CASE OF SIMSEK AND OTHERS v. TURKEY
Violation of Art. 2 (substantive and procedural);Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 14;No violation of Art. 17;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
11. The facts as submitted by the parties may be summarised as follows. 12. All of the applicants reside in Istanbul. 13. The applicants Ali Şimşek, Şaziment Simşek, Dilay Şimşek, Erkan Şimşek, Gökhan Şimşek and Şenay Şimşek are relatives of Dilek Şimşek Sevinç, who died during the Gazi incident. 14. The following applicants are all relatives of persons who also died during the Gazi incident: – Hakkı Yılmaz is the father of Dinçer Yılmaz (deceased); – Hüseyin Kopal is the father of Reis Kopal (deceased); – Cemal Poyraz is the father of Zeynep Poyraz, (deceased); – Mustafa Tunç is the father of Fevzi Tunç (deceased); – Mahmut Engin is the father of Sezgin Engin (deceased); – Arslan Bingöl is the husband of Fadime Bingöl (deceased); – Veli Kaya is the father of Mümtaz Kaya (deceased); – Mehmet Gürgen is the father of Hasan Gürgen (deceased); – Çiçek Yıldırım is the mother of Ali Yıldırım (deceased); – Hüseyin Sel is the father of Hasan Sel (deceased); and – Mukaddes Gündüz is the wife of Mehmet Gündüz (deceased). The remaining applicants are relatives of persons who died during the Ümraniye incident: – Hacer Baltacı is the wife of İsmail Baltacı (deceased); – Sabri Puyan is the brother of Hasan Puyan (deceased); – Zeynel Abit Çabuk is the father of Hakan Çabuk (deceased); – Aynur Demir is the wife of Genco Demir (deceased); and – Aligül Yüksel is the son of İsmihan Yüksel (deceased). 15. Gazi is a neighbourhood located within the Gaziosmanpaşa district of Istanbul. A majority of residents living in the Gazi neighbourhood belongs to the Alevi sect. 16. At around 9 p.m. on 12 March 1995, a group of unidentified persons opened fire from a taxi on five cafés situated in the Gazi neighbourhood. The shooting continued for approximately five minutes. An elderly person, Halil Kaya, was killed and twenty-five persons were wounded. Many shops were badly damaged during the shooting. The perpetrators of the attack killed the driver of the taxi and fled. 17. Following this incident, residents of the neighbourhood gathered on the street outside the cafés and in front of the Cemevi to protest against the indifference displayed by police officers after the shooting. People also gathered outside the hospitals, where injured people were being treated. At about midnight, the group started marching towards the local police station. The police set up barricades with panzers and subsequently attacked the group with their truncheons and the butts of their weapons. 18. At 4 a.m. on 13 March 1995, the Istanbul governor and the chief of police went to the Gaziosmanpaşa governor’s office and held a meeting with the community leaders to stop the incidents. The demonstrators began to calm down. 19. At that moment two panzers approached the demonstrators and began firing at them. As a result, Mehmet Gündüz was killed on the spot and ten persons were injured. 20. In the morning of 13 March 1995 thousands of people from the surrounding neighbourhoods joined the demonstrators. According to the applicants, there was no provocation by any terrorist organisation. Some of the demonstrators started throwing stones and coins at the police barricades. 21. At 11 a.m. police began firing from behind their barricades. Snipers were positioned on nearby buildings, targeting the protesters. During the firing, Fadime Bingöl and Sezgin Engin were killed and a number of others were injured. 22. The killing of these two persons raised the tension and the demonstrators began advancing towards the police barricades at 2 p.m. Uniformed and plainclothes police officers, who had positioned themselves behind the barricades, on the side streets and on some of the buildings, fired intensively. For about twenty minutes, the police officers chased a number of demonstrators who were trying to run away from the scene and shot them. Zeynep Poyraz, Dilek Şimşek Sevinç, Ali Yıldırım, Reis Kopal, Mümtaz Kaya, Fevzi Tunç, Hasan Sel, Hasan Gürgen, Dinçer Yılmaz and Hasan Ersürer were shot and killed. More than a hundred persons were injured. The police prevented the demonstrators from taking the wounded persons to hospital. 23. At 3.15 p.m. the same day the police attacked the crowd who were attending the funerals of Halil Kaya and Mehmet Gündüz. Military reinforcements were called to the area. The applicants state that the group did not protest against the soldiers. 24. At 4 p.m. a curfew was imposed in the area. 25. In total, fifteen people, including a person in the café, Halil Kaya, and the taxi driver were killed, and 276 people were injured during these events. 26. The events in the Gazi neighbourhood sparked widespread outrage throughout the country and a number of demonstrations were held in different parts of Turkey during which the actions of the police were condemned. 27. On 15 March 1995 a large crowd gathered in the Mustafa Kemal neighbourhood, located within the Ümraniye district of Istanbul. The group began marching towards the funerals of those who had been killed during the Gazi incident. 28. At 2.30 p.m. the same day, the crowd came across barricades which had been set up by the police in a square outside a primary school. A number of demonstrators started throwing stones towards the barricades, upon which, without any warning, uniformed and plainclothes police officers began firing at the crowd. No one in the group returned fire. None of the police officers were killed or injured. Hasan Puyan, İsmihan Yüksel, İsmail Baltacı, Genco Demir and Hakan Çabuk were killed during the shooting. More than twenty people were injured. 