CASE OF ATAYKAYA v. TURKEY
Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Respondent State to take measures of a general character (Article 46-2 - Legislative amendments);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award
Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano
5. The applicant was born in 1951 and lives in Diyarbakır. He is the father of Tarık Ataykaya, born on 25 September 1983, who died on 29 March 2006. A. Incident of 29 March 2006 6. Following the death of fourteen members of the PKK (Kurdistan Workers’ Party, an illegal armed organisation) in an armed clash on 24 March 2006, many illegal demonstrations took place in Diyarbakır between 28 and 31 March 2006, during which a number of demonstrators were killed. According to the Government, some 2,000 individuals took part in those demonstrations, in which the police headquarters was bombarded with stones, sticks and petrol bombs, with the police and their vehicles coming under attack around the city. It was reported that, during those incidents, nine people died and over 200 members of the police force and 214 higher-ranking officers, a doctor, a nurse, two journalists and an ambulance driver were wounded. Similarly, a number of offices and public buildings, including the school of medicine of Dicle University and police premises, were damaged. 7. On 29 March 2006, at around 13.30 p.m. to 2 p.m., on leaving his workplace, Tarık Ataykaya found himself in the middle of a demonstration. The Government accepted the argument that Tarık Ataykaya had not taken part in the demonstration but had just been passing by, and explained that the police had fired a large number of tear-gas grenades to disperse the demonstrators. Tarık Ataykaya was struck on the head by one of the grenades and died a few minutes later. 8. On 30 March 2006, at 11.15 a.m., an autopsy was carried out at the public hospital of Diyarbakır. The report’s conclusions read as follows: “1. Death was caused by a haemorrhage and brain damage inflicted by a firearm projectile (tear-gas grenade – gaz fişeği). 2. The characteristics of the projectile’s point of entry show that it had not been fired from a short distance ...” 9. On 3 April 2006, I.D., an eyewitness and colleague of Tarık Ataykaya, went with M.S.D., another eyewitness and colleague of the latter, to the office of the Human Rights Association in Diyarbakır. I.D. stated in particular as follows: “... On 29 March 2006, at around 1.30 p.m. to 2 p.m., we closed the workshop with Tarık Ataykaya, one of the workers, and returned home on foot. We saw tanks go past. People were very worried. Six or seven members of the security forces, armed and wearing the uniform of special teams (they were wearing special military uniforms with mixed colours, they were not ordinary policemen or soldiers), arrived. They started shooting at random. There was a great pandemonium. While we were running we heard gunfire ... We saw Tarık Ataykaya fall to the ground unconscious (the security force personnel were firing with one knee on the ground and taking aim. That means they were not firing in the air but towards people). ... I realised that [Tarık Ataykaya] was wounded in the head. M.S.D. also realised this. We carried Tarık Ataykaya to an empty space near a building and called an ambulance ...” 10. Following a request by the Diyarbakır public prosecutor’s office on 4 April 2006, a forensic report was drawn up on 12 April 2006 by the presidency of the criminal investigation department’s forensic laboratories attached to the Diyarbakır police headquarters. It showed that the object extracted from Tarık Ataykaya’s head was a plastic cartridge (muhimmat) from a tear-gas grenade of type no. 12. The report also stated that the cartridge did not bear any characteristic markings from which the firearm in question could have been identified. B. Administrative and criminal investigations 1. The applicant’s complaint 11. On 19 April 2006 the applicant filed a criminal complaint. Referring to the statements of I.D. and M.S.D. to the Human Rights Association in Diyarbakır (see paragraph 9 above), he asked the public prosecutor of Diyarbakır to identify the police officer who had fired at his son and to bring criminal proceedings against him for murder. He also asked that the object extracted from the deceased’s head be examined by a panel of experts from the forensic institute. 2. Attempts by the public prosecutor’s office to determine the identity and number of members of the security forces authorised to use grenade launchers 12. On 3 May 2006 the Diyarbakır public prosecutor’s office responsible for investigating organised crime declined jurisdiction to examine the case. It stated, inter alia, as follows: “... the autopsy carried out on the deceased showed that death had been caused by a cartridge striking [the deceased’s head]. [Subsequently], the forensic report established that this cartridge came from a tear-gas grenade of type no. 12, a type used by the security forces ... Consequently, the investigation must be carried out by the public prosecutor [responsible for investigating ordinary crimes].” 13. On 23 May 2006 the public prosecutor of Diyarbakır dealing with the case, following the decision to decline jurisdiction on 3 May 2006, sent a letter to the Diyarbakır police headquarters. He asked for information on the police units which had been equipped with tear-gas grenade launchers during the incident of 29 March 2006 and for the identification numbers of the personnel who had used them. However, it can be seen from the answers given by the Diyarbakır police headquarters, as summarised below, that it was not possible to establish with certainty the identity or number of all the members of the security forces who had been authorised to use that type of weapon. 