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Press release issued by the Registrar
CHAMBER JUDGMENT
?HSAN B?LG?N v. TURKEY
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of ?hsan Bilgin v. Turkey (application no. 40073/98).
The Court held unanimously
· that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights on account of the death of the applicant’s father;
· that there had been a violation of Article 2 of the Convention on account of the failure to conduct an effective inquiry into the death of the applicant’s father; and
· that there had been a violation of Article 13 (right to an effective remedy).
Under Article 41 (just satisfaction) of the Convention, the Court awarded, for pecuniary and non-pecuniary damage arising from the violations found under Article 2 of the Convention, 9,000 euros (EUR) to the deceased’s wife, EUR 6,000 to his daughter and EUR 4,000 to each of his other six adult children, including the applicant. It further awarded EUR 5,000 to the applicant, for his own non-pecuniary damage arising from the violation of Article 13 of the Convention, and EUR 3,000 for costs and expenses. (The judgment is available only in French.)
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1.Principal facts
The applicant, ?hsan Bilgin, is a Turkish national who was born in 1965 and lives in Batman (Turkey). In August 1994 his father, Mehmet Mihdi Bilgin, then aged 52, was killed by village guards.
According to the applicant, his family had moved into the centre of Batman after the destruction of their house and the hamlet where they used to live (Dutveren, in Batman province) by the security forces in 1992. His father had not been able to get used to his new environment and had got into the habit of wandering along the roads and in the surrounding villages.
On 27 August 1994, at about 11 p.m., Mihdi Bilgin was shot down by village guards in the area between the villages of Be?iri and Be?p?nar. According to the incident report drawn up that evening, the guards in the Be?p?nar guard post (mevzî)2 opened fire on a person who died after being taken to hospital in Batman. In all, 17 spent cartridges were found on the spot.
An investigation was immediately opened by the Be?iri public prosecutor. On the day after the incident the doctor who examined the body noted that Mr Bilgin had been hit by two bullets which had damaged his liver, punctured his intestines and pancreas and left bullet wounds in his left arm and both ankles; he concluded that the cause of death had undoubtedly been the bleeding caused by the destruction of the deceased’s liver, pancreas and intestines, and that it was not necessary to carry out a full autopsy.
In April 1995 three of the village guards were questioned as witnesses. They explained that they had thought they were dealing with a terrorist, especially as on the day before the incident they had been informed of the threat of an attack by a group of PKK3 terrorists. Accordingly, after calling on the suspect to stop, they had opened fire on him, shooting to kill. They had later discovered that what they thought was a rifle was in fact only a stick. Other guards stationed at observation posts further from the incident were also questioned during the investigation and confirmed that they had also opened fire on the suspect.
In June 1995 ten village guards were charged with intentional homicide and committed for trial in the Assize Court. It transpired during the proceedings that among other irregularities some guards had picked up cartridge cases from the scene of the shooting and mixed them with other spent cartridges. As a result, six gendarmes and the commander of the village guards were prosecuted for submitting a false incident report, concealing evidence, abusing their office and obstructing the criminal investigation.
In September 1997 the Assize Court stayed the proceedings against the village guards on the ground that they had committed an offence in the performance of their duties and should therefore be tried under the law governing the prosecution of civil servants. In August 1998 the Be?iri administrative council decided that the guards had no case to answer. In addition, in October 1998, the six gendarmes and the commander of the village guards were acquitted of obstructing the course of justice, for lack of evidence.
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2.Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 29 December 1997. It was transmitted to the Court on 1 November 1998 and declared partly admissible on 29 August 2000 and admissible on 28 January 2003.
Judgment was given by a Chamber of 7 judges, composed as follows:
Jean-Paul Costa (French), President,
András Baka (Hungarian),
Ireneu Cabral Barreto (Portuguese),
Riza Türmen (Turkish),
Mindia Ugrekhelidze (Georgian),
Antonella Mularoni (San Marinese),
Danut? Jo?ien? (Lithuanian), judges,
and also Sally Dollé, Section Registrar.
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3.Summary of the judgment4
Complaints
The applicant alleged that his father had been killed by village guards, who had resorted unnecessarily to the use of force, and that the investigation subsequently conducted had not been effective. He relied on Articles 2 and 13 of the Convention.
Decision of the Court
Article 2
The death of Mihdi Bilgin
The Court noted, among other things, that apart from the two bullets which struck the victim and the one allegedly fired into the air, 14 bullets had been fired in a panic reflex. While this had doubtless been a very human reaction, there had been none of the precaution in the use of firearms that could legitimately be expected from those responsible for law enforcement in a democratic society, even when they were engaged in the immobilisation of dangerous terrorists. The guards’ conduct remained unjustifiable, even in the kind of context sometimes called “the heat of battle”, given that there had been no shots in their direction or any other comparable threat from the suspect. In all probability their use of lethal force had been based on nothing more than fear, a shadow and suppositions.
Secondly, the Court observed that it was difficult to imagine how the victim could have run a distance of nearly 75 metres after being hit in both ankles. It was also surprising that the guards had been able to aim at and hit with a single bullet both ankles of a running man, a moving target some 80 metres away, when they had been unable to tell the difference at ten metres between a man wandering around and a dangerous militant, or between a stick and a rifle.
Apart from these numerous flagrant contradictions in the version of the events given by the Turkish authorities, the Court noted that the file did not contain any indication of instructions, whether written or oral, given to village guards in the context of their duties, particularly with regard to the arrest of suspects. Nor did it contain any information about the equipment the village guards had, apart from the electric torches they used to look at the victim as he lay on the ground. Although this lack of logistical backup and rules of engagement highlighted the alarm felt by the guards in the face of the supposed danger, and thus seemed to plead in their favour, it revealed above all serious shortcomings in the preparation and supervision of the acts of State agents who were armed and authorised to use lethal force.
That being the case, the Court held that there had been a violation of Article 2 on account of the death of the applicant’s father.
The investigation conducted into the death of Mihdi Bilgin
The Court noted at the outset various shortcomings and unjustified delays in the investigation of the case. However, it considered that it was not required to dwell on these failings, since for an investigation into an alleged unlawful killing by State agents to be effective it was above all necessary for the persons in charge of the investigation to be independent of those implicated.
In the present case, the Court noted that the Be?iri district commissioner’s office, to which the case had been referred following the decision to stay the proceedings, had instructed an investigating officer to inquire into the killing of Mihdi Bilgin by the village guards. The investigator, who was a gendarmerie officer, was subordinate to the same local hierarchy as the guards whose conduct he was required to investigate. In addition, the Be?iri administrative council, when ruling on the report submitted by the investigating officer, endorsed the version of events it contained without expressing the slightest doubt about his findings or his conclusion.
Moreover, the decision not to prosecute the guards had been taken while the proceedings against the gendarmes in charge of the investigation were still pending. In view of the important connection between the two sets of proceedings and the serious and disturbing nature of the confirmed statements which had led to the second of them, it would have been desirable for the administrative council to wait for the Assize Court’s verdict.
The Court accordingly held that there had been a violation of Article 2 on account of the ineffectiveness of the investigation into the applicant’s father’s death.
Article 13
The Court considered that the applicant had been deprived of an effective remedy, in that he had not been able to have the identity of those responsible for his father’s death established, and could not therefore claim appropriate compensation. It accordingly held that there had been a violation of Article 13.
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The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).
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1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. 2 The word mevzî has been translated variously as “observation post”, “post” or “trench” in the text. 3 Workers’ Party of Kurdistan. 4 This summary by the Registry does not bind the Court.