ORAL proti Turecku

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27735/95
by Hadiye ORAL, Veysel ORAL, Vildan ORAL and Barbaros ORAL

against Turkey

The European Court of Human Rights (Second Section), sitting on 30 March 2000 as a Chamber composed of

Mr C.L. Rozakis, President,
Mr B. Conforti,
Mr P. Lorenzen,
Mrs M. Tsatsa-Nikolovska,
Mr A.B. Baka,
Mr E. Levits, judges,

Mr F. Gölcüklü, ad hoc judge,

and Mr E. Fribergh, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 19 June 1995 and registered on 27 June 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are Turkish nationals, born in 1942, 1933, 1954 and 1965 respectively and living in İzmit. Hadiye and Veysel Oral were the parents and Vildan and Barbaros Oral were the siblings of İsmail Oral, who was killed during a police operation in the Kadıköy district of İstanbul on 19 May 1991.

The applicants are represented before the Court by Mrs Emel Ataktürk Karasu and Mr İbrahim Nebi Barlas, lawyers practising in İstanbul.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Prior to the incidents giving rise to the present application, militants of an illegal armed organisation, the TKP/ML-TİKKO, carried out several terrorist attacks in İstanbul. They killed a retired police officer, Ş.K., in the Beşiktaş district and attacked a police squad in the Bakırköy district of İstanbul which resulted in the killing of two police officers and wounding of a third officer.

On 19 May 1991 police officers from the Anti-Terrorism Department of the İstanbul Security Directorate carried out operations in several districts with a view to apprehending militants of the TKP/ML-TİKKO. The first operation was carried out in the Beylerbeyi neighbourhood of the Üsküdar district. The police officers conducted a search in a house used by the TKP/ML‑TİKKO militants. On the basis of the documents seized in the house the police officers identified a flat in the Kadıköy district used by İsmail Oral and his friend Hatice Dilek Arslan, who were suspected of being TKP/ML-TİKKO militants. Against this background, on the same day, at about 11 p.m., a police team consisting of 8 police officers carried out an operation in order to apprehend İsmail Oral and Hatice Dilek Arslan.

According to the Government, the police team arrived at the flat and knocked on the door. The police officers requested İsmail Oral and Hatice Dilek Arslan to open the door. İsmail Oral and Hatice Dilek Arslan opened fire on the police officers. The first shot hit a police officer wearing a bullet-proof vest. Through the broken window of the entrance door to the flat the police officers saw Hatice Dilek Arslan holding a gun and a hand grenade. The police officers fired back, wounding Hatice Dilek Arslan.

In the meantime, İsmail Oral, who was armed, was trying to escape via the balcony. The police officers called on him to stop and surrender. He opened fire on them. Then the police officers shot and wounded him. İsmail Oral and Hatice Dilek Arslan were taken to hospital, where they died. Following the confrontation, the police officers conducted a search of the flat. They found Hatice Dilek Arslan’s eight-year old son, Özgür Arslan, hiding under the bed. They also found guns, ammunition and illegal documents.             

According to the applicants, İsmail Oral and Hatice Dilek Arslan did not die during a confrontation with the police officers since Özgür Arslan had seen her mother alive subsequent to the operation. There was no confrontation between the deceased and the police officers. The latter entered the flat and arbitrarily killed İsmail Oral and Hatice Dilek Arslan.

On 27 May 1991 the applicants lodged an application with the Chief Public Prosecutor’s office in the Kadıköy district of İstanbul. They requested the Public Prosecutor to investigate the killings of two persons and bring the police officers to justice.

On the same day, the Chief Public Prosecutor in Kadıköy began an investigation into the killing of Hatice Dilek Arslan and İsmail Oral. He questioned Hatice Dilek Arslan’s son Özgür Arslan in relation to the incident. He stated the following:

“At the time of the incident I was sleeping at our home in the Hasanpaşa neighbourhood of the Kadıköy district. I was awakened by gunfire. I was about to get out of my bed when I saw that my mother was trying to come to my room, but the police officers were hindering her. My mother told the police officers that she had a child [at home]. They took my mother to the room where the television was. I got out of bed and went to the room where my mother was. On the way to that room I saw that the inside doors’ windows had been broken, but the house was not very untidy. When I entered the room my mother said: ‘Call your father and ask him to take you away’. She was laid down face downwards by a police officer. She talked to me while she was lying down. The police officer’s foot was on my mother’s head. So far as I can remember there were more than 5 police officers at the entrance hall of the house. I did not see uncle İsmail at home. He used to visit us sometimes. I was living with my mother. Afterwards, the police officers took me to my room. I got dressed and they took me to the police station in a police car. They should have informed my father. I told them his telephone number. My father took me from the police officers.

