CASE OF KASAP AND OTHERS v. TURKEY
Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić
5. The applicants were born in 1958, 1974, 1979, 1982 and 1974 respectively and live in Adana and Mersin. 6. Murat Kasap was the first applicant’s son and the other applicants’ brother. 7. At around 8.30 p.m. on 29 September 2006, Murat Kasap and his friend R.S. were riding on a motorcycle in the Adana district. When they realised that two police officers wanted them to stop, they panicked because they did not have driving licences. They started driving away and the two officers, I.H.Y. and H.B., gave chase until Murat Kasap and R.S. crashed into a wall. 8. Immediately after the accident, H.B. arrested R.S. but Murat Kasap started to run away, followed by the officer I.H.Y. 9. Meanwhile, R.S. made an attempt to escape. In order to stop him from running away, the officer who stayed with him fired two shots in the air. R.S. told the officer that there was no need to open fire, and explained that Murat Kasap was running away because he had panicked. If he were to be allowed to telephone him, his friend would give himself up. He also stated that he knew where Murat Kasap lived. 10. I.H.Y. heard the shots fired by his colleague and thought that Murat Kasap might have a gun. According to his statement, he ordered Murat Kasap to stop and fired three shots in the air. While he was running after Murat Kasap, he lost his balance and his pistol went off. The bullet hit the ground, ricocheted, and entered the back of the body of Murat Kasap, who died on the way to hospital. 11. The incident was notified to the Ceyhan public prosecutor, who immediately gave instructions for security precautions to be taken. A crime scene examination team arrived at the site of the incident and encircled the crime scene with barrier tape. 12. At 9.15 p.m. on the same night, a prosecutor went to the site of the incident. The prosecutor questioned the eyewitness and prepared an incident report. 13. On the same night, R.S. was questioned by two police officers at the Ceyhan Police Headquarters. He described the incident but was not aware of the death of Murat Kasap. 14. On the same night at 10.50 p.m., the guns of the police officers were seized as evidence. 15. At 12.45 a.m. on the same night, a post-mortem examination was carried out on the body of Murat Kasap. The public prosecutor and the doctor observed a bullet entry wound on his back. The doctor was of the opinion that a full autopsy was needed to establish the cause of death. After the examination, Murat Kasap’s clothes were seized in order to be able to determine the exact shooting range. 16. At 2.15 a.m. on the same night, the public prosecutor questioned the officer H.B. at a police station. 17. According to a crime scene investigation report which was drawn up by two other police officers under the supervision of the public prosecutor, six bullet cases and a bullet jacket were found at the site of the incident. 18. On 30 September 2006 at 7.00 a.m. a complete examination of the motorcycle was carried out. 19. On 30 September 2006 a full autopsy was carried out on Murat Kasap’s body. The public prosecutor and the experts observed that the cause of death was internal bleeding caused by the entry of a deformed bullet. 20. On the same day, the officer I.H.Y. was questioned by the Ceyhan public prosecutor. According to his statement, the death of Murat Kasap was the result of an accident. He maintained that he had not shot Murat Kasap intentionally but that his pistol had gone off accidentally when he lost his balance. 21. Also the same day, and after having been questioned by the Ceyhan public prosecutor, the officer I.H.Y. was brought before the Ceyhan Magistrates’ Court (Sulh Ceza Mahkemesi), where he pleaded not guilty and reiterated the statement he had made before the public prosecutor earlier in the day. 22. Also on 30 September 2006, the Ceyhan Magistrates’ Court ordered I.H.Y.’s detention. 23. On 2 October 2006, the applicants found another bullet case at the site of the incident and handed it to the public prosecutor. 24. On 4 October 2006 the parents of Murat Kasap made an official complaint to the Ceyhan public prosecutor and asked for those responsible for the death of their son to be punished. 25. On 1 November 2006 the Ceyhan public prosecutor filed an indictment with the Ceyhan Criminal Court of First Instance and charged the officer I.H.Y. with the offence of causing death by negligence. 26. On an unspecified date, Murat Kasap’s parents joined the criminal proceedings against the officers as civil parties (müdahil). 27. On 29 November 2006 the Ceyhan Criminal Court of First Instance considered the possibility that the officer I.H.Y. might have acted with intent to kill and decided that that would necessitate a reclassification of the offence attributed to him. It therefore decided to forward the case file to the Ceyhan Assize Court, which has jurisdiction to deal with such offences. 28. Following an objection by the officer I.H.Y., on 30 November 2006 the Ceyhan Assize Court ordered I.H.Y.’s release pending trial. 29. On 19 January 2007 the Ceyhan Assize Court declined jurisdiction to examine the case on the grounds that the offence attributed to the officer I.H.Y. was causing death by negligence. It decided that the Ceyhan Criminal Court of First Instance had jurisdiction over this offence. The Assize Court also decided to transfer the case file to the governor’s office for authorisation to be granted in order to prosecute the officer. 