European Court of Human Rights

Information Note on the Court’s case-law No. 171

February 2014

Makbule Kaymaz and Others v. Turkey - 651/10

Judgment 25.2.2014 [Section II]

Article 2

Article 2-1

Life

Effective investigation

Article 2-2

Use of force

Inadequacies of investigation into use of lethal force by police officers resulting in deaths of father and his 13 year old son: violation

Facts - The applicants were the widow, mother and brother of A. Kaymaz and the mother of U. Kaymaz. Following an anonymous denunciation to the effect that numerous armed and suspicious individuals had gone to the address of the Kaymaz family to plan a terrorist attack, their house was placed under surveillance, day and night, on 20-21 November 2004. On 21 November the public prosecutor issued a warrant for a search of the house. At about 5 p.m. A. Kaymaz, the father, and U. Kaymaz his 13-year-old son, were shot dead near their home. According to a report of the same day, they were killed in a shoot-out with law-enforcement officers. On 22 November the public prosecutor’s office spontaneously opened an investigation. Witnesses and police officers were interviewed and forensic reports drawn up. In December 2004 an indictment was issued against four police officers for homicide resulting from the use of lethal force in circumstances that went beyond the context of self-defence. In April 2007 they were acquitted by the Assize Court. The applicants’ appeal on points of law was dismissed.

Law - Article 2

(a)  Substantive limb - The aim of the police action had been to carry out a lawful arrest, which was one of the aims mentioned in paragraph 2 of Article 2. The two individuals had been shot dead by police officers. The burden of proof was thus on the authorities.

It had been decided to arrest the suspects when they left their house, which was under surveillance, so as not to endanger the lives of the police officers or of the family members who lived there. No suspicious incidents had been noted during the surveillance. It thus appeared that the police had not explored any leads other than the anonymous denunciation. There was no evidence in the file to show that terrorists were hiding in their house, and there were no indications that a terrorist attack was being planned there. In addition, certain questions arose about the surveillance, bearing in mind that, on 21 November 2004, A. Kaymaz had left his house in the company of an individual who had gone to help him extract his car from mud. Also, the three police officers who had stated that they had fired at the suspects had stressed the suddenness of the incident. However, the operation had been scheduled by the police and the police officers involved could thus have prepared it more carefully. The Court was not therefore convinced that that police forces had used the requisite vigilance to ensure that any risk to life was reduced to a minimum.

Diverging versions of the facts had been submitted by the parties. The judicial establishment of the facts by the Assize Court found that the police officers had responded in self-defence, in the exercise of their duties, to shots fired by the members of the applicants’ families. However, the applicants had argued that their relatives had been the victims of an extrajudicial execution, as they had not been armed during the incident and that they had been killed deliberately by the police forces. In the light of the material available and in the absence of tangible evidence, this amounted to hypothesis and speculation. In those circumstances it was not established beyond all reasonable doubt that A. and U. Kaymaz had been killed deliberately by the police.

The establishment of the facts by the Assize Court had been based mainly on the statements obtained by the prosecutor’s office from the police officers present at the scene and recorded on 4 December 2004. The fact that this had taken 10 days showed that the authorities had not acted with the requisite diligence. A risk of collusion between the officers could not be ruled out. The police officers’ version of events had evolved over time. As neither of the two versions was consistent with the position of the spent cartridges found at the scene, if the origin of that discrepancy had been investigated it could have helped the national authorities to assess the credibility of the statements given by the accused officers. In particular, the Assize Court had indirectly accepted that discrepancy by stating that “not all the spent cartridges [had] remained in their original location because the two groups [had been] moving around during the incident”. However, that argument did not explain the absence or presence of certain cartridges or bullets. Consequently, the credibility of the police officers’ statements had not been assessed in depth by the national authorities. Moreover, the Government’s arguments, at first sight, suggested that the applicants’ relatives had been in possession of weapons and had used them during the incident. However, as this was an incident in which two people, including a 13-year-old, had been killed, the national authorities should have looked further into the possible leads before automatically accepting the version given by the accused police officers, especially as there were omissions and inconsistencies in the latter’s statements. There had been no attempt to take fingerprints from the weapons found near the bodies of the applicants’ relatives, even though the forensic reports had not dispelled doubts as to the last use of the weapons and the origin of the gunshot residue found on the hands of the deceased. Admittedly, the Court could not speculate in the abstract as to whether additional forensic reports and analyses would have enabled the domestic authorities to reach a different conclusion. That being said, the gaps in the evidence showed a lack of willingness to search for any other possible solutions. In any event, additional forensics and research would have enabled the Assize Court to return a more credible verdict and to rule out certain leads that had been legitimately invoked by the applicants. Consequently, the omissions attributable to the investigating bodies led to the conclusion that it was not established that the lethal force used against the applicants’ relatives had not exceeded what was “absolutely necessary”.

In view of the foregoing, the police operation during which A. and U. Kaymaz lost their lives had not been prepared or supervised such as to reduce any risk, to the extent possible, and it had not been established that the lethal force used in the present case was absolutely necessary within the meaning of Article 2.

Conclusion: violation (unanimously).

(b)  Procedural limb - The police officers involved in the incident had not been interviewed by the public prosecutor until 10 days later. Moreover, they had not been held separately from each other after the incident and had been called to give statements in connection with the administrative investigation, before the prosecutor’s office intervened. Even though there was nothing to suggest any collusion between the police officers in question or between them and other colleagues, the mere fact that the appropriate action had not been taken to reduce the risk of such collusion could be seen as a major shortcoming, undermining the effectiveness of the investigation.

In addition, notwithstanding the key role of their testimony with regard to the preparation of the operation, the two police officers responsible for the surveillance of the Kaymaz family’s house had not been interviewed until one year later. This fact showed that the investigative authorities had not bothered to analyse more closely how the surveillance had been carried out and had not sought to determine whether the counter-terrorism operation had been prepared and supervised by the authorities so as to limit the use of lethal force to the minimum extent possible.

Furthermore, the Assize Court had rejected the applicants’ requests for an on-site reconstruction of the incident. In view of the sketches of the scene and the position of spent cartridges from the police officers’ weapons, such a reconstruction was of crucial importance and should have been carried out in the presence of the accused police officers and the applicants’ lawyers. This investigative act would have enabled the national authorities to establish the various hypotheses and to assess the credibility of the police officers’ statements. It was only in this way that the domestic authorities could have shed light on the contradictions, especially as the position of the cartridges collected was not consistent with the police officers’ statements. The lack of any such reconstruction, in spite of the applicants’ reiterated request, had seriously undermined the national authorities’ capacity to contribute to the establishment of the facts.

Lastly, it was troubling that no attempt had been made to trace fingerprints on the weapons found next to the bodies of the applicants’ relatives.

The shortcomings in the investigation were all the more regrettable as, except for the police officers, there had been no witnesses who had had a close view of the shoot-out between the officers and the applicants’ relatives. It could thus be inferred that those shortcomings had undermined the quality of the investigation and reduced its capacity to establish the circumstances of the deaths.

Conclusion: violation (unanimously).

The Court also found that there had been no violation of Article 3 and Article 14 taken together with Article 2.

Article 41: EUR 70,000 in respect of non-pecuniary damage; EUR 70,000 in respect of pecuniary damage.

 

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