PROCEDURE

1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 11 July 1990, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 12849/87) against the  lodged with the Commission under Article 25 (art. 25) by Mrs Astrid Vermeire, a Belgian national, on 1 April 1987.

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby  recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 8 and 14 (art. 8, art. 14).

2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that she wished to take part in the proceedings and designated the lawyer who would represent her (Rule 30).

3. The Chamber to be constituted included ex officio Mr J. De Meyer, the elected judge of Belgian nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 27 August 1990, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mrs D. Bindschedler-Robert, Mr B. Walsh, Mr A. Spielmann, Mr S.K. Martens, Mr A.N. Loizou and Mr J.M. Morenilla (Article 43 in fine of the Convention and Rule 21 para. 4 of the Rules of Court) (art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the Belgian Government ("the Government"), the Delegate of the Commission and the lawyer for the applicant on the need for a written procedure (Rule 37 para. 1). In accordance with the order made in consequence, the Registrar received the applicant’s memorial on 7 February 1991 and the Government’s memorial on 18 February 1991. On 13 March the Delegate of the Commission informed the Registrar that he would submit his observations at the hearing.

5. On 9 April the Secretary to the Commission produced certain documents from the proceedings before it, as the Registrar had requested on the instructions of the President.

6. Having consulted, through the Registrar, those who would be appearing before the Court, the President had directed on 12 October 1990 that the oral proceedings should open on 23 May 1991 (Rule 38).

7. The hearing took place in public in the , , on the appointed day. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

- for the Government

- for the Commission

- for the applicant

The Court heard addresses by Mr Huisman for the Government, Mr Danelius for the Commission and Mr Van Hoecke for the applicant, as well as their replies to its questions.

AS TO THE FACTS

I. THE PARTICULAR CIRCUMSTANCES OF THE CASE

8. Mrs Astrid Vermeire is a Belgian national resident in . She is the recognised illegitimate daughter of Jérôme Vermeire, who died unmarried in 1939. He was the son of the late Camiel Vermeire and his late wife Irma Vermeire née Van den Berghe, who also had two other children, Gérard and Robert. They died in 1951 and 1978 respectively, Gérard unmarried and without issue, Robert survived by two children of his marriage, Francine and Michel.

9. The applicant’s grandparents, who had brought her up after her father’s death, both died intestate, Irma Vermeire née Van den Berghe on 16 January 1975 and Camiel Vermeire on 22 July 1980. As the grandmother’s heirs had remained co-owners in undivided shares up to the grandfather’s death, the two estates were realised and distributed to the legitimate grandchildren Francine and Michel in a single procedure. Astrid Vermeire was excluded under the old Article 756 of the Civil Code (see paragraph 13 below).

10. On 10 June 1981 she brought an action to claim a share in the estates before the Brussels Court of First Instance. In a judgment of 3 June 1983 that court allowed her the same rights as a legitimate descendant in the estates in question.

It based its decision in particular on paragraph 59 of the judgment given by the European Court in the Marckx case on 13 June 1979 (Series A no. 31, p. 26), and took the view that "the prohibition on discrimination between legitimate and illegitimate children as regards inheritance rights [was] formulated in the judgment sufficiently clearly and precisely to allow a domestic court to apply it directly in the cases brought before it".

11. The legitimate grandchildren appealed and on 23 May 1985 the Brussels Court of Appeal set aside the judgment. It held in particular that:

"in so far as Article 8 (art. 8) entails negative obligations prohibiting arbitrary interference by the State in the private or family life of persons residing within its territory, it lays down a rule which is sufficiently precise and comprehensive and is directly applicable, but this is not the case in so far as Article 8 (art. 8) imposes a positive obligation on the Belgian State to create a legal status in conformity with the principles stated in the said provision of the Convention; (...) given that on this point the Belgian State has various means to choose from for fulfilling this obligation, the provision is no longer sufficiently precise and comprehensive and must be interpreted as an obligation to act, responsibility for which is on the legislature, not the judiciary."

The Court of Appeal thus refused to give direct effect to the passages in the Marckx judgment relating to an illegitimate child’s inheritance rights on intestacy with respect to relatives of the parent by whom he or she has been recognised.

12. The Court of Cassation concurred substantially with the reasons for this decision, which was moreover consistent with its own case-law, and dismissed the applicant’s appeal on 12 February 1987.

II. RELEVANT DOMESTIC LAW

13. The former Articles 756 and 908 of the Civil Code provided as follows:

Article 756

"Illegitimate children shall not be heirs; the law does not allow them any rights in the estates of their deceased father and mother unless they have been legally recognised. It does not allow them any rights in the estates of the relatives of their father or mother."

Article 908

"Illegitimate children may receive by disposition inter vivos or by will no more than their entitlement under the title ‘Inheritance on Intestacy’."

14. These provisions were repealed by a Law of 31 March 1987, which came into force on 6 June. That Law also inserted into the Civil Code a new Article 334, according to which:

"Whatever the method used to establish affiliation, children and their descendants shall have the same rights and obligations in respect of their father and mother and their relatives by blood and by marriage, and the father and mother and their relatives by blood and by marriage shall have the same rights and obligations in respect of the children and the children’s descendants."

15. Section 107 of the Law laid down the following transitional provisions:

"The provisions of this Law shall apply to children born before the date of its coming into force and still alive at that date, but shall not give rise to any rights in respect of successions taking place before that date.

However, the validity of acts and distributions done before the coming into force of this Law, under which a child born out of wedlock has been accorded rights greater than those allowed him by the provisions repealed by this Law, shall not be subject to challenge."

16. Regard should also be had to Articles 718, 724 and 883 of the Civil Code:

Article 718

"Succession shall take place on death."

Article 724

(wording in force at the time of the grandmother’s death)

"The legitimate heirs shall acquire as of right the possessions, rights and legal actions of the deceased, subject to the obligation to pay all the debts of the estate. Illegitimate children, the surviving spouse and the State must obtain a court order for possession in accordance with the procedures to be specified."

(wording in force at the time of the grandfather’s death)

"The legitimate heirs shall acquire as of right the possessions, rights and legal actions of the deceased, subject to the obligation to pay all the debts of the estate. Illegitimate children and the State must obtain a court order for possession in accordance with the procedures to be specified."

(wording following the Law of 31 March 1987)

"The heirs shall acquire as of right the possessions, rights and legal actions of the deceased, subject to the obligation to pay all the debts of the estate. The State must obtain a court order for possession in accordance with the procedures specified below."

Article 883

"Each co-heir shall be deemed to have succeeded solely and immediately to all the property included in his share or which has come to him on a sale of undivided joint property, and never to have had ownership of the other property in the estate."

PROCEEDINGS BEFORE THE COMMISSION

17. In her application to the Commission of 1 April 1987 (no. 12849/87), Mrs Astrid Vermeire complained that the Belgian courts had denied her the status of an heir of her grandparents. She claimed that she had thereby suffered a discriminatory interference with the exercise of her right to respect for her private and family life, which was not compatible with Article 8 in conjunction with Article 14 (art. 14+8) of the Convention.

18. On 8 November 1988 the Commission declared the application admissible. In its report of 5 April 1990 (made under Article 31) (art. 31) it expressed the opinion that the decisions in question had not violated the said Articles as regards her grandmother’s estate (by seven votes to six), but that they had violated them with respect to her grandfather’s estate (unanimously). The full text of the Commission’s opinion and of the dissenting opinions contained in the report is reproduced as an annex to this judgment.

