Resolution of the ECHR of December 18, 2018 in the case of Hasan Kose (v. Turkey) (application No. 15014/11).
In 2011, the complainant was assisted in preparing a application. Subsequently, the application was communicated to Turkey.
The case was successfully considered a application against the practice of suspending the issuance of court decisions recognizing state representatives guilty of unlawful killing or ill-treatment. The case was a violation of Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
As a result of a shot by a police officer, the applicant suffered a life-threatening injury and lost his ability to work. During the subsequent criminal proceedings, the Turkish court, contrary to the allegations of the accused police officer, concluded that there was no fight between the police and the applicant during the exchange of fire. A Turkish court found a police officer guilty of causing injury as a result of abuse of authority to use force. The police officer was sentenced to five months in prison, the sentence was suspended in accordance with article 231 of the Code of Criminal Procedure. The application of this provision of the Code of Criminal Procedure deprived a court decision of all its legal consequences, including the sentence, given that the accused police officer carried out the order to exercise supervision.
QUESTIONS OF RIGHT
Regarding the application of Article 2 of the Convention (substantive aspect). In its decision, the Turkish court used its right to mitigate the consequences of a dangerous crime, and not to demonstrate that such actions are unacceptable. The court indicated that in a number of cases, the procedure provided for in Article 231 of the Criminal Procedure Code, allowing for the suspension of court decisions in relation to representatives of state bodies, led to impunity of the perpetrators. Considering the above, the criminal law system, as it was applied in the present case, was not effective and had a slight deterrent effect, unable to ensure the actual prevention of unlawful actions, as in the present case. Accordingly, there has been a violation of Article 2 of the Convention.
The case was a violation of Article 2 of the Convention (adopted unanimously).
Regarding compliance with Article 46 of the Convention. The European Court examined a number of cases against Turkey in which state officials found guilty of unlawful killing or ill-treatment remained unpunished when their cases were suspended. In these cases, the European Court found violations of Articles 2 or 3 of the Convention on the grounds that the procedure provided for in Article 231 of the Criminal Procedure Code, which allows for a stay of adjudication, may create an atmosphere of impunity for representatives of the state who have committed serious crimes. Thus, the application of this procedure in such cases is incompatible with the requirements of Articles 2 and 3 of the Convention on ensuring the responsibility of state representatives. In order to comply with this Regulation in accordance with its obligations under Article 46 of the Convention, the authorities of the respondent State must take general measures to prevent similar violations in the future. To this end, and without prejudice to any other measures that the Turkish authorities might have foreseen, the European Court considered that it was necessary to take measures to eliminate the identified problem in order to ensure that the procedure for suspension of judicial decisions was used in accordance with the requirements of Articles 2 and 3 of the Convention. . This applies particularly to cases involving the deliberate use of force with lethal or potentially fatal representatives of the state, in order to ensure in practice efficiency and high deterrent force.
In application of Article 41 of the Convention. The Court awarded the applicant 40,000 euros in respect of non-pecuniary damage and 28,000 euros in respect of pecuniary damage.