ERCAN AND OTHERS v. BULGARIA
Inadmissible
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
1. The applicants, Ms Derya Ercan, Ms Kardelen Ercan, Ms Nazmiye Ercan, Mr Zeki Ercan, Ms Nurcan Taçar, Ms Fatma Tutuk, Mr Ali Ercan, Mr Engin Ercan and Mr Zayim Ercan are Turkish nationals who were born in 1982, 2001, 1936, 1961, 1971, 1963, 1959, 1970, and 1965 respectively and live in Kırklareli, Turkey. They were represented before the Court by Mr M. Demir, a lawyer practising in Istanbul. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice. 3. The Turkish Government, who intervened in the case in accordance with Article 36 § 1 of the Convention, were represented by their Agent. 4. The applicants are relatives of Yalçın Ercan, who died on 17 April 2008 while resisting arrest by Bulgarian coastguards. Mr Ercan was the first applicant’s husband, the second applicant’s father, the third applicant’s son and the remaining applicants’ brother. He was working as a fisherman off his home village of Beğendik, which is located on the seafront at the north-westernmost point of Turkey, close to the border with Bulgaria. 5. Early in 2008 the Regional Border Service in Burgas (“the RBS”) registered numerous incursions into Bulgarian waters in the Black Sea by Turkish fishermen’s vessels. In all cases it informed the Turkish border authorities, and the problem was discussed during a bilateral meeting on 13 February 2008. Data collected at the observation and radiolocation station in the border village of Rezovo showed that one of the most frequent trespassers was the fishing vessel Ömer Reis-2 domiciled at the mouth of the Rezovska River (Mutludere). 6. By order of the Bulgarian Minister of Agriculture the fishing of turbot in Bulgarian territorial waters was prohibited between 15 April and 15 June 2008. In order to prevent possible poaching by Turkish fishermen, on 14 April 2008 the head of the RBS detached to the border area a “Mobile Border Control Group”, which included four coastguards under the command of Chief Inspector N.K. 7. At 6.39 a.m. on 17 April 2008 the observation station in Rezovo registered a fishing vessel, which had penetrated about one nautical mile into Bulgarian territorial waters. The fishermen on board were observed pulling fishing nets out of the water; it appeared that the nets had been placed there earlier. 8. At 6.50 a.m. the Mobile Border Control Group was sent to intercept the vessel. Once the officers approached it, on board an inflatable motorboat, they recognised it as the Ömer Reis-2. There were three people on board – Yalçın Ercan and two of his brothers, Engin and Zayim Ercan (the eighth and ninth applicants). 9. When they spotted the coastguard boat, Yalçın and Zayim Ercan, who were on deck, started cutting off the nets, and Engin Ercan, at the helm, directed the Ömer Reis-2 towards Turkish territorial waters. The coastguard boat caught up with their vessel. Using gesture, and once they were nearer, vocally in Bulgarian and English, the coastguards gave orders to the fishermen to stop. The Ömer Reis-2 did not stop. Instead, Ergin Ercan steered it towards the coastguard boat, which was smaller, attempting to overturn and sink it. At the same time, using long wooden boathooks, and once the two boats were close enough, Yalçın and Zayim Ercan repeatedly attempted to hit the coastguards and puncture their boat’s inflatable sides. 10. On seeing this, Chief Inspector N.K. gave his officers the order to fire warning shots. More than twenty shots were fired. Although they were aimed into the air and not at anyone, some of them hit the Ömer Reis-2’s port side and the cabin at the helm. They did not injure anybody on board. 11. As this did not make the Ömer Reis-2 stop, and seeing that its crew continued behaving aggressively, attempting to puncture and sink the coastguard boat, Chief Inspector N.K. ordered his officers to board the fishing vessel. 12. The coastguards were wearing armoured life jackets, which did not permit them to also wear holsters. That is why, upon boarding the Ömer Reis-2, they attached their weapons, Scorpio sub-machine guns, to special metal rings on their jackets. As ordered by Chief Inspector N.K., the guns had their safety catches on. None of the guards had a gun in their hand. 13. Officer M.T. was the first one to board the fishing vessel, followed by Officer N.P. Their task was to immobilise and handcuff Yalçın Ercan. They managed to wrestle him to the ground, after which Officer N.P. advanced towards the helm to attempt to stop the vessel. Officer M.T. and Yalçın Ercan continued struggling on a pile of fishing nets. On several occasions during the fight Yalçın Ercan attempted to grab Officer M.T.’s gun, which had come unfastened from the ring on his jacket and was hanging by a short cord. Finally, Officer M.T. managed to immobilise Yalçın Ercan and handcuff him. By that time another officer, Z.P., had immobilised Zayim Ercan, and Officer N.P. was struggling with Ergin Ercan at the helm, attempting to stop the vessel. Chief Inspector N.K. had remained in the coastguard boat. At this point Chief Inspector N.K. received information that the two boats were about to enter Turkish territorial waters, and ordered his men to release the fishermen. 14. While Officer M.T. was removing Yalçın Ercan’s handcuffs, the latter made sudden abrupt movements, pushing the officer back on to the fishing nets. M.T. immediately jumped forward. At the exact moment when he put his hands on Yalçın Ercan, three gunshots were heard. Officer M.T. heard Yalçın Ercan groan and looked at his gun. It was between his legs (he was kneeling), entangled in the fishing nets, its muzzle pointing towards Yalçın Ercan’s back. He took it and saw that it was set at automatic fire. He switched the safety catch back on. He stood up and went to the cabin, where he helped Officer N.P. immobilise Ergin Ercan and stop the fishing vessel. 