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8 (art. 14+8)

19. The applicant complained of having been excluded from inheritance rights in her paternal grandparents’ estates. She relied on Article 8 in conjunction with Article 14 (art. 14+8) of the Convention, according to which:

Article 8 (art. 8)

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Article 14 (art. 14)

"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

She pointed out that in the Marckx judgment of 13 June 1979 the European Court had held that the total lack of inheritance rights on intestacy by reason solely of the "illegitimate" nature of the affiliation between one of the applicants and her near relatives on her mother’s side was discriminatory and hence incompatible with these Articles (Series A no. 31, p. 26, para. 59). Mrs Vermeire maintained that the domestic courts should have applied Articles 8 and 14 (art. 14, art. 8), so interpreted, directly to the estates in which she was interested; at the very least the Belgian legislature should have given the Law of 31 March 1987, amending the legislation complained of, retrospective effect as from the date of the said judgment (see paragraphs 14 and 15 above).

20. The Court stated in the Marckx case that the principle of legal certainty dispensed the  from reopening legal acts or situations that antedated the delivery of the judgment (same judgment, pp. 25-26, para. 58).

The present case concerns the estates of a grandmother who died before and a grandfather who died after that date.

A. The grandmother’s estate

21. The applicant maintained that the succession to her grandmother’s estate could not be regarded as having taken place before 13 June 1979. The date of death was indeed 16 January 1975, but the distribution, which alone determined the nature and extent of the heirs’ claims, had not been carried out until after the said judgment, jointly with that of the grandfather’s estate.

22. The succession to Irma Vermeire née Van den Berghe took place on her death and the estate devolved on her "legitimate" heirs as of that date (Articles 718 and 724 of the Civil Code, see paragraph 16 above).

The estate was undoubtedly not wound up until after 13 June 1979, but by reason of its declaratory nature the distribution had effect as from the date of death, that is to say, 16 January 1975 (Article 883 of the Civil Code, ibid).

What is in issue here is therefore a legal situation antedating the delivery of the Marckx judgment. There is no occasion to reopen it.

B. The grandfather’s estate

23. With reference to her grandfather’s estate, the applicant alleged that it was for the Belgian authorities to ensure that it was distributed in a manner consistent with Articles 8 and 14 (art.8, art. 14) as interpreted by the European Court in the Marckx judgment. In her opinion they could have performed their obligation either by direct application of those Articles (art. 8, art. 14) or by amending the legislation, retrospectively if need be.

24. The Government stated that they did not dispute the principles which followed from the Marckx judgment; they considered, however, that these principles compelled the  to carry out a thorough revision of the legal status of children born out of wedlock. Responsibility for this fell exclusively on the legislative power as the only body in a position to make full use of the freedom left to the State to choose the means to be utilised in its domestic legal system for fulfilling its undertaking under Article 53 (art. 53) (same judgment, pp. 25-26, para. 58). Articles 8 and 14 (art. 8, art. 14) were not sufficiently precise and comprehensive on the points at issue in this case, and were thus not suitable for direct application by the domestic courts.

The Government further maintained that the legislature could not be criticised for any want of diligence. A first draft reform had been introduced on 15 February 1978 (see the above-mentioned Marckx judgment, Series A no. 31, p. 25, para. 57). That it had taken over nine years to complete the task could be explained both by the acknowledged complexity of the issue and by Parliament’s foresight. Rather than partial, fragmentary alterations, Parliament had preferred an overall and systematic revision, extending inter alia to the delicate question of the status of children born in adultery. It had also pondered long over the temporal extent to be given to the new provisions; in the end concern for the legal certainty to be preserved in the interests of families, third parties and the State, together with the fear that a large number of lawsuits would follow, had induced it not to give the Law of 31 March 1987 any retrospective effect (see paragraph 15 above).

25. The Marckx judgment held that the total lack of inheritance rights on intestacy, based only on the "illegitimate" nature of the affiliation, was discriminatory (pp. 25 and 26, paras. 56 and 59).

This finding related to facts which were so close to those of the instant case that it applies equally to the succession in issue, which took place after its delivery.

It cannot be seen what could have prevented the Brussels Court of Appeal and the Court of Cassation from complying with the findings of the Marckx judgment, as the Court of First Instance had done. There was nothing imprecise or incomplete about the rule which prohibited discrimination against Astrid Vermeire compared with her cousins Francine and Michel, on the grounds of the "illegitimate" nature of the kinship between her and the deceased.

26. An overall revision of the legislation, with the aim of carrying out a thoroughgoing and consistent amendment of the whole of the law on affiliation and inheritance on intestacy, was not necessary at all as an essential preliminary to compliance with the Convention as interpreted by the Court in the Marckx case.

The freedom of choice allowed to a State as to the means of fulfilling its obligation under Article 53 (art. 53) cannot allow it to suspend the application of the Convention while waiting for such a reform to be completed, to the extent of compelling the Court to reject in 1991, with respect to a succession which took effect on 22 July 1980, complaints identical to those which it upheld on 13 June 1979.

27. In a case similar to the present one, from the point of view of Articles 6 and 6 bis of the Belgian Constitution according to which all Belgians are equal before the law and must be able to enjoy their rights and freedoms without discrimination, the Belgian Court of Arbitration, relying in particular on the Marckx judgment, held that "the old Article 756 of the Civil Code, preserved in force by virtue of section 107 of the Law of 31 March 1987, breach[ed] Articles 6 and 6 bis [aforesaid] in so far as it appli[ed] to successions taking place from 13 June 1979 on" (judgment no. 18/91 of 4 July 1991, case of Verryt c. Van Calster et consorts, published in the "Moniteur belge/Belgisch Staatsblad" of 22 August 1991, pp. 18144, 18149 and 18153).

28. Similarly, it should be found that the applicant’s exclusion from the estate of her grandfather Camiel Vermeire violated Article 14 in conjunction with Article 8 (art. 14+8) of the Convention.

II. APPLICATION OF ARTICLE 50 (art. 50)

29. Under Article 50 (art. 50),

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

Mrs Vermeire claimed in the first place 40,175,787 Belgian francs (BEF) as compensation, this being equivalent to her share in the two estates in question, after deducting inheritance tax and adding interest payable since the two deaths. She also claimed BEF 2,486,399 in respect of her costs and expenses before the domestic courts and the  institutions.

30. In the Government’s opinion, were the Court to find that there had been a breach of the Convention, the judgment would in itself constitute just satisfaction. The figures put forward by the applicant could in any event not be relied on, as they were based solely on the declarations of inheritance, which were unilateral and incomplete.

31. The Court agrees with the Commission that the applicant suffered pecuniary damage, the amount of which is equivalent to the share of her grandfather’s estate which she would have obtained had she been his "legitimate" granddaughter. Inheritance taxes and interest due must be taken into account in calculating the compensation.

32. However, as the Government dispute the information supplied by Mrs Vermeire and as some of the costs claimed appear liable to revision on the basis of this judgment, the question of the application of Article 50 (art. 50) is not ready for decision. It should therefore be reserved.

FOR THESE REASONS, THE COURT

1. Holds by eight votes to one that the  was under no obligation to reopen the succession to the estate of Irma Vermeire née Van den Berghe;

2. Holds unanimously that the applicant’s exclusion from the estate of Camiel Vermeire violated Article 14 in conjunction with Article 8 (art. 14+8) of the Convention;

3. Holds unanimously that the question of the application of Article 50 (art. 50) is not ready for decision; accordingly,

(a) reserves it in whole;

(b) invites the Government and the applicant to submit to it in writing within the next three months their observations on the question and in particular to communicate to it any agreement which they may reach;

(c) reserves the subsequent procedure and delegates to the President of the Court power to fix the same if need be.

