ÖZTÜRK v. TURKEY
Inadmissible
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić
1. The applicant, Mr Atalay Öztürk, is a Turkish national who was born in 1976 and is currently serving a prison sentence in Muğla prison. He was represented before the Court by Ms Y. Kavak Kılınç, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 14 November 2005 at 1.05 a.m. the applicant got involved in a bar brawl which resulted in the death of U.K. The applicant was also injured during the incident. Subsequently, he absconded for a short period of time. 4. On the same date, at 9.17 a.m., the applicant called the police and introduced himself as U.K.’s murderer. The transcript of the telephone conversation was reproduced in the incident report (ihbar kayıt tutanağı) made by the police superintendent. It revealed that the applicant had expressed his wish to surrender but had been concerned about the reaction of the deceased’s relatives. 5. Thereafter, at an unspecified time, the applicant surrendered to the police. He was subsequently hospitalised under police guard for the injuries he had sustained during the fight. 6. A medical report drawn up the same day indicated that the applicant had abrasions on his left eyebrow, which had probably been caused by a bullet. It was further noted that there was a bullet hole in his left wrist. 7. At 11.30 a.m. police officers arrived at the hospital and drafted a record of statement (ifade zaptı) quoting the written record of the applicant’s telephone conversation with the police. According to this document, when the applicant had called the police he had stated to the chief police officer that he had gone to the bar looking for a mobile phone that he had lost and he had seen the fight. Some people had attacked him and he had drawn his gun in self-defence. When they had tried to grab the gun from his hand, the gun had gone off accidentally during the struggle. The record of statement further revealed that subsequent to his phone call, police officers had met with the applicant in Izmir. He had then been brought to the hospital, where his left eyebrow had been sutured and his broken left arm had been encased in plaster. After being reminded of his rights, the applicant had had a telephone conversation with his lawyer and refused to make a statement to the police in the absence of his lawyer. He and his father had signed the record of statement. 8. Again on the same date, the Selçuk Investigating Judge issued a warrant for the applicant to be brought before the Selçuk Public Prosecutor following his recovery. 9. On 15 November 2005, the İzmir Investigating Judge questioned the applicant at the hospital in the presence of his lawyer. The applicant refused to make a statement, as he was still suffering from the injuries sustained in the incident. He stated that he would make defence submissions before the trial court. The judge ordered the provisional detention of the applicant in order to secure a statement from him following his discharge from the hospital. 10. On 28 November 2005, the applicant was brought before the Selçuk Public Prosecutor, when he denied the content of the record of statement. He alleged that his conversation with the police on the phone had been misunderstood and incorrectly transcribed. He added that he had not been carrying a gun at the material time. During this statement, the applicant benefited from the assistance of a lawyer. 11. On the same date, the Selçuk Investigating Judge questioned the applicant in the presence of his lawyer. The applicant submitted that there had been a struggle between him and the deceased, and that the deceased had been shot during the struggle while the applicant had been trying to take the gun from his hand. He maintained that the gun had been fired while he had been acting in self-defence. He further stated that he had not been carrying a gun at the time of the incident. After the questioning was over, the judge ordered the applicant’s pre-trial detention. 12. On 2 December 2005 the İzmir Forensic Institute issued an autopsy report, specifying that the deceased, U.K., had been shot in the head at long range. It concluded that the cause of his death had been a skull fracture, damage to the brain stem and haemorrhaging in the brain membrane resulting from the gunshot. The report also revealed that 103 mg/dl of ethyl alcohol had been found in his blood. 13. On 21 December 2005 the İzmir Public Prosecutor lodged an indictment with the assize court, charging the applicant with the intentional killing of U.K. 14. During the proceedings the assize court heard several witnesses who had been in the bar at the material time. S.O., the owner of the bar, testified that he had argued with the deceased for a while and that U.K. had drawn his gun several times during their quarrel. Thereafter the applicant had come to the bar and U.K. had begun quarrelling with the applicant and had lunged towards the applicant. S.O. had heard gunshots but had not seen the incident. 15. Another witness, V.S., stated in his initial statements to the public prosecutor and the magistrates’ court that the applicant had walked into the bar, sworn at him and the deceased and then started shooting at them. Subsequently, before the trial court V.S. testified there had been a quarrel between the applicant and the deceased. U.K. had shot towards the applicant and then the applicant had tried to take the gun from U.K. During the struggle, someone had hit V.S.’s head with a hard object and he had lost consciousness. 16. I.K. stated that the applicant had come to the bar looking for his mobile phone and a fight had broken out. U.K. had walked up to the applicant while his hand had been in his pocket. At that time, I.K. had left the bar but he had heard a gunshot from outside. He had returned, and seen the deceased lying on the ground and V.S. taking the gun from his hand. 17. A.D. testified that during the fight in the bar, U.K. had drawn his gun and fired into the air. The applicant had tried to grab it from U.K.’s hand. 18. On 6 July 2006 the İzmir Assize Court convicted the applicant of intentional homicide. 19. On 22 November 2007 the Court of Cassation quashed the firstinstance court’s judgment on procedural grounds. 20. On 8 April 2008 the assize court convicted the applicant of intentional homicide and sentenced him to twenty-five years and ten months’ imprisonment. In convicting the applicant, the court took into consideration the fact that throughout the proceedings the applicant had stated that he had not been carrying any weapon at the time of the events, and that he had been attacked with a gun and had acted in self-defence. It held that the applicant’s defence submissions were implausible, taking into account the content of the case file, the record of statement, the entirety of the case file and the preliminary submissions of V.S. The court found it established that the applicant had deliberately shot and killed U.K., having regard, among other things, to the distance between the applicant and the deceased, the number of shots fired and the circumstances of the incident. 21. On 23 July 2009 the Court of Cassation upheld the conviction. 22. The relevant domestic law and practice in force at the material time can be found in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008).