Preliminary objection rejected (non-exhaustion);Violation of Art. 2;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE there were a number of incidents such as spontaneous unauthorised demonstrations , shop closures and attacks on public buildings in the town of ORG in GPE . CARDINAL people were killed – one of whom was PERSON , aged DATE , a pupil at ORG and the applicant ’s son DATE and CARDINAL others were wounded .

NORP The owners of CARDINAL rifles confiscated after the incidents , spent cartridges from which had been collected by the security forces , were prosecuted in ORG , but acquitted because they had proved that they had not taken part in the events concerned .

According to the ORG , PERSON was hit by a bullet fired by armed demonstrators at the gendarmes .

According to the applicant , his son was killed by the security forces , who fired on the unarmed demonstrators to make them disperse .

On DATE the applicant filed a criminal complaint with the ORG public prosecutor ’s office against a person or persons unknown and against the commander of the security forces , PERSON .

On DATE the public prosecutor ’s office , after noting that the criminal complaint was directed against Major PERSON , declared that it had no jurisdiction to deal with it and transferred the case file to ORG for a preliminary investigation .

On DATE ORG halted the proceedings by means of a discontinuation order which was never served on the applicant ’s lawyer . It found that the victim had died of bullet wounds received in the course of a confrontation between the demonstrators and the security forces . However , it found that it was impossible to identify those responsible .

On DATE ORG , to which the case had been automatically referred by law , upheld the above decision , holding that it was impossible to bring a prosecution against civil servants where the identity of those responsible and their status as civil servants had not been established .

On DATE PERSON lawyer wrote to the Chairman of ORG enquiring what had been done about the applicant ’s complaint . On DATE ORG sent the applicant ’s lawyer copies of the discontinuation order of CARDINAL DATE and ORG judgment of CARDINAL DATE .

The applicant and the respondent Government submitted various documents relating to the investigation carried out after the death of PERSON PERSON to identify those responsible . They also produced documents relating to the criminal proceedings brought against persons who were suspected of taking part in the demonstration .

The applicant alleged that his son had been shot and killed by the security forces in the course of the incidents of CARDINAL DATE . He stated that eyewitnesses had seen the killing and asked that the gendarmes who had killed his son be identified .

The petitioners , who had all witnessed these events , alleged that during an unauthorised demonstration the gendarmes had opened fire on unarmed demonstrators . CARDINAL people had been killed and CARDINAL wounded . The gendarmerie commander had given the order to fire at will on unarmed people . In particular , the local councillors , who had been in a meeting in the district authority offices , had seen the security forces opening fire on young people . CARDINAL senior - high - school pupil had been killed and others wounded in the shooting . The petition stated that the gendarmerie had acted without reference to the District Commissioner , the public prosecutor or the police . The signatories requested the public prosecutor to take the necessary steps to bring those responsible to justice .

This document contains a detailed description of the events by the commanding officers of the various security forces present in ORG .

It states that , on TIME in question , the shopkeepers all closed the shutters of their shops . The security forces had been informed that a group of CARDINAL people from the neighbouring villages was advancing on ORG . The demonstrators said that they were going to a funeral . When they reached the middle of the LOC district of the town , more people joined the group . The crowd then set off towards the town hall . The gendarmerie commander , the district chief of police and other civil servants intercepted them and made several announcements to the effect that the demonstration was illegal . However , the demonstrators continued to advance along FAC , shouting slogans like “ Long live the NORP ” , “ Long live freedom ” , “ Long live GPE ” and “ Freedom for NORP ” . The group , composed of men , women and students , was CARDINAL strong . When they reached the junction with FAC , some demonstrators began to attack the police and gendarmes with stones and sticks and firearms . When the demonstrators reached the centre of town they began to break the closed shutters , windows and doors of the shops . At that moment , CARDINAL reinforcement units sent in by the gendarmerie and police again barred the demonstrators’ way , requiring them to disperse . Sticks and stones were thrown at the security forces who were trying to disperse the demonstrators . Certain unidentified demonstrators opened fire on the security forces with the aim of spreading panic and disorder .

After the shooting the demonstrators began to disperse through the centre of town . CARDINAL group went to ORG , the adult education centre , DATE , the police station , the gendarmerie headquarters and the security police offices . When they reached the post office , the group threw sticks and stones , breaking all the windows , and set fire to a post - office minibus . The windows of the school and adult education centre were broken and damage caused to the interior of both buildings . When the same group started to attack DATE and the town hall , the gendarmes and police fired warning shots and gave warnings over the town hall loudspeakers . The security forces began to disperse the group .

In the course of these events PERSON , a senior - high - school pupil , was killed on the spot by a shot fired by armed troublemakers who had mingled with the demonstrators . A number of civilians were wounded and taken to the public hospital in Cizre . Ekrem Oruç died in hospital . CARDINAL soldiers were injured by flying stones . Some QUANTITY men and QUANTITY women who had taken part in the unauthorised demonstration were taken into police custody . CARDINAL spent cartridges from GPE - type weapons were found at the scene of the demonstration .

“ Medical examination

... The body was stripped .

At the mid - point of the right axillary line towards the victim ’s back there was a wound QUANTITY in diameter caused by a bullet fired from some distance . The exit wound measures QUANTITY in diameter and is QUANTITY lower , QUANTITY in from the outside of the groin . QUANTITY below the entry wound on the same right axillary line there is a further wound caused by a bullet fragment measuring QUANTITY by QUANTITY .

The body was still warm when the examination commenced . Rigor mortis had not set in and there was no cyanosis . It was concluded from this that death had occurred TIME .

... CARDINAL expert opinions were requested . These confirmed the public prosecutor ’s finding ( see above ) , that is that there is no exit wound relating to the bullet fragment which entered through the middle of the thorax , underneath the right arm . Further , they confirmed that , QUANTITY above the point of impact of the fragment , there is an entry wound caused by a bullet striking at an oblique angle , with an exit wound on the same trajectory . Since neither the bullet nor the fragments touched any vital organ , the experts recommended that a full autopsy be carried out in order to determine the precise cause of death . ”

“ Autopsy

The ribcage and abdominal cavity were opened according to the usual procedures . A large quantity of accumulated blood was observed in the thoracic cavity . QUANTITY of blood were pumped out . The left lung had been lacerated by the bullet fragment which , as noted above , struck the victim at the mid - point of the right axillary line . The bullet whose entry and exit wounds were identified and whose trajectory did not touch any vital organ could not have caused death . We conclude that death was caused by the bullet fragment which struck the victim at the mid - point of the right axillary line ; this followed a horizontal trajectory , hitting the left lung and causing death by internal haemorrhaging and hypovolaemic shock . In the course of the full autopsy , the bullet fragment which struck the left lung was found in the left armpit and was placed under seal as an exhibit ... ”

The witness gave the following version of events :

“ On DATE ... I came across the crowd of demonstrators . I did not join them , but went back the way I had come . At that moment I saw that shots were being fired at the ground from the armoured military vehicle , presumably to disperse the demonstrators . Something – I suppose pieces of lead – anyway , bits of metal – hit my left arm , right thigh and the inside of my left calf . I fell to the ground . I must have lost consciousness ... I did not see who fired the shots which hit me , or what weapon they came from . However , shots did come from the Condor military vehicle . ”

The ORG public prosecutor declared that he had no jurisdiction to examine the applicant ’s complaint against the ORG gendarmerie commander , Major PERSON , for reckless and negligent homicide . The public prosecutor found that Major PERSON had been acting in the performance of his duties and observed that civil servants were subject to special provisions . He accordingly sent the case file to the LOC Commissioner , who forwarded it to ORG for investigation .