Done in French and in English, and delivered at a public hearing in the Human Rights Building, , on 29 November 1991.

In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the partly dissenting opinion of Mr Martens is annexed to this judgment.

1. The combined estates of the applicant’s grandparents were distributed well after the delivery of the Court’s judgment in the Marckx case. Nevertheless, the division was carried out under the former Article 756 of the Belgian Civil Code; thus only the children of the applicant’s uncle benefited and the applicant was excluded. She disputed the division. In accordance with the Marckx judgment she based her claim for an equal share in both estates on Article 14, taken in conjunction with Article 8 (art. 14+8) of the Convention. The Belgian courts refused, however, to annul the partition.

2. The former Article 756 denied to an "illegitimate" child any rights on intestacy in the estates of the relatives of its parents. In paragraph 59 of its Marckx judgment the Court held that this "total lack of inheritance rights" constituted a breach of Article 14, taken in conjunction with Article 8 (art. 14+8). It is true that in so holding the Court did not, strictly speaking, pronounce on whether a different share for legitimate and "illegitimate" children would be compatible with the said provisions. However, the Court’s reasoning (especially in paragraphs 40 and 41 to which reference is made in paragraph 55) clearly implies that, in this province, only complete equality avoids discrimination.

Accordingly, only a distribution of the estates of the applicant’s grandparents in which she shared equally with her two cousins was compatible with the requirements of Article 14, taken in conjunction with Article 8 (art. 14+8). That is why, in substance, I am in agreement with paragraph 25 of the present judgment.

3. To my regret, however, I disagree with the majority finding of a violation only as far as the estate of the grandfather is concerned. Whilst the majority holds that the Marckx doctrine only applies when "the opening of the succession" occurred after 13 June 1979, the date of the Court’s judgment in that case, I find that it applies to all successions where the distribution of the estate had not yet been finalised on that date.

4. The root of this difference of opinion is to be found in the ruling the Court gave on "the temporal effect" of the Marckx judgment (para. 58) which reads:

The question is how this ruling should be interpreted.

5. The majority is obviously of the opinion that it requires no further argument that the ruling refers back to national law: its finding that as to the grandmother’s estate there is "a legal situation antedating the delivery of the Marckx judgment" within the meaning of the ruling (paragraph 22 of the judgment) is, without more ado, merely based on principles of Belgian law.

In its Marckx judgment the Court must, however, have been well aware:

(1) of the fact that  was not the sole member State of the Council of Europe where the law on inheritance discriminated against "illegitimate" children1;

(2) of the fact that, accordingly its judgment would affect other member States as well; and

(3) of the differences which, in respect to the law of inheritance, exist between the legal systems of the member States2. Accordingly, an autonomous interpretation of the ruling seems appropriate.

6. Query, however: does not comparative law show that the "opening of the succession" or "the death of the de cujus" are often used as the decisive starting point in the context of transitional provisions in the province of succession law3 and is it not, accordingly, to be assumed that one of these moments has the same function under an autonomous interpretation of the Court’s ruling? I have no doubt that this question must be answered in the negative.

7. A first and obvious point to make is that the formula used by the Court (see paragraph 4 above) is certainly not the most natural way of expressing the idea that for the temporal effect of the Marckx doctrine the date of the opening of the succession or of the decease of the de cujus should be decisive.

8. A more important consideration is, however, that the ruling by its very nature purports to limit the retroactive effect which - as the Belgian Government stressed in the Marckx case (see paragraph 58 of the Marckx judgment) - is peculiar to a judicial decision. When the Court decided that in this case such a limitation was appropriate, it did so in response to the warning by the Belgian Government that unless the Court made some proviso4:

The wording of the Court’s ruling is conspicuously similar to that of the Government’s exhortations. That makes it probable that the Court, when dispensing  (and other  where "illegitimate" children were still being similarly discriminated against)

intended to avoid the chaotic consequences held out by the Government by limiting the retroactive effect of its judgment with the result that the new doctrine would not apply to those estates that had already been wholly distributed. The word "reopening" ("remettre en cause" in the French text) supports this interpretation of the ruling. So does the term "legal acts and situations" which suggests that in answer to the Government the Court stated that it would not be necessary to reopen distributions nor to undo (notarial) deeds of partition and those legal situations which, in the meantime, had been based thereon (such as ownership of goods originating from the former estate and sold by a former heir who had acquired them at the distribution).

9. There is a further, and to my mind decisive point to be made in favour of the interpretation of the ruling suggested in paragraphs 3 and 8. What the Marckx judgment was about was: discrimination against "illegitimate" children and its "message" was that such discrimination was fundamentally unjust and could no longer be tolerated.

Against this background it seems obvious that the ruling should be interpreted strictly: legal certainty should of course be taken into account where possible (in the sense of the prevention of legal "disorder") but where the price for attaining this end has to be the "continuation of fundamental injustice" that continuation should be allowed only in so far as wholly unavoidable.

Continuation of injustice requires justification and that justification can only be found in the interests of third parties. The possibility of undoing even finalised distributions would affect the position of third parties who had acquired title to goods formerly belonging to the estate. It is for this reason that retroactivity had to be limited: the interests of third parties had to be safeguarded.

The interests of third parties, not those of the "legitimate" children. True, where the owner of the estate died before the delivery of the Marckx judgment, the "legitimate" children might be said to have been entitled to expect6 that they would not have to share with the "illegitimate" children. However, such an expectation was fundamentally unjust and as such deserved no protection. Accordingly, their interests could not serve as a justification for the Court’s acquiescence in the continuation of injustice.

10. All this leads to the conclusion that it stands to reason - indeed, that it is a requirement of justice - that where, after 13 June 1979, the estate of the applicant’s grandmother had not yet been distributed so that third party interests were not at stake and it was still possible to apply the new doctrine and thereby secure for the "illegitimate" child an equal share in the estate, that should have been done. Under the Court’s ruling as to the temporal effects of its Marckx judgment there is no need and no justification to differentiate in this respect between the estate of the grandmother and that of the grandfather.

NOTES

1 See, for inheritance law around 1976, the International Encyclopedia of Comparative Law, IV, chapter 6 (H.D. Krause), pp. 6-125 et seq.

2 See for example: M. Verwilghen E.A., Régimes matrimoniaux, successions et libéralités (Droit international privé et droit comparé) 1979, I, pp. 110 et seq.

3 See, for example, Article 8 of The Hague Convention on the Conflict of Laws relating to the Forms of Testamentary Dispositions:

In his report on the draft convention, Batiffol noted with regard to a similar provision:

In the present context, it is interesting to quote from the same report a further comment:

4 Apparently, the Government had not, however, contemplated a ruling like the one the Court gave.

5 It is worthwhile to have a look at the exact wording of the original texts. See, first the Government’s memorial (Marckx case, Series B no. 29, p. 87), where the Government, having recalled that under Belgian law the relevant limitation period is thirty years, winds up its arguments by saying:

and by pointing out "l’insécurité et le désordre qu’entraînerait cette possibilité". See, in the same sense and almost the same words, counsel for the Government at the oral hearing, telling the Court:

6 In this context, I cannot refrain from noting that during the hearing in the Marckx case counsel for the applicants told the Court that since 1908 several bills had been introduced purporting to create equality between "legitimate" and "illegitimate" children but had never succeeded (see Marckx case, Series B no. 29, p. 111).


