SECOND SECTION

CASE OF GÜLER AND TEKDAL v. TURKEY

(Application no. 65815/10)

JUDGMENT

STRASBOURG

10 October 2017

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 Güler and Tekdal v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Robert Spano, President,
	Julia Laffranque,
	Ledi Bianku,
	Işıl Karakaş,
	Valeriu Griţco,
	Jon Fridrik Kjølbro,
	Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 12 September 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 65815/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Ms Fatma Güler and Mr Emin Tekdal (“the applicants”), on 18 October 2010.
2.  The applicants were represented by Ms Rehşan Bataray Saman, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.
3.  The applicants alleged, in particular, that the killing of their relative by soldiers on 12 September 2008 and the failure to investigate the killing had been in breach of Article 2 of the Convention.
4.  On 12 December 2013 the complaints concerning the killing of the applicants’ relative and the effectiveness of the investigation into the killing were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
5.  The applicants were born in 1981 and 1966 respectively and live in Ecemiş village near the town of Lice, located with the administrative jurisdiction of the province of Diyarbakır.
6.  The facts of the case as submitted by the parties, and as they appear from the documents submitted by them, may be summarised as follows.
7.  At the time of the events the first applicant’s brother and the second applicant’s nephew Murat Tekdal was thirty years old and lived in Ecemiş village.
8.  On 12 September 2008 Murat Tekdal returned to his village of Ecemiş after having visited his uncle, the second applicant. Later the same day he left his home to walk to the nearby Şenlik village.
9.  Between 5 and 7 p.m. the same day, villagers in Ecemiş village heard gunfire. The following day the headman of the village (“muhtar”) was informed that a person had been killed. The headman, accompanied by 20‑30 villagers, went to Lice, where he was handed the body of the applicants’ relative, Murat Tekdal.
10.  According to a report drawn up on 13 September 2008 by seven members of the military, a military operation was being carried out in the area near the applicants’ village on 12 September 2008 when at 11.15 p.m. soldiers encountered 3-4 persons in the area whom they considered to be members of the PKK. The soldiers asked the persons to stop and surrender, but the persons opened fire on the soldiers. The soldiers returned fire and a clash ensued which continued for a period of approximately five minutes.
11.  At 5 a.m. the following morning the soldiers conducted a search in the area and noticed the footsteps of four persons. The footsteps disappeared some two kilometres away, next to a little brook in a valley. At that location the soldiers also found supplies of food. The soldiers continued their search to the north of the brook, and found the body of Murat Tekdal in Karaçay hill area. Next to the body was a hunting rifle still loaded with two unexploded cartridges.
12.  The soldiers concluded in their report that there had been five PKK members in the area the previous evening who had either been planning to attack the security forces or transporting food supplies to PKK bases. Having regard to the particular brand of the glue which some people used for sniffing, as well as to the hunting rifle, the seven soldiers concluded in their report that the applicant’s relative had been a “terrorist posing as an ordinary citizen”.
13.  The Lice prosecutor and a crime scene officer arrived at the scene at 10.45 a.m. on 13 September 2008 and searched Murat Tekdal’s pockets, where they found his identity card and a tube of glue. The body was then taken to the Lice State Hospital. They then took the body to the Diyarbakır State Hospital and subsequently drew up their own reports pertaining to the incident.
14.  According to the crime scene officer’s report, a bullet had entered Murat Tekdal’s abdomen. A cursory examination of the barrel of the hunting rifle found next to the body did not reveal any smell of gunpowder. There were also no fingerprints on the rifle. In a small bag found next to the body there were personal effects such as toothpaste, a toothbrush, a flick-knife, a packet of cigarettes, two sim cards, gloves, a tax‑payer’s identity card and a bank card. Swabs were taken from Murat Tekdal’s hands and face and from the barrel of the hunting rifle, in order to verify the existence or otherwise of gunpowder residue. He was fingerprinted and his jacket through which the bullet had gone was sent for forensic analysis. The body was photographed and taken to the hospital. It was subsequently established by a police laboratory that there was gunpowder residue on the outside of his left hand. It was also established that he had been shot at close range.