NORP This declaration states :

“ On DATE the security forces fired into the air from the armoured vehicle belonging to the ORG gendarmerie with the aim of dispersing the demonstrators . CARDINAL person was wounded by the shooting ... The bullets which hit the demonstrator were fired by civil servants acting in the performance of their duties . It has not been possible to identify the persons in question . ”

In this letter , the LOC Commissioner stated :

“ On DATE an illegal demonstration took place in [ ORG ] . In order to make the demonstrators disperse , the security forces fired into the air from the armoured vehicle belonging to the gendarmerie of our district . CARDINAL citizen was wounded . An investigation into the conduct of the gendarmes has been opened . ”

The District Commissioner also requested the gendarmes to inform him of “ the identity and addresses of those gendarmes in the armoured vehicle who allegedly opened fire , wounding citizens ” . He added : “ This information will serve as a basis for the investigation to be carried out by my officials . ”

In this letter , the gendarmerie state , firstly :

“ Your authorities know perfectly well that this illegal demonstration was organised by terrorist ORG militants . It was not simply a demonstration , since the offices of public authorities were attacked . Moreover , the infiltration of armed militants among the people and the use of weapons during the demonstration show how serious the situation was . The District Commissioner ’s office asked us for backup in order to prevent the situation getting out of hand ; in view of the urgency and dangerousness of the situation , all our available personnel were sent to the scene . ”

The gendarmerie gave the following reply to the District Commissioner ’s request :

“ We hereby inform you that , as stated above , given the sudden and serious nature of the events in question , the exact position of each of our men was not noted in the log - book . We are no longer in a position to verify their position on DATE in question , given that DATE have since elapsed . ”

On DATE the Governor of GPE instructed PERSON PERSON , a gendarmerie lieutenant - colonel , to hold a preliminary investigation into the events of CARDINAL DATE . Lieutenant - Colonel PERSON took evidence from the following witnesses :

PERSON , mayor of the LOC district of ORG ( statement of CARDINAL DATE ) :

“ ... We heard children ’s voices coming from the ORG road . The children carried on marching towards the centre . They were not carrying anything , but simply making “ V ” signs and chanting slogans ... The major arrived . He was in front of ORG . The demonstrators , who had become more agitated , carried on marching . The major then gave the order to fire . We heard shots from all sides . I took refuge on the second floor of the building with the people who had been in front of the District Commissioner ’s offices . Through the window I could see that CARDINAL people had fallen to the ground as a result of the shooting , but I did not recognise them . Subsequently , the gendarmes and police arrived , dispersed the demonstrators and took the wounded to hospital ... ”

PERSON ( statement of DATE ) :

“ I live in the ORG district ; the place where the events took place is QUANTITY from my house . The sound of shots gradually intensified , lasting TIME . I did not leave the house , I was afraid . I was unable to see anything of what was happening . TIME , the sound of shooting stopped . Women passing my house in tears told me that my son PERSON had been killed in the confrontation . That was how I learned that my son had been killed ... According to what I was told , my son was killed in front of the bakery ... in the central market ... He was on his way to school but , when he saw the demonstrators , he followed them . In the confrontation which arose during this demonstration , soldiers opened fire , killing my son . The district gendarmerie major , PERSON , gave the order to fire . He is responsible for the death of my son . ”

ORG ( statement of DATE ) :

“ On DATE in question , at TIME ... I saw a group of demonstrators coming up FAC towards the central market . There were men , women and children in the group . Most of the demonstrators had scarves over their faces . They were armed with stones and pieces of wood and were very worked up . Most of them went past the post office , but others stopped there and broke the windows . The Condor vehicle from the battalion arrived to make the crowd disperse . The men in the vehicle opened fire on the agitated demonstrators DATE or , rather , fired at the ground . PERSON PERSON , a relative of mine , who died later in hospital , fell to the ground . I believe he was hit by a bullet which was fired at the ground but ricocheted and hit him , because if the shots had been aimed at the crowd , everyone in the group would have been killed . When PERSON fell , wounded , I took him to the medical centre in the town hall taxi . In the meantime , other people had been wounded . I did not see the soldiers who were in the ORG , nor the person who fired . However , the shots fired to disperse the demonstrators did come from the Condor . I repeat , they did not open fire on the crowd . Stray bullets could have caused the death . ”

PERSON ( statement of CARDINAL DATE ) :

“ On DATE in question , I had gone ... to the centre of town to do some shopping . I was making my purchases when I saw a large group of demonstrators approaching . They were chanting slogans , but I could not understand what they were saying . I heard shots . I saw that shots were being fired from an armoured military vehicle . In the ensuing confusion and surprise I was hit by CARDINAL bullets , which I think were fired from the armoured vehicle . I was wounded and fell to the ground . I fainted and so I do not know what happened afterwards . ”

On DATE Mr GPE had to withdraw from the investigation , as he had been transferred .

On DATE the Provincial Governor then appointed Mr PERSON , the gendarmerie battalion ’s commanding officer .

This document contains the results of the investigation carried out by the CARDINAL investigating officers .

Mr PERSON , who was at the material time a gendarmerie major , made the following findings of fact :

“ On DATE an unauthorised demonstration started in the early morning and lasted into the afternoon . The demonstrators were chanting ORG slogans and shouting defiance of GPE . This demonstration grew to a crowd of CARDINAL people . The demonstrators then began to damage public buildings and vehicles and related property . They fired shots in all directions . Since there were not enough police officers , reinforcements were requested . The gendarmerie company command and the district gendarmerie headquarters responded to this request in accordance with the provisions of PERSON no . CARDINAL on the duties and powers of the gendarmerie . In the course of these events CARDINAL citizens were killed and CARDINAL others injured . The majority of the persons taken into custody were arrested after initial questioning . CARDINAL officers , warrant - officers , sergeants and men from the security forces were also injured in the same incidents . ”

With regard to the identity of those responsible , he concluded :