PROCEDURE

1.  The case originated in an application (no. 52534/09) 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 a Turkish national, Mr Hıdır Taydaş (“the applicant”), on 29 September 2009.

2.  The applicant was represented by Mr B. Yıldırım, a lawyer practising in Tunceli. The Turkish Government (“the Government”) were represented by their Agent.

3.  The applicant alleged that he had been shot by the gendarmerie; that the force used against him had not been absolutely necessary; and that the domestic authorities had failed to carry out an effective investigation into the circumstances of his wounding.

4.  On 7 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

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1960 and lives in Izmir.

6.  On 3 September 2007 at around 8.10 p.m. the applicant was shot by officers from a gendarmerie special operations team immediately after he and his brother left a neighbouring house in the vicinity of their hamlet, Gölek, in the district of Mazgirt, in Tunceli, south-east Turkey.

7.  As a result of the shooting, the applicant was hit with a total of eight bullets and suffered injuries to his arms, his legs, and his left shoulder. According to a medical report issued by the Forensic Medicine Department of Fırat University dated 13 November 2007, the injuries that the applicant sustained were life-threatening. According to the report, the applicant received medical treatment and underwent surgical operations at the cardiac surgery units at the Elazığ Military Hospital and the Fırat University Hospital between 3 and 19 September 2007. He was then transferred to the Ege University Hospital in Izmir upon the request of his family members. A further medical report issued on 27 June 2011 by a board of doctors from the Karşıyaka State Hospital stated that the applicant was experiencing difficulties in walking and using his left shoulder as a result of firearm injuries. In particular, he had suffered a 48% loss of function in his legs and a 10% loss of function in his left shoulder. According to the report, the applicant was permanently disabled and only able to walk with the aid of two crutches. The applicant’s brother was not injured during the shooting.

A.  Crime scene investigation of 4 September 2007

8.  On 4 September 2007 a crime scene investigation was carried out by gendarmerie officers from the Tunceli Provincial Gendarmerie Command, who then drafted a crime scene report. The report was signed by six gendarmerie officers, including İ.S. and M.K., who had taken part in the operation of 3 September 2007. The report drafted by the officers stated that the special operations team had received information that members of the PKK, an illegal organisation, would be going to the house where the applicant and his brother had gone. The information had been given by B.B., the son of M.B., the owner of the house, who had been threatened by members of the PKK. The security forces began search and detection activities in the region at around 3.30 a.m. after the receipt of this information and at 3.30 p.m. the commander of the operation, together with two team commanders, identified four points in the vicinity of M.B.’s house at which the officers could position themselves. At around 7.40 p.m. gendarmerie officers arrived in the vicinity, took up position at the four different points identified earlier by their commanders and waited for PKK members. The applicant and his brother arrived at the house at 8 p.m. and left at 8.10 p.m. When they had left the house, E.Ö. and G.A., officers positioned at point no. 3 who had a thermal camera and a night vision device, informed the commander of the operation, İ.S., who was positioned at point no. 2, that the applicant and his brother might have weapons on them. They also informed the commander that the applicant and his brother were acting suspiciously and that they had checked the area around the house with their torches and then turned them off. The team commander subsequently asked M.A. and Y.S., officers who were positioned at the same point and who had thermal cameras, whether the applicant and his brother were carrying weapons. The officers informed the commander that the applicant and his brother had objects in their hands which looked like weapons. The team commander then ordered the applicant and his brother to stop when they were 60 metres away. As they failed to do so, officers first fired warning shots in the air (3-5 shots) and then opened fire in the direction of the applicant and his brother (13-14 shots) towards their feet. They stopped firing when the applicant and his brother shouted that they were villagers. The report further stated that when the officers approached the applicant and his brother and found that the former was wounded, they gave him first aid straight away and the applicant was transferred to Elazığ Military Hospital by helicopter. According to the report, a total of twentysix spent bullet cases were found where the officers had been located and there was a distance of 15 to 30 metres between the officers and the applicant and his brother.

9.  A gendarmerie officer also drew a sketch of the scene, according to which the applicant was 60 metres away from M.B.’s house and 15 and 30 metres away from points no. 2 and 1, respectively, where spent bullet cases had been found.

B.  Investigation carried out by the Mazgirt Public Prosecutor

10.  On an unspecified date the applicant and his brother lodged a complaint against the gendarmerie officers who had been responsible for the applicant’s shooting. The Mazgirt Public Prosecutor subsequently initiated an investigation against six gendarmerie officers on a charge of exceeding the limits of their powers in resorting to force.

11.  On 6 September 2007 the Mazgirt Public Prosecutor took statements from the applicant’s brother, S.T. He submitted that they had gone to M.B.’s house because they had wished to inform his son, B.B., that their mother would not be going to the town centre with him the next day. S.T. further maintained that they had walked with their torches on and that there had been no warning or warning shots before the shooting. He contended that when the shooting had started, he had been 1-2 metres behind his brother. They had both thrown themselves on the ground when the shooting had started.

12.  On 6 and 13 September 2007 the public prosecutor obtained statements from B.B. and M.B., the occupants of the house, respectively. They both maintained that they had informed the security forces of the threats that M.B. had received. B.B. further contended that he had seen the applicant’s mother at around 5 p.m. on the same day and that she had asked him to take her to the town centre the next day. B.B. and M.B. stated that the applicant and his brother had come to their house in order to tell them that their mother would not be going to the town centre with B.B after all and that they had subsequently left. B.B. maintained that he had been surprised when he first saw the applicant and S.T., given that their visit had occurred after sunset. B.B. further noted that he had told the applicant and S.T. to turn their torches on when they left and that they had said “OK”. M.B. maintained that the applicant and his brother had had lit torches in their hands when they had arrived at his house. He also contended that the gunfire had started 2-3 minutes after the applicant and his brother had left; that it had lasted a few minutes; and that at the same time as the gunfire he had heard the applicant and S.T. shouting “We are villagers. Do not fire.” M.B. submitted that his house had also been hit by bullets.

13.  On 11 September 2007 the Mazgirt Public Prosecutor took statements from a number of gendarmerie officers who had been involved in the operation of 3 September 2007.  İ.S., the team commander, maintained before the public prosecutor that they had started the operation upon receipt of information that terrorists would be going to M.B.’s house. He noted that a total of twenty-six gendarmerie officers had taken part in the operation. He further contended that E.Ö. and G.A. had informed him that there had been a flash of light from an object carried on the shoulder of one of the suspects which extended to hip level. He further stated that M.A. and Y.S. had also informed him that one suspect was carrying an object that extended from the shoulder to the hip. The commander maintained that the applicant and his brother had come within 10 metres of the point where they were positioned when he shouted at them to stop. According to the commander, the applicant and his brother had failed to stop despite the warning and had attempted to escape when they heard the warning shots. At that point he instructed the officers to open fire. İ.S. noted that a total of five officers had fired towards their feet and that they had stopped firing when the applicant had been shot and his brother had shouted that they were villagers. İ.S. lastly contended that the applicant’s injuries had been his own fault and that they had not intended to kill the applicant or his brother. According to İ.S., if they had intended to kill them, neither the applicant nor his brother would have survived.

14.  In their statements before the public prosecutor, E.Ö. and G.A. maintained that they had seen the applicant and his brother by using a night vision device and a thermal camera while the suspects were walking towards M.B.’s house. They had observed that the suspects had stopped when they were close to the house and had remained kneeling down for a while before entering into the house. They further maintained that they had seen shiny objects on the suspects’ shoulders. The officers noted that when they had left the house the suspects had lit their torches, had pointed them towards the path that they would take and had then turned them off. The officers had informed İ.S. of the aforementioned observations and had considered that the suspects might have been sending a message to another group in the area with their torches. They had then heard İ.S. ordering the suspects to stop and had subsequently heard firing for around five seconds.