29. Upon receipt of information that five cafés in the Gazi neighbourhood were under fire, police officers were sent to the scene of the incident. When the police officers arrived in front of the cafés, they saw a crowd of forty people who were shouting slogans against the police. The crowd attacked the police vehicles and the police officers were unable to conduct an investigation. Therefore they called for reinforcements. Following the arrival of additional security forces, the police conducted an investigation and wounded persons were sent to hospital. At the same time, some people from the neighbourhood joined the protesting group. Together, they started shouting slogans, and throwing coins and stones at the police. Some of the protesters had fire bombs in their hands. With the participation of other people from the neighbourhood, the crowd became larger and they started to march towards the Gazi Police Station. Many shops and vehicles were set on fire. Some masked men in the crowd threw fire bombs towards the police officers. In order to prevent the crowd from going further, the police officers built barricades. Security forces verbally warned people to stop. They then used pressurised water and batons to disperse the crowd. When they were not able to disperse them, they fired warning shots in the air. However, the crowd continued to walk towards the security forces and attacked the panzers with fire bombs. The riot in the Gazi neighbourhood lasted for two days. At the end of the second day, a curfew was imposed in the area. During the riot, 13 people died and 195 persons (152 residents, 36 police officers and 7 soldiers) were wounded. 30. Following the incidents that took place on 12 March 1995, the security forces received intelligence reports about further possible riots in the Ümraniye area. In order to prevent any untoward occurrences, a meeting was organised on 14 March 1995 at the Ümraniye district security directorate building. The district director of security, the mayor of the neighbourhood and the president of the Pir Sultan Abdal Association participated in the meeting, which was presided over by the district governor. During the meeting, the situation was discussed and residents were requested not to be influenced by provocation. In the morning of 15 March 1995, upon threats from a terrorist organisation, all the shops in the neighbourhood closed down as a sign of protest. A second meeting was held to discuss the situation. At about 1 p.m. the same day, a group of 1,500 people gathered in front of the Pir Sultan Abdal Association in the Mustafa Kemal neighbourhood and started to march towards the Örnek neighbourhood. The security forces announced that the march was illegal and requested the participants to disperse. The group started shouting slogans and continued to march. The number of people increased to thousands. Some of the protesters were wearing red berets and scarves. Some people from the crowd threw stones and coins at the security forces. As the tension increased, the group started attacking the security forces with bricks and stones. The security forces took precautions and established a security line. After some time, armed men, who were amongst the group, started shooting towards the security forces and the crowd. The security forces fired warning shots in the air and the attack stopped. The wounded persons were taken immediately to hospital. While the wounded were being evacuated, the crowd continued shouting slogans and throwing stones from behind the shelters. Traffic was also halted by burning tyres. Military forces arrived at the scene, a curfew was established and the entrance to the neighbourhood was placed under strict control. 31. Following the incidents, the domestic authorities immediately commenced investigating the events. Several witness statements were taken, autopsies were conducted and the bullets recovered from the bodies of the wounded and dead persons were sent for ballistic examination. Seven ballistic reports were prepared by the Istanbul Forensic Medicine Institute on 26 and 31 July, 11 September and 15 November 1995, 27 October 1997 and 12 October 1999, respectively. According to these reports, none of the bullets that had been recovered from the bodies of the victims matched the weapons of the security forces who were on duty during the two incidents. 32. In accordance with Article 22 of Law No. 3713 on the Prevention of Terrorism, in April 1995 the families of the deceased persons were paid 150,000,000 Turkish Liras (TRL), the equivalent of 2,800 euros (EUR), by way of compensation from the Social Collaboration and Solidarity Encouragement Fund (Sosyal Yardımlaşma ve Dayanışmayı Teşvik Fonu). 33. On 11 April 1995 Arslan Bingöl, Celal Sevinç, Çiçek Yıldırım, Mukaddes Gündüz, Sabahat Engin and Cemal Poyraz filed a criminal complaint with the Gaziosmanpaşa public prosecutor against the Ministry of the Interior, the Governor of Istanbul, the Director of the Istanbul Police and the police officers who were involved in the incidents of 12-13 May 1995 in the Gaziosmanpaşa district. They maintained that their relatives had been killed by police officers who had used more force than was absolutely necessary. They further alleged that the crowd which protested against the police had not used firearms and that the police had opened fire at the crowd without any warning. They maintained that the police should have first used pressurised water, tear gas or plastic bullets to disperse the demonstrators. According to the complainants, the police deliberately used firearms against the demonstrators who were residents of the Gazi district and who belonged to the Alevi sect. 34. Following this criminal complaint, the Public Prosecutor commenced an investigation into the events. On 19 April 1995 he issued a decision of non-jurisdiction to examine the complaint against Hayri Kozakçıoğlu, the Governor of Istanbul. The prosecutor accordingly sent the file to the Ministry of the Interior for further investigation. 35. On 4 July 1995 the public prosecutor issued a decision of non-prosecution against Necdet Menzir, the Head of the Istanbul Security Department. 36. On 5 July 1995 the prosecutor decided that no criminal prosecution could be initiated against Nahit Menteşe, the Minister of the Interior. He held that, in his capacity as the Minister, Mr Menteşe did not have legal responsibility concerning the alleged events. 