“ The statement of PERSON ... reveals that he did not see , and does not know , who opened fire ... PERSON , the father of the victim [ PERSON ] ... makes gratuitous and inopportune accusations against Major PERSON , who was simply obeying orders . The fact that the major has been made the target of the accusations , despite the fact that he was armed only with his handgun , reveals an ideological outlook and a complete lack of objectivity . The security forces did not aim at the citizens and have twice as many wounded as the demonstrators . The law was applied in order to prevent further incidents . There is , nevertheless , an imbalance ( between the numbers of wounded on each side ) . The security forces did not reply ... to the shots from the crowd . In such circumstances , it is impossible to determine who was responsible for the incidents . In total , QUANTITY police officers and gendarmes were deployed . ”

In the covering letter to the summary of the investigation he asserted : “ The investigation has shown that the complaints filed by PERSON [ the applicant ’s lawyer ] and his QUANTITY friends contain unfounded and regrettable statements reflecting a lack of objectivity . ”

This order stated that there were no grounds to commit for trial any civil servants belonging to the security forces responsible for maintaining order during the demonstration of CARDINAL DATE . According to this document , the material facts were as follows :

“ On DATE in question , all the shops in the centre of ORG were closed . Their suspicions having been aroused by this situation , the security forces took security measures at the points of entry to the town , on the roads coming from the villages of PERSON , PERSON and PERSON . As they were doing this , a crowd of CARDINAL people was seen approaching ORG . The security forces personnel asked them what they were doing . The marchers replied that they were going to a funeral and carried on towards the centre of ORG . As they went through the LOC district , a large number of men , women and children joined the group . It must then have numbered CARDINAL persons , heading for the town hall . The district chief of police and the gendarmerie commander made several announcements to the effect that the march was illegal and that the participants should disperse . However , the unauthorised demonstration continued , accompanied by the chanting of slogans such as ‘ Long live the PKK’ and ‘ Freedom for Kurdistan’ . The demonstrators fired shots at the security forces and attacked them with stones and sticks . Subsequently , they broke the windows of public buildings and housing and burned the post - office minibus parked outside the post office . The security forces , confronted with a situation which was becoming stormy , fired shots in the air in order to calm the demonstrators down and make them disperse . However , shots were also fired by demonstrators . Several persons died from wounds caused by shots fired during the demonstration ; the medical report also proves that the wounds were caused by gunshots . A search of the scene of the incidents and the surrounding streets and alleyways after the demonstration produced CARDINAL spent cartridges from bullets of various calibres coming from weapons registered with the security forces . An analysis of the cartridges showed that the bullets had come from CARDINAL different weapons . It was concluded that the demonstrators had used firearms . ”

ORG held that it was “ not possible on the basis of the evidence on the case file to identify who had killed and injured the victims ” .

ORG upheld the above discontinuation order on the following grounds :

“ Offences committed by civil servants acting in the performance of their duties or by virtue of their powers must be dealt with in accordance with the procedures governing the prosecution of civil servants ... , [ whereby ] an administrative investigator is appointed by ordinance to carry out the investigation ...

... Before an investigation can be opened into the conduct of a civil servant , the suspect must be precisely identified . In the absence of a precise identification , no judicial investigation can be carried out , no summary of such investigation can be prepared and no competent court can give a ruling on the matter .

On DATE , in the course of a demonstration in the town of ORG , there were a number of confrontations between the security forces and the demonstrators , as a result of which CARDINAL persons were killed and QUANTITY others wounded . It has not been possible to identify those responsible . Although no judicial investigation can be carried out into this matter , the investigator appointed opened a preliminary investigation and prepared a summary of its findings , on the basis of which ORG made a discontinuation order . Since those responsible for the deaths and woundings are unknown , it is impossible for this ORG to look into the case and give judgment . Having examined the case file , we hold that ORG decision was in accordance with the law and procedurally valid . ”

Oral evidence

Mr PERSON stated that he had not been in PERSON at the time of the events of DATE . When he returned home in the evening he was informed that his son was dead and told that he had been shot . He heard that his son had gone to the scene of the demonstration to look for his younger brothers , at which point he was hit by a bullet . He did not know who had shot his son .

PERSON said that he had not made any statement to the authorities . He remembered being in shock after the incident . Many people had come to visit him , including journalists and members of parliament . He did not know exactly where the body of his son had been found . He had seen it for the first time at the hospital .

As regards the investigation opened after the death of his son , he confirmed that he had signed the criminal complaint filed with the ORG public prosecutor ’s office , but afterwards he had shut himself up at home . He did not know the details of how his son died . He did not know that he was entitled to compensation as a result of his son ’s death . Even if his lawyer had advised him to apply for this , he was not in a fit state to understand anything at all at the time of the incidents .

Mr PERSON had been present in PERSON during the incidents , visiting a sick uncle . He had remained in his uncle ’s house throughout the demonstration and so was not an eyewitness . He had only heard the demonstrators and the shots . When told of PERSON death , he had gone to the hospital where he had looked for but failed to find the body . Later , he had brought the body back to the village for the funeral , which he had attended .

Some of the leading citizens of ORG , together with the ORG , had organised the demonstration and publicised it energetically . All the villagers had taken part ( both adults and children ) , except for the elderly , since those who did not take part in these demonstrations were killed or punished by the ORG . The victim , PERSON , had been a pupil at the town ’s senior high school and , as such , like all the pupils of the school , had been obliged to take part in the demonstration . If he had not done so , he would have been punished by the ORG .

At that time , ORG was a “ protected ” area : that is , the ORG controlled people ’s movements . If he , PERSON , had been found in his uncle ’s house , he would have been forced to participate in the demonstration .

The population of ORG district was essentially made up of nomads , who lived in ORG in DATE and moved up into the mountains in DATE . These people were armed , possessing CARDINAL guns per family in order to protect themselves from the wolves and thieves in the region . There were contacts between members of the ORG and these nomads . In DATE was not yet over and the village nomads did not migrate to the mountains until DATE At the time of the demonstration there must therefore still have been a large number of nomads in GPE .

PERSON asserted that the victim had told him , on an unspecified date , that the ORG had contacted him to try to persuade him to join their movement .

On DATE he had been in his office . The demonstration had taken place about a QUANTITY away . He had not realised it was happening until he heard shots . He had telephoned the police who had informed him that there were CARDINAL dead and a number of wounded . He had not left his office . He was not responsible for security in the town . That was the responsibility of the police and the gendarmerie .

Mr PERSON acknowledged that he had signed the complaint lodged by leading citizens of ORG against the gendarmerie commander . At first , he had thought that the gendarmes had used excessive force against the demonstrators . However , on reflection , he recognised that the gendarmes had acted in the way they had in order to avoid losing control of the situation , so he had withdrawn his complaint .

Mr PERSON said that he had not met PERSON . The town hall was CARDINAL to QUANTITY away from where the demonstration took place . The demonstration and associated incidents had taken place in the centre of town . He had not been present at these incidents , nor had he seen the demonstration . He had heard noises and shots .

He had been placed in police custody and held for DATE after the incidents . He had been charged when he claimed not to have taken part in the demonstration . The charge - sheet stated that he had taken part in the demonstration , that spent cartridges from the weapons used during the demonstration had been found at the scene and that one of these weapons belonged to him .