When I entered the room my mother was not holding a revolver or a similar weapon. I never saw uncle İsmail carrying a gun. At the time of the incident my mother was wearing jeans and a t-shirt.”

The Public Prosecutor also questioned Hatice Dilek Arslan’s ex-husband in relation to the incident.

On 18 June 1991 an autopsy was carried out on the deceased. An autopsy report was drawn up by a surgeon, a forensic expert and a pathologist after the post-mortem and forensic examination of İsmail Oral’s body at the Forensic Medical Institute attached to the Cerrahpaşa Medical Faculty in İstanbul. A large number of bullet entry and exit holes as well as bullet abrasions were found in the jaw, in the shoulders, in the right arm, in the right armpit and other parts of the body. The autopsy report concluded as follows:

“... It is to be concluded that 12 firearm bullets hit the body. The death occurred due to internal bleeding as a result of the wounds caused by firearm bullets which had shattered the internal organs... [The deceased] received two bullets to his jaw fire from long range. [However] the range of the shots which caused the wounds on other parts of the body could not be determined since they were under the clothes and the clothes were not handed over... The bullet wounds on the body cannot indicate the position of the deceased during the incident since he was mobile.”

On 23 December 1991 the Chief Public Prosecutor at the Kadıköy Assize Court filed an indictment with the court against 12 police officers who had been involved in the operation. He charged them with “intentional homicide” under Article 448 of the Turkish Criminal Code. The following is an extract from the indictment:

“... With regard to the killing, wounding and bombing events in İstanbul ... it was established that ... some suspects ... used to visit an apartment in Üsküdar... The locality was investigated by the police and a number of guns, bullets and explosives were found along with the address of another apartment in Kadıköy... On 19 May 1991 at 23 hours ... after having taken the necessary precautions ... the defendant police officers Şefik Kul, Hasan Erdoğan, Abdullah Didar, Ayhan Özkan, Nizamettin Özoğul, Mustafa Altınok, Özer Şahman and Mehmet Düzgün, members of the Anti-Terrorism team, came to the front door of the apartment, called on the people inside to surrender... There was one shot from the flat... The team consisting of 8 police officers ... entered the house, opened fire and killed with a single bullet to the head the late Hatice Dilek Arslan who was holding a gun and a handgrenade according to the police statement... The other person in the apartment, the late İsmail Oral, who was trying to escape via the balcony ... was killed by bullets fired by the police officers Vasfi Kara, Ruhi Fırat, Süleyman Polat, Hikmet Taşdelen... An investigation by experts carried out at the scene of the incident established that there was no evidence of an exchange of gunfire having occurred inside the apartment, there was not one single bullet hole in the walls... As regards the shooting of Hatice Dilek Arslan, the Public Prosecutor is of the opinion that the version of the events as stated by the eye-witness, Özgür Arslan, the son of the deceased, corresponds with the events as they must have taken place... that it was possible to arrest Hatice Dilek Arslan and İsmail Oral ... that the necessary precautions had been taken in order to prevent them from escaping ... that the use of force was not absolutely necessary for the purpose ... that the accused should be charged under Articles 50, 448 and 463 of the Turkish Criminal Code...”

On 21 October 1992 Hatice Arslan’s eight-year old son, Özgür Cihan, gave evidence before the Kadıköy Assize Court as to the circumstances surrounding the killing of his mother and İsmail Oral. He was requested by the court to indicate the police officer who had stepped on her mother’s head while she was lying on the floor face downwards. He could not identify the police officer.

On 11 February 1993 the Public Prosecutor, acting on the orders of the Kadıköy Assize Court, sent bullet cartridges retrieved at the scene of the incident, a wood and rugs bearing bullet holes to the Forensic Institute for a physical and ballistics examination. The Public Prosecutor requested the experts to determine whether İsmail Oral’s hands were up when he was hit by the bullets and whether a piece of bullet was taken out of the wood, whether that bullet was the one that hit İsmail Oral, whether İsmail Oral and Hatice Dilek were hit by the bullets directly or indirectly. He finally requested the range of the shots on the deceased to be determined.

On 28 April 1993 three experts from the Forensic Institute drew up a report on the ballistics examination of the bullets and other materials. They noted that the bullets which hit İsmail Oral and Hatice Dilek were deformed as a result of ricocheting. They stated however that the range of the shots could not be determined since the deceased’s clothes had not been handed over to the Forensic Institute.

In the course of the criminal proceedings before the Kadıköy Assize Court, the Chief Public Prosecutor was assigned to a post in another province.

