Mansuroğlu v. Turkey (43443/98)

Date	20080226
Article	2, 3
Decision	violation

CHAMBER JUDGMENT MANSUROĞLU v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Mansuroğlu v. Turkey (application no. 43443/98).

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 killing of the applicants’ son by Turkish police officers;

· a violation of Article 2 on account of the authorities’ failure to carry out an effective investigation into his death; and,

· a violation of Article 3 (prohibition of inhuman or degrading treatment) in relation to Mrs Mansuroğlu.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 5,000 euros (EUR) plus 150 American dollars (USD) in respect of pecuniary damage, and EUR 9,000 to Şerifali Mansuroğlu and EUR 13,000 to Emine Mansuroğlu in respect of non-pecuniary damage. (The judgment is available only in French.)

1. Principal facts

The applicants, Emine Mansuroğlu and Şerifali Mansuroğlu, are Turkish nationals who were born in 1932 and 1933 respectively. They are the parents of Mazlum Mansuroğlu, who was born in 1972 and died on 15 August 1996. At the relevant time they were living in the hamlet of Çerme near the village of Kocakoç in Tunceli (Turkey), a region subject to a state of emergency.

The case concerned the killing of the applicants’ son and ill-treatment inflicted on Mrs Mansuroğlu during an anti-terrorist operation in Çerme.

The parties agree that Mazlum Mansuroğlu was intentionally killed by the security forces but disagree about the other facts of the case.

According to the applicants, who based their version of events on statements by eye-witnesses, police special intervention troops arrived in Çerme on 15 August 1996 and gathered together Mrs Mansuroğlu, her son Mazlum and their neighbours in the garden of their home. They ordered the men to lie on the ground and then began to beat them with their rifle butts. When Mrs Mansuroğlu tried to shield them, she was also molested. Mazlum Mansuroğlu was then taken away and killed by police officers.

The Turkish Government asserted that the security forces received an anonymous tip-off that three militants of the illegal Workers’ Party of Kurdistan (the PKK), who had arrived in Çerme, were planning an armed attack in the centre of Tunceli. Special intervention teams, composed of 37 police officers, made their way to the hamlet. When they arrived they saw three armed individuals rush out of the back of a house and run towards a stream. The three suspected terrorists replied to repeated shouted warnings by opening fire with automatic rifles and died in the ensuing gunfire. One of them was subsequently identified as Mazlum Mansuroğlu.

An investigation was opened by the Tunceli public prosecutor on 17 August 1996 and autopsies were carried out on Mazlum Mansuroğlu’s body on three separate occasions. The autopsies established that the cause of death had been internal and external haemorrhaging due to bullet wounds. However, the distances from which the shots had been fired could not be determined because it would have been necessary to carry out ballistic tests on the deceased’s clothing, and the first autopsy team, which was not specialised in forensic medicine, had not been aware of the need to preserve those items. In March 1997 Tunceli Administrative Committee informed the applicants’ lawyer that they could not have access to the file, as they had not applied to join the proceedings as interveners. All the requests from the applicants’ lawyers for evidence to be taken from prosecution witnesses they wished to call were refused. On 2 July 1998 the administrative committee discontinued the proceedings on the ground that it had been established that Mazlum Mansuroğlu was a member of the PKK and that he had been “captured dead during an armed clash between the security forces and terrorists”.

In the meantime, on 20 August 1996 Mrs Mansuroğlu underwent a medical examination. The final medical report mentioned a provisional certificate, whose conclusions it endorsed, and concluded that the patient’s state of health left her unfit for work for five days and required a total recovery time of ten days. As a result, Mrs Mansuroğlu made an official complaint on 14 February 2001 that police officers had ill-treated her. Ultimately, the authorities supported a decision to not bring criminal proceedings. The applicant appealed unsuccessfully.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 22 July 1998 and declared admissible on 2 September 2003.

Judgment was given by a Chamber of seven judges, composed as follows:

Nicolas Bratza (British), President,
Josep Casadevall (Andorran),
Rıza Türmen (Turkish),
Lech Garlicki (Polish),
Ljiljana Mijović (citizen of Bosnia and Herzegovina),
Ján Šikuta (Slovak),
Päivi Hirvelä (Finnish), judges,

and also Fatoş Aracı, Deputy Section Registrar.