DATE after being released from police custody he had been remanded in custody for DATE . At the end of the criminal proceedings brought against him and many other inhabitants of ORG , ORG had acquitted them all .

He had a gun licence . On DATE of the incident he had been working in the town hall and the gun in question had been at his house . He had been told that the security forces had gone to his house , taken the gun and fired shots from it inside their barracks , thus obtaining spent cartridges .

Mr PERSON stated that during the demonstration of DATE he had been at home and had not gone out . He was therefore not an eyewitness . His house was CARDINAL or QUANTITY from where the demonstration took place , so he had only heard the demonstrators and gunshots . He did not know the exact reason for the demonstration .

With regard to the complaint filed with the ORG public prosecutor , he had signed it , but had done so as an emotional response in the heat of the moment .

He had not been interviewed in the course of the investigation conducted following the demonstration .

Mr PERSON stated that on CARDINAL DATE the shutters of all the shops in ORG had been lowered very early in the morning . At the request of the LOC Commissioner , the police had taken measures to prevent any untoward occurrences .

While he was at the district authority offices the gendarmes had informed him by walkie - talkie that a group of CARDINAL people was heading towards the centre of town . PERSON and his men had gone out to meet the demonstrators in order to inform them that they were demonstrating illegally and should stop . However , the demonstrators had continued their march . PERSON and his men had returned to the district authority offices .

After the arrival of the gendarmes , PERSON had remained in the ORG Commissioner ’s office and had not witnessed the incidents . Following a call from a group of gendarmes led by PERSON and stationed in front of the post office , the armoured vehicle had been sent to their assistance . PERSON had not seen the shooting . The demonstrators had been armed and violent . They had damaged a post - office vehicle and other public property . The security forces had returned fire from the demonstrators .

The security forces had not been equipped with batons or riot shields which could have helped them to quell the demonstrators . They had been armed with handguns and rifles . PERSON also asserted that if the security forces had fired directly on the crowd , CARDINAL people would have been killed .

He also stated that the cartridges found in the streets after the incidents belonged to inhabitants of ORG . It was routine procedure for the security forces to pick up spent cartridges .

According to PERSON , the MG-CARDINAL gun mounted on the armoured vehicle could not possibly have been used against a crowd . If it had been , CARDINAL people in the front ranks of the crowd would have been killed .

Mr PERSON stated that on TIME he had learned that shops in the town had lowered their shutters . Finding this unusual , he had awaited developments in his brigade ’s building . When he saw that the number of demonstrators had increased and that , despite warnings , they were continuing to advance towards the building , he had taken up position at its entrance with CARDINAL gendarmes .

PERSON stated that the crowd of demonstrators had been made up of women and children surrounding armed men with scarves over their faces . He had warned the demonstrators that the demonstration was illegal and advised them to disperse . The women and children had tried to obey but the armed men had forced them to go on .

He had given a second warning , but the armed men had continued to advance . Stones and sticks were then thrown at the gendarmes . The demonstrators had chanted many slogans , such as , “ We want to enter the brigade building ” . PERSON and some of his men in the front line had been wounded by flying stones .

The armed demonstrators had taken advantage of this to try and seize the gendarmes’ weapons . PERSON had fired warning shots in the air , which had made the women and children disperse . He himself , his second lieutenant and his orderly had each fired CARDINAL shots . Consequently , between the CARDINAL of them they would have fired CARDINAL bullets , which the witness considered sufficient to make the demonstrators disperse . He and his men had then retreated to the side of the road . TIME later they had come under very heavy fire from GPE - type automatic weapons fired by the armed men , who were also shooting with the weapons which they had stolen from the gendarmes .

PERSON had used his radio to call up the ORG armoured vehicle as backup . The ORG had been standing QUANTITY away from his brigade building . When it reached his position it had managed to disperse the demonstrators without firing a shot . It had come from DATE and , in order to get to the brigade building , it must have gone past the post office , where the victim had been killed . However , PERSON did not know whether the ORG had opened fire on its way , but did remember that he had requested that the ORG be sent in exclusively as a deterrent and that the weapons mounted on the vehicle should not be used against the crowd . He knew the Condor crew but could not identify the person who had been driving the vehicle at the time .

PERSON emphasised that ORG members provoked and built up this kind of incident , and threatened the local population to force them to participate in ORG - organised demonstrations . Refusing to take part could be fatal .

There was a distance of QUANTITY between the spot where the victim ’s body was found and the place where he had taken up position with his men to defend his brigade ’s building . They had been out of range of the place where the victim ’s body was found and PERCENT of the spent cartridges found there had belonged to ORG members .

Lastly , in relation to the investigation , PERSON said that he had made the necessary statements to ORG , ORG and the lawyers .

Mr PERSON stated that the commanding officer of ORG gendarmerie was Major PERSON . The second in command was a lieutenant and he was third in rank .

He remembered that on DATE of the incident , at TIME , he had received a telephone call informing him that there was an unauthorised demonstration in town . He had gone round to the office of the LOC Commissioner . The head of the security police and the gendarmerie commander had also been present . The crowd of demonstrators was coming towards the centre of town from the district behind the town hall and the immigrant districts . Mr PERSON had ordered his men not to intervene .

By then , the crowd was CARDINAL strong . At that point , the Condor armoured vehicle was standing near DATE , with a view to preventing any attack on them . It was parked in a narrow lane QUANTITY from the main street where the demonstration was taking place . On the order of a young man whose face was masked , the crowd had begun to advance , chanting slogans like “ Up the NORP ” . They were heading for the centre of town . At that moment handgun shots had been heard coming from the crowd . Shots had also been fired at the security forces from the surrounding alleys and roofs of houses . The ORG had not moved .

At some point , the district gendarmerie commander ( Major PERSON ) had informed him by walkie - talkie that the demonstrators were attacking the school where his wife was teaching . The ORG militants were demanding that she be handed over to them . The commander had ordered PERSON to go and get his wife from the school . In order to get to the school , the ORG , driven by PERSON , had turned left into the main street , towards the centre of town , then took the first street on the right , which ran alongside the school . In that narrow street Mr PERSON had fired CARDINAL or CARDINAL times in the air in order to gain the ORG attention . Shots were being fired at the vehicle from all sides . The windows of the school and of the adult education centre had been broken by stones . The Condor had been driven towards the demonstrators in order to disperse them , and a second armoured vehicle ( a ORG ) had succeeded in picking up the commander ’s wife at the other entrance to the school and getting her away from the scene . The Condor had then returned to its position near DATE . TIME Mr PERSON had been informed by walkie - talkie that Lieutenant PERSON was requesting assistance . He had started out for the infantry regiment barracks in the LOC . He had to go through the centre of town . In the middle of the main street , between the baker ’s and the post office , he had seen a body stretched out on the ground . There was no one with it . PERSON had told the driver of the armoured vehicle to keep well away from the body because it could have been a trap . When the PERSON came up behind the crowd , which had already got as far as the infantry regiment barracks , the people had moved aside . The demonstrators had run away and the disturbances had ended . When the ORG again returned to its position near DATE , the body was no longer lying in the main street .