14. First, in June 2006, the Diyarbakır police informed the Diyarbakır public prosecutor that during the incident in question three police officers from the special forces (özel harekat), whose identification numbers were indicated in the letter, had used grenade launchers in order, according to them, to disperse demonstrators who had been throwing stones and petrol bombs at the security forces. 15. In a letter of 13 July 2006 the head of the Anti-Terrorist Branch of the Diyarbakır police informed the Diyarbakır public prosecutor that it had not been possible to identify the individuals responsible for the death of Tarık Ataykaya. 16. On 30 October 2006 the Diyarbakır public prosecutor asked the Diyarbakır police headquarters to inform him of the positions to which the three police officers concerned had been assigned on the date of the incident in question. 17. On 1 December 2006 a document concerning the assignment of the three police officers was added to the file. It showed that these officers had been assigned to various zones during the incident. 18. In a letter of 10 April 2007, the head of the Anti-Terrorist Branch of the Diyarbakır police in turn informed the Diyarbakır public prosecutor’s office that twelve tear-gas grenade launchers had been listed in the names of twelve officers of the special forces, that those officers had not been posted to Goral avenue (near the site of the incident) and that, in the course of the incident, those teams had been assigned to various zones on the instructions of the police chiefs. In addition, it stated that eleven other police officers of the Rapid Response Force (çevik kuvvet) had used grenade launchers and that they had been assigned to different zones during the incident. He lastly concluded that grenade launchers had been used by a total of twenty-three police officers attached to the Anti-Terrorist Branch. 3. Testimony obtained by the public prosecutor’s office 19. On 1 November 2006 the applicant was heard by the public prosecutor’s office. He requested the identification and punishment of those responsible for his son’s death. 20. On 14 February 2007, B.A., one of the three police officers whose identification numbers had been communicated previously (see paragraph 14 above), gave evidence to the public prosecutor’s office. He stated that, on the day of the incident, some 500 police officers and soldiers had used tear-gas grenade launchers and that, if Tarık Ataykaya had died as a result of a tear-gas grenade fired by the security forces, any one of those 500 police officers and soldiers could have fired it. He added that, during the incident, some 4,000 to 5,000 tear-gas grenades had been used by police officers from the special forces in order to disperse the demonstrators. 21. On 5 November 2007 the applicant was again heard by the public prosecutor’s office. He repeated his request for the identification and punishment of those responsible for his son’s death. 22. On 15 November 2007, I.D., an eyewitness and a colleague of Tarık Ataykaya, gave evidence to the public prosecutor’s office. He stated in particular as follows: “... On 29 March 2006 we were working with Tarık Ataykaya in the joinery workshop on Medine boulevard in Bağlar. Around noon, a large crowd had gathered on Medine boulevard because of the demonstrations ... We had to close the workshop. There were about 50-60 demonstrators and 5-6 police officers, wearing camouflage clothing and balaclavas. As we were locking up the workshop, I saw that masked policemen, with one knee on the ground (yere diz çökerek), were firing guns unremittingly towards the demonstrators. Tarık Ataykaya was with us. He did not take part in the demonstrations. After leaving the workshop Tarık Ataykaya went back there because the demonstrators were heading towards us. [At that moment], Tarık Ataykaya, hit by a bullet fired by one of the policemen, fell to the ground, which means that he was shot by police gunfire. Supporting him, we took him to an empty space near a building and called an ambulance. Tarık Ataykaya had been struck on the head and small pieces of his brain had come out. We took Tarık Ataykaya to hospital with a pick-up truck as there was no sign of the ambulance. As the policemen were masked, I am unable to identify them.” I.D. added that, on the day of the incident, some of his friends had said that they had seen footage of the incident, probably on the private television channel NTV. 23. On the same day, M.S.D., an eyewitness and colleague of Tarık Ataykaya, also gave evidence to the public prosecutor’s office. He confirmed I.D.’s statements. 24. Also on 15 November 2007, R.K., a resident of the district where the incident had taken place was interviewed by the Diyarbakır public prosecutor’s office. She stated in particular: “... on 29 March 2006, at my home on Medine boulevard, I was waiting for my son to come home from school. It was about 1 p.m. The demonstrations had begun in the streets. My son was late and I went to look for him on Medine boulevard. I saw my son coming back from school. Tarık Ataykaya, with three of his colleagues, had closed the workshop and I think he was on his way home. The street was full of people. The policemen were advancing in our direction. They were firing their guns continuously towards the demonstrators. When I got home with my son, I saw that a masked policeman, with one knee on the ground, was firing towards Tarık Ataykaya, who had his back to the policeman. I saw Tarık Ataykaya fall to the ground. He was carried to the door of a building. An ambulance was called. When I checked Tarık Ataykaya’s heart, I realised that he was dead. The policemen who had come towards us were masked, so I would not be able to identify them. As my attention was totally focussed on Tarık Ataykaya, I did not see what the policeman was doing. The individuals present during the incident were I.D. and M.S.D. ...” 