CASE OF GÜLEN v. TURKEY
No violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect)
Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
5. The applicants were born in 1942 and 1931 respectively and live in Germany. 6. In connection with an ongoing investigation against activist members of the illegal armed organisation Devrimci-Sol (the “Revolutionary Left”), on 17 April 1992 police officers from the Anti-Terrorism Branch of the Istanbul Security Directorate conducted an operation in three buildings located in different areas of Istanbul. The applicants’ daughter, Ayşe Gülen Uzunhasanoğlu, was killed during this operation. According to the police reports, police officers arrived at the building located in Erenköy at about 2.30 a.m. Ayşe Gülen Uzunhasanoğlu was living on the third floor of this building. The police officers, wearing bulletproof vests, took the necessary safety measures outside the building. Four of the officers went upstairs to flat no. 9 and rang the bell. There was no answer, and the officers forced the door open. Shots were fired from one of the rooms. Despite the officers’ call to surrender, the firing continued and a clash broke out, lasting approximately thirty minutes. When the firing ceased, the police found the dead bodies of two women; one in the bathroom and another in the living room, the latter being later identified as Ayşe Gülen Uzunhasanoğlu. It was observed that there was a Beretta gun next to Ayşe Gülen Uzunhasanoğlu’s body. As the police also found explosives in the flat, a bomb disposal team was called to the scene and the flat was evacuated. Once the apartment was secured, the Kadıköy public prosecutor was informed about the incident. The prosecutor arrived at the scene of the incident at about 9.30 a.m. and prepared a scene of incident report in which he noted that photographs of the bodies had been taken; that a sketch map of the flat had been drawn and that fingerprints of the bodies had been taken. The report further indicated that a semi-automatic Italian Beretta 7.65 mm pistol, its magazine and cartridges, 3 Kalashnikov cartridges, 90 cartridges of 7.62 mm, 7 bullet cases of 7.65 mm, 23 bullet cases of 5.56 mm, 90 bullet cases of 9 mm, several hand made bombs and material to manufacture explosive devices had been found. The prosecutor further examined the bodies in the presence of a medical expert. The preliminary examination of the bodies revealed that there were several bullet entry and exit holes on both corpses. The bodies were subsequently taken to the Istanbul Forensic Medicine Institute for autopsy. Following the inspection of the flat by the public prosecutor, the premises were sealed by the police. 7. On 27 April 1992 ballistic examinations of the Beretta pistol, the bullet cases and cartridges collected from the incident scene were conducted by two experts from the Regional Criminal Police Laboratory. According to their report, the seven 7.65 mm bullet cases had been fired by the Beretta pistol found at the scene of the incident. The report further concluded that the 52 bullet cases of 9 mm and the 23 bullet cases of 5.56 mm, which had been sent for examination, had been fired from the guns of the police officers. 8. On 28 April 1992 a criminal complaint was filed against Mr Necdet Menzir, the Head of the Istanbul Security Directorate at the time, and the police officers who had been involved in the three operations conducted on 17 April 1992. 9. On 4 May 1992 the first applicant applied to the Kadıköy public prosecutor and requested that the flat which had been sealed after the incident be returned to her. On 20 May 1992 the public prosecutor sent a letter to the Kadıköy Magisrates Court requesting that the keys of the flat be returned to the applicants. 10. On 15 May 1992 three experts from the Forensic Medicine Institute conducted an examination of Ayşe Gülen Uzunhasanoğlu’s clothes and prepared a report which held that, if short-barrelled firearms had been used during the incident, Ayşe Gülen Uzunhasanoğlu had been shot at from a distance of more than 3540 metres. However, if Ayşe Gülen Uzunhasanoğlu had been shot at with long-barrelled firearms, then the distance would have been more than 75100 metres. The experts further explained that it was impossible to determine the exact range of the shootings in view of the information at their disposal. 11. On 27 May 1992 the Istanbul Forensic Medicine Institute delivered the autopsy report on the applicants’ daughter. The report described ten bullet wounds on the body, eight of which had been fatal. It was also established that the body had not been shot at from point-blank range. The report concluded that the cause of death was internal bleeding due to bullet wounds. 12. In the course of the investigation, the public prosecutor took statements from the police officers who had taken part in the operation on 17 April 1992, from two neighbours of Ayşe Gülen Uzunhasanoğlu and from the first applicant. 13. On 24 June 1997 the Kadıköy public prosecutor filed a bill of indictment with the Kadıköy Assize Court against 15 police officers for having killed Ayse Gülen Uzunhasanoğlu. The charges were brought under Articles 31, 33, 49, 251, 281, 450 and 463 of the Criminal Code. The applicants intervened in the proceedings. 14. On 14 November 2000 the Kadıköy Assize Court, finding that there were no grounds for imposing any punishment on the defendants, acquitted the police officers. The court held that the officers had acted within the scope of their duties and had remained within the limits of legitimate self-defence, in accordance with section 16 of Law no. 2559 on the duties and powers of the police. 15. On 14 November 2001 the Court of Cassation denied the applicants leave to appeal. 16. A description of the relevant domestic law at the material time and international law can be found in Erdoğan and Others v. Turkey (no. 19807/92, §§ 5158, 25 April 2006).