Mr PERSON stated that the LOC was equipped with an MG-CARDINAL automatic rifle . This was the weapon he had used to fire into the air . He had pressed the trigger CARDINAL or CARDINAL times . He did not know the exact number of bullets he had fired but he estimated that it must have been CARDINAL . The MG-CARDINAL machine gun was a combat weapon . If he had fired on the crowd , many people would have been killed .

Mr PERSON stated that he knew that an investigation into these events had been opened but did not remember giving a statement to anyone in authority . He did not remember whether the spent cartridges from the weapon he had used had been passed on to the judicial authorities . If not , they would have been kept in the gendarmerie depot and handed over to superior officers .

In response to a question concerning the death of another demonstrator , Mr PERSON stated that the LOC had fired in the air in a narrow street . As soon as the trigger of an MG-CARDINAL machine gun was pressed , it immediately fired CARDINAL bullets . Mr PERSON thought the victims had been killed by bullets fired by the ORG . ORG militants were not professionals and often hit the wrong targets .

Mr PERSON stated that on DATE he was in ORG and had seen the demonstration . While on his way to his office , he had heard shots and slogans and had taken refuge in the gendarmerie building . At that moment , he had heard numerous gunshots coming from the centre of town .

From the garden of the gendarmerie building he could see the ORG armoured vehicle moving along FAC , firing in the air in order to disperse the crowd . Shots fired in the air made a different sound than straight shots . He had also heard GPE and GPE fire coming from the gendarmerie building .

As regards the investigation , he had conducted an inquiry following the criminal complaint filed with the ORG public prosecutor ’s office by ORG . He had taken a statement from PERSON and other witnesses . He had ordered an autopsy on the victim ’s body .

The autopsy , which was a full one , had been performed in ORG paramedical health centre and produced the following findings : the victim had been dead for TIME as rigor mortis had not yet set in . The victim had been hit by a single bullet . The point of impact was below the right armpit and the bullet had lodged in the left shoulder , causing internal bleeding . The bullet had been found in the victim ’s body . It had followed a rising trajectory .

Mr PERSON considered that it was not impossible , in view of the trajectory followed by the bullet - core found in the victim ’s body , that it had been fired from the LOC armoured vehicle and had then ricocheted . He referred to the autopsy report , which he had in front of him , and which stated that the fatal bullet must have ricocheted off a building or wall . The bullet - core found in the victim ’s body had been knocked out of shape , and this could not be accounted for by the bullet ’s passage through the victim ’s body .

A ballistic report on the spent cartridges had been drawn up by the regional criminal police laboratory . According to that report , a bullet fragment which had passed through the body had been found and compared to CARDINAL specimen bullets . No match had been found . Since the other fragments of the bullet had not been found , it had been impossible to identify the weapon which had caused the victim ’s death . However , the bullet - core , which was an important piece of evidence , had been preserved as an exhibit , in accordance with the relevant procedure .

PERSON had seen to it that the wounded were examined by doctors . CARDINAL medical reports had been filed and placed on the case file sent to the District Commissioner . According to those reports , certain demonstrators had wounds QUANTITY and the knees . None of them had been wounded on the upper body .

The position of these wounds might have been due to crossfire and bullets ricocheting off the ground or buildings .

Since the criminal complaint concerned civil servants , PERSON had made a declaration on DATE to the effect that he had no jurisdiction to deal with it , in accordance with the legislation on prosecution of civil servants . He had then transferred the investigation file to the District Commissioner .

When appointed as the investigator in the PERSON case , he had opened an inquiry and compiled a case file . He had taken witness statements from ORG , PERSON and the other civil servants working in the town hall , who had taken part in the demonstration .

In his report he stated that the accusations against Major PERSON were unfounded and did not reflect what had actually happened . Before arriving at that conclusion , he had taken evidence from witnesses , read expert reports and gathered other evidence from various official and private sources . Finally , he had taken a decision on the basis of his personal conviction . He had put himself in the place of the security forces faced with the demonstrators . He had thought about the case for DATE before reaching his decision , weighing all the possibilities .

Mr PERSON had also taken evidence from the gendarmes and Major PERSON . He did not remember whether he had taken evidence from GPE and had not taken a statement from ORG , the mayor of ORG , whom he had seen by chance on his way to ORG town hall . Mr PERSON had only told him that if the gendarmes had intervened sooner , they would have prevented most of the incidents .

In his statement , PERSON had told Mr PERSON that he had not seen exactly what had happened . He had only heard shots and seen the crowd but had not seen people being killed or wounded . Mr PERSON ’s case file also contained statements from demonstrators . These statements had been taken by the public prosecutor and the previous investigator .

Mr PERSON did not remember taking evidence from Mr PERSON , the driver of the LOC vehicle . Nor did he remember how many shots had been fired in the air from the Condor .

Before reaching his conclusion , he had taken into account not only witness statements , but also the results of his own investigations . These indicated that the young man had been killed before the security forces intervened . The ORG militants had been in the middle of the crowd of demonstrators , surrounded by women and children . They had fired shots in all directions in order to create an atmosphere of terror . Some bullets had ricocheted and hit PERSON . The gendarmes had not even been there when he was wounded .

He had found that the security forces had taken all necessary precautions . Those who had come forward as witnesses were reliable people . The mayor of ORG was one of them .

There had been CARDINAL demonstrators . If firearms were discharged haphazardly , accidents could happen , even in a group of CARDINAL people . In the case in point , the CARDINAL demonstrators had not been aware of the danger . It had even been inevitable that someone would be killed . He had interviewed everyone , even the victim ’s relatives , who had explained to him that PERSON had very probably been killed by ORG bullets .

Mr PERSON had not immediately ruled out the possibility that the security forces had fired on the demonstrators . He had been completely impartial and had begun his investigation with an open mind . He had come to the conclusion that the gendarmes had intervened after the victim ’s death . The complaint filed against the gendarmerie commander had really been an emotional reaction intended to tarnish his reputation . Major PERSON had been armed only with a handgun .

The crew of the ORG armoured vehicle had controlled the situation effectively . If the machine gun mounted on the vehicle had been fired towards or at the crowd , there would have been a large number of deaths .

The CARDINAL spent cartridges referred to in ORG decision had come from bullets fired in the air by the gendarmes . The DATE spent cartridges referred to in the report on the incidents and in the public prosecutor ’s report of DATE had come from weapons used by the demonstrators . The reference to “ weapons registered ” related to the weapons seized during searches and preserved as exhibits .

Mr PERSON had interviewed only those people who had been listed by the gendarmerie commander as injured . The difference between the number of injured referred to in his report and the number mentioned by the chief of police could be explained by the fact that some people had gone to hospital and received immediate attention there whereas others had been admitted . Some people did not immediately realise that they had been injured , while others did not inform all the relevant authorities .

He had seen the injured gendarmes in their barracks . Their injuries had been caused by stones and other hard objects which had been thrown at them , not by bullets .

The commanding officer was responsible for operations . The troops had taken up their positions on his orders . If a subordinate misapplied CARDINAL of the commanding officer ’s orders , or acted outside the scope of that order , the subordinate was answerable for the consequences .

He thought that the commanding officer of the district gendarmerie had given appropriate orders . When the police proved to be unable to handle the situation , the gendarmerie had intervened . Major PERSON had therefore intervened in good time and taken the appropriate steps .

Where the investigating officer was not a gendarmerie officer , the chief of police or his deputy could investigate the case . If no such person was available , someone else , an engineer for example , could act as the investigating officer .

Mr PERSON confirmed that he had worked in Şırnak from DATE . He also confirmed that Major PERSON had worked in Şırnak for part of that period and stated that he had taken over the investigation in the case long after the events in question .

Mr Güven had been standing in for the Governor as Chairman of ORG when it discontinued the proceedings against the commanding officer of the gendarmerie forces ordered to suppress the demonstration of DATE . He himself had not been present at the scene of the incidents .

He described the rules governing prosecution of civil servants , which were as follows . The Governor appointed an investigator , who gathered all the evidence and submitted his conclusions to ORG . The case file was examined at a meeting of ORG at which each member expressed his or her views . The investigator did not attend that meeting . A decision to commit for trial or discontinue proceedings could be taken either unanimously or by a majority . ORG decision was transmitted to ORG which , after examining the case file , upheld or quashed it . These special rules governing the prosecution of civil servants applied in regions where a state of emergency was in force . A state of emergency had to be declared according to the democratic process by ORG , by a majority vote .

In the present case , ORG had unanimously discontinued the proceedings , on the ground that the persons responsible had not been identified . No one had testified to seeing how PERSON had died . In GPE , gendarmes did not fire on citizens except when driven by necessity to do so .

CARDINAL

The ORG based its decisions on the documents which the investigator had placed on the case file , and was not strictly speaking empowered to conduct an investigation itself . That power belonged to the Governor . In general , ORG met DATE , although DATE there was no meeting . If so , the Governor circulated a draft decision among the members of ORG .

When ORG met , it was chaired by the Governor or his representative . The ORG ’s Secretary read the case file aloud . The members of the ORG could examine the documents on the file . They were then invited to express their views and to sign a draft decision . In theory , the members could oppose the Governor ’s proposal . Those who were not convinced of the correctness of what was proposed could ask for further investigations to be carried out . However , in the final analysis , the procedure was based on the trust placed in the Governor . Either the members of the ORG were convinced and signed the decision , or they were replaced by others who were willing to sign it . In practice , it was not possible for the decision , as proposed by the Governor , not to be signed .

PERSON stated that he thought the decision given in the present case had not been a discontinuation order but a decision not to commence criminal proceedings against civil servants and to transfer the case file to the public prosecutor for him to carry out a further investigation with a view to identifying those responsible . He had not been informed of subsequent developments in the case .

Mr GPE stated that the local population had spontaneously organised a demonstration on DATE in order to protest against acts of brutality committed by the gendarmes DATE in the village of GPE . The District Commissioner had called him to the town hall . On his way there , he had seen the demonstrators in the street , and also the security forces and their armoured vehicles . When he got to the town hall , the demonstrators were already assembled .

At the town hall , the witness had seen and heard gendarmerie major , PERSON , give the order to open fire by walkie - talkie . As the town hall was the tallest building in ORG he had seen a ORG - type armoured vehicle open fire while travelling along FAC in front of the town hall . All the demonstrators were trying to run away . CARDINAL of his friends had been killed before his eyes . He had seen shots being fired from the armoured vehicle . The vehicle was following the demonstrators and the soldiers manning it were firing at the ground , in the direction of the demonstrators .

CARDINAL people had been wounded in the abdomen and chest by ricocheting bullets . Some of the wounded had refused to be taken to hospital because they were afraid of the authorities’ reaction .

Mr GPE had not seen how PERSON had been killed . With others , he had signed a complaint filed with the ORG public prosecutor ’s office against PERSON . A gendarmerie officer , Major PERSON , had taken his statement in the course of an investigation into the incidents . But the investigation had come to nothing .

Mr GPE had been arrested , in relation to another matter , in DATE . In DATE he had left GPE while proceedings against him were pending . He had eventually been sentenced to DATE and CARDINAL months’ imprisonment under LAW § CARDINAL of LAW for membership of an armed group , namely the ORG .

After examining the photograph of the armoured vehicle on the case file , Mr PERSON stated that it was a NORP and that the ORG was smaller . In fact , a ORG was a jeep equipped with a machine gun . The ORG had fired for TIME .

Mr PERSON stated that he had been at home when the demonstration started . His house was QUANTITY from the centre of town . From his balcony , he had been able to see the route taken by the demonstrators ( mainly FAC ) and the armoured vehicles belonging to the security forces following them .

The demonstration had been called to protest against what gendarmes had done to certain inhabitants of a village in GPE . The demonstrators were not armed . At TIME he had heard shots . From his balcony , he could see the armoured vehicles firing in all directions . Later he had gone to the health centre where there were a number of wounded people and PERSON body . He had helped to take the wounded to various hospitals in the region .

The soldiers inside the armoured vehicle were not necessarily shooting to kill but might have been trying to disperse the demonstrators . However , they had fired without concern for the risk to the ORG lives . Most of the wounded had not gone to hospital for fear of being prosecuted for demonstrating illegally . PERSON had not seen any gendarmes injured in the course of the incidents .

While PERSON was at the health centre in the social security hospital he had been arrested by gendarmes and held in police custody for DATE before being brought before one of the public prosecutors at ORG . CARDINAL members of his family had later been charged but then acquitted . The gendarmes had seized weapons and cartridges from citizens and fabricated evidence . However , this ploy had not fooled anyone for long .

PERSON stated that the demonstration had been called in protest against searches carried out by the army and arrests made on DATE in a village near ORG .

PERSON had taken part in the demonstration together with PERSON PERSON , who had been a school friend of hers . There were no lessons because of the demonstration . They had decided to take part with other pupils from the senior high school . There had been many demonstrators and they were not acting under anyone ’s orders . They were not carrying weapons or stones .

With regard to the circumstances surrounding the death of PERSON , PERSON stated that she was with him in the middle of the crowd when they found themselves trapped between the gendarmes who were barring the road in front of them ( QUANTITY away ) and a ORG tank which was following close ( CARDINAL or QUANTITY ) behind the demonstration , having come from the centre of town . The armoured vehicle had fired from behind the demonstrators , many times , at random and directly at the demonstrators , although this was not necessary to bring them under control . She had seen PERSON fall to the ground beside her when the shooting first started . He had remained lying on the ground while the demonstrators were running off into the adjacent streets . She had taken refuge in a house from which she had called her father . She had got home TIME . At that time , she could still hear shots . She had later found out that her friend had died .

