Mensenrechtenhof veroordeelt Turkije wegens neerschieten slakkenverzamelaar in bufferzone Cyprus (en)
The European Court of Human Rights has today notified in writing its Chamber judgment in the case of Kakoulli v. Turkey (application no. 38595/97).
The Court held, unanimously, that there had been:
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-a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the killing of the applicants' relative by a Turkish soldier in the buffer zone between northern and southern Cyprus;
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-a violation of Article 2 concerning the inadequate investigation into his death;
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-no violation of Article 14 (prohibition of discrimination) of the Convention.
Under Article 41 (just satisfaction), the Court awarded Chriso Kakoulli 20,000 euros (EUR) in respect of non-pecuniary damage and EUR 3,500 to each of the remaining applicants in respect of non-pecuniary damage. It further awarded the applicants jointly EUR 20,000 for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The applicants, Chriso Kakoulli, Andreas Kakoulli, Martha Kakoulli and Kyriaki Kakoulli, are Cypriot nationals who were born in 1944, 1969, 1972 and 1970 respectively. They all live in Avgorou, apart from Andreas Kakoulli, who lives in Paralini.
The case concerned the fatal shooting of Petros Kakoulli, a Greek Cypriot, by a Turkish border guard, on 13 October 1996. Chriso Kakoulli is Petros Kakoulli's widow and the other applicants are his children.
The facts at issue are in dispute between the parties.
According to the applicants, Petros Kyriakou Kakoulli and Panikos Hadjiathanasiou had driven to an area called Syrindjieris near the British Sovereign Base Area (SBA) of Dhekelia, to collect snails. Panikos Hadjiathanasiou was looking for Petros Kakoulli and spotted him inside the territory of northern Cyprus. He alleged that he heard soldiers order Petros Kakoulli to stop, that he did so and raised his hands above his head. Two Turkish soldiers in combat uniform then dropped to battle positions on the ground and aimed their rifles at Petros Kakoulli. Immediately afterwards, Panikos Hadjiathanasiou heard two shots and saw Petros Kakoulli fall to the ground. A few minutes later, while Petros Kakoulli was still lying on the ground, Panikos Hadjiathanasiou saw one of the Turkish soldiers move and fire a third shot at him from a distance of about seven to eight metres from where he was lying.
The Turkish Government maintained that Petros Kakoulli crossed the ceasefire line and, despite being warned verbally and with hand gestures, did not stop, but ran away towards the borderline. One of the soldiers approached him and fired warning shots in the air and at the ground. As he continued to run away, a third round was fired at him below his waist, which apparently caused the fatal wound. The Government further claimed that a bayonet and a garrotte were found on Petros Kakoulli's body.
Investigators visited the scene. A sketch map of the location was drawn up, photographs taken and statements taken from a number of police officers, officials and the soldiers on guard duty, including the soldier who had shot the victim.
Following an autopsy at Famagusta General Hospital, it was concluded that Petros Kakoulli had died as a result of internal bleeding caused by a shot to the heart. A second autopsy, conducted in Larnaca Hospital, found three sets of gunshot wounds to the body and that certain wounds had been inflicted by a shot fired while Petros Kakoulli had his hand raised and that others were consistent with a shot fired into the body while Petros Kakoulli was lying on the ground or crouching down.
Following the investigation no criminal or disciplinary proceedings were brought against the soldier who shot Petros Kakoulli, the investigating authorities having concluded that the killing was justified in the circumstances. The case was classified as "no case", meaning that there would be no further investigation or criminal proceedings.
2. Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 19 March 1997 and transmitted to the European Court of Human Rights on 1 November 1998. It was declared admissible by a decision of 4 September 2001. Third-party interventions were received from the Cypriot Government.
Judgment was given by a Chamber of seven judges, composed as follows:
Nicolas Bratza (British), President,
Giovanni Bonello (Maltese),
Riza Türmen (Turkish),
Matti Pellonpää (Finnish),
Kristaq Traja (Albanian),
Lech Garlicki (Polish),
Ljiljana Mijović (citizen of Bosnia and Herzegovina), judges,
and also Michael O'Boyle, Section Registrar.
3. Summary of the judgment1
Complaints
The applicants complained that their husband and father Petros Kakoulli had been intentionally shot and killed by Turkish soldiers in Cyprus while collecting snails. The applicants contended that the killing of Petros Kakoulli also involved discrimination, as he was a Greek-Cypriot and Christian. They relied on Articles 2 (right to life), 8 (right to respect for family life) and 14 (prohibition of discrimination) of the Convention.
