Individual Application

The Facts

The applicant’s brother, who had been searched by police officers in Beyoğlu in 2007, was taken to the police station since drugs had allegedly been found on him. There, he was wounded by a bullet fired by a police officer, and unfortunately died in the hospital where he was taken.

The Beyoğlu Chief Public Prosecutor's Office (prosecutor’s office) launched an immediate investigation into the incident, at the end of which a criminal case was initiated against the suspected officer. At the hearing before the assize court, the applicant’s lawyer claimed that the applicant living in South Africa was the brother of the deceased, and requested that he participate in the proceedings. The applicant’s lawyer also requested that, if necessary, DNA analysis be performed so as to identify the claimed relationship. The assize court rejected the applicant’s request, on the grounds that his surname did not match with that of the deceased and that nor did he submit a document indicating the alleged relationship. The court’s subsequent decision was appealed by the applicant.

Upon the quashing decision of the Court of Cassation, the assize court, relying on the DNA report issued, granted the applicant leave to participate in the proceedings, and adjourned the next hearing until 17 March 2021.

The Applicant’s Allegations

The applicant claimed that his brother had been murdered by a police officer and no effective criminal investigation had been conducted into the incident, in breach of the right life.

The Court’s Assessment

In the present case, the only way to determine the firing distance was to examine the bullet hole in the shirt worn by the deceased. However, since the shirt had been lost, no definite assessment could be made regarding the distance from which the bullet had been fired.

An analysis was conducted to ascertain whether there had been gunshot residue on the suspect’s hands approximately seven hours after the incident. Although it was not a complex process to obtain such evidence, as was also the case for securing the other evidence, the unreasonable steps taken in this sense resulted in a failure to obtain the potential evidence.

It was argued by the accused that the deceased had attempted to grab the gun. The relevant judicial decisions contained no data or enclosed document indicating an analysis having been made on the gun in order to find out whether there been a tissue of the deceased’s body on the gun.

The applicant’s requests for an investigation into the identity of the deceased and then for participating in the criminal proceedings were rejected by the assize court which subsequently concluded the case disregarding the documents submitted.

It was not deemed necessary by the court to investigate the identity of the deceased, on the ground that it would make no sense in murder cases. As a result of the court’s having insisted on rejecting the applicant’s request to participate in the proceedings, the matter was again brought before the Court of Cassation, thus prolonging the proceedings for approximately eight years.

At the investigation stage, the DNA profile of the deceased was obtained from the bone sample during the autopsy. Nonetheless, the court persistently refused to investigate the deceased's identity and did not accept the applicant's request to participate in the proceedings. Lack of due diligence during investigation or prosecution processes may call into question the independence of the investigation and give an impression that there is an unwillingness on the part of the judicial authorities to achieve justice.

In the present case, refusal to investigate the matter, which was an absolute necessity, also resulted in a failure to meet the promptness criterion with a view to ensuring effectiveness. The case is still pending before the first instance court despite the fourteen years having elapsed since the incident. It was revealed by the competent authorities that the murder had not pursued a legitimate aim under Article 17 of the Constitution, and that the officers involved in the applicant’s murder had done so neither to prevent any attempt to abscond nor to make a self-defence. The matter discussed by the competent authorities and underlying the decision of lack of jurisdiction was the degree of criminal responsibility on the part of the accused police officer.

According to the Court, the death of the applicant’s relative due to a public officer’s conduct should necessarily be subject to examination. It is incumbent on the Court to establish the State’s responsibility arising from the Constitution and the European Convention on Human Rights.

The Court has concluded that the State acted in breach of its substantial and procedural obligations in the present case where a person under its control had been murdered by a public officer.

Consequently, the Court has found a violation of the right to life.