15.  M.A., Y.S., and three other officers, R.E., B.B.A and M.K., in almost identical statements before the Mazgirt Public Prosecutor, maintained that İ.S. had told them that officers from another position had informed him that one of the two suspects was carrying an object on his shoulder which extended to hip level. Y.S. and M.K. further noted that they had also received this information through their radio transmitters. They further stated that the applicant and his brother had attempted to run away when their commander had told them to stop. As the suspects had not complied with the commander’s instruction, they had first fired warning shots and had then opened fire towards the suspects’ feet. They had stopped firing when one of the suspects had shouted that they were villagers a few seconds later. They maintained that it had been dark when the shootings occurred and that the applicant and his brother had not had lit torches with them. They stated that the applicant had been wounded because of his own conduct and that they would not have opened fire if the applicant and his brother had stopped in the first place. According to these five officers, the applicant must have been shot in the shoulder after falling to the ground upon being shot in the legs. They lastly contended that they had not intended to kill the applicant or his brother and that if they had had that intention, neither the applicant nor his brother would have survived.

16.  In their statements before the public prosecutor, Ş.Y. and A.Ş., two officers who had been positioned at the farthest point from the house, stated that they had not heard their commander give the order to stop, as it had been impossible due to the distance between them, and that they had heard gunfire for a few seconds. They had also heard their commander’s instruction to hold fire over the radio transmitter.

17.  On 13 September 2007 the Mazgirt Public Prosecutor held an onsite inspection in Gölek. The public prosecutor observed the area where the applicant had been shot and heard İ.S., M.K. and A.Ş., who reiterated their statements given on 11 September 2007. During the inspection, a gendarmerie officer took photographs of the area under the instructions of the Mazgirt Public Prosecutor.

18.  On 1 February 2008 the Mazgirt Public Prosecutor decided that his office did not have jurisdiction over the prosecution, given that the suspects had allegedly committed the offence of excessive use of force. The Mazgirt Public Prosecutor then sent the investigation file to the Elazığ Military Prosecutor’s Office.

C.  Decision of the Elazığ Military Prosecutor

19.  On 31 December 2008 the Elazığ Military Prosecutor decided not to bring criminal proceedings against the six gendarmerie officers. The military prosecutor noted that the applicant had stated that he and his brother had had their torches on when he had been shot and that there had been hundreds of shots. The prosecutor found these claims unfounded, considering that at the time of the shootings night had not entirely fallen and that it would not therefore have been reasonable to have torches switched on. In the light of the statements of the applicant and his brother that they had not at first realised that they were being targeted and had only thrown themselves to the ground after the shooting had started, the prosecutor considered that the accused officers had not fired directly towards the applicant and his brother. The prosecutor further noted that the applicant’s brother, M.B. and B.B. had all stated that the officers had fired because they had considered the applicant and his brother to be terrorists, a statement which was in line with the accused officers’ defence submissions. According to the prosecutor, the manner in which the applicant and his brother had acted (staying in the house only for 5 minutes, leaving the house without the hosts coming out of the house, keeping a distance between them and turning their torches off while walking) had justified the officers’ suspicions that they were terrorists. The prosecutor further noted that, had there been hundreds of shots fired, the applicant’s brother would also have been injured. The prosecutor considered that it had been reasonable for the gendarmerie officers to think that the torches had been weapons as it had been dark and because the torches, whose dimensions were 25 cm x 15 cm, had not been switched on, and that the information given to the security forces had corresponded to the circumstances as they unfolded. The military prosecutor finally found it established that gendarmerie officers had fired towards the ground and towards the feet of the applicant, whom they had considered to be a terrorist, and with a view to effecting his arrest in accordance with the law. He therefore concluded that the officers had not been at fault and had not used excessive force.

20.  On an unspecified date the applicant lodged an objection against the decision of the military prosecutor.

21.  On 6 April 2009 the Malatya Military Court upheld the Elazığ Military Prosecutor’s reasoning and dismissed the applicant’s objection.

II.  RELEVANT DOMESTIC LAW

22.  A description of the relevant domestic law can be found in Mustafa Aldemir v. Turkey, no. 53087/07, §§ 28-31, 2 July 2013.

THE LAW

I.  ALLEGED VIOLATIONS OF ARTICLES 2, 3, 6 AND 13 OF THE CONVENTION

23.  The applicant complained under Articles 2 and 3 of the Convention that the force used by the gendarmerie officers had not been absolutely necessary, that the excessive nature of the use of force had shown that the officers had in fact intended to kill him, and that he had suffered bodily harm as a result of the shootings. He further complained under Articles 2, 6 and 13 of the Convention that the domestic authorities had failed to carry out an effective investigation into the circumstances of his wounding.

24.  The Government contested that argument.

25.  The Court notes at the outset that the Government did not challenge the applicability of Article 2 of the Convention. In any event, the Court considers that the applicant’s fortuitous survival does not prevent the Court from examining the complaint under Article 2 of the Convention, since the use of firearms in the instant case was potentially fatal and put the applicant’s life at risk (see paragraph 7 above). Indeed, the Court has examined complaints under this provision in a number of cases where the alleged victim did not die as a result of the impugned conduct (see Makaratzis v. Greece [GC], no. 50385/99, § 55, ECHR 2004-XI); Peker (no. 2) v. Turkey, no. 42136/06, §§ 39-43, 12 April 2011 and the cases cited therein; Evrim Öktem v. Turkey, no. 9207/03, §§ 42 and 43, 4 April 2008 and the cases cited therein; and compare with Mustafa Aldemir, cited above, §§ 28-31). Thus, having regard, in particular, to the fact that the injuries that the applicant sustained were life-threatening and in the light of the aforementioned case-law, the Court deems it more appropriate to examine the applicant’s complaints solely from the standpoint of Article 2 of the Convention, which reads as follows:

“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

A.  Admissibility

26.  The Government submitted that the applicant had failed to exhaust domestic remedies as the domestic proceedings were still pending. In the alternative, they maintained that the applicant, who claimed that the investigation had been ineffective, should have applied to the Court within six months after the shooting.

27.  The applicant replied that he had exhausted domestic remedies and had introduced the application within six months after the final domestic decision.

28.  The Court observes that the investigation into the applicant’s allegations ended on 6 April 2009, when the Malatya Military Court dismissed the applicant’s objection to the decision of 31 December 2008, whereas the application was introduced on 29 September 2009. It therefore dismisses the Government’s objection that the domestic proceedings were pending at the time of the introduction of the present application. Similarly, given that the application was lodged within six months after the final decision in the domestic proceedings, the Court also dismisses the second limb of the Government’s objections.

29.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

30.  The applicant argued that the force used by the gendarmerie officers against him had been unlawful. He maintained that the excessive nature of the use of force, as a result of which he had become disabled, showed that the security forces had in fact intended to kill him. He further contended that the security forces had not warned him and his brother to stop and that he had not attempted to escape, as the members of the security forces had alleged. According to the applicant, the security forces had actually seen him and his brother carrying torches, and not weapons, before firing but had fired anyway, since they had thought that he and his brother were terrorists.