On DATE in question Mr PERSON had gone to his café at TIME At TIME the demonstration began . It was a large one . The demonstrators did not have weapons , or stones or sticks . They were chanting slogans such as , “ Stop the torture , stop the repression ” .

The soldiers had formed a barricade in front of the demonstrators . The ORG , which suddenly appeared behind the crowd , fired into the air , at the ground and in the direction of the demonstrators . CARDINAL person was hit by a bullet and fell to the ground QUANTITY in front of Mr PERSON ’s café . All the other demonstrators dispersed . The ORG had been QUANTITY from the café . PERSON was lying on the ground in front of the café , before the post office .

When the soldiers inside the ORG opened fire , they were not concerned to preserve human life . The MG-CARDINAL machine gun mounted on the vehicle was a very powerful weapon . A number of people were wounded .

Shots could be heard in all the streets of ORG until TIME that evening . Mr PERSON had been trying to get home when he was arrested and held in police custody for DATE . Mr PERSON ’s café and other buildings in ORG had been damaged during the incidents . On DATE Mr PERSON had made a statement to the ORG public prosecutor to the effect that he had stayed in bed on DATE of the incidents and had not opened his café , but this was a lie .

Mr Arı stated that he had arrived in ORG on TIME CARDINAL DATE at TIME from the village of GPE . He had taken part in the demonstration .

With regard to the circumstances of PERSON death , Mr Arı had seen him fall under fire from the ORG . At that time Mr Arı had been in the middle of the demonstration and had seen soldiers and police officers open fire in the direction of the crowd , without giving any warning . The ORG , which had come from the centre of town , had been behind the demonstrators when it fired several times , in their direction , at the ground and in the air . CARDINAL or QUANTITY people had fallen close to him and the demonstrators had dispersed . PERSON , who was QUANTITY from the ORG , had also fallen to the ground . Mr Arı had run away into the surrounding streets and helped the injured to make their way to the health centre . He had been arrested and taken to the gendarmerie headquarters .

The demonstrators had not been acting on anyone ’s orders .

Mr PERSON ’s parents lived in a village QUANTITY from ORG , and he had been on holiday in the region in DATE . He had not seen what took place in the centre of town , in FAC . He had arrived in PERSON TIME and seen people coming away from the scene of the incidents . Armoured vehicles were patrolling the streets . CARDINAL of the vehicles had opened fire on him . He had hidden behind a rock , but his leg had been burned by bullet fragments . According to PERSON , the gendarmes were out of control and were taking absolutely no precautions to preserve human life . They were acting like hunters .

Mr PERSON stated that he had taken part in the demonstration . He had seen the NORP fire at the crowd from a distance of QUANTITY . The demonstrators had separated into CARDINAL groups , but the firing had continued and he had received a bullet wound .

As regards the circumstances of PERSON death , he had not been near him but QUANTITY away . He had seen a large ORG and a small one . He had seen the large ORG fire at the crowd without prior warning . He had been treated in secret after the incident by a doctor . CARDINAL people who had been injured did not go to see a doctor for fear of being arrested .

Article CARDINAL of LAW GPE provides :

“ All acts or decisions of the administration are subject to judicial review ...

The administration shall be liable to indemnify any damage caused by its own acts and measures . ”

The above provision is not subject to any restrictions , even in a state of emergency or war . The second paragraph does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on the theory of “ social risk ” . Thus the administration may indemnify people who have suffered damage from acts committed by unidentified persons where the ORG may be said to have failed in its duty to safeguard individual life and property .

Under LAW , torture and ill - treatment are criminal offences ( Articles CARDINAL and CARDINAL deal with torture and ill - treatment inflicted by civil servants respectively ) .

Under ORG CARDINAL and CARDINAL of LAW , complaints may be lodged with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may also appeal against a decision not to institute criminal proceedings .

Under LAW no . CARDINAL ( which introduced the office of Governor of a State of Emergency Region ) , criminal offences committed by members of the security forces within the area covered by the state of emergency must be dealt with under the procedure for prosecuting public servants . Under this procedure , the administrative investigatory authorities conduct the preliminary investigation . If this investigation implicates an agent of the ORG or a civil servant , authorisation to initiate criminal proceedings must be given by the local administrative council ( the executive committee of the provincial administrative authorities ) . Administrative councils’ decisions may be appealed to ORG ; a decision not to proceed is subject to an automatic appeal of this kind .

Under LAW no . CARDINAL , a person who has been wrongfully held in police custody may apply to the local assize court for compensation within DATE of a decision to drop the charges against him .

Furthermore , any illegal act by a civil servant , whether a crime or a tort , which causes pecuniary or non - pecuniary damage may be the subject of a claim for compensation before the ordinary civil courts .

Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .


David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Simon Brown;Vincent A. De Gaetano

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . She is represented before the Court by PERSON , a solicitor practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

NORP The applicant ’s daughter , PERSON ( born in DATE ) , died on DATE .

PERSON had a history of mental health problems associated with alcohol and substance misuse .

In DATE CARDINAL warrants against her were considered by a GPE court . Sentencing was deferred ( until DATE ) the conditions of which were that she lived with her mother in GPE , kept in touch with her probation officer ( not amounting to formal probation supervision ) , accepted her treatment for drug abuse and did not commit further offences . She went to live with her mother in GPE . The facts set out below are taken from the documents submitted , including the transcript of the Inquest held on DATE ( paragraphs CARDINAL - CARDINAL below ) .

PERSON was seen by many health professionals from DATE . A General Practitioner ( “ GP ” , who treated her from DATE ) later certified to the Inquest that it was not clear whether she was a chaotic individual with a long history of substance abuse or whether there was evidence of psychotic illness . A psychiatric nurse certified to the Inquest that she was unsettled and agitated expressing paranoid ideation and suspicious thoughts and that most of her problems appeared to be caused by long - standing substance abuse .

Because no recall notice had issued as regards CARDINAL of the CARDINAL warrants from ORG , in DATE ORG officers circulated , in error , PERSON details on ORG ( “ LAW ) citing a failure to surrender to the warrant . In short , that warrant was , erroneously , now recorded as “ outstanding ” whereas it had been dealt with by the GPE court in DATE .

On DATE PERSON was arrested in GPE for being drunk and disorderly . She was found guilty by a GPE court on DATE and a small fine was imposed .