37. On the same day, the public prosecutor also decided to separate the investigation concerning the death of Dinçer Yılmaz, Sezgin Engin, Mümtaz Kaya, Hasan Gürgen, Hasan Sel and Hasan Ersürer from the other killings. This file was accordingly registered under file no. 1995/6570. 38. On 10 July 1995 the public prosecutor filed an indictment with the Eyüp Assize Court against twenty police officers who had been on duty during the demonstrations between 12 and 13 May 1995. The indictment involved the death of Dilek Şimşek Sevinç, Reis Kopal, Zeynep Poyraz, Fevzi Tunç, Fadime Bingöl, Ali Yıldırım and Mehmet Gündüz. In his indictment, the prosecutor relied on witness statements, medical reports, police reports, autopsy reports, video footage and newspaper clippings. He stated that, following the attack on the cafés located in the Gazi district and upon provocation from an illegal organisation, the residents of the neighbourhood had started protesting against the police. The crowd marched towards the local police station, chanting slogans, and throwing stones and fire bombs. Some people among the group fired at the police officers. The crowd was shouting slogans to incite hatred between the Alevis and Sunnis. The prosecutor further maintained that the police panzers had opened fire at the crowd to disperse the demonstrators and, as a result, Mehmet Gündüz was shot and killed. A police officer, identified as Adem Albayrak, had further shot and killed Ali Yıldırım, Dilek Şimşek Sevinç and Fadime Bingöl. Another police officer, whose identity could not be established, shot and killed Reis Kopal. Adem Albayrak, together with Officer Mehmet Gündoğan, killed Zeynep Poyraz. The prosecutor alleged that the officers in the panzer, together with Officer Gündoğan, had shot and killed Fevzi Tunç. The prosecutor therefore requested the court to prosecute these officers for intentional homicide under Article 448 of the Criminal Code. 39. Mukaddes Gündüz (wife of Mehmet Gündüz), Mustafa Tunç (father of Fevzi Tunç), Çiçek Yıldırım (mother of Ali Yıldırım), Cemal Poyraz (father of Zeynep Poyraz), Celal Sevinç (husband of Dilek Şimşek Sevinç), Ali Şimşek (father of Dilek Şimşek Sevinç), Hüseyin Kopal (father of Reis Kopal) and Aslan Bingöl (husband of Fadime Bingöl) intervened in the proceedings. 40. On 13 July 1995 the Eyüp Assize Court decided to transfer the case to another city for security reasons as its location was very close to the vicinity where the incident had taken place. 41. On 15 August 1995 the Court of Cassation upheld the decision of the Eyüp Assize Court and decided to transfer the case to the Trabzon Assize Court, approximately 1000 kilometres away from Istanbul. 42. On 11 September 1995 the Trabzon Assize Court held a preliminary hearing. It decided to send letters rogatory to a number of courts to take statements from fifty eye-witnesses. It also decided that taking oral evidence from another 250 witnesses would be considered at a later stage. It finally requested the public prosecutor to find the current addresses of the twenty accused police officers who, since the incident, had been posted elsewhere in the country. It adjourned the examination of the case until 15 November 1995. 43. On 15 November 1995 the Trabzon Assize Court stayed the trial on the ground that the indictment lacked the prior authorisation of the Istanbul Provincial Administrative Council to initiate criminal proceedings against the police officers. It therefore sent the case-file to the governor’s office in Istanbul, in accordance with the Law on the Prosecution of Civil Servants. The applicants filed an objection against this decision with the Court of Cassation. 44. On 8 October 1996 the Court of Cassation decided that the decision of the Trabzon Assize Court to stay the proceedings was not a final decision and, as such, the Court of Cassation did not have jurisdiction to examine this appeal. On 15 October 1996 the prosecutor at the Court of Cassation appealed against this decision. 45. On 17 December 1996 the Joint Criminal Chambers of the Court of Cassation confirmed that the Court of Cassation was not the competent forum to examine the appeal request. Accordingly, the case file was transferred to the Rize Assize Court. 46. On 3 March 1997 the Rize Assize Court found in line with the applicants’ objection and decided to quash the decision of the Trabzon Assize Court dated 15 November 1995. It held that a prior authorisation from the Istanbul Provincial Administrative Council was not necessary to commence the prosecution of the accused police officers. 47. On 28 March 1997 the Trabzon Assize Court insisted that its decision of 15 November 1995 was valid and that the authorisation of the Istanbul Provincial Administrative Council was required to try the defendants. It decided to send the file to the Ministry of Justice to obtain a written order instructing the public prosecutor at the Court of Cassation to refer the case to the Court of Cassation. The Trabzon public prosecutor was requested to forward the file to the Ministry of Justice. 48. On 31 March 1997 the Trabzon public prosecutor sent the file to the Ministry of Justice together with his observations, in which he stated that the issue had already been examined by the Joint Criminal Chambers of the Court of Cassation and that, in his opinion, it was not necessary for the Ministry of Justice to issue a written order. 49. On 13 May 1997 the Ministry of Justice returned the file to the Trabzon Assize Court, rejecting its request for a written order. 50. On 23 May 1997 the president of the Trabzon Assize Court submitted a two-page letter informing the court about his decision to abstain from sitting as a member of the court during the prosecution of the police officers. In his letter, the president stated that it was impossible for him to remain impartial and independent during the trial of the police officers when his own life was being protected by members of the security forces. He also stated that, in his opinion, the police officers were not guilty and the Gazi district incident was a premeditated riot against the security forces. 51. On 13 June 1997 the Trabzon Assize Court resumed the trial and held a preliminary hearing. The president of the court, who had abstained from hearing the case, was replaced by another judge. 52. On 16 September 1997 the Trabzon Assize Court held the first hearing in the case. The defendants did not attend the hearing but were represented by their lawyers. During the hearing, the court heard testimonies from the interveners, namely Mustafa Tunç, Çiçek Yıldırım, Ali Şimşek, Cemal Poyraz and Aslan Bingöl. All interveners complained that the police had used excessive force against the demonstrators, which had led to the killing of their relatives. As none of them were eye-witnesses to the events, they were unable to give precise details about the incident. However they asked the court to punish those who were responsible for the killings. The same day, the court heard evidence from two people who had been injured during the Gazi Incident. In their statements, both witnesses stated that they had been severely beaten by the police. They also identified the accused officer Adem Albayrak as the officer who had beaten them. At the end of the hearing, the court ordered the detention on remand of eight of the defendants. It also summoned the remainder of the defendants to the next hearing. 53. In its hearing held on 17 November 1997, the court took statements from fifteen accused police officers. Before the court, the defendants stated the following: “At that time, I was a working at the Gaziosmanpaşa District Security Directorate Investigation Unit. Following the attack on the cafés, I was called to the scene with other police officers. I was in command of one of the units. During the incident, I was in civilian clothes, equipped with a handgun. I did not have a rifle or other firearms. When I arrived at the scene, I saw that a huge crowd had already gathered in front of the police station. Some of the demonstrators were throwing stones and fire bombs at the police officers. There were terrorists amongst the demonstrators. They set fire to a white car and a gas container was thrown at this car from a nearby building. The demonstrations continued for about 4 hours. With the help of two panzers, the police officers were trying to disperse the crowd. At some point, the demonstrators marched back but I did not follow them. I stayed near the police station the whole time. Some civilians fired at the police officers from the roofs of the buildings. I did not fire at the crowd. I deny the charges brought against me.” “When I arrived in the Gazi district, there was a huge gathering. The demonstrators were carrying banners. The officers warned them and fired in the air. Some of the demonstrators fired at the police. I was equipped with a handgun; I did not have a rifle. I admit that I am the person in the photograph holding a stick with my right hand and a gun with my left hand. However the security of the gun was locked. I did not fire at the demonstrators.” 54. The same day, the court heard the statements of thirteen other defendants who had been on duty in the panzers at the time of the incident. All of the accused officers denied firing at the crowd. They stated that there were three panzers at the scene on 13 March 1995. The panzers had acted as protective shields for the police officers who were trying to disperse the crowd. According to the accused officers, the crowd was not peaceful; the demonstrators were chanting slogans, and throwing stones and fire bombs at the police. The three panzers had been ordered to drive towards the demonstrators to force them to disperse. All the police officers acknowledged that they had had handguns but denied having had rifles. 55. On 15 December 1997 the court heard the statements of two other accused police officers, who maintained that the crowd was not peaceful, but was chanting slogans, and throwing stones and fire bombs at the police. They denied firing at the crowd and stated that some people in the group had fired at the police. The same day, the court took statements from Hüseyin Kopal, who had intervened in the proceedings, and six more eye-witnesses. Their accounts may be summarised as follows: “I am Reis Kopal’s brother. When Reis did not come home on the day of the incident, I was worried about him. I therefore went to the Gazi district looking for him. It was very crowded. There was a clash. The demonstrators were throwing stones at the police. I saw three dead bodies near a wall. I later learned that these belonged to Fevzi Tunç, Ali Yıldırım and Sezgin Engin. Uniformed and plainclothes police officers were firing at the crowd. I saw the accused officer, Adem Albayrak, shooting at the crowd with a M5 type rifle. I continued looking for my brother. A few minutes later, I witnessed the killing of Mümtaz Kaya. He was shot by a police officer near the high school. I was not able to find my brother and I returned home. Later that night, as I was watching the events from the TV, I recognised my brother. He was amongst the demonstrators, throwing stones at the police. We were later informed that he was shot dead during the incidents.” “On 13 March 1995 I went to the Gazi district. When I arrived near the police station, a clash broke out. Police officers targeted the demonstrators and fired at them. I saw the accused police officer Adem Albayrak firing at Fevzi Tunç. Adem Albayrak was in civilian clothes, equipped with a rifle.” “At the time of the incident, I was working at the Cemevi. Following the attack on the cafés, we tried to convince the residents to calm down. At about 4 a.m. a panzer drove towards our building and projected a light. Thereafter I heard gunshots. Mehmet Gündüz was shot and killed during the shooting. Because of the light, I was unable to see whether the firing came from the panzer or somewhere else.” “I am the brother of Dilek Sevinç who died during the Gazi incident. Following the attack on the cafés, together with Dilek and my younger sister Dilay we approached the police station to see what was going on. One plainclothes police officer, namely Mehmet Gündoğan, started beating me. Then some other police officers started firing at the crowd. Dilek was shot as a result of the shooting. She was shot by a plainclothes police officer who was wearing jeans and holding a rifle. I later learned from the press that his name was Adem Albayrak.” “I am the neighbour of Fadime Bingöl who was shot dead during the Gazi incident. On the day of the incident, Fadime was worried about her daughter who had gone to school. When she saw that other students were returning to their houses, she wanted to go out and find her daughter. I accompanied her. Together, we went towards the crowd. When we were in front of the pharmacy, Fadime climbed on a ladder in order to be able to see her daughter in the crowd. Suddenly there was shooting, and I saw Fadime fall down. She was shot by a police officer who was standing on the opposite side of the road. I cannot identify the officer as he was wearing a helmet.” “Fadime Bingöl is my relative. On the day of the incident, we went out to search for Fadime’s daughter who had gone to school in the morning. Fadime climbed on a ladder in front of the pharmacy, looking for her daughter. She was shot in the face by police officers standing on the opposite side of the building.” “On 13 March 1995 at about 10 a.m. together with my sister-in-law Fadime Bingöl, we went out looking for Fadime’s daughter. We first went to the Cemevi, then continued walking. Fadime saw a ladder and climbed on it to find her daughter in the crowd. At that time plainclothes and uniformed police officers started firing at the crowd. Fadime was shot in the face. I could not see who shot her. I just saw police officers shooting at the crowd.” 56. On 28 January 1998 the court held its fourth hearing and took the statement of an accused police officer, Sedat Özdemir. Mr Özdemir maintained that he had been on duty in one of the panzers during the Gazi incident. He explained that the panzers had been used as shields to protect the police officers from the crowd. He stated that all of the officers in the panzer were equipped with handguns. 57. The same day, the court further heard oral evidence from two witnesses, namely Sadık Bakır and Hıdır Elmas. Both witnesses had been working at the Cemevi at the time of the incidents. They maintained that, following the attack on the cafés on 12 March 1995, people started gathering in front of the Cemevi. While they were waiting peacefully in front of the building, at about 4 a.m. a panzer approached and projected its lights towards the Cemevi. The witnesses recalled hearing gun shots and maintained that Mehmet Gündüz had been shot and killed and several people wounded as a result of this shooting. 58. On 27 February 1998 the court heard witness statements, which may be summarised as follows: “I am a police officer. On the day of the incident, we were called to the Gazi district as reinforcement. We waited in front of the local police station for a long time. We were confronted with a large gathering. They were shouting slogans. In the morning, military forces arrived at the scene. The crowd was attacking the police barricade with stones and bricks. Fire bombs were thrown at the police. As I was behind, I could not see clearly what was going on near the barricades, but at some point the crowd started marching back. Some officers followed them. I heard screams and gunshots but I never left the police station. I saw that some of the police officers from the anti-terrorism branch were equipped with MP5 rifles and Kalashnikovs. They were wearing bullet proof vests.” “I was waiting in the Cemevi on the night of the incident. At about 4 a.m., I saw a panzer which projected its lights onto the building. Then from behind the panzer, I heard gun shots. Many people were hit during the firing. We tried to take the wounded persons to hospital. One of the wounded persons died on the spot. I later learned that his name was Mehmet Gündüz.” “I am a journalist. I work for one of the weekly magazines. On Sunday when I heard about the Gazi incident, I went to the district at about 11 p.m. When I was in front of the police station, I heard an explosion. Then I saw the panzers. They were trying to extinguish a taxi that was on fire. On the left side, I saw police officers shooting in the air with their hand guns. From their clothes, I understood that they were from Rapid Intervention Force. I saw that many of the police officers acted in panic. A commander shouted, “Stop or you will shoot each other”. Someone from a nearby building threw a gas container at the burning taxi. The car exploded. Children were attacking the shops by throwing stones. I saw some people with fire bombs; their faces were covered. I assumed they were members of an illegal organisation. They were throwing these fire bombs at the panzers. An announcement was made from the Cemevi, asking the residents to go home. The crowd started calming down. I went to a nearby café to wait. After some time, someone rushed into the café and shouted, “They’ve started attacking”. When we went to the Cemevi, I saw that a panzer was projecting lights on the crowd, and guns were fired from behind the panzers. Many people were wounded. Mehmet Gündüz died on the spot.” “I am the director of the Cemevi. I was watching TV when I heard about the attack on the cafés. Immediately, I went to the Cemevi. A group of 200-300 persons had gathered in front of our building. The mayor of the district talked to the group and told them to go home. While we were trying to organise the funeral of Halil Kaya, at about 4 a.m. two panzers approached our building. One of them projected its lights onto the building. At first, I heard two gun shots. Then the shooting continued. A person who was waiting in front of the Cemevi was shot and killed.” “Fevzi Tunç, who was killed during the Gazi incident, was my colleague. On the day of the incident, I was at Fevzi’s apartment in Gazi district. Together we were watching a football game. While we were watching TV, we heard about the attack on the cafés. We did not go out that night. The following morning at about 10 a.m. we went out. When we approached the Cemevi, we came across a huge crowd. Our aim was to catch the bus. However, at that moment we heard gun fire. We saw someone fall down. Fevzi went to help him. I then saw two police officers pointing their guns at us. One of them was wearing a uniform; the other was in civilian clothes. The police officer who was dressed in civilian clothes was holding a M5 rifle. They both fired at us. Fevzi was shot from a distance of 60-70 metres.” 