European Court of Human Rights

Information Note on the Court’s case-law No. 170

January 2014

Camekan v. Turkey - 54241/08

Judgment 28.1.2014 [Section II] See: [2014] ECHR 80 (French Text)

Article 2

Article 2-1

Effective investigation

Refusal to hold re-enactment of incident in which police officers had opened fire when effecting an arrest: no violation

 

Facts - In December 2000 the applicant was injured by patrolling police officers in a shoot-out that ensued during his arrest. In November 2001 the public prosecutor decided to prosecute thirteen officers for causing the death of one individual and wounding two others, including the applicant. Before the Assize Court, forensic reports admitted in evidence noted among other things that a spent cartridge and a bullet had come from the applicant’s pistol, and testimony was heard from witnesses. On numerous occasions during the hearings, the applicant requested that a re-enactment of the scene be held in his presence, but his requests were dismissed. In a judgment of 24 May 2012 the Assize Court took the view that the officers had been acting in self-defence and granted them a discharge. The applicant appealed on points of law and at the date of the Court’s judgment those proceedings were still pending in the Court of Cassation.

Law - Article 2

(a)  Use of force - Even though the applicant contended that he had not used a firearm against the police, the Court had no convincing information that would be capable of leading it to set aside the findings of fact by the Assize Court judges in the judgment of 24 May 2012, which found it established that during the incident the first shots had been fired against the police officers who were present at the scene to discharge their duties and that the use of a firearm by police officers had been lawful in the light of domestic law. The Court held that the use of force in those conditions, whilst regrettable, had not exceeded what was “absolutely necessary” in order to “ensure the defence of any individual against violence” and in particular “to proceed with a lawful arrest”.

Conclusion: no violation (four votes to three).

(b)  Effectiveness of the investigation - The authorities had conducted an investigation immediately after the incident and a number of measures had been taken to preserve the evidence at the scene. Real evidence had been gathered, sketches had been produced and samples had been taken from the suspects’ hands. In addition, criminal proceedings, which were still pending in the Court of Cassation, had been brought against the officers involved.

As regards the failure to hold a re-enactment at the scene, the Court had found in the case of Abik v. Turkey (34783/07, 16 July 2013) that this investigative act was one of crucial importance, since it enabled the investigator or judges to elaborate the possible scenarios as to the sequence of events and to assess the credibility of the suspects’ statements. However, whilst in that case the facts had not been sufficiently established by the domestic authorities, given that the person who fired the lethal shot had not been identified and that one of the police officers had reported seeing the shadows of two individuals behind a car, in the present case the parties’ versions were not radically different as to the sequence of events, the main point in dispute being whether or not the applicant had used his weapon. In addition, a sketch of the scene had been produced following a visit to the scene made during the applicant’s detention and in his presence. It would have been preferable for that investigative act to have been carried out in the presence of the public prosecutor and the applicant’s lawyer. However, the applicant had not called it into question before the domestic courts and had not submitted a request for re-enactment until about four years after the events in question. In this connection, the public prosecutor, finding that such a request could be of no assistance in view of the time that had elapsed since the incident, had rejected the request. Consequently, the Court is not persuaded that the failure to carry out a re-enactment had seriously prevented the national authorities from establishing the main facts of the case.

As regards the applicant’s complaint about the length of the proceedings against the police officers, the Court noted at the outset the excessive duration of the post-investigation proceedings: the Assize Court had delivered its judgment on 24 May 2012, some eleven and a half years after the events, and after a total of thirteen years the proceedings were still pending before the Court of Cassation. The Turkish authorities had not, therefore, acted sufficiently quickly or with reasonable diligence.

Conclusion: violation (unanimously).

Article 41: EUR 6,000 in respect of non-pecuniary damage.

 

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This summary by the Registry does not bind the Court.

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