15. Immediately after that the officers took Yalçın Ercan on to their boat and called Rezovo to say that a man had been injured. Once on land, they transferred Yalçın Ercan into the ambulance which had arrived. However, he died on the way to hospital. 16. Later that day the Ömer Reis-2 was towed by a coastguard cutter to the port of Tsarevo. 17. Criminal proceedings in connection with Yalçın Ercan’s death were opened on 17 April 2008. 18. On the same day the investigator in charge of the case inspected the two boats involved in the incident. It was noted that the Ömer Reis-2 was 7.4 metres long and 2.4 metres wide. Two dark-red stains were found on the deck. There was also a pile of turbot fishing nets; when they were moved, two cartridge cases fell out of them. On the walls of the small cabin at the helm there were eight bullet holes. Another bullet was found embedded in the vessel’s port deck. 19. The coastguard boat was 4.5 metres long and 2 metres wide. Several traces of the impact of hard objects were observed on its left inflatable side. 20. The coastguards who had participated in the operation were interviewed on 17 April 2008. Officer M.T. stated that when the lethal shots were fired he had not initially been aware that they had come from his gun. 21. Officer Z.P. said that after the fatal shots he had seen M.T.’s gun caught in the fishing nets. 22. Officer N.P. stated that before boarding the fishing vessel he had been hit by one of the fishermen with a boathook. He had not heard the shots which had injured Yalçın Ercan because at that moment he had been wrestling with Yalçın’s brother Ergin. He explained that he and his colleagues had been trained to respond to similar situations. Lastly, he said that he was very familiar with Scorpio sub-machine guns. 23. The group’s commander, Chief Inspector N.K., said that he had judged Scorpio sub-machine guns the most appropriate weapons to take for the operation because of their versatility. He explained that all members of the group had also been carrying smaller guns and that in the boat they had had an electroshock Taser. He said that during the operation he had been in constant contact with the observation station in Rezovo and the RBS. He had sought and obtained the RBS’s prior approval before ordering his men to fire warning shots. 24. Officer M.T. was once again examined on 23 June 2008, and Chief Inspector N.K. and Officers N.P. and Z.P. were examined on 2 July 2008. They reiterated the statements they had made earlier. Chief Inspector N.K. said in addition that he had ordered the warning shots because the fishermen were directly endangering his men’s lives. Officer Z.P. explained that he was not very familiar with Scorpio sub-machine guns. He said that he, N.P. and M.T. had found these guns awkward to carry, as it had been impossible to wear holsters and they had had to attach the guns to their jackets. 25. Zayim and Engin Ercan were interviewed on 17 April 2008. They stated that they had not obeyed the coastguards’ order to stop because they believed that they were still in Turkish territorial waters. 26. They were interviewed again on 22 May 2008. Zayim Ercan stated that he and his brother Yalçın had not attempted to resist arrest. Engin Ercan said once again that he believed that the vessel had not left Turkish territorial waters. Once the coastguard boat had approached, he had aimed to prevent a clash with it. He had not known what his brothers were doing in the rear part of the boat. Like his brother Zayim, he stated that the three of them had done nothing to resist arrest. 27. The two officers who had been on duty at the observation station in Rezovo in the early hours of 17 April 2008 were interviewed on 5 May 2008. They explained that they had observed the Ömer Reis-2’s movements, and had kept Chief Inspector N.K. informed of them. They said that they had transferred to the RBS his request to be authorised to order warning shots, had some time later been told by him that a Turkish fisherman had been wounded, and had then called an ambulance. 28. A post-mortem examination of Yalçın Ercan’s body was carried out on 17 April 2008. It found three gunshot wounds, situated close to each other, in the middle part of the back. The bullets had touched the heart, the liver, the lungs and the small intestines, thus causing death. There was another wound on Yalçın Ercan’s head, caused by a hard object, which was unrelated to the cause of death. 29. Zayim and Engin Ercan were examined by a doctor on 22 April 2008. He observed a number of small bruises on their bodies. In addition, Zayim Ercan had a black eye and a small cut close to the left eyebrow. 30. Officer N.P. was examined on 18 April 2008. Both his hands were bruised and swollen. 31. A ballistics report was drawn up on 12 June 2008. It confirmed that the shots which had fatally wounded Yalçın Ercan had been fired by the gun used by Officer M.T., and concluded that they had been fired at a distance of between 30 and 60 cm. A combined medico-ballistic expert report dated 28 August 2008 showed in addition that at the moment of the fatal shots Yalçın Ercan had been lying on his right side, with the upper part of his body bent forwards. The report concluded further that the lethal shots had been fired within a very short time frame. 