PROCEDURE

The case originated in an application (no. 15762/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Turkish nationals, Mr Süleyman Cadıroğlu, Mrs Asiye Cadıroğlu, Mr Şemsettin Cadıroğlu, Mr Enver Cadıroğlu, and Mr İrfan Cadıroğlu (“the applicants”), on 1 March 2010.

The applicants were represented by Mr A. Kıran, a lawyer practising in Van. The Turkish Government (“the Government”) were represented by their Agent.

On 12 September 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1955, 1957, 1977, 1982 and 1989 respectively and live in Van. The first two applicants are the parents and the remaining applicants are the brothers of Mr Şaban Cadıroğlu (Ş.C.), who died in 1999 when he was sixteen years old.

Ş.C. had been working as a street pedlar in Van. On 16 August 1999 two police officers, M.S. and S.D., were patrolling the streets to prevent pedlars. The facts surrounding the incident are in dispute between the parties. According to the applicants, when Ş.C. saw the police officers he started to run away, but he had to return to pick up a pair of spectacles, which he had dropped. One of the police officers kicked Ş.C., causing him to fall down. He hit his head on the edge of the pavement and died instantly. According to the submissions of the Government, Ş.C. started to run away from the police officers but came over faint, collapsed, and died instantly.

On the same day, a doctor examined Ş.C.’s body at the Van State Hospital in the presence of the Van public prosecutor. The examination report noted that there were no signs of ill-treatment on the body and concluded that a classical autopsy was necessary to establish the actual cause of death. Accordingly, the body was transferred to Diyarbakır for an autopsy.

On 17 August 1999 an autopsy was performed at the Diyarbakır State Hospital in the presence of the Diyarbakır public prosecutor. The report stated that there were no signs of traumatic injuries to Ş.C.’s body. Samples of his organs were sent for analysis. The report concluded that the cause of death could not be established and suggested that the case be referred to the Forensic Medicine Institute.

On 4 April 2000 the Forensic Medicine Institute issued its opinion. The report reiterated the findings of the previous reports and concluded that the actual cause of death could not be established. Reference was also made to histopathology and toxicology reports, which had not revealed anything unusual.

On 1 September 1999 the Van public prosecutor, pursuant to the Prosecution of Civil Servants Act, transmitted the investigation file to the Van governor’s office to obtain authorisation to prosecute the accused police officers. Subsequently, on 5 October 1999 a police officer was appointed as the reporting officer in the case. During the investigation, he took statements from ten witnesses. Six of the witnesses stated that Ş.C. had fallen on his own as he was running away from the police officers. Four witnesses testified that they had seen a police officer kick Ş.C. from behind, causing him to fall down and hit his head on the edge of the pavement. On 19 June 2000 the reporting officer submitted his report to the Van Provincial Administrative Council and concluded that there was no evidence to suggest that the accused police officers were responsible for Ş.C.’s death. Accordingly, he proposed that no proceedings should be brought against the police officers.

On 29 June 2000 the Van Provincial Administrative Council reached a different conclusion to that of the reporting officer, deciding that criminal proceedings should be initiated against the two accused police officers for inadvertent and negligent homicide. On 8 May 2003 the Supreme Administrative Court upheld that decision.

Accordingly, criminal proceedings were initiated against the two accused police officers before the Van Criminal Court and the first two applicants intervened in the proceedings.

On 1 February 2005 the Van Criminal Court found that it lacked jurisdiction and transferred the case to the Van Assize Court, holding that the accused police officers should be tried under Article 452 of the former Criminal Code, which governed unintentional homicide.

The proceedings resumed before the Van Assize Court. During the proceedings, the accused police officers’ statements were taken on commission. Both denied the accusations, stating that on the day of the incident they had been patrolling the streets, but denying that they had chased anyone. They maintained that they had not seen Ş.C. and had no idea how he had died.

The Assize Court also heard the statements of twelve witnesses who had been eyewitnesses to the incident. Nine of the witnesses, who were also pedlars, stated that on the day of the incident two police officers had knocked down their stands and chased them. According to their recollection, Ş.C. had first started running away, but had returned to pick up a pair of spectacles, which he had dropped. They all stated that one of the police officers had kicked him, causing him to fall down and hit his head on the edge of the pavement. Two of the witnesses stated that the police officer who had kicked Ş.C. was blond. One of the witnesses indicated that he would be able to identify the blond police officer if he met him in person.

On 3 May 2007 the Van Assize Court delivered its judgment and acquitted the accused police officers of the charges against them for lack of evidence. In its judgment, the court did not take into account the statements of the witnesses who had testified that they had seen a police officer kicking Ş.C.

On 14 December 2009 the Court of Cassation upheld the Assize Court’s judgment.