ITEMID: 001-71208
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KAKOULLI v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violations of Art. 2;No separate issue under Art. 8;No violation of Art. 14+2 or 14+8;Non-pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicants, Chriso Kakoulli, Andreas Kakoulli, Martha Kakoulli and Kyriaki Kakoulli, were born in 1944, 1969, 1972 and 1970 respectively. The first, third and fourth applicants live in Avgorou and the second applicant lives in Paralini. The first applicant is the widow and the other applicants are the children of Petros Kyriakou Kakoulli, a Greek Cypriot who died on 13 October 1996.
10. In the early hours of 13 October 1996 Petros Kyriakou Kakoulli and his daughter’s fiancé, Panikos Hadjiathanasiou, drove to an area called Syrindjieris, situated near the Achna roundabout in the British Sovereign Base Area (SBA) of Dhekelia, to collect snails. After a time, they separated and agreed to meet up at about 7.30 a.m. to return to their village.
11. A villager from Avgorou, Georgios Mishis, who was also collecting snails on the north side of the main road, saw the victim standing in a field approximately 70 metres away from him. He also saw a Turkish soldier approximately 10 metres from Mr Kakoulli pointing his rifle at him and a second Turkish soldier approaching him. Georgios Mishis heard Mr Kakoulli ask the first soldier, in Greek, whether he spoke Greek, to which there was no response. At that moment, the two soldiers caught sight of Mr Mishis and one of them pointed a weapon at him. Mr Mishis then backed away.
12. At this moment Mr Mishis saw an SBA police patrol vehicle on the road and told the driver, Constable Pyrgou, what he had seen. Constable Pyrgou immediately reported the incident to Sergeant Serghiou of the SBA police at Ayios Nikolaos.
13. Shortly after Mr Mishis had seen Mr Kakoulli surrounded by Turkish soldiers, Panikos Hadjiathanasiou, who was searching for Mr Kakoulli, saw him at a distance of approximately 400 metres inside the territory of northern Cyprus. Panikos Hadjiathanasiou then heard the soldiers issue a command in Turkish to stop. Upon hearing these words, Mr Kakoulli remained still and raised his hands above his head. Panikos Hadjiathanasiou saw two Turkish soldiers in combat uniform drop to battle positions on the ground approximately 40 metres from the victim and aim their rifles at him. Immediately afterwards, Panikos Hadjiathanasiou heard a shot and saw Mr Kakoulli fall down. Mr Hadjiathanasiou heard a second shot immediately after the first.
14. A few minutes later, while Mr Kakoulli was still lying on the ground, Mr Hadjiathanasiou saw one of the Turkish soldiers move and fire a third shot at him from a distance of about 7 to 8 metres from where he was lying.
15. Following orders from Sergeant Serghiou of the SBA police, Constable Duru Chorekdjioglou (a Turkish-Cypriot member of the SBA police) and Constable Petros Kamaris (a Greek-Cypriot member of the SBA police) arrived at the Achna roundabout, where they met Panikos Hadjiathanasiou, who explained what had just happened.
16. Constable Duru Chorekdjioglou spoke to a Turkish lieutenant who told him that a Greek Cypriot had entered the territory of northern Cyprus and had been shot by Turkish soldiers. The officer said that the Greek Cypriot was dead.
17. The officer allowed Constable Duru Chorekdjioglou to see the body of the deceased though not to touch or examine it. Constable Duru Chorekdjioglou reported that Mr Kakoulli appeared to be dead.
18. Sergeant Engin Mustafa of the SBA police (a Turkish Cypriot), together with two Turkish soldiers, also visited the scene of the killing and saw the body. The Turkish soldiers told Sergeant Engin Mustafa that Mr Kakoulli had been shot because he had entered “their area” and had refused to obey warnings to stop.
19. Divisional Commander R.H. Weeks of the SBA police, together with Sergeant Engin Mustafa, entered northern Cyprus and spoke with a Turkish officer who told him that Turkish soldiers had shot and killed Petros Kyriakou Kakoulli because he had entered the territory of northern Cyprus and had refused to stop.
20. The same day, Superintendent Mathias Cosgrave and Inspector Richard Duggan of the Irish Civilian Police (IRCIVPOL), part of the United Nations Forces in Cyprus (UNFICYP), visited the scene, accompanied by Sergeant Engin Mustafa. They found an investigating team from the Turkish forces already present.
21. Superintendent Anastasiou, Inspector Christou, Sergeant Zonias and Constable Hadjiyasemis of the Republic of Cyprus police visited the area, although not the exact spot where the killing had occurred.
22. Sergeant Xenofontos and Constables Kapnoullas and Aristidou of the Republic of Cyprus police visited the area and prepared a draft location plan.
23. Georgios Mishis was escorted back to the scene of the incident, where he pointed out the various locations, which were then photographed by Constable Aristidou.
24. A Turkish pathologist, Dr İsmail Bundak, carried out an autopsy on the body of the deceased, Mr Kakoulli, at Famagusta General Hospital. According to the Turkish pathologist, the deceased had a wound 5 cm in diameter in his chest, 21.5 cm below his left nipple and 17 cm from the collar bone, two wounds in his back and a wound on his side in line with his right elbow.
25. Dr Bundak concluded that the death had occurred as a result of internal bleeding caused by a shot to the heart.
26. According to the report by Superintendent Cosgrave, during the removal of Mr Kakoulli’s clothes, an object fell from his left boot which was described as a type of garrotte, consisting of two black metal handles attached to a length of wire. In addition, an object described as a bayonet in a scabbard was removed from the body’s right boot. Following the autopsy, the body of Mr Kakoulli was taken to Larnaca Hospital under UN escort.
27. According to the first applicant’s statement to the Republic of Cyprus police, her husband had only a red plastic bucket with him and had no object such as a bayonet or a garrotte, or any other kind of weapon.
28. On 14 October a second autopsy was conducted in Larnaca Hospital by Dr Peter Vanezis. In his preliminary report Dr Vanezis stated that there were three sets of gunshot wounds to the body. The report stated the following:
“An entry wound on the right side of the neck, just below the right ear, with an exit wound at the back of the neck. This bullet had left the body without causing any damage to vital organs. A second entry wound on the right side of the trunk and an exit wound on the right side halfway down the back. This bullet appeared to have caused soft tissue damage with minor injury to the lungs but was not fatal. A third entry wound on the left side of the trunk towards the back with a steep upward direction into the body. This bullet had exited from the left side of the front of the chest, causing a large exit wound. This wound was fatal, as it had caused severe damage to the left lung and the heart, resulting in severe internal haemorrhage.”
29. Until the second autopsy was concluded in Larnaca Hospital, IRCIVPOL had sole responsibility for the body. Before that, the body was in the sole custody of the Turkish forces.
30. On 15 January 1997 Dr Vanezis prepared a final report in Glasgow. He concluded that the second set of wounds had been inflicted by a shot fired while Mr Kakoulli had his hand raised and that the third set of wounds were consistent with a shot fired into the body while Mr Kakoulli was lying on the ground or crouching down.
31. The Government maintained that Petros Kyriakou Kakoulli had violated the ceasefire line and had entered the territory of the “Turkish Republic of Northern Cyprus” (“TRNC”). He was warned verbally and by hand gestures. However, he did not stop and continued to run towards the boundary. One of the soldiers approached him and fired warning shots in the air. Petros Kyriakou Kakoulli took no notice of this shot and consequently a second shot was fired at the ground in order to stop him. As he continued to run away, a third round was fired at him below his waist, which apparently caused the fatal wound. The Government referred to the United Nations Secretary-General’s report, which stated: “in a serious incident that occurred on 13 October 1996, a Greek Cypriot was shot three times and killed by a Turkish-Cypriot soldier after crossing the Turkish force’s ceasefire line”.
32. Neither the UN nor the British Sovereign Base authorities carried out an investigation of their own as the scene of the incident was within the territory of the “TRNC”.
33. The Government further referred to various violent incidents which had taken place in the border area and between the ceasefire lines of the two sides between August and October 1996. The United Nations SecretaryGeneral’s report, submitted to the Security Council on 10 December 1996, stated that the period under review had seen an increase in the level of violence and tension along the ceasefire lines. The tension rose in early August 1996 owing to the Greek-Cypriot demonstrations at the border area and the ceasefire lines. Violent disturbances and riots took place on 11 and 14 August 1996 in the Dherinia area and in the vicinity of Ayios Nikolaos (Güvercinlik), alongside the British SBA. During these events, two Greek Cypriots were killed. On 8 September 1996 two Turkish soldiers on sentry duty were shot with automatic weapons fired from the SBA into the territory of the “TRNC”. One of the soldiers died as a result and the other was seriously wounded.