Decision of the Court
Exhaustion of domestic remedies
The Turkish Government submitted that the applicants had not exhausted domestic remedies as they had filed their application without having recourse to the local remedies which were available to them within the judicial system of the Turkish Republic of Northern Cyprus (TRNC).
The Court observed that, for Convention purposes, the remedies available in the TRNC could be regarded as "domestic remedies". However, that decision was not to be seen as in any way putting in doubt the view of the international community regarding the establishment of the TRNC or the fact that the Government of the Republic of Cyprus remained the sole legitimate government of Cyprus.
The Court considered that the question whether the criminal investigation could be regarded as effective under the Convention was closely linked to the substance of the applicants' complaints. It therefore decided to address those questions in its examination of the applicants' complaints under Article 2.
Article 2
The killing of Petros Kakoulli
Noting that, at the time of the killing of Petros Kakoulli, the buffer zone between the two sides in Cyprus was not very peaceful, the Court accepted that border policing undoubtedly presented the authorities with special problems, such as unlawful crossings or violent demonstrations along the borderlines. However, that did not give law-enforcement officials carte blanche to use firearms whenever they were confronted with such problems. On the contrary, they were required to organise their actions carefully with a view to minimising a risk of deprivation of life or bodily harm. States which had ratified the European Convention on Human Rights had a duty to provide effective training to law-enforcement officials operating in border areas and to give them clear and precise instructions as to the manner and circumstances in which they should make use of firearms, with the objective of complying with international standards on human rights and policing. Accordingly, the Court could not accept the Turkish Government's argument for justifying the use of lethal force against civilians who breached the borderlines.
The Court did not find it necessary to determine whether Petros Kakoulli was in possession of a garrotte and a bayonet prior to his death or whether they were planted by the Turkish security forces subsequent to his death. The Turkish security forces were obliged to avoid using disproportionate force with the intention of killing or with reckless disregard for the life of Petros Kakoulli.
Even though it was subsequently discovered that there were a garrotte and a bayonet in Mr Kakoulli's boots, there was no basis for the soldiers on guard duty to reasonably consider that there was any need to resort to the use of their weapons in order to stop and neutralise him.
Moreover, even assuming that Mr Kakoulli failed to stop promptly, following the verbal warning from the soldiers as he passed the border line, there was no basis for the use of force which, whether deliberately or owing to lack of proper aim, was lethal in its effects. The prevalent unrest did not of itself give the soldiers the right to open fire upon people they considered to be suspicious.
The soldier in question used lethal force while there was no imminent risk of death or serious harm to himself or others. The Court was particularly struck by the fact that the last shot was fired several minutes after the two shots, which had already wounded the victim and neutralised him, at a time when it could have been possible to carry out an arrest.
The Court therefore concluded that the use of force against Petros Kakoulli was neither proportionate nor absolutely necessary for the purpose of "defending any person from unlawful violence" or "effecting a lawful arrest". There had therefore been a violation of Article 2.
Effectiveness of the investigation
The Court found that there were a number of significant omissions which raised doubts about the effectiveness and impartiality of the investigation into Petros Kakoulli's death.
It noted in particular that the second autopsy examination failed to record fully Petros Kakoulli's injuries, which hampered an assessment of the extent to which he was caught in the gunfire, and his position in relation to the soldiers on guard duty. Furthermore, the investigating authorities based their findings solely on the soldiers' account of the facts and did not seek any further eyewitnesses. They did not inquire into whether the victim could have posed a serious threat to the soldiers from a long distance with the alleged weapons or whether the soldiers could have avoided using excessive lethal force. Nor did the investigators examine whether the soldier in question had complied with the rules of engagement laid down in the relevant military instructions.
In the light of the foregoing, the Court considered that the investigation conducted by the TRNC authorities into Petros Kakoulli's killing was neither effective nor impartial. It accordingly dismissed the Government's objection of non-exhaustion and held that there had been a violation of Article 2.
Article 8
The Court held, unanimously, that no separate issue arose under Article 8.
Article 14
Having examined the applicants' allegation in the light of the evidence submitted, and considering it to be unsubstantiated, the Court found that there had been no violation of Article 14, taken in conjunction with Articles 2 and 8.
The Court's judgments are accessible on its Internet site (http://www.echr.coe.int).
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments.