FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57084/00 
by Fatma USTA and Others 
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 3 November 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr R. Türmen
 Mr M. Pellonpää
 Mr R. Maruste
 Mr K. Traja, 
 Ms L. Mijović, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 3 January 2000,

Having deliberated, decides as follows:

THE FACTS

The applicants, Fatma Usta, Hüseyin Usta and Hacer Bakkal Usta, are Turkish nationals who were born in 1938, 1938 and 1964 respectively and live in İstanbul. They are represented before the Court by Mr Ali Yaşar, a lawyer practising in İstanbul.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 17 April 1992 Taşkın Usta was shot dead by armed police officers at a flat in Çiftehavuzlar Cezmi Or Street, Kadıköy, Istanbul, following a siege. He is the son of the first two applicants and the husband of the third applicant.

1.  The killing of Taşkın Usta

According to the facts established by the Kadıköy public prosecutor, following receiving an anonymous phone call stating that THKP-C militants were preparing an assault, police officers of the anti-terror branch of the Istanbul Security Directorate arrived at the scene. After securing the premises, the police officers requested the suspects to surrender themselves. The suspects refused to surrender and proceeded to hang the flag of the illegal organisation from the window of the flat, to shout slogans and set fire to some of the furniture in the flat. At that point the police were unaware of the number of suspects. An ambulance was brought to the scene. The suspects were told to surrender themselves and to open the door of the flat. However, the deceased refused to do so and opened fire. At this point, a team headed by Mr R.A, decided to enter the flat by force and bombed the steel front door. A clash broke out between the three suspects, including Taşkın Usta and the police officers Mr R.A., Mr A.D., Mr I. S., Mr A.T, Mr A.U., Mr M.B.A, Mr A.Ç and Mr A.T. as a result of which, Taşkın Usta and two other suspects died and Mr. I.S was injured.

The Kadıköy public prosecutor started an investigation into the events surrounding the circumstances in which Taşkın Usta and the other suspects were killed.

On 18 April 1992 an autopsy was carried out on the deceased by forensic experts at the İstanbul Cerrahpaşa Medical Faculty. According to the report, Taşkın Usta had forty-five bullet entry wounds out of which thirteen were fatal. The report concluded that nine of the shots were fired at a long range but that a further examination needed to be conducted on the clothes of the deceased in order to determine the shooting range of the others. The report also stated that according to the toxicology report, Taşkın Usta did not have any foreign substances such as alcohol or drugs in his blood. The cause of death was stated as fracture of skull, ribs, internal bleeding and cerebral haemorrhage.

2.  Criminal proceedings against the police officers

On 18 April 1995 the Kadıköy public prosecutor filed a bill of indictment with the Kadıköy Assize Court against nineteen police officers who took part in the operation. The charges were brought under Articles 450 § 5, 463, 251, 281, 49 § 1, 31 and 33 of the Criminal Code. The defendants were accused of manslaughter without the actual offender being identified. With an additional indictment of 28 March 1996 three other police officers were also charged under the same offence.

On an unspecified date, the criminal proceedings against the police officers commenced. On 3 June 1995 the Court of Cassation decided to transfer the case to the Kayseri Assize Court for security reasons.

On 13 July 2001 Kayseri Assize Court acquitted the police officers of all charges. In its decision, the court, referring to the evidence in the case-file, (i.e. ballistic reports, incident report, fire arms and bombs found in the flat, photographs taken after the incident, witness statements) found that the police officers did everything in their power to capture the deceased alive and that fire was opened only after the deceased opened fire and for self-defence. It stated, inter alia, that the operation had lasted for more than nine hours and that throughout this time the police officers had repeatedly ordered the deceased to surrender themselves.

By a letter dated 13 September 2004 the applicant’s representative informed the Court that according to the information they received from the registry of the Kayseri Assize Court, the Court of Cassation upheld the judgment of 13 July 2001.

3.  Civil proceedings brought by and against the applicants

On 8 July 1992 the Pendik Magistrates’ Court declared the applicants, legal heirs of Taşkın Usta. This decision became final on 9 July 1992.

On 20 September 1994 the İstanbul State Security Court, during criminal proceedings instituted against six other persons, ordered the confiscation of two cars and a flat registered under Taşkın Usta’s name pursuant to Article 36 of the Criminal Code. The applicants were a civil party to the proceedings and their objection to that decision was dismissed by the court on the ground that the impugned property belonged and was used by the illegal organisation despite the fact that it was registered under the name of Taşkın Usta.

The judgment of the first-instance court was upheld on 22 May 1996 by the Court of Cassation.

a)  Civil proceedings brought by the applicants

On 24 December 1997 the applicants filed an action with the Kadıköy Civil Court of First Instance (3rd Chamber) and requested the determination of the title to the confiscated flat and of the two cars.

On 24 June 1998 the first-instance court, pointing out that the applicants similar objections had been dismissed by the State Security Court on the ground that the impugned flat and the two cars were the property of the illegal organisation and to the fact that this decision had become final, dismissed the case. On 2 March 1999 the Court of Cassation held a hearing and upheld the judgment of the first-instance court.

b)  Civil proceedings brought against the applicants

On 31 October 1997 the Ministry of Treasury filed an action with the Kadıköy Civil Court of First Instance (2nd Chamber) and requested the annulment of the title-deed of the confiscated flat.

On 28 October 1998 the first-instance court held, inter alia, that the legal consequence of a decision of confiscation was the transfer of property rights and annulled the title-deed of the confiscated flat and ordered it to be registered under the name of the Treasury. In its decision the court noted that the applicants’ representative had failed to attend the hearings and that the decision was taken in his absence.

The applicants appealed against the judgment of the first-instance court. In their appellate petition they submitted, inter alia, that the court had given a judgment without giving them the opportunity to prove their case and that it had not taken any decision as regards their petition of excuse submitted prior to the adoption of the judgment.

On 27 April 1999 the Court of Cassation held a hearing and upheld the judgment of the first-instance court. On 1 July 1999 the Court of Cassation dismissed the applicants’ request for a rectification of its decision. This decision was notified to the applicants on 13 July 1999.

B.  Relevant domestic law and practice

Article 36 § 1 of the Criminal Code provides:

 “In the event of conviction the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence ...”

COMPLAINTS

The applicants complain under Article 2 of the Convention on account of the killing of Taşkın Usta by police officers. They submit that Taşkın Usta was killed at night in his house whereas he could have been apprehended and interrogated during the day. They further complain that the Kadıköy Civil Court of First Instance (2nd Chamber) should have waited for the decision of the Kayseri Assize Court before making a ruling.

The applicants complain under Article 6 of the Convention that the Kadıköy Civil Court of First Instance (2nd Chamber) relied on the judgment of the İstanbul State Security Court. They submit that the State Security Court is not an independent and impartial tribunal on account of the presence of a military judge sitting on the bench of that court.

The applicants complain, without invoking any particular Article of the Convention, that the Kadıköy Civil Court of First Instance (2nd Chamber) did not give them the opportunity to prove their case.

THE LAW

1. The applicants complain under Article 2 of the Convention on account of the killing of Taşkın Usta by police officers. They submit that Taşkın Usta was killed at night in his house whereas he could have been apprehended and interrogated during the day.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicants complain under Article 6 of the Convention that the Kadıköy Civil Court of First Instance (2nd Chamber) relied on the judgment of the İstanbul State Security Court. They submit that the State Security Court is not an independent and impartial tribunal on account of the presence of a military judge sitting on the bench of that court.

They complain under Article 2 of the Convention that the Kadıköy Civil Court of First Instance (2nd Chamber) should have waited for the decision of the Kayseri Assize Court before making a ruling.

Finally, they complain, without invoking any particular Article of the Convention that the Kadıköy Civil Court of First Instance (2nd Chamber) did not give them the opportunity to prove their case.

The Court considers that the aforementioned complaints should be examined under Article 6 of the Convention. The Court observes that the impugned proceedings before the Kadıköy Civil Court of First Instance (2nd Chamber) concerned the annulment of the title-deed to a flat registered under the name of Taşkın Usta and which had been previously confiscated under Article 36 of the Criminal Code.

The Court finds no arbitrariness in the mere fact that the Kadıköy Civil Court of First Instance (2nd Chamber) relied on the decision of the State Security Court since the applicants were a civil party to those proceedings and had the opportunity to fully state their case before that court and the Court of Cassation. Moreover, the Court does not find any arbitrariness in the fact that the Kadıköy Civil Court of First Instance (2nd Chamber) did not to wait for the outcome of the criminal proceedings before the Kayseri Assize Court since these proceedings were brought against police officers for manslaughter and had no relevance with the case before the Kadıköy Civil Court of First Instance (2nd Chamber).

As to the allegation of the applicants that they were deprived of the opportunity to prove their case, the Court observes that the decision of the Kadıköy Civil Court of First Instance (2nd Chamber) expressly referred in its decision to the fact that the applicants’ representative had failed to attend the hearings held before it. This decision was upheld by the Court of Cassation after a hearing where the applicants had the possibility to state their case. In view of the above, the Court considers that there is nothing to indicate that the taking and the assessment of the evidence was arbitrary or the proceedings were otherwise unfair so as to raise an issue under Article 6. Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaint concerning the killing of Taşkın Usta;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

USTA AND OTHERS v. TURKEY DECISION


USTA AND OTHERS v. TURKEY DECISION