59. On 2 April 1998 the court heard the statements of three interveners, Menevşe Poyraz, Haydar Kopal and Şaziment Şimşek, none of whom had been eye-witnesses to the incident. They all requested the court to punish those responsible for the killing of their relatives. The same day, the court heard evidence from Özlem Tunç and Mahmut Yağız. In her statement Özlem Tunç submitted that she was living in the Gazi district at the time of the incident. On the day of the incident, she was at home when she heard the attacks on the cafés. She went out with her mother to see what was going on. She witnessed police officers attacking the crowd. She was severely beaten by the police. She saw the dead body of Fevzi Tunç and witnessed the death of Fadime Bingöl. She stated that Fadime was standing right in front of her when she had been shot in the face. However, the witness had not been able to see who had fired the shot. 60. When asked about his recollection of the incident, the second witness Mahmut Yağız explained that on 13 May 1995 at about 10 a.m. he had gone out to see the events. The streets had been extremely crowded. He recalled hearing gun shots and seeing a group of demonstrators throwing stones at the police. He also remembered seeing two police officers, in civilian clothes, firing with rifles from behind a car. He explained that, as a result of the firing, four persons had been shot and killed. He subsequently learned that amongst the dead were Fevzi Tunç, Reis Kopal and Sezgin Engin. The witness maintained that the killing of these persons had raised the tension and the crowd had started throwing stones at the police. He recalled seeing two uniformed police officers fire at the crowd, targeting the demonstrators. 61. While the proceedings before the Trabzon Assize Court were under way, on 5 March 1998 the Gaziosmanpaşa public prosecutor filed another indictment with the Eyüp Assize Court against the two police officers Adem Albayrak and Mehmet Gündögan for the killing of Sezgin Engin and Mümtaz Kaya during the Gazi incident. On 10 March 1998 the Eyüp Assize Court decided to join these proceedings to those already pending before the Trabzon Assize Court. At its hearing on 2 April 1998, the Trabzon Assize Court endorsed this decision. The applicants Veli Kaya and Mahmut Engin intervened in those proceedings. At its hearing held on 7 May 1998, the court took their statements. Both Mr Kaya and Mr Engin asked the court to find the police officers who had shot and killed their sons. 62. On 7 May 1998 the court heard the testimony of Sevgili Kaya, the mother of Mümtaz Kaya. She gave the following account: “On 13 March 1995 I went to the Gazi district together with my son to visit a friend. On the way, we saw a large group of people. Suddenly, the group started running away. My son panicked and tried to escape. Police officers in civilian clothes fired at the people who were running away. My son was shot. I saw the officer who shot Mümtaz. He was in civilian clothes wearing a coat. I also saw the same officer shoot Zeynep Poyraz.” 63. When asked to identify the officer who had shot her son, Sevgili Kaya identified Mehmet Gündoğan amongst the defendants. She also stated that it was the same police officer who had shot Zeynep Poyraz. 64. The same day the court heard the statement of Nuriye Yıldız. She stated: “I was in the Gazi district to visit a relative. I stayed there on Sunday and on Monday morning I went out to go back to my house. Near the school, which is close to the Cemevi, I met Mümtaz Kaya and his mother. Suddenly a clash broke out and Mümtaz was shot by a police officer. The officer, who shot Mümtaz from 15 metres away, was in civilian clothes, holding a truncheon with one hand and a gun with the other. People were chased by the police. I also saw panzers.” 65. When the witness was asked to identify the police officer who had shot Mümtaz, she pointed out Mehmet Gündoğan and confirmed before the court that it was Mehmet Gündoğan who had shot Mümtaz. 66. At its ninth hearing on 12 June 1998, the court took evidence from two eye-witnesses. Their accounts may be summarised as follows: “I was in the Gazi district when the incidents took place. I first saw the panzers and the officers who had been positioned behind the panzers. There was a group of people waiting in front of the panzers. Suddenly the panzers started driving towards the gathering. People started running away. I saw Zeynep Poyraz being shot and she fell down. She was shot from a distance of 50-60 metres. I did not see who shot her. Zeynep was not attacking the officers and she was not a member of an illegal group; she was just trying to run away from the police.” “I was in the Gazi district at that time. There was a large group of people out on the streets. Amongst the group, I recognised Reis Kopal, who is a relative. Reis was throwing stones at the police. The police started firing at the group and Reis fell down. I saw two police officers equipped with rifles. One of them was wearing a uniform, the other one was in civilian clothes.” 67. When the witness was asked by the court to identify the police officer who had shot Reis Kopal, he pointed out Adem Albayrak amongst the defendants. 