34. The Government emphasised the fact that Petros Kyriakou Kakoulli had crossed the Turkish-Cypriot ceasefire line into the territory of the “TRNC”, in the same area where the two Turkish soldiers had been shot. There were strong reasons to believe that Mr Kakoulli, who was a retired fireman, would not have crossed into the “TRNC” territory by mistake, particularly at a location where there were signs in Turkish and Greek indicating the border. Mr Kakoulli had been in possession of a garrotte and a bayonet at the material time, which constituted a strong presumption that he had a sinister motive. His act of carrying a bucket apparently to collect snails was a cover for his real motive.
35. The death of Mr Kakoulli had not been a deliberate act, the Government asserted, but an attempt to maintain security in a highly tense environment. The incident had occurred during a period when tension at the border between the north and south of Cyprus was extremely high. Given the circumstances of the dangerous situation created by the Greek-Cypriot authorities, the Turkish soldiers had been fully justified in taking all necessary precautions and using the necessary force in order to remove the danger and threats of the ceasefire being broken and to protect the lives of others.
36. The parties submitted various documents concerning the investigation into the killing of Petros Kakoulli. These documents, in so far as they are relevant, are summarised below.
37. Mr Panikos Hadjiathanasiou is the fiancé of Mr Petros Kyriakou Kakoulli’s daughter. He accompanied Mr Kakoulli to collect snails on the day of the impugned incident. In his statements he claimed, inter alia, the following:
“...After the rainfall at my village, I agreed with my father-in-law to go together this morning (13 October) to collect snails. So, today in the morning I set off with my father-in-law in my car, which I was driving. We took a bucket each in which to put snails... At approximately 6.30 a.m. we went to a point on the main Vrysoulles-Dhekelia road near a bridge. I stopped my car under some eucalyptus trees, on the left side of the main Vrysoulles-Dhekelia road, by the former Achna police station. We alighted from the vehicle, we each took our buckets and we proceeded south, towards the Avgorou side to collect snails. Because there were no snails to find, my father-in-law said that we should separate. He proceeded towards the lower side of the hill from the right, while I proceeded towards the left, intending to cover the whole lower side of the hill, and then to meet at the opposite side. The area in question is situated south of the main VrysoullesDhekelia road. We started walking and I saw my father-in-law following a route in parallel to the main road and passing the bridge that is at the bottom of the hill by the Achna roundabout. As soon he had proceeded about 20-25 metres after the bridge, I lost sight of him as I had proceeded further and the hill was in between us... Before separating, my father-in-law told me that he was intending to go by the UN observation post, which is opposite the former Achna police station. The main Vrysoulles-Dhekelia road is controlled by the British Bases. Approximately between 7.05 and 7.10 a.m., as we had agreed to return to the village, I started calling him, “Father! Father!”, but did not receive any reply. Whilst doing so I was walking towards the hill so I could have a better view and be able to see him. Whilst walking, I heard shouting in the Turkish language coming from the direction of the former Achna police station, which is in the Turkish-occupied area. On hearing the shouting, I ran towards the hill, I climbed it and I could see the surrounding area and the former Achna police station. I saw my father-in-law standing by an acacia tree at the rear of the Achna police station, facing towards the Turkish-occupied area... The distance between myself and my father-in-law was approximately 400-450 metres... He was holding his bucket with his left hand, but nothing in his right... I heard someone shouting at him something like a military command, which consisted of three words that were short and sharp in tone, and I understood the first word to be ‘DUR’. The other two words which I heard had a short interval between them but I did not understand them. On hearing those words, my father-in-law remained still; he left the bucket on the ground, and raised his hands up to the level of his head. Simultaneously, I saw in front of my father-in-law, at a distance of approximately 3040 metres, two men dressed in camouflage combat uniform. They were wearing helmets and were carrying ‘G3’-type rifles. They fell to the ground in front of him and, taking up battle position, aimed their rifles towards his chest and abdominal area. As soon as they fell to the ground, I heard a shot and saw my father-in-law kneeling on the ground and then falling down... Once he fell to the ground, I lost sight of him because of the presence of the acacia tree. Immediately afterwards I heard a second shot. Three or four minutes later, while my father-in-law was still on the ground, I saw one of the two Turkish soldiers standing up and, pointing his rifle forwards, proceeding towards the point where my father-in-law was, with his back arched. He approached within a distance of 7-8 metres of him, straightened up, aimed his rifle towards the point where my father-in-law was and fired another shot... At the time of the shootings, I saw that on the road between myself and the place where my father-in-law was shot, there were three Greek Cypriots. One of them was Georghios Mishis from Avgorou... The Turkish soldier, having fired the third shot, retreated to the point where the other soldier was lying on the ground and afterwards, both of them started walking backwards aiming their rifles towards the main road, and disappeared behind the slope at the rear of the Achna police station... I am sure that my father-in-law was shot and murdered at 7.25 a.m., because I saw my watch...”
38. The witness is a fellow villager of Petros Kyriakou Kakoulli. He stated, inter alia:
“...Today at about half past five in the morning, and because of the rain during the previous night, I woke up to go and collect snails... I was alone and drove to the Syrindjieris territory situated near the Achna roundabout on the main Vrysoulles-Dhekelia road ... About six o’clock when there was daylight I was walking on the right side of the main road in the direction of the former Achna police station and started collecting snails... Whilst collecting snails I heard a noise to my rear. I turned back and saw my co-villager Petris the fireman, who is the brother in-law of Kykkos Papettas. He was collecting snails as well, holding a bucket... I continued walking up and down up to the fence of the police station and Petris must have been collecting snails in the same area. After three-quarters of an hour from the time we met with Petris, I walked back down the hill for about 2 or 3 acres from the fence of the police station. To my left in the Turkish-occupied area I then saw Petris and, further back down, about 20-30 feet away from where Petris was, a Turkish soldier with his weapon aimed at him. Petris was at that time approximately 300 metres from where I was standing. At the same time another soldier approached from the direction of the Turkish observation post and Petris asked him if he could speak Greek. I heard Petris clearly asking the latter soldier: ‘Do you know Greek?’. The soldier did not say ‘yes’ or ‘no’ to him. I then went on to the main road and stopped a car which was approaching from the direction of Vrysoulles and requested the driver to call the police... I told him to call the police because the Turks had captured one of us further down, and pointed out to him the direction where I had seen Petris and the Turkish soldiers... After that I started walking to the right down the road where the eucalyptus trees are, towards Avgorou... After about a quarter of an hour from the time I last saw Petris with the Turks I heard two shots and soon, after a few minutes, maybe five minutes, a third shot. On hearing the two shots I saw in front of me the son-in-law of Petris, namely Panikos, approaching from the direction where the water engine is or just beyond the eucalyptus trees. He said to me that the Turks had shot his father-in-law. The time I heard the third shot, I was together with Panikos and we were just getting ready, before hearing the third shot, to stand up and see if we could see Petris, but because of the third shot we sat down. The first two shots I heard were one after the other whilst the third shot was heard about two to three minutes later...”
39. The witness, who lives on the Vrysoulles refugee housing estate, was collecting snails in the same area where Petros Kyriakou Kakoulli met his death. He stated, inter alia:
“...At about 7.25 a.m. I heard a shot and within a short period of time another one, coming from the east of the police station in the occupied area. Because at that time I was in a dried-out river, I could not identify what was happening at the police station... When I returned to my car I saw one young person who looked panic-stricken and told me that the Turkish troops had shot his father-in-law on the eastern side of the police station... I forgot to tell you that as I was heading towards my car I heard a third shot coming from the same direction. While I was with this person he told me he was called Panikos and that he lived in Avgorou, also that his father-in-law who was shot by the Turks was called Petros Kakoulli. While talking with Panikos I noticed that at the point where he showed me the Turks had shot his father-in-law there were two Turkish soldiers with camouflage clothing armed with rifles...”
40. The witness is a police sergeant at the SBA. On the day of the impugned incident he was on duty at the base. He stated:
“...On the same day about at 8 a.m. I was on mobile patrol, dressed in uniform, in a marked police vehicle, in the Ormidia Xylophagou area when I received a message to the effect that there was a border incident around the village of Achna, where a Greek Cypriot had been shot by the Turkish army. I proceeded to the scene, along the Larnaca Famagusta main road by the Achna roundabout. My arrival time was 8.20 a.m... I proceeded about 175 metres north-west, escorted by two Turkish soldiers, where I saw the body of one male person lying face down on the ground, who seemed to be showing no signs of life. He looked to be in his fifties. He was wearing a grey shirt, jeans and wellington boots. There was a red plastic bucket with some snails inside it on the ground to the left of the lifeless person. I now know the name of the deceased to be Petros Kakoulli. I was informed by the Turkish army officer at the scene that the Turkish soldiers had shot the man in question at 7.30 a.m. the same day because he had entered their area and failed to obey when challenged...”