31.  The applicant further submitted that the investigation carried out by the Mazgirt Public Prosecutor and the military prosecutor had been ineffective. He stated in this respect that the investigation had been conducted by the gendarmerie forces and that the Mazgirt Public Prosecutor had only gone to the place where he had been shot after 10 days had passed. The applicant further maintained that neither he nor his lawyer had been allowed access to the investigation file. He contended, in this connection, that the onsite inspection conducted by the Mazgirt Public Prosecutor had also been inadequate, as the fact that M.B.’s house had also been hit by bullets had not been noted in the report prepared afterwards. In addition, the Elazığ Military Public Prosecutor had also failed to carry out an onsite visit.

32.  The Government submitted that the security forces had acted in accordance with the law. According to the Government, the torches carried by the applicant and his brother had been identified as weapons by the gendarmerie officers because the nature of the area had prevented the security forces from having a clear view of the applicant and his brother. Furthermore, the information given to the security forces had corresponded to the circumstances in which they had found themselves. The Government maintained that the gendarmerie officers had first warned the applicant and his brother and had fired warning shots before opening fire towards them. They concluded that the force used against the applicant had been absolutely necessary and proportionate.

33.  As regards the investigation, the Government submitted that the Mazgirt Public Prosecutor had conducted an onsite visit and prepared a report and a sketch of the scene of the incident. Furthermore, the evidence found at the scene had been safeguarded. The Government contended that both the Mazgirt Public Prosecutor and the Elazığ Military Public Prosecutor had conducted an adequate investigation, to which the applicant had had access. According to the Government, both prosecutors had heard the applicant, his brother, the accused officers and witnesses. They maintained that the investigation had been effective and had been concluded within a year and seven months.

2.  The Court’s assessment

34.  The Court reiterates that the text of Article 2 of the Convention read as a whole demonstrates that paragraph 2 does not primarily define instances where it is permitted to intentionally kill an individual, but describes situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of any of the purposes set out in subparagraphs (a), (b) or (c). In this respect the use of the term “absolutely necessary” in Article 2 § 2 indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8-11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in the subparagraphs of the Article (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 148-149, Series A no. 324).

35.  Turning to the circumstances of the present case, it is not disputed between the parties that the applicant was shot and seriously injured by the security forces of the respondent State. The Court will therefore examine whether the Government have discharged their burden of justifying the shooting. In doing so, it will have particular regard to the investigation carried out at the domestic level in order to establish whether that investigation was effective, in the sense that it was capable of leading to the determination of whether the force used was or was not justified in the circumstances (see, for example, Gülbahar Özer and Others v. Turkey, no. 44125/06, § 59, 2 July 2013, and Özcan v. Turkey, no. 18893/05, § 61, 20 April 2010).

36.  The central importance of the protection afforded under Article 2 of the Convention is such that the Court is required to subject allegations of a breach of this provision to the most careful scrutiny, taking into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination – even where domestic proceedings and investigations have already taken place (see Özcan, cited above, § 63, and Erdoğan and Others v. Turkey, no. 19807/92, § 71, 25 April 2006).

37.  As for the planning of the operation, the Court observes that the security forces had received information from B.B. that members of the PKK would be going to his father’s house, where the applicant and his brother subsequently went. They therefore instigated an operation in the area during the early hours of 3 September 2007. After almost twelve hours of work, the operation commander and team commanders chose four points facing M.B.’s house at which the members of the security forces could position themselves. Gendarmerie officers then took up position at those points and began waiting. The gendarmerie officers thus had adequate time and resources to give thought to different ways of observing possible suspects and apprehending them by using nonlethal methods. Thus, it cannot be said that the security forces had to take decisions and act in the heat of the moment (compare with Anik and Others v. Turkey, no. 63758/00, § 63, 5 June 2007). In this connection, the Court has serious doubts regarding the Government’s submissions that the officers – who had a thermal camera and a night vision device – were unable to have a clear view of the applicant and his brother from where they were positioned.

38.  As to the investigation, the Court observes at the outset that the initial and critical phases of the investigation were carried out by members of the gendarmerie unit who had carried out the operation of 3 September 2007. M.K. and the four other officers who signed the crime scene report were subsequently identified as suspected of being responsible for the applicant’s wounding by the Mazgirt Public Prosecutor. In fact, İ.S. was the commander of the whole operation of 3 September 2007. The same officers also secured the crucial evidence, such as the spent bullet cases found in the area. The Court considers that allowing the same unit of gendarmerie officers involved in the operation to take such an active part in the investigation was not only so serious as to taint the independence of the entirety of the investigation but also entailed the risk that evidence crucial for establishing the responsibility of the gendarmerie officers would be destroyed or ignored (see Gülbahar Özer and Others, cited above, § 63; Mižigárová v. Slovakia, no. 74832/01, § 100, 14 December 2010 and Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 333-341, ECHR 2007II).

39.  Furthermore, the Mazgirt Public Prosecutor failed to conduct an onsite inspection in the area for ten days, which entailed a further risk of the evidence being destroyed. What is more, when the public prosecutor visited the area in question three of the members of the security forces who had directed and taken part in the operation accompanied him. The Court does not ignore the fact that they made statements to the public prosecutor in their capacity as suspects. Yet, the Court finds the absence of the applicant’s lawyer, his brother or the witnesses during that visit inappropriate. In the Court’s view, their presence would not only have helped the public prosecutor in establishing the circumstances of the incident, it would have also given the applicant’s representative or his brother a chance to challenge the statements of the officers on the spot. The Court further observes that the Mazgirt Public Prosecutor failed to inspect M.B.’s house with a view to verifying his statements that his house had been hit by the bullets and, thus, assessing the proportionality of the force used. Neither did he ensure the collection of the bullets used during the operation.

40.  The Court further observes that the Mazgirt Public Prosecutor did not take any steps aimed at resolving the inconsistency between the account of the applicant and his brother and that of the security forces. In particular, he failed to establish with specific evidence whether the security forces had actually fired warning shots before shooting the applicant. The public prosecutor should have ensured that the bullets, the empty cartridges and the firearms of the gendarmerie officers were collected and sent for ballistic examination (see Mustafa Aldemir, cited above, §§ 49 and 55).

41.  Moreover, there is a serious inconsistency between the account of events as described by İ.S. and that of M.A. and Y.S., the officers who were also positioned at point 2. İ.S. maintained before the Mazgirt Public Prosecutor that he had received information from both the officers at point no. 3 and M.A. and Y.S. that one suspect had an object that extended from the shoulder to the hip, whereas M.A. and Y.S. stated that it had been İ.S. who had told them about that object. There is nothing in the documents submitted to the Court demonstrating that the Mazgirt Public Prosecutor attempted to eliminate this inconsistency. He also failed to enquire why and how the statements of five gendarmerie officers, namely M.A., Y.S., R.E., B.B.A. and M.K., regarding the operation were almost identical to the extent that most of the texts were word-for-word the same. The Court also cannot overlook the fact that only ten of the twenty-six officers who took part in the operation of 3 September 2007 made statements before the Mazgirt Public Prosecutor.

42.  In their observations to the Court, the Government submitted that the accused officers, the applicant and the witnesses had given evidence to the Elazığ Military Public Prosecutor. However, they failed to produce any document in support of these submissions. What is more, the military public prosecutor’s decision of 31 December 2008 does not contain any reference to statements taken at his office. It appears that the Elazığ Military Public Prosecutor simply took into account the statements taken by the Mazgirt Public Prosecutor, as well as the documents prepared by the latter. It appears that he did not conduct an onsite inspection either. The Court is therefore led to conclude that the Elazığ Military Public Prosecutor rendered his decision solely on the basis of the investigation conducted by the Mazgirt Public Prosecutor, contrary to what was claimed by the Government.

