Evrim Öktem v. Turkey (9207/03)
| Date | 20081104 |
|---|---|
| Article | 2 |
| Decision | violation |
CHAMBER JUDGMENT EVRİM ÖKTEM v. TURKEY
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Evrim Öktem v. Turkey (application no. 9207/03).
The Court held unanimously that there had been:
· a violation of Article 2 (right to life) of the European Convention on Human Rights on account of the excessive use of force against the applicant, and,
· a violation of Article 2 of the Convention on account of the de facto impunity granted to the police officer in question.
Under Article 41 (just satisfaction), the Court awarded the applicant 16,000 euros (EUR) in respect of non-pecuniary damage. (The judgment is available only in French.)
1. Principal facts
The applicant, Evrim Öktem, is a Turkish national who was born in 1981 and lives in Istanbul.
The case concerns a bullet injury sustained by the applicant, who was 14 years old at the relevant time, during a demonstration that three police officers had attempted to break up using their firearms.
According to the Turkish Government, on 7 November 1995 three plain-clothes police officers, one of whom was R.Ç., were on patrol in the vicinity of Barbaros school in Bağcılar in an unmarked car when they noticed seven or eight youths hanging a banner up on the school gates on behalf of Devrimci Öğrenci Birliği (Revolutionary Organisation of Students). They ordered them to stop, but to no avail. Instead, they were threatened by iron bars and by sticks being brandished by some of the participants. At this, the police officers first reacted by firing warning shots in the air. The demonstrators dispersed down alley ways pursued by the police officers, who continued firing warning shots and ordering them to stop. It was then that R.Ç. noticed the applicant, who had been injured below by the knee by a stray bullet.
The applicant said that she had been at the scene of the incident purely by chance.
The police officer R.Ç. immediately took her to Bağcılar civilian hospital. The final medical report drawn up in March 1996 confirmed that she had sustained a bullet wound incapacitating her for 60 days. Forensic tests carried out on R.Ç.’s service weapon identified it as the weapon from which the shot had been fired.
The applicant’s father lodged a criminal complaint against R.Ç.
R.Ç. was questioned on 17 April 1996 and stated that, when confronted with the demonstrators, he had first requested reinforcements but that the demonstrators had rapidly gone on the offensive, chanting that this was to be the place of his grave. He added that he had had to fire shots in the air in an effort to discourage them, that he had also fired at the ground and that a bullet had ricocheted and hit the applicant. The next day the Bakırköy Principal Public Prosecutor instituted criminal proceedings against him.
In October 2000 the Bakırköy Criminal Court acquitted R.Ç.
However, following an appeal on points of law by the applicant, that judgment was set aside on the ground that judgment against R.Ç. should be deferred under Law no. 4616, providing for the deferral of conviction in respect of certain offences committed before 23 April 1999.
Accordingly, the Criminal Court re-examined the case and decided, in September 2002, to defer pronouncement of the verdict in respect of R.Ç. An objection by the applicant was dismissed.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 5 January 2003.
Judgment was given by a Chamber of seven judges, composed as follows:
Françoise Tulkens (Belgian), President,
Ireneu Cabral Barreto (Portuguese),
Vladimiro Zagrebelsky (Italian),
Dragoljub Popović (Serbian),
Danutė Jočienė (Lithuanian),
András Sajó (Hungarian),
Işıl Karakaş (Turkish), judges,
and also Sally Dollé, Section Registrar.
3. Summary of the judgment2
Complaints
Ms Öktem submitted that the police officer R.Ç. had made excessive use of his firearm against her in circumstances that had not justified it, and complained of the trauma she had suffered on account of having sustained a bullet wound. She also complained of the inadequacy of the judicial response to her allegations. She relied on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 6 § 1 (right to a fair trial within a reasonable time) and 13 (right to an effective remedy).
Decision of the Court
Article 2
The authorities’ duty to protect the applicant’s right to life
The Court noted that the three police officers had launched an impromptu operation on their own initiative, which had led to developments to which R.Ç. had reacted with the use of his weapon in both an uncontrolled and a dangerous manner.
The Court could not accept that the use of force in the present case had been based on the police officer’s honest belief that he was under genuine threat from the few demonstrators in question, still less the applicant, who was 14 years old at the time. Nor, in all probability, had R.Ç.’s decision met the criteria laid down in the relevant Turkish regulations.
The Court observed, however, that R.Ç. had enjoyed a great autonomy of action and taken unconsidered initiatives, which would probably not have been the case if he had had the benefit of proper training and instructions or, at least, if the department from which he had requested reinforcements had given him clear and adequate directives.
Furthermore, it appears likely that if the situation degenerated in that way it was because at the relevant time the system in place did not afford clear guidelines and criteria governing the use of force in peacetime.
Consequently, the Court held that there had been a violation of Article 2 on account of the use of force against the applicant by the police officer R.Ç., which had gone beyond that which could reasonably be deemed necessary, and of the inadequacy of the system of safeguards provided by domestic law against such conduct.
Adequacy of the proceedings brought against the police officer
The Court observed that judgment against the police officer R.Ç. was deferred under Law no. 4616, thus affording him de facto impunity.
The Court has already held on a number of occasions that in such circumstances, far from being rigorous, the Turkish criminal system had no dissuasive effect capable of ensuring the effective prevention of illegal acts on the part of State agents of the type complained of by the applicant. Accordingly, the Court held that there had been another violation of Article 2 in that regard.
Articles 3, 6 § 1 and 13
Having regard to its conclusion under Article 2, the Court held that it was not necessary to give a separate ruling on the complaints lodged under Articles 3, 6 § 1 and 13.