41. The witness is the Commander of the Dhekelia Division of the SBA Police. He stated, in so far as relevant:
“...At 8.50 [on 13 October 1996], I went to the area of the alleged shooting and met with PS Engin Mustafa of the SBA Police. PS Mustafa reported to me that a man, identified as one Petros Petrou Kakoulli, had been shot dead by Turkish soldiers inside the TCA about 175 metres north of Boundary Stone 155... Together with PS Mustafa I entered the TCA and walked to a point about 175 metres to the north of Boundary Stone 155 and some 40 metres to the east of it where I saw the body of a male person laying face down on the ground with his head turned to the right. From the appearance of the body I believed him to be dead, although I was not permitted to touch the body to ascertain if there was any possibility of life. I noted that the body was of a middle-aged male, wearing a white-coloured summer shirt with light-coloured markings around the upper back area, blue denim jeans with a black leather belt and black wellington boots. Lying near the left shoulder of the body was a red-coloured plastic 2 gallon bucket that contained some snails. I could see blood stains on the edges of the shirt emerging from the front of the body as it lay on the ground. There was no sign of blood or wounds on the back of the body. I asked the Turkish NCO if he could tell me what had happened. He told me that at about 7.30 a.m. one of the sentries had seen the deceased moving on foot within the Turkish-controlled area. The sentry challenged the man but he did not stop. The sentry challenged the man a second time but he still did not stop so the sentry shot him twice. The man still managed to move a further 15 to 20 metres to the south and the sentry shot him a third time...”
42. The witness is the wife of the deceased, Mr Petros Kakoulli. She claimed that her husband had left the family house with a bucket to collect snails. She disputed the allegation that her late husband was in possession of a knife and a wire rope and stated that such an allegation must have been advanced to cover up his murder.
43. The witness, a police constable stationed at the SBA Police Station in Ayios Nikolaos, saw a middle-aged person holding a basket, collecting snails on the main road in the direction of Larnaca. This person told the witness that somebody had been arrested by the Turkish forces and asked him to take action. The witness called Sergeant Serghiou at the Ayios Nikolaos Police Station and requested him to dispatch a patrol and also to inform the relevant agencies.
44. The witness is a police sergeant stationed at the SBA Police in Ayios Nikolaos. He was on duty at the time of the killing of Petros Kakoulli. After having been informed, by Police Constable M. Pyrgou, about the arrest of a male Greek Cypriot by the Turkish soldiers, the witness instructed Police Constables P. Kamaris and D. Chorekdjioglou to proceed to the scene and to carry out inquiries and to report back. At 8.15 a.m. Mr Chorekdjioglou informed the witness that the person in question was Petros Kakoulli of Avgorou and that he had been shot dead by Turkish soldiers near Achna within the Turkish-controlled area.
45. The witness is a police constable stationed at the SBA Police in Ayios Nikolaos. He was on duty at the time of the killing of Petros Kakoulli. On the instructions of Police Sergeant Serghiou the witness went to the Achna roundabout, along with Police Constable Kamaris, to inquire into the arrest of Petros Kakoulli. He stated, in so far as relevant, the following:
“...When I walked close to [Border Stone] 155 some [Turkish] soldiers shouted at me to stay away. I replied to them that I was a Turkish SBA police officer. Still they shouted at me to stay away and I then walked back to the edge of the main road and shouted at them again to ask whether the commander was present. They replied that he was not there. They promised to call me back when he arrived at the scene. At 7.55 a.m. they called me and signalled to me to cross the boundary. I walked into the Turkish-controlled area and met with the Turkish lieutenant, who refused to give me his name. I then asked him if he had seen any Greek Cypriot collecting snails in the area. He said that a Greek Cypriot had crossed the boundary into the Turkish-controlled area and had been shot dead by his soldiers. I then asked him again whether he was dead or wounded, to which he replied that he was definitely dead. Then at 8.05 a.m. the army officer showed me the deceased, who was about 150 metres within the Turkish-controlled area. I saw the body from a distance of ten metres lying on the ground in a prostrate position with the head facing west. I saw blood on the left-hand side of the body; it was pale and looked dead...”
46. The witness is a police constable stationed at the SBA Police in Ayios Nikolaos. He was on duty at the time of the killing of Petros Kakoulli. On the instructions of Police Sergeant Serghiou the witness went to the Achna roundabout, along with Police Constable Duru Chorekdjioglou, to inquire into the arrest of Petros Kakoulli. On the way to the Achna roundabout the witness met Panikos Hadjiathanasiou, who told him that his father-in-law had been shot dead by Turkish soldiers. He informed his colleagues at the Ayios Nikolaos Police Station and Dhekelia about the impugned incident.
47. The witness is a police superintendent in Nicosia. He was the head of the police squad which visited the scene of the killing of Petros Kakoulli. Following his visit the witness concluded that Mr Kakoulli had been kidnapped by armed Turkish soldiers, transferred into the Turkish-occupied areas and shot dead. He was involved in the preparation of topographical sketches and plans of the scene of the killing and attended the post-mortem examination of the deceased.
48. The witness was involved in the investigation into the killing of Petros Kakoulli. He stated that Mr Kakoulli had been shot dead by Turkish soldiers while collecting snails 40 metres inside the Turkish-occupied areas. He attended the post-mortem examination of the corpse of Mr Kakoulli at Larnaca Hospital.
49. The witness is a police inspector in the Famagusta Police Division in the village of Paralimni. He was appointed as the investigator in the case of the killing of Petros Kakoulli. He visited the scene of the killing and supervised the taking of statements in connection with the incident. With reference to the statements of Panikos Hadjiathanasiou and Georgios Mishis, the witness found that Petros Kakoulli had been shot dead by Turkish soldiers while collecting snails in the Turkish-occupied area. He noted that on 14 October 1996, approximately 27 hours after the killing, an autopsy had been carried out on the body of the victim in the presence of Turkish and United Nations officials and that a garrotte, consisting of two metal handles attached to a string of wire, and a 33-centimetre bayonet had fallen down when the boots of the deceased had been removed.
50. The witnesses are specialist photographers attached to the Criminal Investigation Division at the Famagusta Police Division. They took various photographs of the scene of the impugned incident on 14 October 1996.
51. The UNFICYP issued two press releases on 14 and 16 October 1996 concerning, respectively, the killing of Petros Kakoulli and the deaths occurring in the United Nations Buffer Zone.
52. In the press release of 14 October 1996 it expressed concern that an innocent life, namely that of Petros Kakoulli, had been lost as a result of deplorable and unnecessary force. The UNFICYP qualified the incident as a disproportionate response and stressed that lethal force should not be used by either side against persons who crossed the respective ceasefire lines or entered the United Nations Buffer Zone. It was further noted that the commander of the UNFICYP had requested the commander of the Turkish forces in Cyprus to instruct soldiers under his command not to shoot unless their own lives were threatened.
53. In the press release dated 16 October 1996 the UNFICYP noted that five deaths in as many months in the United Nations Buffer Zone or adjacent to the ceasefire lines underscored the urgent need for arrangements to avoid the recurrence of similar tragic incidents. It further pointed out that these incidents had highlighted the need to ensure that the rules of engagement applied along the ceasefire lines prevented the use of lethal force except in clear situations of self-defence.
54. Dr Peter Vanezis, from the Department of Forensic Medicine and Science at the University of Glasgow, carried out a post-mortem examination at Larnaca General Hospital on 14 October 1996 on the body of Petros Kakoulli. In his report dated 16 October 1996, in which he summarised his findings, Dr Vanezis stated:
“The deceased suffered three gunshot wounds to the body as follows:
One to the right side of the neck, which entered at a position just below the ear, exited at the back of the neck and did not cause any damage to any vital organs.
The second entered through the right side of the trunk and exited at the back at approximately the same level and appeared to have caused soft tissue damage with some minor associated internal injury to the lung, but was not in my view fatal.
The third wound was on the left side of the trunk towards the back. It entered the body and its trajectory was steeply upwards into the body at an angle of 45 degrees. It then exited from the left side of the front of the chest, causing a large exit wound. This wound was the fatal wound, causing severe damage to the left lung and the heart with consequent extensive internal bleeding.
The first two wounds mentioned were from approximately the same direction and both had approximately horizontal trajectories on entering the body.
The third wound was on the other side of the body and had a steep upward trajectory. The position of this wound indicates that the deceased, at the time of receiving this wound, was in a horizontal position either on the ground or crouching.
The first two wounds appeared to have been fired at approximately the same time, bearing in mind that their direction and their position on the body are from the same side...”
55. The applicants provided the Court with sketch maps and photographs of the scene of the killing of Petros Kakoulli and with the photographs taken during the post-mortem examination carried out by Dr Peter Vanezis.