On 2 June 1994 the new Public Prosecutor filed his opinions on the merits of the case, requesting the court to acquit the police officers. He stated:

“... The police officers surrounded the applicants’ house with a view to apprehending members of the organisation and bringing them to justice. It was also envisaged to find evidence and carry out a search. For this purpose, police officers gave an initial warning. There is no doubt in this respect. They knocked on the door. However, gunfire was discharged from inside. Eight members of the security team, whose names were indicated in the indictment, forcibly opened the door and saw that the late Hatice was armed. It was understood that, as required by their duty, the police officers fired simultaneously and killed [her].

These officers were brought to the scene of the incident to secure the organisation’s house and to apprehend the suspects, if necessary by use of arms. On that account, they consider that they were there to get into an armed clash. In this respect, as the deceased fired on them the police officers fired back and, unfortunately, caused [her] death. Gunfire was discharged from inside. [The police officers] who fired back were not in a position to consider whether the people who had fired from inside were innocent persons or terrorists and whether they would fire or surrender.

It was established that the [police officers] opened fire on İsmail Oral whilst he was trying to escape via the balcony. They considered that he was a militant of the organisation. [İsmail Oral] fell down [from the balcony] due to the gunfire and was shot dead.

The expert, having regard to the direction of the bullets shot at the moving targets and the holes in the rugs, clearly confirmed that the bullet [which entered Hatice’s head] was not a direct shot, as alleged by the intervenants, but a ricocheted bullet... The Forensic Institute established that the late Hatice was hit from long shots. The bullet that she received to her head was a ricochet and deformed. The experts further determined that late İsmail Oral had also been hit from long range. This is the evidence which proves that there was no intentional act [on the part of the police officers], contrary to the allegations in the indictment. In view of the aforementioned considerations and evidence it cannot be conceded that [Hatice] was shot dead after having been pacified...

Against this background, bearing in mind the fact that there is insufficient evidence to convict the accused, it is requested that no punishment be imposed [on the police officers]...”

On 16 June 1994 the Kadıköy Assize Court acquitted the police officers. The court held that the police officers were acting in self-defence and that there was no intentional homicide. It further stated, inter alia, that

“... having regard to the defendants’ statements, the autopsy reports, the expertise reports concerning the revolver and the Kalashnikov rifle seized at the scene of the incident, the reports drawn up by the Forensic Medical Institute as regards the wounds which caused the death and the evidence contained in the file, [the court] considers that the defendants should not be [convicted] since there is no sufficient and convincing evidence that they killed Hatice Dilek Arslan and İsmail Oral in excess of their duties... [The court] therefore holds that the defendants should not be punished since they were acting in immediate necessity to repel an assault directed against them within the meaning of Article 49 of the Turkish Criminal Code...”

On 19 June 1994 the applicants lodged an appeal with the Court of Cassation against the Kadıköy Assize Court’s judgment to acquit the police officers.

On 21 December 1994 the Court of Cassation dismissed the appeal upholding the reasoning and cogency of the Kadıköy Assize Court’s judgment.             

B. Relevant domestic law and practice

1. Investigation and prosecution of the offence of homicide

The Turkish Criminal Code contains provisions dealing with unintentional homicide (Articles 452 and 459), inadvertent and negligent homicide (Article 455), intentional homicide (Article 448) and murder (Article 450). Articles 49 and 50 of the Criminal Code address the commission of offences carried out, inter alia, in excess of a duty.

According to Article 448 any person who intentionally kills another shall be sentenced to a term of imprisonment of twenty-four to thirty years. According to Article 450, the death penalty may be imposed in cases of, inter alia, premeditated murder. Under Article 452, where death results from an act of violence but it was not the intention of the offender to kill his victim, a sentence of eight years’ imprisonment shall be imposed on the offender. Where death results from an act of carelessness, negligence or inexperience on the part of the offender in breach of a law, orders or regulations, Article 455 stipulates that the guilty party shall be sentenced to a term of imprisonment of two to five years and to a substantial fine.

According to Article 49 of the Code, a person shall not be punished for committing an act which was carried out in pursuance of a law or on the orders of a competent authority or where the person was obliged to commit the act in immediate necessity to repel an unjustified assault against his own or another person’s chastity or in order to save his life or the life of another person from an immediate and grave personal danger for which he was not responsible and the commission of the act was the only way in which the danger could be avoided. Article 50 qualifies the provisions of Article 49 in stipulating that where the person, in committing the act, exceeds the limits of a duty prescribed by law or by the competent authority or exceeds the exigencies of the situation, that person shall be sentenced to a minimum term of imprisonment of eight years if the punishment in respect of the act is the death penalty, and to a minimum term of imprisonment of between six and fifteen years if the punishment in respect of the act is life imprisonment.

2. Circumstances entitling the police officers to open fire

Article 16 of the Police Forces Act (Law no. 2559 of 4 July 1934)

Police officers are authorised to use weapon in the following situations:

A) In self-defence;

B) In order to prevent an assault to the chastity or life of a person if the assault cannot be avoided in any other way;

...

