paragraph 2 of Article 2 and was therefore not justified by any
of the exceptions laid down in this provision.
It
follows that there has been a violation 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:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 8
“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.”
The
Government disputed these claims
A. The parties' submissions
1. The Government
The
Government submitted that “torture” or “ill-treatment”
necessitated an element of deliberate action, which was clearly
lacking in the present case. For the same reasons, no violation of
Article 8 could be found.
2. The applicant
The
applicant pointed out that her complaint under Article 3 was not one
of torture but of inhuman treatment. The intentional firing into the
crowd should be interpreted as at least having been intended to cause
intense physical suffering to anyone who might be caught in the path
of the bullets.
B. The Court's assessment
The
Court considers that, in the light of the conclusion reached under
Article 2 of the Convention (see paragraphs 57-58 above), it is not
necessary to examine whether there has also been a violation of
Articles 3 and 8 (see Makaratzis cited above, § 83,
and Evrіm Őktem cited above, § 58).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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
Relying
on an affidavit from the applicant's husband, the applicant's heirs
observed that Mrs Georgia Andreou had suffered, until her death, as a
result of the injuries sustained on 14 August 1996. As a consequence,
she had been unable to work. As at the time of the shooting the
applicant was 59 years old, she should be entitled to pecuniary
damages for loss of income for the 41 months which were left before
she reached the retirement age for women. At the material time she
had been earning 414 Cypriot pounds (CYP – approximately 707
euros (EUR)) per month as a hotel cleaner; the loss under this head
therefore amounted to EUR 29,001.80, to which EUR 20,881.26
should be added by way of interest, calculated at a rate of 8% per
annum for the period December 1999-December 2008.
The
applicant's heirs also pointed out that Mrs Georgia Andreou had
undergone three surgical operations and had eventually been
discharged from hospital only on 21 October 1996. Thereafter she
had been unable to look after herself or perform any household tasks.
Until her death, her husband had therefore been obliged to employ
part-time home help at a cost of CYP 160 (approximately EUR 273)
per month. The whole cost of this help had been EUR 29,700, to which
EUR 7,128 should be added by way of interest, calculated at a rate of
8% per annum for the period November 2005 November 2008.
Moreover,
even though she was entitled to free medical care, the applicant had
obtained two reports from Larnaca General Hospital (at a total cost
of EUR 95.68) and one report from a neurologist, Dr Veresies
(EUR 40); she had also consulted a private doctor, Dr Miliotis,
on ten occasions, paying a total sum of EUR 450.
Thus,
the overall sum claimed for pecuniary damage was EUR 87,256.74.
2. The Government
The
Government submitted that there was no causal link between the
applicant's natural death and the injuries she had sustained nine
years earlier. They further pointed out that her heirs had failed to
provide any information about their family links and family
situation. Moreover, they should have promptly informed the Court of
Mrs Georgia Andreou's death. It was only while in the process of
submitting claims for just satisfaction that the applicant's heirs
had felt the need to bring the applicant's demise to the attention of
the Court, with some three years' delay. In the Government's view,
their conduct could “raise some doubts as to their motive in
the present proceedings”.
The
Government also pointed out that in the case of Karner v. Austria
(no. 40016/98, ECHR 2003-IX), the
Court had accepted that the proceedings could be continued after the
applicant's death, but considered that in the absence of an injured
party no award could be made under Article 41 of the Convention.
None
of the sums clamed for pecuniary damage could be recovered by the
applicant's heirs, as the relevant claims could not be transferred.
Alternatively, the claim for loss of income was highly speculative
and disregarded the vicissitudes of life. Moreover, it made no
allowance for the social security benefits to which the applicant
would have been legally entitled under the social insurance scheme
available in Cyprus. As to the expenses allegedly incurred after the
shooting, there was no evidence that they had been actually incurred
by any of the applicant's heirs. An award under this head would mean
unjust enrichment of the heirs.
3. The Court's assessment
The
Court first notes that the present case can be easily distinguished
from that of Karner, cited by the Government, in which there
were no heirs who wished to pursue the application. As noted above
(see paragraphs 7 and 23 above), in the present case the heirs of Mrs
Georgia Andreou expressed such a wish.
The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicant and the violation of the
Convention, and that this may, in appropriate cases, include
compensation in respect of loss of earnings (see, among other
authorities, Çakıcı v. Turkey [GC],
no. 23657/94, § 127, ECHR 1999 IV).