56. It is to be noted that Dr Vanezis’s observations concerning the deceased’s body correspond to the photos taken during the post-mortem examination.
57. Between 14 and 17 October 1996 the daily newspapers Fileleftheros, Agon, Cyprus Mail, Alithia and Simerini reported the killing of Petros Kakoulli. The aforementioned newspapers extensively covered the impugned incident and reported the details of the killing of Petros Kakoulli and the investigation conducted into the impugned incident.
58. The following documents furnished by the Government pertain to the investigation carried out by the “TRNC” authorities into the killing of Petros Kakoulli.
59. This document sets out, in chronological order, the course of action taken by the investigating authorities in relation to the killing of Petros Kakoulli. It includes statements by various witnesses, reports, and decisions by the authorities. It appears that the investigation into the death of Petros Kakoulli was mainly carried out by Inspector Ömer Tazeoğlu, who at the relevant time worked at the Legal Branch of the Gazi Magusa Police Directorate.
60. Inspector Ömer Tazeoğlu commenced his investigation immediately after he had learned about the death of Mr Kakoulli, namely at 8.45 a.m. He visited the scene of the incident along with five other police constables at 10.45 a.m. on 13 October 1996. He observed that the incident had taken place on a slope about 300 metres to the south of the guard post code-named Haşim 8, which was under the responsibility of the 2nd Infantry Company of the 6th Infantry Battalion. The area was a first-degree military prohibited area where there were warning signs. At the site on the slope a dead person was lying face down. There was a large pool of blood.
61. Having completed his preliminary investigation, Inspector Tazeoğlu established that at 6.45 a.m. on 13 October 1996 Privates Harun Avşar and Rezvan Topaloğluları of the Infantry had begun their guard duties. 10 minutes later, they had seen a person about 300 metres from the guard post inside the military prohibited area. Private Avşar was in possession of a weapon. He had approached the person in question and concluded that he was a Greek Cypriot because he spoke Greek. He had signalled to the person to stop. But the person had attempted to run away towards the border fence. Private Avşar had first fired one shot in the air, one shot at the ground and one shot at his legs. Having seen that the person in question had failed to stop, Private Avşar had aimed at him and fired and killed him.
62. According to the work schedule, Police Constable Osman Pekun took the necessary photographs of the scene of the incident. Police Sergeant Mehmet Deniz drew a plan of the location. Inspector Ömer Tazeoğlu collected five cartridges and took samples from the pool of blood. SBA police officers Engin Çelebi and Bülent Nihat and inspectors and soldiers from the Peace Force visited the location but left without doing anything, given that the incident had taken place within the boundaries of the “TRNC”. At the scene of the incident, the military doctor Ömer Gür examined the body and found two entry holes and two exit holes caused by bullets. The body was then transferred to Gazi Magusa State Hospital for an autopsy. Following the preliminary examination carried out by Dr Sadık Aslansoyu of the State Hospital, the body was put in the morgue and placed under police surveillance.
63. On 14 October 1996 the Gazi Magusa District Court issued an interim order allowing the investigating authorities to carry out a postmortem on the body of Petros Kakoulli. The same day at 9.58 a.m. a team comprising Inspector Ömer Tazeoğlu, Assistant Director H. Gurani, Police Sergeants H. Özdoğdu and H. Erkurt, Police Constable O. Pekun and Peace Force officials Major Martin Enk, Sergeant Dalle Robert, Inspector Mathias Cosgrave and Inspector Richard Duggan, as well as Dr İsmail Bundak amd Erdal Özcenk, arrived at the morgue of Gazi Magusa State Hospital. The same day at 10.30 a.m. the body was taken out of the refrigerator by the morgue official Hamza Ulusu and was placed on the post-mortem table in the presence of the aforementioned persons. As the morgue official was removing the boot from the left foot of the body, a garrotte wire (both ends of the laundry wire, which was 68 centimetres long, were attached to a 14.5 cm long iron handle) fell to the ground. The Peace Force officials examined the said object on the spot. Then the Peace Force photographer and Police Constable O. Pekun photographed the object. When the boot was removed from the right foot a bayonet with a brown handle in a scabbard was seen to have been inserted between the right side of the leg and the interior of the boot. In this instance too the Peace Force officials and Police Constable O. Pekun photographed the object. Then the boot was removed and the bayonet and its scabbard measured. The bayonet, together with its scabbard, was 33 cm long. The objects were taken as exhibits.
64. Between 10.30 a.m. and 12.30 p.m. on the same day Dr İsmail Bundak and Dr Erdal Özcenk carried out the post-mortem examination on the body in the presence of the above-mentioned persons. Twelve X-rays of the body were taken. Doctors took two 10 cc blood samples from the chest cavity of the body and placed them in two separate 10 cc containers for examination. They observed a total of four gunshot wounds; two entry wounds and two exit wounds. Police Constable Osman Pekun took fingerprints and palm prints of the deceased for examination. The autopsy examination established that the cause of death was internal bleeding as a result of shots fired by a firearm. The shots had shattered the left ventricle of the heart and the left lower lobe of the lung. Following the autopsy, the body, the photos, X-rays and the belongings of the deceased were handed over to the Peace Force officials.
65. Between 14 October 1996 and 20 March 1997 statements were taken from SBA officials, Police Constables Temel Aydın, Türkeş Ergüder, Ahmet Bulduklar, Halil Öztugay, Ahmet Ceylani and Osman Pekun, Private Mehmet Deniz and Inspector Ömer Terzioğlu. Furthermore, witness testimonies were obtained from Infantry Private Rezvan Topaloğluları, the non-commissioned officer Sergeant Ali Ogdu, Infantry Lieutenant Necmettin Ateş, Dr Ömer Gür, Dr Sadık Aslansoyu, Dr İsmail Bundak, Dr Erdal Özcenk, the chemist Hatice Kale, Chief Inspector Abdullah Iraz, Inspector Ömer Tazeoğlu and Inspector Ules Gümüsel.
66. In a letter of 3 April 1997 Mehmet Özdamar, who was at the relevant time the Deputy Director and Acting Director of the Legal Branch at the Gazi Magusa Police Directorate, submitted a detailed report about the killing of Petros Kakoulli. Mr Özdamar stated, in so far as relevant, the following:
“[Petros Kakoulli], despite the presence of warning signs, secretly crossed into the TRNC territory near border stone no. 155 and advanced 200 metres inside...
Infantry Private Harun Avşar first verbally warned Petros Kakoulli and asked him to stop. But the said person attempted to escape by walking away speedily. Following that, Infantry Private Harun Avşar got 10 metres closer to the victim and first fired a single warning shot into the air. When [Petros Kakoulli] continued to run away, Harun Avşar fired another warning shot to the ground. But when he again tried to escape, Harun Avşar fired a single shot in the direction of his legs and then two shots below the waist. Petros Kakoulli was stopped after being shot...
During the removal of Petros Kakoulli’s boots, a garrotte wire hidden in the left boot and a 33 cm bayonet hidden inside the right boot were discovered. Both have been seized as exhibits...
The ballistic examination revealed that 5 empty cartridges had been fired by a G3 infantry rifle with the serial number 259550.
The comparison of the fingerprints of the victim with the fingerprints found on the bayonet which was found in his right boot showed that the fingerprints on the bayonet belonged to the victim...
A charge of manslaughter can be brought against someone in the event of a criminal offence or negligence. However, as the testimonies show, Infantry Private Harun Avşar made all the necessary moves to apprehend the person but as a last resort, after giving warnings, opened fire on Petros Kakoulli and shot him.
In my opinion, in the light of the existing testimonies, the incident qualifies, under Article 15 (3) (b) and Chapter 154 Article 17 of the Criminal Code, as an act of causing death which does not constitute a criminal offence...”
67. In a letter of 23 May 1997 Osman T. Naim Enginsoy, who was a Deputy Assistant Attorney-General, instructed the Director General of Police to take no further action on the case and to close it.
68. In June 1997 the police authorities decided to classify the case concerning the killing of Petros Kakoulli as “no case” and to discontinue the investigation.
69. Having completed the judicial inquest, the Gazi Magusa district judge concluded that Petros Kakoulli had died of injuries caused by shots fired by Infantry Private Harun Avşar after illegally entering the “TRNC” and failing to obey warnings to stop.
70. In his statements concerning the conclusions he had reached at the end of the investigation into the killing of Petros Kakoulli, Inspector Tazeoğlu expressed the view that Private Harun Avşar had acted in accordance with the instructions given to him. Private Avşar had given the necessary warnings and had shot and killed Petros Kakoulli because of the latter’s failure to stop. Inspector Tazeoğlu thus concluded that this was a justified killing since Private Harun Avşar had done what his duty dictated. Inspector Tazeoğlu recommended that the case should be classified as “no case”.