32. Several reconstructions of the scene of the incident staged on board the Ömer Reis-2 showed that Officer M.T.’s gun could have fired a shot without anyone touching the trigger, if it was entangled in the fishing nets and at the moment when Officer M.T. was thrusting his body abruptly forwards. It was also shown to be possible, when the gun was being rubbed against a human body, for its switch to move to automatic mode. Lastly, it was shown that a shot could also be fired when the participant playing the role of the victim in the reconstruction attempted to grab the gun with his left arm stretched behind his back. 33. On 19 June 2008 the prosecutor in charge of the case brought charges against Officer M.T. for causing death through negligence. 34. On 16 October 2008 he decided to discontinue the criminal proceedings, considering that Officer M.T. had not committed any offence and that Yalçın Ercan’s death had been a fortuitous event. The prosecutor pointed out, in particular, that Officer M.T. had been unable to foresee or prevent the firing of the shots. 35. The first and third applicants (Yalçın Ercan’s wife and mother), with the assistance of their legal representative in Bulgaria, lodged an appeal. They argued that Officer M.T. had acted with criminal negligence. Upon their appeal, on 3 November 2008 the decision of the prosecution was upheld by the Sliven Military Court. However, upon a further appeal by those applicants, on 23 December 2008 the decision was quashed by the Military Court of Appeal, which considered that it had not been sufficiently reasoned and that further evidence needed to be collected. 36. The prosecutor resumed the investigation of the case and in a new decision of 3 July 2009 discontinued the criminal proceedings. On the basis of the evidence described above he concluded that Officer M.T. had not himself pulled the trigger of his gun, and that the lethal shots had been fired when Yalçın Ercan had touched it while wrestling with the officer during his repeated attempts to take hold of the gun, or after the trigger had become entangled in the fishing nets. Either way, Yalçın Ercan’s death had been a fortuitous event, which Officer M.T. could not have foreseen or prevented. He had abided by the relevant safety rules, most notably by switching the gun’s safety catch on before boarding the Ömer Reis-2. It was also significant that Yalçın Ercan and his brothers had violently resisted arrest. 37. The first and third applicants appealed, contesting in particular the conclusion that Yalçın Ercan could have pulled the trigger himself. On 12 October 2009 the Sliven Military Court quashed the prosecutor’s decision, finding that it was not sufficiently reasoned, and remitted the case. 38. Upon an appeal by the prosecution against the Military Court’s decision, on 13 November 2009 the Military Court of Appeal finally upheld the discontinuance of the criminal proceedings. It found that the prosecutor’s decision was well reasoned and that there was no indication that Officer M.T. had committed an offence. It also dismissed the first and third applicants’ argument that Officer M.T. had been negligent because he had not been wearing a holster and, while struggling with Yalçın Ercan, had left his gun hanging in front of him. It pointed out that Officer M.T.’s health and life were in danger at the material time. Furthermore, he could not be held responsible for the fact that his gun had become unfastened from the ring on his jacket. The main responsibility for the incident was to be borne by Yalçın Ercan, who had failed to obey the coastguards’ lawful orders. 39. The bringing of charges against Officer M.T. on 19 June 2008 sparked a wave of protests by nationalists, who called the prosecutor in charge of the case “a traitor” and Officer M.T. “a hero”. Journalists in Burgas created an “initiative committee” in defence of the officer and adopted a declaration, stating that the bringing of charges against him “would have a demotivating effect” on the border police. On unspecified dates in July 2008 this declaration was sent to the Chief Public Prosecutor, the President of the Republic, the Speaker of Parliament, and other bodies. The “initiative committee” also started collecting signatures in support of Officer M.T. According to reports in the local media more than 200,000 people signed the petition. According to the same reports, the mayors of Burgas and Tsarevo and the president of the municipal council of Burgas also signed the document. 40. In July 2008 the municipal council of Burgas made Officer M.T., as well as his colleagues who had participated in the operation of 17 April 2008, honorary citizens of the city. 41. In January 2009, following the Military Court of Appeal’s decision of 23 December 2008 remitting the case for further investigation (see paragraph 35 above), members of Parliament representing the Burgas constituency sent a letter to the Inspectorate of the Supreme Judicial Council, urging it to intervene in the criminal proceedings. Also in January 2009 the local newspaper Chernomorski Far claimed that the President of the Republic had met Officer M.T.’s father and had promised to do whatever was in his power to ensure that his son would not be brought to trial. 42. The Tsarevo District Court, in a judgment of 2 October 2008, upheld by the Burgas Regional Court on 12 January 2009, convicted Zayim and Engin Ercan of disorderly conduct and poaching on 17 April 2008. Zayim Ercan was also convicted of causing a minor bodily injury to Officer N.P., whom he had hit with a wooden boathook. Both brothers were sentenced to one year’s imprisonment, suspended for three years. Zayim Ercan was ordered to pay Officer N.P. 1,000 Bulgarian levs (BGN) in compensation for non-pecuniary damage.