43.  Similarly, the applicant alleged that he and his lawyer had not been allowed to have access to the investigation file at the initial stages of the investigation by a decision of Mazgirt Magistrates’ Court. However, he did not submit the decision in issue. As a result, the Court cannot give further consideration to the applicant’s allegation.

44.  Nevertheless, in the light of the serious defects in the investigation which are highlighted above and which are in breach of the obligation under Article 2 of the Convention to carry out effective investigations, the Court considers that the investigation carried out at the domestic level was clearly inadequate and left many important questions unanswered. As a result, the investigation was not capable of establishing the true circumstances surrounding the applicant’s shooting. The Court therefore concludes that the Government have failed to show to the Court’s satisfaction that the resort to the use of lethal force against the applicant was absolutely necessary and proportionate (see Gülbahar Özer and Others, cited above, §§ 74 and 75, and Peker (no. 2), cited above, § 59).

45.  There has accordingly been a violation of Article 2 of the Convention in its substantive and procedural aspects in respect of the shooting of the applicant.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

46.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

47.  The applicant claimed 700,000 Turkish liras (TRY), approximately 304,000 euros (EUR), in respect of non-pecuniary damage. He further claimed TRY 500,000 in respect of pecuniary damage. This sum concerned medical expenses incurred and loss of earnings arising as a result of his incapacity for work. In support of his claims, the applicant submitted medical reports issued by the Karşıyaka State Hospital and the Ege University Hospital. The report by the Karşıyaka State Hospital demonstrates his permanent disability. According to the report of the Ege University Hospital, the applicant was hospitalised and received medical treatment, including surgical operations, between 3 October and 14 December 2007. The applicant also submitted a number of invoices in relation to his medical examinations between December 2007 and August 2008 at the Orthopaedics Department of the Ege University Hospital amounting to a total of EUR 285.

48.  The Government considered that the claims for non-pecuniary and pecuniary damage were excessive and unsubstantiated.

49.  Having regard to the applicant’s failure to submit any evidence or other information in support of his claim for pecuniary damage in so far as it concerns his loss of earnings and incapacity for work, the Court rejects this part of the applicant’s claim for pecuniary damage. On the other hand, the Court considers that there is a direct causal link between the applicant’s injuries sustained as a result of the shooting and the applicant’s medical examinations between December 2007 and August 2008 for which invoices were submitted to the Court. In addition, the Government did not challenge this causal link. The Court accordingly awards the applicant EUR 285 in respect of pecuniary damage.

50.  As to the claim in respect of non-pecuniary damage, in the light of the violation of Article 2 of the Convention found above and taking into account the applicant’s permanent disability, the Court awards the applicant EUR 52,000 in respect of non-pecuniary damage.

B.  Costs and expenses

51.  The applicant also claimed TRY 5,100, approximately EUR 2,200, for costs and expenses incurred before the Court. He sought EUR 650 to cover administrative costs, such as postage and translation fees. He further claimed EUR 1,550 for his lawyer’s fee, referring to the recommendations of the Union of Bar Associations of Turkey regarding lawyers’ fees.

52.  The Government submitted that the applicant’s claims were not supported by documentary evidence.

53.  According to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant failed to substantiate that he actually incurred the costs claimed. In particular, he failed to submit documentary evidence, such as invoices demonstrating administrative costs, a contract, a fee agreement or a breakdown of the hours spent by his lawyer on the case. Accordingly, the Court makes no award under this head.

C.  Default interest

54.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 2 of the Convention in both its substantive and procedural aspects;

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 26 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in two applications (nos. 31145/96 and 35580/97) against the United Kingdom lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two British nationals, Mr Mark Wilkinson and Mr Kevin Allen (“the applicants”), on 13 April 1996 and 1 April 1997, respectively.

2.  The applicants were represented by Mr J. Mackenzie, a lawyer practising in London. The British Government (“the Government”) were represented by their Agents, Mr M. Eaton and Mr C. Whomersley, both of the Foreign and Commonwealth Office.

3.  The applicants alleged, as regards their trial by court-martial, that they did not have a fair and public hearing by an independent and impartial tribunal established by law. On 31 May 1999 the Commission found a violation of Article 6 § 1 of the Convention. By letter dated 27 September 1999 the Government referred the cases to the Court explaining that the reference had been made not to contest the breach of Article 6 § 1 which had been found by the Commission but to seek a ruling pursuant to Article 41 on what just satisfaction, if any, should be awarded to the applicants.

4.  In accordance with Article 5 § 4 of Protocol No. 11 to the Convention and Rules 100 § 1 and 24 § 6 of the Rules of Court, a panel of the Grand Chamber decided on 13 December 1999 that the applications should be considered by a Chamber constituted within one of the Sections of the Court. The applications were then allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court).

Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. Sir Nicolas Bratza, the judge elected in respect of the United Kingdom, withdrew from sitting in the case (Rule 28). While the Government initially appointed Sir Stephen Richards to sit as an ad hoc judge, by letter dated 9 November 2000 they agreed that Judge Costa, the judge elected in respect of France, would sit in place of Sir Nicolas Bratza (Article 27 § 2 of the Convention and Rule 29 § 1).

5.  The Chamber decided to join the proceedings in the applications (Rule 43 § 1).

6.  The applicants and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASES

7.  At the time of the events in question, both applicants were serving in the army and were tried by district courts-martial convened pursuant to the Army Act 1955.

8.  Mr Wilkinson pleaded guilty to the armed forces’ disciplinary offence of absence without leave (contrary to section 38(a) of the Army Act 1955). Although the Army Board upheld his petition against the custodial part of his sentence, the charge for which he was convicted carried a potential sentence of two years’ imprisonment (see paragraph 17 below).

9.  Mr Allen pleaded guilty to two charges of possession of controlled drugs contrary to the Misuse of Drugs Act 1971, these being civilian criminal offences. The Army Board reduced the custodial element of his sentence to six months’ imprisonment.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

10.  The relevant provisions of the Army Act 1955 are set out in the judgment of the European Court of Human Rights in the Findlay case (Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, §§ 32-51).

11.  Central to the system under the 1955 Act was the role of the “convening officer”. This officer (who had to be of a specified rank and in command of a body of the regular forces or of the command within which the person to be tried was serving) assumed responsibility for every case to be tried by court-martial. He or she had the final decision on the nature and detail of the charges to be brought and the type of court-martial required, and was responsible for convening the court-martial.

12.  The convening officer would draw up a convening order, which would specify, inter alia, the date, place and time of the trial, the name of the president and the details of the other members, all of whom he could appoint. Failing the appointment of a judge advocate by the Judge Advocate General’s Office, the convening officer could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer.

13.  Prior to the hearing, the convening officer was responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate, and could indicate the passages which might be inadmissible. He procured the attendance at trial of all witnesses to be called for the prosecution. When charges were withdrawn, the convening officer’s consent was normally obtained, although it was not necessary in all cases, and a plea to a lesser charge could not be accepted from the accused without it. He had also to ensure that the accused had a proper opportunity to prepare his defence, legal representation if required and the opportunity to contact the defence witnesses, and was responsible for ordering the attendance at the hearing of all witnesses “reasonably requested” by the defence.

14.  The convening officer could dissolve the court-martial either before or during the trial, when required in the interests of the administration of justice. In addition, he could comment on the proceedings of a court-martial. Those remarks would not form part of the record of the proceedings and would normally be communicated in a separate minute to the members of the court, although in an exceptional case, where a more public instruction was required in the interests of discipline, they could be made known in the orders of the command.