71. This report describes the sequence of events concerning the involvement of IRCIVPOL in the investigation into the killing of Petros Kakoulli. It appears that immediately after the killing of Mr Kakoulli, at 11.15 a.m., IRCIVPOL members including Superintendent Cosgrave and Inspector R. Duggan visited the scene of the incident. The IRCIVPOL members did not investigate the incident but merely observed the conduct of the investigation by the “TRNC” authorities from 13 June to 15 June 1996.
72. In his statements to the investigating authorities, Infantry Private Harun Avşar claimed the following, in so far as relevant, in relation to his killing of Petros Kakoulli:
“...Today, on 13.10.1996, Rezvan Topaloğluları and I were on guard duty at Haşim 8... After 5-10 minutes from the time we started our shift, we – I and Rezvan Topaloğluları – saw, approximately 300 or 400 metres from our guard post, a person walking inside our territory. This person was walking in a south-north direction, in other words in the direction of a trail we describe as the patrolling trail. We did not know who this person was. As soon as I saw this person I informed Duty Officer Ali Ogdu via the wireless (radio). He told us over the wireless to continue to keep the person under observation. Then I told my companion, Infantry Private Rezvan Topaloğluları: ‘You stay here; I will go and look at this person.’ And, holding my rifle with a loaded magazine attached to it, I came down from Haşim 8 guard post and joined the trail, advancing towards the border fence... After approaching to about 50 metres from the person, I shouted and asked him what he was doing there. Without saying anything the person continued walking on the slope in the direction of the patrolling trail. Until that moment I could not firmly determine whether this person was a Turk or a Greek Cypriot. So I moved closer to him. The distance between us was about 5-6 metres. This person was high on the slope. At that moment, I sensed that the person could well be a Greek Cypriot. The look of the person was one of bad intent and unease. After that, through hand signals I asked him where he was coming from. Initially the person gave no verbal reply, but he signalled with his right hand and indicated the Turkish side and said something in Greek. But I did not understand what he said. When I was sure that the person was a Greek Cypriot, I removed the safety catch of my weapon and aimed at him. At that moment, the person, while speaking in Greek and making hand signals, started coming towards me. Faced with this situation I shouted in Turkish, telling him to stop, and with my left arm I signalled to him to stop. The person did not stop and continued walking towards me. I, for my part, stepped back a few metres and shouted at my colleague Rezvan and told him to inform the exchange about the situation...
The guard Rezvan Topaloğluları heard me. Then I again turned my head towards the person. I shouted and warned the person to stop. After that he stopped walking towards me and started walking towards the border fence. I again shouted and warned him to stop. But this person continued walking away in the direction of the fence while moving his arms and hands saying something in Greek. The distance between this person and the border fence was 200 metres. Following that, I went up to the slope to have a better view of him. The person was still walking towards the border fence. I shouted again and asked him to stop. But he went on walking, waving his hands at the same time. After that the distance between the person and me was about 15 metres. At that point I fired a shot into the air. After hearing the firing of the gun the person quickened his steps. After that I turned my weapon in his direction and fired another shot towards the ground. He again failed to stop and further increased his speed. The distance between us at that moment was about 30 metres. When I realised that the person would not heed my warnings and would cross over to the Greek-Cypriot side, that is I would not be able to catch him, I decided to stop the person by shooting and wounding him. Therefore, while he was walking I aimed my gun roughly at his legs and fired. After that the person stopped momentarily. Until that moment I was not sure if my shot had found its target. Following that, and while he was in a walking position, I fired two rounds, aiming at the person. And the person was shot and fell to the ground. Naturally, the person fell on his right side. I realised that the person was shot. But I did not go near him. I thought there could be others hiding in the area. Therefore, I went up to the hilltop and, hiding behind the rock, began observing and monitoring the area. After that I did not hear any sound coming from the said person.
The shooting incident took place at around 7.30 a.m. After 10-15 minutes Company Duty Officer Ali Ogdu arrived at the scene of the incident along with a team of soldiers. I told him what had happened. The soldiers took security measures in the area. As I said, I fired five rounds in this incident...”
73. At the time of the impugned incident Infantry Private Rezvan Topaloğluları was on guard duty along with Private Harun Avşar at Haşim 8 guard post. In his statements to the authorities he mentioned, in so far as relevant, the following:
“...Today, on 13.10.1996 at around 6.45 a.m., the duty officer of the company, Noncommissioned Officer Ali Ogdu, drove Harun Avşar and me to the guard post and we began our guard duties there. Five to ten minutes after the start of our guard duties, we saw a person in civilian dress between our guard post and the border fence and 300 metres away from the post. Immediately after seeing this person my colleague Harun Avşar notified the situation to the exchange via the wireless. However, I am not sure who he talked to. Over the wireless he was told ‘OK, keep an eye on it’. Following that, we continued to keep the person in question under surveillance... This person was approximately 250-300 metres from the border fence inside our territory. After that my colleague told me: ‘I will go and find out who that person is. You stay here and watch...’ The person we saw was to the south of the patrolling trail inside the ‘TRNC’ territory, which was a military prohibited zone. No one is allowed to enter the area where we saw the person without permission... When we first arrived at our post no information was given to us about the presence of a person there. Therefore, we realised that that person could not be someone with permission. As a result, [Harun Avşar] left the post to find out who that person was. Harun left the post holding the G-3 infantry rifle, registered in his name, with one magazine attached to it and another one inside his belt, and directly joined the patrolling trail from the top and crossed the trail in a southerly direction and started walking in the field as if he wanted to get away from the person, but he was going to approach the person from behind. The way he was moving he would prevent the person from escaping or getting closer to the border fence. What I saw from the guard post was this: Harun got closer to the person and the distance between them was about 15 metres. First I saw that person on the slope and Harun was in the field. Then I saw Harun climbing up the slope. I do not know if there was any conversation between the person and Harun; I could not hear them from my post. At that moment, as I was watching them Harun got nearer to the person, about 10-15 metres away. Then I saw Harun Avşar turn towards the guard post and signal by hand and shout, telling me to inform the exchange. Right at that moment I understood that Harun had found out that the person was a Greek Cypriot. At that moment – the time was about 7.35 a.m. – I lifted the telephone receiver in the guard post, while watching them. I saw that the person that Harun was trying to get closer to was starting to walk speedily away and trying to escape. Naturally, that person was walking in the direction of the border fence. Then I saw Harun raise his gun into the air and fire a single shot. But that man was still walking away. This time Harun lowered his gun and aimed at the man, and in a very short period he fired four single shots, and as the man was walking he fell down. Naturally, it was not possible for me to discern how many shots Harun fired at the man and how many shots at the ground. But when the man fell down I realised that he had been shot... Harun Avşar shot that person inside the military prohibited zone...”
74. Guards on duty at Haşim 8 guard post are required to follow the instructions mentioned below, among others. Paragraph 8 of the General Instructions reads:
“In the event of any danger the guard shall fully load his weapon, shall open the safety catch and if need be shall use the weapon without hesitation but in accordance with the rules of engagement.”
75. Paragraph 10 of the Special Instructions reads:
“Guards shall always stop any person approaching them at night. They shall ask for a password and a signal. Unless they are sure, they shall not allow anyone to approach them.”
76. Paragraph 19 of the Special Instructions provides:
“When armed or unarmed military persons enter the buffer zone or cross the confrontation line, the guard on duty shall immediately inform the company’s telephone exchange and take up position. If enemy personnel are inside the buffer zone and continue to approach after a warning is given for them to stop, they shall be aimed at and fired at. If the enemy personnel intend, after entering the buffer zone, to cross the confrontation line, the guard on duty shall not allow the removal of wounded or dead personnel from the buffer zone or inside the confrontation line. The guard shall not allow the destruction of evidence. If need be he shall take aim and open fire. No personnel, in such a situation, shall enter the buffer zone.”
77. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (“UN Force and Firearms Principles”) were adopted on 7 September 1990 at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Paragraph 9 of the Principles provides:
“Law enforcement officials shall not use firearms against persons except in selfdefence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”
78. Paragraph 5 of the Principles provides, inter alia, that law enforcement officials must “exercise restraint in [the] use [of force and firearms] and act in proportion to the seriousness of the offence and the legitimate objective to be achieved”. Paragraph 7 provides: “Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law”. Paragraph 11 (b) states that national rules and regulations on the use of firearms should “ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm”.
79. Paragraph 10 of the Principles reads as follows:
“... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.”
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 14
2


ITEMID: 001-58165
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF LETERME v. FRANCE
IMPORTANCE: 4
CONCLUSION: Preliminary objection rejected (estoppel);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos
TEXT: 9. Mr Pierre Leterme, a French national born in 1945, is a computer engineer. He is a haemophiliac and has received numerous blood transfusions.