15.  It appears from the report prepared by the prosecutor that an autopsy was carried out at the hospital. The prosecutor stated in his report that he had gone to the scene after having been informed by the military that “a terrorist had been killed”. The headman of the applicant’s village formally identified the body as that of Murat Tekdal, and told the prosecutor that Murat lived in Ecemiş village.
16.  During the autopsy the doctor observed two bullet holes on Murat Tekdal’s lower left abdomen. He also noted that bullets had skimmed both hands and the lower right side of the abdomen and caused superficial injuries. There was also a superficial injury on the front of the right axilla. The internal examination of the body revealed injuries to the stomach, liver, diaphragm, spleen, intestines and lungs, all caused by bullets. A bullet measuring approximately 0.7 centimetres was found inside the body. Samples taken from the body were sent for further forensic analyses. An x‑ray of the body showed a large number of metallic objects inside the abdomen. The doctor concluded that death had been caused by bullets which had either entered or exited from the lower left abdomen. He also recommended that the clothes with bullet holes in them be sent to the forensic authorities with a view to determining the distance and the direction from which he had been shot.
17.  On 16 September 2008 the second applicant applied to the Diyarbakır branch of the Human Rights Association of Turkey, and asked for assistance in bringing the perpetrators of the killing of his nephew to justice. He also stated that since the killing, soldiers had been setting fire to the area where his nephew had been killed, and deliberately destroying the evidence.
18.  On 6 October 2008 the Lice prosecutor sent the investigation file to the Diyarbakır prosecutor who had jurisdiction to investigate incidents perpetrated by illegal organisations. In his letter accompanying the file the Lice prosecutor named the first applicant Fatma Güler as the “victim of a crime”, and her deceased brother Murat Tekdal as the “deceased/suspect”. The offence in question was stated as the “destruction of the unity and integrity of the State and the country”. The Lice prosecutor stated in his letter that on the evening of 12 September 2008 a number of soldiers from the Lice Infantry Brigade had had an armed clash with a group of five PKK members and that the body of Murat Tekdal had been found in the search conducted by the soldiers the following morning.
19.  On 22 October 2008 the Diyarbakır prosecutor decided not to bring any criminal proceedings against Murat Tekdal for the above-mentioned offence, because he was dead.
20.  On 24 November 2008 the applicants sent a letter to the Diyarbakır prosecutor and stated that the Lice prosecutor had started an investigation into the killing of their relative, but had subsequently decided that he had no jurisdiction to continue the investigation because the deceased had been a member of a terrorist organisation. In their letter the applicants denied that their relative had been a member of the PKK, and informed the Diyarbakır prosecutor that their relative had been living in the village of Ecemiş for the previous seven years and that all his fellow villagers knew him. They argued that there was no evidence to show that an armed clash had taken place prior to his killing. Indeed, the fact that his hunting rifle had been found loaded with unfired cartridges showed that there had been no armed clash. They asked the prosecutor to identify and prosecute those responsible for the killing of their relative.
21.  On 5 October 2009 the applicants lodged an objection against the prosecutor’s above-mentioned decision of 22 October 2008. In their objection petition they repeated their arguments of 24 November 2008 and referred to, inter alia, Article 2 of the Convention. They alleged that no effective investigation had been conducted into the killing, and urged the Assize Court to order the investigating authorities to carry out an investigation.
22.  The applicants’ objection was rejected by the Malatya Assize Court on 9 April 2010. The Assize Court stated that the prosecutor’s decision had concerned an offence which the applicants’ deceased relative was suspected of having committed. The objection lodged by the applicants, on the other hand, concerned the killing of their relative. The Assize Court stated that there was no on-going investigation into the killing of Murat Tekdal and that there had not been a decision not to prosecute anyone in respect of his killing. As there was no on-going investigation into the killing, the applicants had no standing to bring an objection against the Diyarbakır prosecutor’s decision. The Assize Court’s decision was communicated to the applicants on 30 April 2010.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