15.  The convening officer usually acted as confirming officer also. A court-martial’s findings were not effective until confirmed by the confirming officer, who was empowered to withhold confirmation or substitute, postpone or remit in whole or in part any sentence.

16.  Since the applicants’ trials, the law has been amended by the Armed Forces Act 1996 (see the above-mentioned Findlay v. the United Kingdom judgment, §§ 52-57).

17.  A person convicted of absence without leave shall be liable to imprisonment for a term not exceeding two years (section 38(a) of the 1955 Act).

THE LAW

i.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

18.  Each of the applicants complained, invoking Article 6 § 1 of the Convention, that he did not have a fair hearing by an independent and impartial tribunal established by law. Mr Wilkinson also complained that he did not have a public hearing. Article 6 § 1, insofar as relevant, reads as follows:

“1.  In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...”

A.  Applicability of Article 6 § 1 of the Convention

19.  The Court notes the potential penalty of two years’ imprisonment (in Mr Wilkinson’s case) and the final sentence imposed on Mr Allen (six months’ imprisonment) together with the nature of the charges to which, in particular, Mr Allen pleaded guilty. It considers that the applicants’ court-martial proceedings involved the determination of their sentence on charges of a criminal nature within the meaning of Article 6 § 1 of the Convention (the above-cited Findlay judgment, § 69, and the Garyfallou aebe v. Greece judgment of 24 September 1997, Reports 1997-V, no. 49, §§ 32-33, with further references).

B.  Independence and impartiality of the applicants’ courts-martial

20.  The Commission concluded that there had been a violation of Article 6 § 1 in that the applicants were not given a fair hearing by an independent and impartial tribunal. The Government made no observations on the merits of these complaints except to clarify that the cases had been referred to the Court by the Government not to contest the Commission’s conclusions but to seek a ruling on the just satisfaction awards, if any, to be made.

21.  The Court recalls that, in the above-mentioned Findlay judgment, the Court held that a general court-martial convened pursuant to the Army Act 1955 did not meet the requirements of independence and impartiality set down by Article 6 § 1 of the Convention in view, in particular, of the central part played in its organisation by the convening officer. In this latter respect, the Court considered that the convening officer was central to the applicant’s prosecution and was closely linked to the prosecution authorities; the Court expressed some concern that the members of the court-martial were subordinate (either directly or indirectly) to the convening officer, and the Court found it significant that the convening officer also acted as confirming officer.

22.  The Court subsequently found a district court-martial convened pursuant to the Air Force Act 1955 to have similar deficiencies (Coyne v. the United Kingdom judgment of 24 September 1997, Reports 1997-V, pp. 1848-52, §§ 20-44). In particular, it considered that there were no significant differences between the part played by the convening officer in Mr Coyne’s court-martial, under the Air Force Act 1955, and in that of Mr Findlay, under the Army Act 1955. While an appeal to the Courts-Martial Appeal Court was open to Mr Coyne, the Court concluded that the organisational defects in the court-martial could not be corrected by any subsequent review procedure because an accused faced with a serious criminal charge is entitled to a first instance tribunal which meets the requirements of Article 6 § 1 of the Convention.

23.  The Court subsequently found a violation of Article 6 § 1 on the same basis in a series of cases involving complaints about the independence and impartiality of army and air force district and general courts-martial convened pursuant to the Army and Air Force Acts 1955 (Cable and Others v. the United Kingdom [GC], No 24436/94 et seq., 18.2.1999).

24.  In the present case, the Court recalls that district army courts-martial were convened pursuant to the Army Act 1955 to try the applicants. It finds no reason to distinguish the present cases from those of Mr Findlay, Mr Coyne or of Mr Cable and Others as regards the part played by the convening officer in the organisation of their courts-martial. Accordingly, the Court considers that the applicants’ courts-martial did not meet the independence and impartiality requirements of Article 6 § 1 of the Convention. The Court also considers that, since the applicants were faced with, inter alia, charges of a serious and criminal nature and were therefore entitled to a first instance tribunal complying with the requirements of Article 6 § 1, such organisational defects in their courts-martial could not be corrected by any subsequent review procedure.

25.  Accordingly, and for the reasons expressed in detail in the above-cited judgment of the Court in Mr Findlay’s case, the Court concludes that the courts-martial which dealt with the present applicants’ cases were not independent and impartial within the meaning of Article 6 § 1 of the Convention.

26.  The Court is further of the opinion that, since the applicants’ courts-martial have been found to lack independence and impartiality, they could not guarantee either of the applicants a fair trial (Smith and Ford v. the United Kingdom, no. 37475/97, 29.9.1999, § 25, and Moore and Gordon v. the United Kingdom, no. 39036/97, 29.9.1999, § 24).

C.  Remaining points at issue

27.  The applicants also complained that their courts-martial were not “established by law” within the meaning of Article 6 § 1 of the Convention. Mr Wilkinson also claimed that his court-martial was not “public” within the meaning of that Article.

28.  In view of its conclusions at paragraphs 25 and 26 above, the Court finds that it is unnecessary also to examine these complaints of the applicants.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Loss

30.  The applicants did not claim to have suffered any pecuniary loss.

31.  They sought £7500 and £5000 pounds sterling (GBP), respectively in compensation for the non-pecuniary loss suffered as a result of the violations of their rights guaranteed by Article 6 § 1 of the Convention.

32.  The Government observed that there were no grounds for believing that the applicants would not have been convicted and suffered the same or similar consequences if the courts-martial had been organised to comply with Article 6 § 1, and they submitted that no causal link had been established between the breach of the Convention of which the applicants complained and the alleged loss. The Government relied on the approach adopted by the Court on the question of just satisfaction following a finding of the same violation of Article 6 § 1 of the Convention in the above-cited Findlay, Coyne and Cable and Others cases.

33.  The Court recalls that in the aforementioned Findlay judgment it decided not to award compensation for either pecuniary or non-pecuniary damage on the ground that it was impossible to speculate as to the outcome of the court-martial proceedings had the violation of the Convention not occurred (loc. cit., §§ 85 and 88, and the Coyne judgment at § 62).

The Court, accordingly, considers that it would not be justified in awarding compensation for the alleged non-pecuniary loss of the present applicants, since no causal link has been established between any such loss and the breaches of the Convention established.

34.  The Court therefore considers that the finding of a violation in itself constitutes sufficient just satisfaction for any non-pecuniary damage suffered by the applicants.

B.  Costs and expenses

35.  The applicants requested reimbursement of their legal costs and expenses in the sums of GBP 1988.10 and GBP 1022.25 (inclusive of value-added tax), respectively and the Government do not dispute this claim.

36.  The Court recalls that it has found a violation of Article 6 § 1 of the Convention in respect of each applicant and considers it appropriate, in the circumstances of the cases, to award the sums claimed by the applicants in costs and expenses (which figures are inclusive of any value-added tax which may be chargeable).

C.  Default interest

37.  According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Holds that there has been a violation of Article 6 § 1 of the Convention;

2.  Holds that the finding of a violation in itself constitutes sufficient just satisfaction for any non-pecuniary damage alleged by the applicants;

3.  Holds

(a)  that the respondent State is to pay the applicants, within three months, GBP £1988.10 and GBP £1022.25, respectively for costs and expenses, which figures are inclusive of any value-added tax that may be chargeable;

(b)  that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement;

4.  Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 6 February 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.