10. A test carried out on 28 October 1985 showed that the applicant had been infected with the human immunodeficiency virus (HIV). He is classified as having reached stage II of the four stages of infection on the scale of the Atlanta Center for Disease Control.
11. On 12 December 1989 the applicant submitted a preliminary application for compensation to the Minister for Solidarity, Health and Social Protection. He sought compensation for the medical disorders of all kinds he had suffered on account of his infection. This application was rejected on 30 March 1990.
12. On 25 May 1990 the applicant lodged an appeal against the above decision with the Versailles Administrative Court, seeking compensation for the damage sustained as a result of the State’s failure to take appropriate measures to prevent his infection with HIV. On 16 October 1990 he produced a supplementary pleading.
13. The Minister of Health lodged his defence on 22 April 1991. This was communicated to the applicant on 12 June 1991.
14. On 11 July 1991 the applicant was served with an order referring the case to the Conseil d’Etat. The Paris Administrative Court was then designated as the competent court. The application was registered at the Paris Administrative Court on 14 August 1991.
15. On 25 March 1992 the Administrative Court gave an interlocutory judgment, holding that “the State is liable in respect of haemophiliacs who were infected with HIV in the course of transfusion of non-heat-treated blood products during the period of liability defined above, that is between 12 March and 1 October 1985” and that “there are grounds for the Administrative Court to order the State to pay compensation for the whole of the damage suffered”.
16. The Administrative Court also ordered a medical report to determine when it had been discovered that Mr Leterme was HIV-positive and whether he had received blood derivatives during the period of the State’s liability. The expert filed his report on 16 July 1992.
17. By a judgment of 3 March 1993 the court dismissed the applicant’s claim, on the ground that no causal connection had been proved between his infection and the administration of non-heat-treated blood products during the period of the State’s liability, between 12 March and 1 October 1985.
18. On 9 April 1993 the Judicial Assembly of the Conseil d’Etat gave three landmark judgments, fixing 22 November 1984 as the start of the period of the State’s liability and awarding the victims compensation at a flat rate of 2,000,000 French francs (FRF) (see paragraph 39 below).
19. On 1 June 1993 the applicant appealed against the judgment of 3 March 1993 to the Paris Administrative Court of Appeal, requesting application of this new case-law to his own case.
20. In a judgment of 1 March 1994 the Administrative Court of Appeal decided, in accordance with the above-mentioned case-law of the Conseil d’Etat, that the State was liable for the damage sustained by the applicant as a result of the transfusions.
It awarded Mr Leterme FRF 2,000,000. However, since he had accepted an offer of FRF 1,293,000 made to him in respect of the same damage by the Compensation Fund for Transfusion Patients and Haemophiliacs, the Administrative Court of Appeal decided that the balance of the compensation owed was FRF 707,000. It calculated interest on the basis of that sum with effect from 12 December 1989 (see paragraphs 33–36 below).
21. On 2 May 1994 the applicant appealed on points of law to the Conseil d’Etat. He complained in particular of the way the Administrative Court of Appeal had calculated the interest.
22. On 27 January 1995 Mr Leterme lodged an application (no. 26387/95) with the European Commission of Human Rights, complaining of the length of the compensation proceedings and relying on Article 6 § 1 of the Convention. On 4 July 1995 the Commission adopted a report pursuant to Article 28 § 2 of the Convention noting that the parties had reached agreement on a friendly settlement of the case (see paragraph 43 below).
23. On 1 December 1995 the reporting judge at the Conseil d’Etat filed his report. On the same day the case was allocated to a government commissioner.
24. The case was listed for a hearing on 19 December 1995.
25. On 31 January 1996 the Conseil d’Etat gave a judgment quashing the Administrative Court of Appeal’s judgment of 1 March 1994 in so far as that court – notwithstanding the Conseil d’Etat’s case-law on the question (see paragraph 40 below) – had deducted from the sums the State was to pay Mr Leterme the amount of compensation to be paid by the Compensation Fund for Transfusion Patients and Haemophiliacs in the event of Aids being diagnosed. It remitted the case to the Paris Administrative Court of Appeal.
26. The file was received by the Paris Administrative Court of Appeal on 27 February 1996.
27. In a letter of 13 March 1996 the senior registrar at the court informed the applicant that the case had been remitted to that court by the Conseil d’Etat and asked him to submit his observations within one month. The applicant’s observations were filed at the court registry on 25 March 1996.
28. On 26 September 1996 the court decided to proceed without waiting for observations from the Minister of Health, the Yvelines Health Insurance Office and the Compensation Fund for Transfusion Patients and Haemophiliacs.
29. On 28 October 1996 Mr Leterme’s lawyer wrote to the President of the Paris Administrative Court of Appeal to draw his attention to the length and protractedness of the proceedings and the urgency of the case, given the applicant’s state of health. No reply was forthcoming.
30. On 10 February 1997 the case was allocated to a reporting judge.
31. On 21 May 1997 the applicant lodged a further application with the Commission (no. 36317/97), registered on 3 June 1997, complaining that the proceedings were still pending before the Administrative Court of Appeal.
32. In separate proceedings the applicant had submitted a claim to the Compensation Fund for Transfusion Patients and Haemophiliacs that had been set up by the Act of 31 December 1991 (see paragraph 38 below).
33. In a decision of 29 June 1992 the Fund awarded Mr Leterme compensation of FRF 1,293,000, of which FRF 969,750 were to be paid in three equal annual instalments and FRF 323,250 if and when Aids was diagnosed. From that sum FRF 100,000 already paid out by the haemophiliacs’ public and private solidarity funds was to be deducted.
34. On 6 October 1992 the applicant appealed to the Paris Court of Appeal.
35. On 26 February 1993 the Paris Court of Appeal gave a judgment in which it ruled that the Fund’s offer was satisfactory, formally noted that it undertook to pay the sum of FRF 969,750, subject to deduction of FRF 100,000, and specified that payment of the additional compensation would be conditional on the onset of Aids being diagnosed.
36. On 9 March 1993 the Compensation Fund paid the applicant FRF 874,706.
37. On 2 February 1994 the Court of Cassation dismissed an appeal on points of law lodged by the applicant against the Court of Appeal’s judgment of 26 February 1993.
38. The Act of 31 December 1991 making miscellaneous social-welfare provisions set up special machinery for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products. Section 47 provides:
“I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of the French Republic shall be compensated in the manner set out below.
II. ...
III. Full compensation for the damage defined in subsection I shall be provided by a Compensation Fund, having legal personality, presided over by a serving or retired divisional president or judge of the Court of Cassation and administered by a compensation board.
...
IV. In their claims for compensation, victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives.
...
Victims or their heirs shall communicate to the Fund all the information in their possession.
Within three months of the receipt of a claim, a period which may be extended at the request of the victim or his heirs, the Fund shall consider whether the conditions for payment of compensation have been fulfilled. It shall investigate the circumstances under which the victim was infected and make any necessary inquiries, which may not be resisted on grounds of professional secrecy.
...
V. The Fund shall be required to make an offer of compensation to any victim referred to in subsection I within a time-limit laid down by decree, which may not exceed six months from the day on which the Fund receives full proof of the damage...
...
VI. The victim shall inform the Fund of any judicial proceedings pending. If legal proceedings are brought, the victim shall inform the court of his application to the Fund.
VII. ...
VIII. The victim shall not be entitled to take legal action against the Compensation Fund unless his claim for compensation has been dismissed, no offer has been made to him within the time-limit referred to in the first paragraph of subsection V, or he has not accepted an offer made to him. Proceedings shall be brought in the Paris Court of Appeal.
IX. The Fund shall be subrogated, for an amount no higher than the sums paid out, to the victim's rights against the person liable for the damage and against persons required, for whatever reason, to make full or partial reparation for that damage, within the limits of those persons' liabilities. However, the Fund may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence.
The Fund may intervene in proceedings in the criminal courts, even if it does not do so until the appeal stage, where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection I. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law.
If the acts which caused the damage have given rise to criminal proceedings, the civil court shall not be required to defer its decision until there has been a final decision by the criminal court.
X. Unless otherwise provided, the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the Conseil d’Etat.
XI. ...
XII. The Compensation Fund's sources of revenue shall be specified in a subsequent Act.
XIII. ...
XIV. ...”
39. In three judgments of 9 April 1993 the Judicial Assembly of the Conseil d’Etat decided that “the State was wholly liable in respect of persons who were infected with the human immunodeficiency virus following transfusion of non-heat-treated blood products between 22 November 1984 and 20 October 1985” (see paragraph 18 above).