23.  The applicants complained under Article 2 of the Convention that their relative had been killed unlawfully by the soldiers. They submitted that the fact that his hunting rifle was still fully loaded at the time of the killing, coupled with the absence of any bullets or bullet cases which might have been discharged from the soldiers’ weapons, had shown that no armed clash had taken place at all. The applicants added that a policy of impunity prevailed in Turkey in respect of breaches of the right to life by law enforcement officials. Everything in this incident indicated that their relative Murat Tekdal had been an innocent civilian. However, in the documents drawn up by members of the security forces attempts had been made to portray Murat Tekdal as a member of an outlawed organisation so that members of the security forces would not be prosecuted and punished.
24.  Relying on Article 13 of the Convention the applicants also complained that the only investigation opened by the authorities after the killing had been an investigation to prosecute their deceased relative for membership of the PKK. No investigation had been conducted by those authorities to investigate the killing. The steps taken in the investigation had then been based on the documents drawn up by the implicated members of the security forces.
25.  The Government argued that the application should be declared inadmissible. They submitted in this connection that the applicants had sent an introductory letter to the Court on 18 October 2010 but had not submitted their full application form until 27 April 2011, that is more than six months later. The Government argued that the date of application should therefore be regarded as 27 April 2011 and that the applicants had thus failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention.
26.  The Government argued that the use of force by the soldiers had been justified under paragraph 2 of Article 2 of the Convention and lawful under the national legislation because the soldiers had thought that they had encountered members of a terrorist organisation and had returned fire to apprehend the terrorists and to protect themselves from the fire opened by the terrorists.
27.  The investigation into the incident had been conducted by the Lice and Diyarbakır prosecutors. It had been initiated ex officio and evidence had been collected from the scene of the incident by independent experts.
28.  The Government submitted that they were aware of “the potential impact of the lack of a separate investigation into the killing of the applicants’ relative on the obligation to conduct an effective investigation”. The Government invited the Court to hold that Article 2 of the Convention had not been violated under its substantive aspect and left the assessment of the procedural aspect of Article 2 of the Convention to the Court’s discretion.
29.  The Court considers that the applicants’ complaints under Articles 2 and 13 of the Convention relate to the deprivation of the right to life of their relative and the effectiveness of the investigation into his killing. As such, those complaints can be examined solely from the standpoint of Article 2 of the Convention, the relevant parts of which read as follows:
“1.  Everyone’s right to life shall be protected 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.”
30.  Concerning the Government’s objection to the admissibility of the application, the Court observes that when it acknowledged receipt of the applicants’ above-mentioned letter of 18 October 2010, it requested the applicants to submit the full application form by 2 May 2011. The applicants complied with that request and submitted their application form to the Court on 15 April 2011 and not, as maintained by the Government, on 27 April 2011. Noting that the applicants submitted their application form to the Court before 2 May 2011, the Court rejects the Government’s arguments that the date of application should be 27 April 2011. The Court therefore considers that the application was lodged on 18 October 2010 and that the applicants have complied with the six-month rule under Article 35 § 1 of the Convention. It thus dismisses the Government’s objection.
31.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
32.  The Court reiterates that the text of Article 2 of the Convention read as a whole demonstrates that paragraph 2 does not primarily define instances where it is permitted to intentionally kill an individual, but describes 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 any of the purposes set out in subparagraphs (a), (b) or (c). In this respect the use of the term “absolutely necessary” in Article 2 § 2 indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8-11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in the subparagraphs of the Article (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 148‑149, Series A no. 324).