68. The Trabzon Assize Court further held 21 hearings until 3 March 2000 and heard testimonies from six more witnesses, mainly journalists who had reported the incidents. The defendant police officers Mehmet Gündoğan and Adem Albayrak were released from detention on 6 November 1998 and 3 March 2000 respectively pending trial. 69. On 3 March 2000 the court delivered its judgment. Basing itself on autopsy reports, ballistics reports, incident reports, testimonies, photographs and video footage of the incident, the court found it established that police officer Adem Albayrak had shot and killed Dilek Şimşek Sevinç, Reis Kopal, Fevzi Tunç and Sezgin Engin. It accordingly sentenced him to six years and eight months’ imprisonment, pursuant to Article 448 of the Criminal Code, and barred him from public service for four months and twenty-eight days. The court also found police officer Mehmet Gündoğan guilty of killing Mümtaz Kaya and Zeynep Poyraz and sentenced him to three years and four months’ imprisonment, and barred him from public service for two months and fourteen days, pursuant to Article 448 of the Criminal Code. The remaining eighteen police officers were acquitted of the charges against them. 70. On 5 April 2001 the Court of Cassation upheld the judgment of the Trabzon Assize Court in respect of the acquitted police officers. However it quashed the first-instance court’s judgment in respect of the convictions of Adem Albayrak and Mehmet Gündoğan. It held that the first instance court had failed to establish the facts of the case. Holding that the assize court’s evaluation of evidence was insufficient, the Court of Cassation quashed this part of the judgment. 71. On 4 June 2001 the Trabzon Assize Court resumed the proceedings. It held four hearings and re-examined the case file. 72. On 5 November 2001 the court applied the decision of the Court of Cassation and rectified its former judgment. Accordingly, the Assize Court found Adem Albayrak guilty of killing Fevzi Tunç, Reis Kopal and Dilek Sevinç and sentenced him to five years’ imprisonment. Adem Albayrak was further barred from public service for three months. The court acquitted him of the remaining charges against him, namely the killing of Sezgin Engin. 73. The court found that Mehmet Gündoğan was guilty of killing Mümtaz Kaya, contrary to Article 448 of the Criminal Code. It accordingly sentenced him to one year and eight months’ imprisonment, and barred him from public service for three months. It acquitted Mehmet Gündoğan of the remaining charges against him, namely the killing of Zeynep Poyraz. Finally, pursuant to Section 6 of the Execution of Sentences Act (Law no. 647), the court decided to suspend the sentence of Mehmet Gündoğan, considering that the accused did not have a tendency to break the law again. 74. On 11 June 2002 the Court of Cassation upheld the judgment of the first instance court. 75. The investigation which had been commenced in April 1995 concerning the killing of Dinçer Yılmaz, Hasan Gürgen, Hasan Sel and Hasan Ersürer is still pending before the Gaziosmanpaşa Public Prosecutor under file no. 1995/6570 (see paragraph 37 above). During the investigation, the public prosecutor took oral evidence from witnesses, and examined the autopsy reports, the photographs taken during the demonstration and the video footage of the event. He further requested the list of police officers who had been on duty during the Gazi incidents and ordered a ballistic examination of their guns. As the bullet which killed Dinçer Yılmaz could not be found, no ballistic examination could be performed. According to the Government, the authorities are still searching the perpetrators. 76. On 11 April 1995 a criminal complaint was filed with the Üsküdar public prosecutor’s office against the Ministry of Interior, the Governor of Istanbul, the Director of the Istanbul Security Department and the police officers who were involved in the incidents of 15 March 1995 in the Ümraniye district. It was submitted that, as a result of the disproportionate use of firearms by the police, five persons, namely Hasan Puyan, İsmihan Yüksel, İsmail Baltacı, Genco Demir and Hakan Çabuk, were killed and twenty others were injured. It was argued that the Ministry of Interior, the governor of Istanbul and the director of the Istanbul police headquarters had been negligent in failing to control the actions of the police. The relatives of the deceased persons further argued that the police officers had even followed those running away from the scene and fired at them. They contended that the demonstrators had not fired at the police and, in support of this allegation, they maintained that no police officers had been injured or killed during the Ümraniye incident. 77. On 15 April 1997 the Üsküdar prosecutor’s office decided not to prosecute the 238 police officers who had been on duty during the Ümraniye incident. He stated that police officers had fired warning shots in the air to disperse the demonstrators and concluded that the deceased persons had not been killed by fire opened by members of the Rapid Intervention Force. It had not been possible to establish the accuracy of the claims that a number of civilians who opened fire on the crowd were plainclothes police officers. In reaching this conclusion, the Üsküdar public prosecutor’s office had regard to the eye-witness accounts of a number of persons, including the relatives of the deceased persons. A number of police officers working at the Ümraniye police headquarters had also been questioned. Eight bullets which had been removed from the bodies of the deceased and the injured persons had been compared with those obtained from the weapons of the 238 defendants. As a result, it was established that these eight bullets had not been fired from any of the weapons owned by the defendants. Video recordings and a number of pictures of the scene were obtained by the prosecutor’s office but they turned out to relate to events which had taken place after the killing of the applicants’ relatives. It was concluded that it had not been possible to identify the demonstrators who had opened fire at the crowd. The prosecutor further held that the firing in the air by police officers did not constitute a criminal offence. Finally, the prosecutor noted that, as the ballistic examinations of the weapons belonging to seven other police officers had not yet been concluded, a decision as to whether to prosecute these officers would be taken at a later date. 78. The applicants Sabri Puyan, Hacer Baltacı, Aynur Demir and Aligül Yüksel appealed against the decision. 