40. In a series of landmark judgments of 24 March 1995 the Conseil d’Etat ruled that payment of the sum proposed by the Compensation Fund for Transfusion Patients and Haemophiliacs in the event of Aids being diagnosed was “a latent possibility subject to the onset of the disease” and that accordingly the Paris Administrative Court of Appeal had “made an error of law in deducting it from the sums it ordered the State to pay in compensation for the same damage”.
41. At the material time the Administrative Courts and Administrative Courts of Appeal Code contained, inter alia, the following provisions:
“Except in cases concerning public works, proceedings may not be instituted in the Administrative Court otherwise than in the form of an appeal against a decision; such an appeal shall be lodged within two months of the notification or the publication of the contested decision.
Where no reply is forthcoming from the relevant authority for more than four months, that silence is to be construed as a decision rejecting the complaint.
...”
“The President of the Administrative Court or of the Administrative Court of Appeal, or a judge delegated by one of them, may, where the existence of an obligation cannot seriously be contested, award an advance to a creditor who has filed an application on the merits in the court in question. He may, even of his own motion, make the payment of the advance subject to the lodging of a security.”
“Immediately after the application instituting the proceedings has been registered by the registry, the president of the court or, in Paris, the president of the division to which the application has been transmitted, shall appoint a rapporteur.
“Where one of the parties or the administrative department has been asked to submit observations and has not complied with the time-limit laid down pursuant to Articles R.142 and R.147 of this Code, the president of the court or division shall issue a formal notice to comply.
In the event of force majeure, a final extension of time may be granted.
If the formal notice to comply has no effect or if the final time-limit given is not complied with, the court shall give judgment.”
Article R.151
“Where a final notice to comply relates to an administrative department of the State, it shall be sent to the authority with competence to represent the State; in other cases it shall be sent to the party or his representative if he has appointed one.”
“A member of the Administrative Court or the Administrative Court of Appeal may be assigned by the competent court or by the latter's president to carry out any investigative measures other than those provided for in sections 1 to 4 of this chapter.”
42. Decree no. 93-906 of 12 July 1993 applies to all proceedings pending at the date of its publication. It lays down provisions for the implementation of section 47 of the Act of 31 December 1991 (see paragraph 38 above):
“Part II
Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection I of section 47 of the aforementioned Act of 31 December 1991
In order to bring the action by subrogation provided for in subsection IX of section 47 of the aforementioned Act of 31 December 1991, the Fund may intervene in proceedings in any of the administrative or ordinary courts, even if it does not do so until the appeal stage. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law.
The registries of the administrative and ordinary courts shall send the Fund by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection I of section 47 of the aforementioned Act of 31 December 1991.
Within one month of receipt of the letter referred to in Article 16, the Fund shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and, if so, what stage the procedure has reached. It shall also state whether or not it intends to intervene in the proceedings.
Where the victim has accepted an offer made by the Fund, the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted. The Fund shall, where relevant, indicate the stage reached in proceedings instituted in the Paris Court of Appeal under the provisions of Part I of this decree and forward any judgment delivered by that court.
The registry shall notify the parties of the information communicated by the Fund.
The registry shall send the Fund copies of the decisions given at first instance and, where relevant, on appeal in proceedings in which the Fund has not intervened.
...
The provisions of Articles 15 to 19 shall be applicable to cases pending on the date of entry into force of [this] decree...”
43. On 27 January 1995 Mr Leterme lodged an application with the Commission, registered on 2 February 1995 under file no. 26387/95, in which he complained of the length of the compensation proceedings and relied on Article 6 § 1 of the Convention. On 4 July 1995 the Commission adopted a report in which it noted, pursuant to Article 28 of the Convention:
“…
On 26 April 1995 the applicant’s representative informed the Commission that the applicant was prepared to accept the sum of 200,000 (two hundred thousand) French francs for non-pecuniary damage, to which were to be added the costs and expenses he had incurred before the Commission, the whole to be paid within one month of the adoption of the Commission’s report, with interest in the event of delayed settlement. On 11 May 1995 he informed the Commission that the costs came to FRF 23,720.
In a letter of 14 June 1995 the Agent of the Government informed the Commission that the Government were prepared to settle the case on the basis of a payment of FRF 223,720.
On 4 July 1995 the Commission noted that the parties had reached agreement on the terms of a settlement. It also stated the opinion, having regard to Article 28 § 1 (b)of the Convention, that the parties had reached a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention.
…”
44. The text of the applicant’s declaration that he accepted the friendly settlement, signed by him on 26 September 1995, reads as follows:
“I acknowledge that the payment of these sums will constitute full and final compensation in respect of all the damage alleged in my application and will likewise cover all the lawyers’ fees and other costs I have incurred in this case.
I therefore agree to withdraw from these proceedings and to waive the right to bring any further proceedings on this account against the French State in the French and international courts.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-67626
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: GROF v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Jozef Gróf, is a Slovakian national, who was born in 1957 and lives in Trnava.
On 16 September 1997 the applicant claimed that he and his children had the exclusive right to lease a flat in Trnava.
On 25 February 1998 the Trnava District Court dismissed the action.
On 31 March 2000 the Trnava Regional Court quashed the first instance judgment.
Since then the proceedings have been pending at first instance. In these proceedings the applicant has been represented by an advocate practising in Trnava.
On 17 October 2002 the applicant complained about the length of the above proceedings to the Constitutional Court.
On 11 December 2002 the Constitutional Court rejected the complaint as falling short of the formal requirements. The decision states that the applicant failed, despite a warning of 11 November 2002, to eliminate formal shortcomings in his submission and to appoint a lawyer representing him before the Constitutional Court.
On 14 January 2003 the applicant again filed a constitutional complaint about the length of the proceedings before the Trnava District Court. In a separate letter dated 14 January 2003 he requested that the Constitutional Court should appoint a lawyer to represent him in the proceedings before it. The applicant explained that his only income was an invalidity pension which sufficed just to cover his most urgent needs.
In a letter of 19 March 2004 a constitutional judge informed the applicant that his new submission was not in conformity with the statutory requirements. The judge noted that the applicant's information about his income was not certified by the competent authority. Furthermore, in the proceedings before the District Court the applicant was represented by an advocate. The constitutional judge's letter stated that that advocate could also represent the applicant before the Constitutional Court and that the applicant would have the lawyer's fees reimbursed in the event that he succeeded in his constitutional complaint. The letter concluded that the applicant's submission would not be dealt with.
Article 12(1) and (2) of the Constitution guarantees to everyone the equality of rights.
Article 48(2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
Article 127 of the Constitution, in effect from 1 January 2002, entitles individuals and legal persons to complain about a violation of their fundamental rights and freedoms. Under this provision the Constitutional Court has the power, in the event that it finds a violation of a person's fundamental rights, to quash the relevant decision or, where appropriate, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated.
Under Section 20(2) of the Constitutional Court Act, plaintiffs in proceedings before the Constitutional Court have to be represented by an advocate.
Section 31a of the Constitutional Court Act provides that the Constitutional Court can, unless otherwise provided by law, apply in an appropriate manner the provisions of the Code of Civil Procedure and of the Code of Criminal Procedure. Under this provision and the relevant provisions of the Code of Civil Procedure, it has been the practice of the Constitutional Court to accede to a plaintiff's request for an advocate to be appointed to represent him or her where the Constitutional Court is satisfied that it is justified by the situation of the plaintiff and where the complaint is not clearly devoid of any prospect of success.


ITEMID: 001-77276
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: MCKAY-KOPECKA v. POLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms Renata Mckay-Kopecka, was born in 1931. She is a national of Poland and the United States of America. The applicant lives in Boston. She is represented before the Court by Mr L. Hincker, a lawyer practising in Strasbourg. The respondent Government are represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
Since 1986 the applicant had been living with her uncle E.B. in a oneroom flat in Warsaw. E.B., who owned the flat, died on 6 April 1988. By a court’s decision given in October 1988 Miss M.M., who was a minor at that time, inherited the flat. The applicant travelled often to the United States but was allowed to live in the flat each time she returned to Warsaw, since this was in accordance with the last will of E.B., and M.M.’s parents were in agreement with the arrangement.
In 1989 M.M.’s title to the flat was challenged before the Warsaw District Court which decided to reopen the inheritance proceedings. In 1991 M.M. applied to the Warsaw District Court for an eviction order in respect of the applicant. However, the proceedings concerning her application were stayed pending the outcome of the inheritance proceedings.
In 1995 M.M. requested the applicant to leave the flat by 15 December 1995. During the applicant’s absence from Poland M.M. had changed the locks in the flat. Upon the applicant’s return, on 30 April 1996 she removed the locks with the assistance of private security agents and entered the flat. On the same day M.M. informed the police that the applicant had been living in the flat without being registered.