33.  Turning to the circumstances of the present case, it is not disputed between the parties that the applicants’ relative was killed by soldiers of the respondent State. The Court will therefore examine whether the Government have discharged their burden of justifying the killing. In doing so, it will have particular regard to the investigation carried out at the domestic level in order to establish whether that investigation was effective, in the sense that it was capable of leading to the determination of whether the force used was or was not justified in the circumstances (see Gülbahar Özer and Others v. Turkey, no. 44125/06, § 59, 2 July 2013). In this connection the Court reiterates that in cases such as the present one where the respondent Government bear the burden of justifying a killing, the examination of the steps taken in an investigation does not only serve the purpose of assessing whether the investigation was in compliance with the requirements of the procedural obligation, but also, as set out above, of deciding whether it was capable of leading to the establishment of whether the force used was or was not justified in the circumstances and whether the Government have thus satisfactorily discharged their burden to justify the killing (see Cangöz and Others v. Turkey, no. 7469/06, § 115, 26 April 2016; for a summary of the principles of an effective investigation, see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §§ 172-182, 14 April 2015).
34.  In this connection the Court notes at the outset that, as acknowledged by the Malatya Assize Court (see paragraph 22 above) and also by the Government (see paragraph 28 above), no official investigation was opened into the killing. This meant that no assessment was made at the national level as to whether or not the use of force had been absolutely necessary and strictly proportionate and whether it had been in compliance with the applicable national legislation concerning the use of force by law enforcement officials. As there are no decisions taken at the national level by any investigating authority to lend support to the Government’s submissions, the Court cannot accept the Government’s arguments that the use of force was justified.
35.  In this connection the Court considers that a number of sporadic steps taken in the immediate aftermath of the killing which are summarised above in paragraphs 10-16 cannot be regarded as substituting a proper and complete investigation conducted and overseen by an independent judicial investigator, such as a prosecutor. In the opinion of the Court, the lack of an official investigation entailed the result that the evidence collected was not examined by any investigating authority and its probative value was not assessed. In this connection, although the lack of an investigation makes it unnecessary to highlight any specific failures, the Court cannot but remark on the complete failure to identify and question the soldiers who killed the applicants’ relative and it reiterates that one of the common features of investigations conducted by prosecutors in Turkey into killings by members of the security forces is the failure to question the perpetrators in a timely manner or to question them at all (see, most recently, Cangöz and Others, cited above, § 127).
36.  In the light of the foregoing the Court concludes that the Government have failed to show that the use of force against the applicants’ relative by the soldiers was absolutely necessary and strictly proportionate to the achievement of the aims set out in the subparagraphs of Article 2 of the Convention.
37.  It follows that there has been a violation of Article 2 of the Convention in its substantive and procedural aspects in respect of the killing of the applicants’ relative Murat Tekdal.
Article III.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
38.  The applicants did not make a claim in respect of pecuniary or non-pecuniary damage.
39.  Concerning the costs and expenses, the applicants claimed 4,262 euros (EUR) in respect of the fees of their legal representative for representing them before the Court. In support of that claim they submitted a breakdown of the hours spent by the legal representative in preparing the application form and the observations.
40.  The applicants also claimed the sum of EUR 342 for other costs and expenses, such as photocopying, translation and postal expenses. In support of this claim the applicants submitted a bill from a translator for the sum of EUR 150 and various bills from the postal authorities.
41.  The Government considered the claims for costs and expenses to be excessive and unsupported and requested the Court not to make an award.
42.  The Court notes that the applicants did not submit any claim in respect of pecuniary or non-pecuniary damage in accordance with Rule 60 of the Rules of Court. The Court does not consider that there are any exceptional circumstances which would require it to make an award for damages (see Nagmetov v. Russia [GC] (no. 35589/08, §§ 56-92, 30 March 2017). On the other hand, according to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000 covering costs under all heads.
43.  The Court considers it appropriate that the default interest rate 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,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 2 of the Convention in its substantive and procedural aspects;

3.  Holds
(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, EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into Turkish liras at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 10 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stanley Naismith	Robert Spano
	Registrar	President