3. Summary of the judgment2

Complaints

The applicants submitted that their son had been unlawfully imprisoned, tortured and killed by members of the security forces. They alleged the violation of Articles 2 and 3. Mrs Mansuroğlu further alleged, likewise under Article 3, that she had been ill-treated by the security forces. Lastly, the applicants relied on Article 13 (right to an effective remedy).

Article 2

The death of Mazlum Mansuroğlu

At a time when terrorist attacks were raging in south-eastern Turkey the Court was prepared to accept that the operation complained of could be regarded as the result of an “honest and plausible belief” that it was necessary. However, it was not satisfied, in the light of the material in the file, that the operation had been planned in such a way as to reduce to a minimum the need to resort to lethal force.

Nor did the Court accept the Turkish Government’s argument that there had been an armed clash of such great violence as to require the police officers to resort to self-defence.

It noted a number of serious defects in the determination of the source of the fatal shots. In particular, the weapons used by the police officers had not been examined by experts and a ballistic report on the victim’s clothes had been made impossible. On that point, the Court observed that a non-specialist should not have had the authority to decide what was or was not usable evidence, with the power to dispose of unwanted items.

Another glaring omission identified by the Court was the fact that the 37 police officers who had taken part in the operation were not questioned about the way it had been conducted.

In those conditions, the authorities could not be deemed to have made a real effort to identify the officer or officers who might be in a position to shed light on the exact circumstances which had allegedly made the death complained of inevitable.

As regards the conduct of Mazlum Mansuroğlu, the Court said that there was nothing to show that at the relevant time he had used a weapon against the police officers. Consequently, it was impossible to understand how they could have found it absolutely necessary to respond with such force – including bullets and explosive weapons – as to cause numerous extremely serious injuries, nor how, in the course of an exchange of fire, all the fatal bullets had struck Mazlum Mansuroğlu in the back.

The Turkish Government had therefore failed to establish that the lethal force used against Mazlum Mansuroğlu was “absolutely necessary” or “strictly proportionate”, in violation of Article 2.

The investigation

The Court observed that it had already noted a number of serious defects which had led it to find that the authorities had not conducted an investigation capable of establishing the circumstances of Mazlum Mansuroğlu’s death, still less of identifying who might have been responsible.

It pointed out in addition that the proceedings before Tunceli Administrative Committee revealed a determination to exclude the applicants from the investigation and, as an indirect result, unreserved acceptance of the denials of the security personnel under suspicion. That confirmed the Court’s serious doubts about investigations conducted by administrative bodies, such as the one involved in the applicants’ case, in that they were not independent of the executive. Those grounds were accordingly sufficient to warrant the conclusion that the investigation conducted in the case could not be regarded as effective, contrary to Article 2.

Articles 3 and 13

Concerning Mazlum Mansuroğlu

Having regard to its conclusion under Article 2, the Court held that it was not necessary to rule separately on the other complaints concerning the deceased under Articles 3 and 13.

Concerning Mrs Mansuroğlu

The Court noted that here again it was for the Turkish Government to explain the circumstances that had given rise to the applicant’s allegation of ill-treatment.

It agreed with the Government that the medical report issued on 20 August 1996 did not mention any traces of ill-treatment. However, the provisional report mentioned “injuries” that were sufficiently severe to make Mrs Mansuroğlu unfit for work for five days and which required a ten-day convalescence period.

Moreover, as regards the investigation carried out between 14 February and 7 May 2001, the Court could see nothing to cast doubt on the Mrs Mansuroğlu’s allegations. On the contrary, it noted the lack of any determination on the part of the authorities to gather evidence supporting her complaint, or even to verify the existing evidence, with the result that they ran the risk of increasing people’s feeling of vulnerability at the hands of the State’s representatives that was current at the time.

The Court considered that the Government had relied on the results of administrative inquiries which were as ineffective as they were inappropriate, and had accordingly not been able to explain the facts complained of by the applicant, in violation of Article 3.

The Court considered that it was not necessary to give a separate ruling on Article 13.

Judge Türmen expressed a concurring opinion, which is annexed to the judgment.