In
the present case, the applicant's heirs did not provide any evidence
substantiating their assertion that, at the time of the shooting, the
applicant had been working as a hotel cleaner for a monthly salary of
CYP 414 and that she had had to leave her job because of the
injuries sustained. They also failed to furnish evidence that she had
needed part time home help or that this help had actually been
provided at a cost of CYP 160 per month. Therefore, the Court does
not find it appropriate in the circumstances of this case to make any
award to the applicant's heirs under this head.
It
observes, however, that the applicant's heirs submitted medical
reports from Larnaca General Hospital and from Dr Veresies (see
paragraphs 19, 20 and 22 above), and that Dr Miliotis certified
that he had treated the applicant on a number of occasions (see
paragraph 21 above). It is logical to assume that the applicant
and/or her family had to bear the costs connected with the medical
reports in issue and of the services of Dr Miliotis. As the sums
claimed for medical expenses (totalling EUR 585.68) are
reasonable as to quantum, the Court awards them to the applicant's
heirs.
B. Non-pecuniary damage
1. The applicant
The
applicant's heirs claimed that Mrs Georgia Andreou's injuries were a
factor which had contributed to her death. In any event, they had
caused great pain and suffering, which had also resulted in
psychological problems. The applicant had undergone surgical
operations which included the removal of one kidney and of the
gallbladder and the resection of part of the colon. A metal fragment
had been left in her liver.
In
view of the above, and relying on a similar case decided by the
Supreme Court of the Republic of Cyprus, the applicant's heirs
claimed EUR 68,400 for non-pecuniary damage, to which EUR 38,304
should be added in interest, calculated at a rate of 8% per annum for
the period 2001 2008. The total sum claimed under this head was
thus EUR 106,704.
2. The Government
The
Government observed that non-pecuniary damages should be awarded in
respect of the anguish, feelings of helplessness and frustration
suffered by the applicant personally. In the present case, it had not
been established that any frustration or anxiety other than
depression had been suffered by the applicant, or that the depression
at issue had been caused by the wounds she had received. In view of
the above, Mrs Georgia Andreou's claims under this head should
be considered not to be transferable to her heirs.
The
Supreme Court judgment cited by the applicant's heirs had no bearing
on the present application and, in any event, concerned a case which
was relevantly different. The amount claimed by the applicant's heirs
(EUR 106,704) was not only excessive, disproportionate and
exorbitant, but was also not in conformity with the established
practice of the Court.
In
refusing to award non-pecuniary damages, or in keeping the amount to
a minimum, the Court could take into account the applicant's heirs'
behaviour, and in particular the fact that they had concealed
Mrs Georgia Andreou's death for almost three years.
3. The Court's assessment
The
Court observes that it has found a violation of Article 2 of the
Convention on account of the shooting of the applicant and considers
that an award should be made under that head, bearing in mind the
seriousness of the damage sustained, which cannot be compensated for
solely by a finding of a violation. Making an assessment on an
equitable basis, the Court awards EUR 40,000 to the applicant's
heirs, plus any tax that may be chargeable on this amount.
C. Costs and expenses
Relying
on bills from their representatives, the applicant's heirs sought EUR
11,711.25 for the costs and expenses incurred in the proceedings
before the Court.
The
Government argued that when the applicant's lawyers filed their
observations in reply (November 2002) all the legal issues raised in
the Government's observations (namely, those of Turkey's jurisdiction
and responsibility) had been resolved in the Court's case-law.
Therefore, they had not necessitated detailed argumentation. The
applicant's heirs' claim for costs and expenses was therefore
excessive.
According
to the Court's established case-law, an award can be made in respect
of costs and expenses incurred by the applicant only in so far as
they have been actually and necessarily incurred and are reasonable
as to quantum (see Belziuk v. Poland, 25 March 1998, §
49, Reports 1998-II). The Court notes that the case was
rather complex, involved perusing a certain amount of factual and
documentary evidence and required a fair degree of research and
preparation. However, it considers that the amount claimed for the
costs and expenses relating to the proceedings before it is excessive
and decides to award the total sum of EUR 10,000 under that
head, exclusive of any value-added tax that may be chargeable to the
applicant's heirs.
D. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that the applicant's heirs have standing
to continue the present proceedings in her stead;
Holds that there has been a violation of
Article 2 of the Convention;
Holds that it is not necessary to examine
whether there has been a violation of Articles 3 and 8 of the
Convention;
Holds
(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;
Dismisses the remainder of the applicant's
heirs' claim for just satisfaction.
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