30. The parents of Murat Kasap lodged an objection against the decision of non-jurisdiction and on 19 March 2007 their objection was accepted by Osmaniye Assize Court. 31. On 29 August 2007 the Ceyhan governor’s office decided not to grant authorisation for the prosecution of I.H.Y. 32. On 9 October 2007 Murat Kasap’s parents lodged an objection against the governor’s decision. 33. On 14 November 2007 the Adana Regional Administrative Court quashed the governor’s decision and forwarded the case file to the Ceyhan public prosecutor. 34. On 11 December 2007, the Ceyhan public prosecutor filed an indictment with the Ceyhan Assize Court and charged the officer I.H.Y. with the offence of murder with dolus eventualis (“olası kast”). 35. On an unspecified date, the Ceyhan Assize Court concluded that further ballistic examinations were necessary to establish how the trigger had been pulled. On 20 October 2008 the Forensic Medicine Institute issued a report, in which the experts noted that the pistol could only have been fired if pressure of between two and five kilograms had been applied to the trigger. 36. According to the Forensic Medicine Institute’s report dated 12 January 2009, both the bullet cases and the bullet jacket found at the crime scene came from the accused police officer’s pistol. 37. On 30 June 2009 the Ceyhan Assize Court found that, although the officer I.H.Y. had not attempted to kill Murat Kasap, he had used disproportionate force and caused his death by negligence. The Assize Court sentenced the officer to two years’ imprisonment but then reduced the sentence to one year and eight months’ imprisonment. Moreover, having regard to Article 231 of the Code of Criminal Procedure, it suspended the pronouncement of the judgment. 38. On an unspecified date, the first applicant submitted a petition to the High Disciplinary Council of the Ministry of the Interior asking for the officer I.H.Y. to be dismissed from his job as a civil servant. 39. By a letter dated 15 July 2009 the first applicant was informed that I.H.Y. had been suspended from his job for a period of ten months. 40. On 3 July 2009 the applicants lodged an objection against the Ceyhan Assize Court’s decision of 30 June 2009. 41. The objection was dismissed by the First Division of the Osmaniye Assize Court on 5 October 2009. 42. Meanwhile, on 20 July 2007 Murat Kasap’s parents had brought a case before the Adana Administrative Court against the Ministry of the Interior, requesting 200,000 Turkish liras (TRY) in compensation for the death of their son. 43. On 17 November 2009 the Adana Administrative Court allowed the claim in part and awarded Murat Kasap’s parents TRY 6,975 (approximately 3,150 euros (EUR) at the time) for pecuniary damage. The administrative court also awarded them TRY 20,000 (approximately EUR 9,000 at the time) in respect of non-pecuniary damage. 44. On an unspecified date, Murat Kasap’s parents lodged an appeal against the Adana Administrative Court’s decision. The examination of the appeal is still continuing before the Supreme Administrative Court. 45. After the Government had been notified of the present case, on 7 March 2013 the Human Rights Department of the Ministry of Justice applied to the General Directorate of Criminal Affairs of the Ministry of Justice requesting that a written order be issued pursuant to Article 309 of the Criminal Code to quash the judgment of the Ceyhan Assize Court dated 30 June 2009. As is apparent from the documents submitted to the Court, no such order was issued by the Ministry. 46. The suspension of the pronouncement of the judgment is regulated by Article 231 of the Code of Criminal Procedure, the relevant paragraphs of which read as follows: “... (5) If the accused, after being tried on the charges against him, is sentenced to a judicial fine or to imprisonment for less than two years, the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment means that the judgment does not have any legal consequences for the offender. (6) Suspension of the pronouncement of the judgment may be decided provided that; a) the offender has never been found guilty of a wilful offence; b) the court is convinced, taking into account the offender’s personality traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; and c) the damage caused to the victim or to society has been repaired by way of restitution or compensation. ... (8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years. ... (10) If the offender does not commit another wilful offence and abides by the obligations set out in the supervision order, the judgment of which the pronouncement has been suspended shall be annulled and the case discontinued. (11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court shall impose the sentence. Nevertheless, the court may assess the offender’s situation and may decide that a certain part of the sentence, up to the half of the total sentence, will not be executed. If the conditions so permit, the court may also suspend the execution of a sentence of imprisonment or commute it to other optional measures. (12) An objection may be lodged against the decision to suspend the pronouncement of the judgment 47. Article 309 of the Code of Criminal Procedure, concerning references to the Court of Cassation by written order of the Ministry of Justice (Kanun yararına bozma), provides: “Where the Ministry of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, it may issue a formal order to the Chief Public Prosecutor requiring him to ask the Court of Cassation to set aside the judgment concerned ...”