79. On 13 November 1998 the appeal was dismissed by the Kadıköy Assize Court. 80. On 10 November 1998 the Üsküdar prosecutor’s office decided not to prosecute the remaining seven police officers for the same reasons it had relied on in its decision of 15 April 1997. 81. On 30 November 1998 the applicants appealed against the decision of 10 November 1998 not to prosecute. Their appeal was rejected. 82. Article 125 of the Constitution provides as follows: “All acts and decisions of the administration are subject to judicial review... The administration shall be liable to indemnify any damage caused by its own acts and measures.” 83. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 84. The Criminal Code makes it a criminal offence to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) and murder (Article 450). 85. For all these offences, complaints may be lodged, pursuant to Articles 151 and 153 of the Criminal Procedure Code, with the public prosecutor or local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Criminal Procedure Code. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 86. The relevant provisions of Law No. 2559 on the Duties and Powers of the Police (Polis Vazife ve Selahiyet Kanunu), enacted in 1934, read as follows: The police may use firearms in the event of: (a) Self defence, ... (h) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police.” “In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of their threatening to attack or carrying out an attack, the police may use violence to subdue these actions. Use of violence refers to the use of bodily force, physical force and all types of weapons specified in the law and it gradually increases according to the nature and level of resistance and attack in such a way as to restore calm. In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used are determined by the commander of the intervening force.” 87. Section 17 of the Regulation on the Duties and Powers of the Police (Polis Vazife ve Selahiyet Nizamnamesi) provides: “Pursuant to Article 16 of the Law on the Duties and Powers of the police, police officers are entitled to use firearms. However recourse to firearms arms should be limited to cases when all other means remain ineffective. In this connection, it should be recalled that the police should not aim to kill but to capture the accused person(s) with minimum physical injury, and should try to avoid using firearms in crowded areas.” 88. According to Part A paragraph 13 of Resolution 690 on the Declaration on the Police adopted by the Parliamentary Assembly of the Council of Europe in 1979, “police officers shall receive clear and precise instructions as to the manner and circumstances in which they may make use of arms”. 89. Article 6 § 1 of the International Covenant on Civil and Political Rights provides: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” 90. In this connection, the Human Rights Committee noted the following (see General Comment no. 6, Article 6, 16th Session (1982), § 3): “The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.” 91. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (“UN Force and Firearms Principles”) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Paragraph 1 of the Principles states that Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials. In developing such rules and regulations, Governments and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review. Pursuant to paragraph 2, the Governments undertake to develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of the means capable of causing death or injury to persons. For the same purpose, it should also be possible for law enforcement officials to be equipped with self-defence equipment such as shields, helmets, bullet-proof vests and bullet-proof transport, in order to decrease the need to use weapons of any kind. Paragraph 5 of the Principles provides, inter alia, that law enforcement officials shall “act in proportion to the seriousness of the offence and the legitimate objective to be achieved”. In accordance with paragraph 7, “governments shall ensure that the arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law”. Paragraph 9 foresees that “law enforcement officers shall not use firearms against persons except in self-defence or the defence of others against the imminent threat of death or serious injury... In any event, the intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”. Paragraph 11 (b) states that national rules and regulations on the use of firearms should “ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm”. In paragraphs 13 and 14 the following Principles are adopted for policing unlawful assemblies: “In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.” “In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in Principle 9.” 92. Furthermore, Article 3 of the United Nations Code of Conduct for Law Enforcement Officials, adopted by the General Assembly resolution on 17 December 1979, reads: “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty”. 93. In December 1998, Amnesty International further adopted ten basic human rights standards for law enforcement officials. The relevant standards read as follows: “Do not use force except when strictly necessary and to the minimum extent required under the circumstances.” “Avoid using force when policing unlawful but non-violent assemblies. When dispersing violent assemblies, use force only to the minimum extent necessary. ” “Lethal force should not be used except when strictly unavoidable in order to protect your life and others.”