On 7 May 1996 at 8.15 a.m. the applicant heard somebody banging on the door and shouting “Open, police”. The applicant opened the door. Two police officers entered the flat and inspected the applicant’s identity card, in particular the part concerning the applicant’s registered address (zameldowanie). The police officers informed the applicant that she should leave the flat and that M.M. should be allowed to take possession of it as she had title to it.
At this point several young men who accompanied M.M. started to remove the applicant’s personal effects from the flat. They carried the applicant, dressed only in her underwear, out of the flat in an armchair. They also humiliated and insulted her. The police officers, who remained inside the flat, did not react to the behaviour of the young men and stated that the applicant had to leave the flat and that their duty was to protect her. In view of the violence used against her, the applicant decided to leave the flat taking only her documents with her. Subsequently, on 7 May 1996, M.M. changed the locks.
On 9 May 1996 at 2 p.m. the applicant, accompanied by private security agents, removed the locks fitted by M.M. and entered the flat. The applicant verified the contents of the flat and discovered that USD 9,500 and a Patek watch were missing. Shortly afterwards, M.M., together with several individuals, came to the flat. She was followed by police officers. The police officers announced that the applicant had committed a burglary and started to take photographs of the flat. One of the individuals accompanying M.M., a certain Mrs T.O., insulted the applicant and pulled a telephone receiver from her hand. The police officers did not react. Moreover, the police officers did not allow the applicant’s brother to speak to her. Between 4.20 p.m. and midnight the entrance to the flat was blocked by six police officers.
On 10 May 1996 M.M. removed the front door of the flat.
On 12 May 1996 two police officers came to the flat and advised the applicant that she was not allowed to install a new front door.
On 14 May 1996 the applicant was in the flat together with private security agents hired by her. At 10 p.m. M.M. came to the flat accompanied by several individuals and three police officers. One of the police officers was the Warsaw Ochota Deputy Police Commissioner. Initially, the security agents hired by the applicant refused them entry. However the police officers threatened that they would call for reinforcements and the agents let them in. The police officers allowed M.M. to move into the flat. M.M. remained in the flat where she lived together with the applicant until 20 May 1996.
On 20 May 1996 the applicant and her belongings were removed from the flat by M.M. assisted by several individuals. The applicant immediately called the police, but the police officers who arrived at the scene did not intervene.
On 7 May 1996 police officers knocked on the applicant’s door and she let them in. After having inspected her identity document the police officers informed the applicant that she had been living in the flat without being registered there, which constituted a petty offence, and summoned her to appear at the police station the following day. While the police officers were leaving, M.M., accompanied by persons who had stayed outside in the corridor, entered the flat. Both the applicant and M.M. requested the police officers to stay as they felt insecure. A police officer spoke on the telephone to the officer on duty who instructed them to remain at the scene. They remained in the corridor until about 12 o’clock. The applicant signed an agreement with M.M. to the effect that on 9 May 1996 she would move out and take all her belongings with her. Subsequently, the locks were changed and the keys were deposited with the representative of the housing cooperative.
On 9 May 1996 the applicant accompanied by private security agents and a locksmith removed the locks and entered the flat. The police were informed by neighbours that there had been a burglary in the flat. Police officers came to the flat and inspected the identity documents of the persons present. They stayed in the corridor as in the meantime M.M. had arrived. Subsequently, the applicant’s brother tried to enter the flat by force and threatened M.M. with an electroshock gun (paralizator). The police intervened in order to stop him and inspected his identity documents.
The applicant stated to the Police Commissioner that she wished to make a formal declaration that M.M. had committed a crime. M.M. had also requested the police to investigate the charges of burglary against the applicant, but the proceedings were discontinued on 26 March 1998.
The police were called by M.M. on 10 and 12 May 1996. On both occasions they inspected the identity documents of the persons present in the corridor, but did not enter the flat.
On 15 May 1996 the police were called by the applicant’s sisterinlaw who wanted to enter the flat which had been locked by M.M. and the applicant. Since M.M. did not let her in, the applicant stepped out of the flat and spoke to her sisterinlaw. Police officers were present, but did not intervene.
The applicant and M.M. lived together in the flat until 20 May 1996. On that date the applicant removed her belongings and left.
On 10 May 1996 the applicant’s counsel filed a request with the Warsaw Ochota District Prosecutor to prosecute the police officers who on 7 May 1996 had intervened in the dispute over the applicant’s flat. The counsel informed the prosecution service that the police officers had used force to enter the applicant’s flat and had proceeded to evict the applicant. The counsel further pointed out that he represented the applicant in several civil cases and was certain that the eviction proceedings against the applicant had been stayed pending the outcome of the inheritance proceedings. The counsel concluded that the police officers had not had an eviction order and their actions had therefore been unlawful.
On 19 August 1996 the Pruszkow District Prosecutor discontinued the investigation into the applicant’s allegations. The prosecutor heard the applicant, M.M. and the police officers. He concluded that the police officers who were sent to intervene on 7 May 1996 were ordered to inspect the registration address and that they had then stayed at the request of both women who had been quarrelling. The prosecutor found that the events as alleged by the applicant did not take place. Consequently, he concluded that the actions taken by the police officers were legal and were aimed at preventing a breach of the law by the persons present.
The applicant’s counsel appealed and it appears that the case was again examined by the District Prosecutor.
On 18 April 1997 the Pruszków District Prosecutor again decided to discontinue the investigation into the charges brought against the police officers by the applicant. The prosecutor’s decision included the following conclusion:
“The evidence collected in the case shows that the police officers intervening between 30 April and 15 May 1996 did not violate any of Mrs McKayKopecka’s rights. The police officers were only ordered to carry out an inspection of her registered address (kontrola meldunkowa).
It should also be pointed out that it is difficult to agree with the victim’s claims that the police officers by their failure to act approved the removal of her personal effects and by their presence forced her to accept the new situation. The evidence taken from witnesses shows that the police officers on numerous occasions remained at the scene at the request of the victim or M.M. Moreover, the evidence does not confirm the victim’s allegations that her personal effects were taken away.
In view of the above I conclude that the actions of the police officers complied with legal regulations and were aimed at avoiding breaches of the law by the individuals present at the scene.”
The applicant appealed against this decision, but her appeal was dismissed on 28 November 1997 by the Warsaw Regional Prosecutor. The Regional Prosecutor’s decision concluded as follows:
“As was rightly pointed out by the District Prosecutor no evidence has been collected which would confirm an abuse of power or a failure by the intervening police officers to fulfil their duty. The interventions concerned verification of the registered address and resulted from a request of the president of the housing cooperative who had misled the police with respect to the title to the flat.
The applicant unsuccessfully attempted to prosecute M.M. on charges of inter alia theft and unlawful eviction. On 27 February 1997 the Warsaw District Prosecutor discontinued the investigation and found that no offence had been committed.
On 26 March 1998 the District Prosecutor discontinued the investigation against the applicant, instituted upon M.M.’s request, into charges relating to inter alia the breaking down of the door of the flat.
The applicant instituted civil proceedings against M.M. in which she sought restitution of the actual possession of the flat. On 25 January 1999 the Warsaw District Court dismissed the applicant’s application. She appealed against this decision, but her appeal was dismissed by the Warsaw Regional Court on 25 January 1999.
Article 147 (1) of the Petty Offences Code (Kodeks Wykroczeń) provides that the failure to register one’s address is punishable by limitation of liberty (ograniczenie wolnosci), a fine or a reprimand.
Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort.
“1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.”


ITEMID: 001-69792
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BASKAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicants were born in 1926 and 1943 respectively, and live in Antalya.
5. On 17 December 1997 the General Directorate of National Airports expropriated a plot of land belonging to the applicants. A committee of experts assessed the value of the plot and the relevant amount was paid to them when the expropriation took place.
6. Following the applicants' request for increased compensation, on 20 March 1998 the Antalya Civil Court of First-instance awarded them additional compensation plus interest at the statutory rate applicable at the date of the court's decision.
7. On 9 June 1998 the Court of Cassation quashed the judgment of the Antalya Civil Court of First-instance.
8. On 28 September 1998 the Court of Cassation rejected the applicants' request for rectification of the judgment of 9 June 1998.
9. On 20 December 1999 the Antalya Civil Court of First-instance awarded the applicants additional compensation of 33,318,109,000 Turkish liras (TRL) plus interest at the statutory rate running from 17 December 1997, the date on which the title deed to the land had been transferred to the General Directorate of National Airports in the land registry.
10. On 29 February 2000 the Court of Cassation upheld the judgment of the Antalya Civil Court of First-instance.
11. On 8 May 2000 the Court of Cassation rejected the applicants' request for rectification.
12. On 7 June 2000 the General Directorate of National Airports paid the applicants an overall amount of TRL 77,103,800,000.
13. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).