25. On 21 January 2008 the Diyarbakır public prosecutor asked the Ankara public prosecutor’s office to take testimony from police officers N.O. and H.A., to establish whether they had been present on Medine boulevard or Goral avenue during the incident. 26. On 18 February 2008 N.O. and H.A. were interviewed by the public prosecutor’s office. They stated that they had not been assigned to those two places at the time the incident had taken place and had not witnessed it. 4. Administrative investigation 27. In the meantime, in a letter of 2 November 2007, the public prosecutor asked the Diyarbakır provincial governor’s office to open an administrative investigation and to transmit the relevant file to the public prosecutor’s office. He pointed out that in the context of that investigation it would be appropriate to take statements from the eleven police officers of the Rapid Response Force and the three police officers of the special forces. 28. It can be seen from the file that an administrative investigation was opened by the Diyarbakır provincial governor’s office in order to determine the responsibility of fourteen police officers in the incident. Following that investigation, on 30 January 2008, the police disciplinary board of the provincial governor’s office made up of the governor, the head of the health department and three police superintendents, decided not to impose any sanction on the police officers who had used tear gas during the demonstration of 29 March 2006. The board made the following observations in particular: “... It is appropriate to close the case having regard [to the following points:] it was a major incident. According to the witness statements, the face of the officer who fired the tear-gas grenade which caused the death of the deceased was not visible because he was wearing a balaclava. All officers have undergone training in which they learned that the firing [of grenades] must be carried out in such a way as not to hit the target directly. There is no document, evidence, sign or circumstantial evidence (emare) from which it could be established that the officers under investigation committed the offence in question ...” 5. Permanent search notice 29. On 3 April 2008 the Diyarbakır public prosecutor’s office issued a permanent search notice for the purposes of tracing the person who fired the grenade in question, with effect until 29 March 2021, when the offence would become time-barred. Referring, inter alia, to the decision taken by the police disciplinary board to close the case, it found in particular as follows: “... The autopsy carried out on 30 March 2006 showed that the death was caused by a tear-gas grenade of type no. 12 which struck [the deceased’s head] ... This projectile was used by the forces on duty at the time of the incident ... ... Under Article 6 appended to Law no. 2559 on the duties and powers of the police, the police are entitled to use physical force, material force and weapons in order to immobilise offenders, in a gradual manner and in proportion to the particularities and degree of resistance and aggressiveness of the offender. In those circumstances, it will be for the superior to determine the degree of force to be used ... [Moreover], under Article 24 of the Criminal Code, a person who complies with statutory obligations cannot be punished and a person who obeys an order given by a competent authority in the exercise of its power cannot be held responsible for his action. In the registers of the security forces, there is no information concerning the manner in which the death occurred. ... The deceased Tarık Ataykaya found himself among the demonstrators during the social demonstrations which took place on 29 March 2006 in the centre of Diyarbakır, either because he was taking part in those demonstrations or because he had just left the workshop where he was working. During the incidents, demonstrators were clashing with the police and throwing sticks and stones. The police intervened against the demonstrators using tear-gas grenades and rubber bullets. The casing of a tear-gas grenade thrown against the moving demonstrators struck the head [of Tarık Ataykaya] and caused his death. This incident is not mentioned in the police documents. The witnesses to the incident stated that they could not identify the person who had fired it because his face was masked. It was not possible to determine which weapon had been used. The casing did not bear any characteristic mark of the weapon from which it was fired. Even though there is no tangible evidence to show that the person who fired was definitely a police officer, as no register suggested that other armed individuals had used tear-gas grenades [it can be concluded that] this grenade was probably used by the security forces which were operating at that time. [However,] it is not possible to identify the perpetrator, whether from the autopsy report, the statements of the complainant and witnesses, the forensic report or the case file as a whole ...” This decision was notified to the applicant on 17 April 2008.