I) If State authority and action have been resisted by the use of weapons.”

COMPLAINTS

The applicants, on behalf of İsmail Oral, allege a violation of Article 2 of the Convention as a result of the killings of 19 May 1991. They complain that the deceased was intentionally deprived of his right to life by use of unnecessary and unlawful force without any attempt to effect a lawful arrest.

They allege that the operation carried out by the police officers was an extra-judicial execution of İsmail Oral for, inter alia, the following reasons:

(a) According to their statements, the police officers fired once or twice before they entered the apartment. In the light of this information, there should have been between 8 and 16 bullets in the house. But the Public Prosecutor’s investigations revealed no evidence of an exchange of gunfire in the apartment; there was not a single bullet hole in the walls or in the house.

(b) The police officers claimed that they had fired in response to shots from the house, but no examination of gunpowder traces on the deceased’s fingers has been carried out.

(c) There are discrepancies between the police statements. Veysel Kara and Hikmet Taşdelen, two police officers who participated in this operation and were positioned in the garden, declared that they had not participated in the operation which took place immediately prior to this one in Beylerbeyi, but their signatures are on the records of the Beylerbeyi operation.

(d) According to the police officers, the deceased, İsmail Oral, was only 2 to 9 metres away from them. The autopsy indicates the presence of 16 bullet wounds in İsmail Oral’s body, around his chest and under his arm. The position of the bullet wounds in his body suggests that the police did not shoot him with the intention of arresting him.

The applicants allege that the domestic investigation was not a full and detailed one, for the following reasons:

(a) The forensic pathologists who carried out the autopsies stated that in order to determine the range of fire they would need to examine the deceased’s clothing. However, his clothes were never handed over to the laboratory. By omitting the relevance of this information, the court failed to carry out a full and detailed investigation.

(b) The court asked the police officers several times to submit the bullet-proof vest which, according to their statement, was hit by a bullet during the confrontation. However, the police did not submit it.

PROCEDURE

The application was introduced on 19 June 1995 and registered on 27 June 1995.

On 25 November 1996 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 16 May 1997. The applicants replied on 22 August 1997.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicants complain of the unlawful and arbitrary killing of İsmail Oral by police officers, in violation of Article 2 of the Convention, which provides:

“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 submit at the outset that in considering the conduct of the anti‑terrorist operation by the police officers in question, it should be borne in mind that a retired police officer as well as two other police officers were shot dead by terrorists in İstanbul shortly before the impugned incident.

They allege that the aim of the operation carried out by the police officers was to apprehend suspects believed to be members of a terrorist organisation. In this regard, when the police arrived at the scene of the incident, they requested the inhabitants of the flat to open the door. However, the inhabitants of the flat, namely İsmail Oral and Hatice Dilek Arslan, opened fire in reply to the police officers’s request, as a result of which a bullet struck the chief police officer Şefik Kut’s bullet-proof vest. When the police officers entered the flat they saw that Hatice Dilek Arslan was holding a gun and a hand grenade. The police officers fired on her since a slight hesitation on their part could have been fatal for them. It seems in fact from the autopsy report that the officers did not fire at her directly, but a bullet ricocheted from a wall and wounded her behind her ear. İsmail Oral was trying to escape via the balcony and was holding a machinegun. The police officers who were on guard at the rear of the apartment called on him to stop and surrender. However, İsmail Oral fired on the officers and he was subsequently wounded as a result of the counter-fire from the officers. The two terrorists died on the way to the hospital.

In the Government’s opinion, the actions of the police officers were absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2 § 2 (a) of the Convention. In this regard, the Government maintain that the police officers were acting in self‑defence in order to repel an unjustified attack by İsmail Oral and Hatice Dilek Arslan.

The Government further contend that the authorities have carried out a thorough investigation into the circumstances surrounding the killing of İsmail Oral and Hatice Dilek Arslan. In this connection they assert that the criminal proceedings were instituted against 8 police officers and that the courts delivered their judgments in 2 years and 4 months, which is a reasonable time.

In sum, the Government submit that the application should be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

The applicants assert in reply that the operation carried out by the police officers was a deliberate and extra-judicial killing of İsmail Oral and Hatice Dilek Arslan. With reference to the findings and the indictment of the Chief Public Prosecutor Yavuz Berberoğlu, the applicants allege that there was no confrontation between the deceased and the police officers since Özgür Arslan talked to her mother, Hatice Dilek Arslan, after the operation was over. They maintain that although it was possible to effect a lawful arrest of the deceased and bring them to justice, the police officers shot them dead by the use of excessive force. The applicants contend therefore that their application should be declared admissible.

The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

Erik Fribergh Christos Rozakis
Registrar President