During that process , a ORG search revealed the warrant erroneously described as outstanding . She was re - arrested on DATE and , on DATE , transferred to GPE ( GPE station ) , arriving at CARDINAL . ORG ( “ PCO ” ) obtained a copy of the “ outstanding ” warrant and approved her custody at CARDINAL . He asked her a number of standard questions including those to determine her state of health and well - being . She replied in the negative when asked if she needed any assistance and whether she was suffering from any medical condition , illness or injury . Although she was acting appropriately and calmly , she had medication in her possession and the ORG referred her to ORG ( “ ORG ” ) . The ORG examined PERSON at CARDINAL , took her history ( she was open about her history of drugs and alcohol abuse ) and noted her medication ( valium and an anti - psychotic medication ) . The ORG advised her and the ORG how the medication should be taken . She was assessed as calm and fit to be detained . The ORG also advised her of her right to consult a solicitor free of charge and to inform someone of her arrest . She spoke with a solicitor by telephone and later ( CARDINAL - CARDINAL.CARDINAL ) he consulted with her at the police station . She was detained TIME .

She was transported TIME ( CARDINAL November ) to the GPE court . At CARDINAL it was discovered that the warrant was not valid and she was released from custody , although she stayed in the building . ORG informed the on - duty probation officer , who happened to know PERSON and her background , and who , in turn , informed PERSON . A solicitor ( from the law firm which represented her but who did not know her ) also consulted with her and , having been informed by a “ prison custody officer ” that there was no valid warrant , the solicitor also confirmed this to her . The solicitor saw her around CARDINAL.CARDINAL and at TIME and informed her that arrangements would be made by the probation officer for a travel warrant to be issued for her to return home to GPE . Since she was not under formal probation supervision , her travel could not be funded by the probation service and the probation officer set about obtaining it from court funds . PERSON insisted on going to a friend ’s house in GPE rather than home : her solicitor and the probation officer agreed . The travel warrant to GPE from court funds was approved at CARDINAL by a Stipendiary Magistrate . PERSON collected the travel warrant and , indicating that she knew the way to the bus station , left the court building . The probation officer and her solicitor considered her angry , frustrated and , at times , aggressive . While both believed that she might have been drinking , taking drugs or medication ( she had left the court building during DATE ) , neither considered that she needed medical assistance . According to his evidence at the Inquest , the probation officer did not consider her suicidal and he would have brought her to the bus station had he had cause for concern . PERSON called the applicant in a distressed state at CARDINAL : she expressed no suicidal intent .

PERSON did not go to GPE but remained in GPE TIME . TIME ( TIME ) she attended PERSON ( a registered charity ) where the manager knew her and she spent some time with a mental health project worker . She was not communicative . She telephoned her mother from FAC . The project worker also spoke to her mother and her mother explained her daughter ’s history and provided the number of her ORG in GPE . On the advice of the manager of ORG was referred to a drop - in ORG ( which PERSON knew ) that afternoon and her GPE in GPE was informed . The project worker gave PERSON the bus fare to ORG left in an improved mood .

At CARDINAL she attended ORG ( a ORG clinic ) . She saw a ORG who was also familiar with her history and who had consulted with her GPE in GPE before he saw her . She refused to take the medication prescription given to her . She was agitated , aggressive and expressing paranoid ideas , but not suicidal . She left ORG at CARDINAL .

At CARDINAL the police were called to attend when PERSON had collapsed in the street . Identification , but not medication , was found on her . She was unconscious with a weak pulse . An ambulance arrived and she was transported to hospital where she was pronounced dead at CARDINAL . The post - mortem examination confirmed that she died of a methadone overdose .

On DATE an Inquest was opened and adjourned by the Coroner . It was resumed on DATE , after the coming into force of LAW DATE ( “ HRA ” ) . The Inquest lasted DATE .

The applicant , who was present and legally represented , argued that the Inquest should examine : who or what factor(s ) was responsible for the original execution of the warrant not being registered with the proper authorities ; who or what was responsible for incorrect details being entered on the ORG ; what , if any , safeguards existed to prevent the errors ; why there was no reference on LAW that came from the GPE police station to medication , drug abuse or self - harm ; what happened to her medication prior to her being discharged from custody ; who was responsible for securing basic financial , logistical and therapeutic support to a vulnerable woman who had been falsely imprisoned and unlawfully transported QUANTITY from her home , family and probation officer ; why was she left to die involuntarily , homeless , penniless and without sufficient medication ; and why were the CARDINAL treating doctors not able to take more effective action in dealing with her mental health difficulties on DATE of her death .

The Coroner did not allow the Inquest to cover such matters , the Inquest being limited to matters directly causative of death . Since PERSON had died before the entry into force of the ORG , the question “ how ... she came by her death ” ( section CARDINAL(CARDINAL)(b)(ii ) of the Coroner ’s Act DATE , “ the DATE LAW ) was considered by reference to the pre - ORG test ( NORP v. GPE , ex parte PERSON [ DATE ] QB CARDINAL ) rather than by reference to the post - ORG “ ORG ” test ( ORG ) v. GPE [ DATE ] ORG CARDINAL and PERSON ) v. GPE [ DATE ] ORG CARDINAL ) . In CARDINAL exchange between Counsel for the applicant and the Coroner , the latter stated that it was within his remit to determine matters that were directly causative of death but not to enquire into every underlying circumstance which , however remotely , might be considered responsible for death . Accordingly , while the error in relation to the warrant was accepted , it was not the role of the Inquest to enquire into why or how that error had occurred .

The Coroner obtained a considerable amount of evidence about PERSON background and the events of DATE of her life . The ORG described his contact with the applicant on DATE . The applicant gave evidence mainly about her difficulty in obtaining information from the probation officer and the solicitor on TIME CARDINAL DATE . The solicitor and probation officer described their contacts with PERSON at the GPE court on TIME . The relevant medical personnel also described their contacts with her : the FAC at FAC as well as the mental health project worker at FAC and the doctor at ORG . The Coroner also read into the record reports detailing her symptoms and treatment from her GPE , community psychiatric nurse and the consultant psychiatrist , all of whom had treated her in GPE , . The police officer called to attend when she collapsed in the street and the pathologist who conducted the post - mortem examination also gave evidence .

The Coroner summed up the evidence . He then advised on matters of law , explaining , inter alia , that it was no part of the Inquest ’s role to apportion blame given section CARDINAL of the Coroner ’s Rules DATE ( “ the DATE Rules ” ) . He explained the CARDINAL standard questions in the Inquisition Form to which the jury had to respond . Items CARDINAL and CARDINAL concerned certain personal identifying details of the deceased . Item CARDINAL concerned the “ injury or disease causing death ” : the Coroner considered this to be “ crystal clear ” and that there was absolutely no dispute given the pathologist ’s conclusions ( “ Methadone , ORG and alcohol poisoning ” ) . Item CARDINAL concerned “ the time , place and circumstances at or in which injury was sustained ” : the Coroner explained that there was nothing to fill in since the deceased did not suffer any injuries . Item CARDINAL constituted the “ verdict ” and allowed CARDINAL possible conclusions : “ death by misadventure ” and “ an open verdict ” . The former was described as a situation where ‘ an unlooked for or unintended fatal outcome arose from some voluntary act or actions of the deceased’ . The latter ( open verdict ) was explained as the verdict which could be returned if the jury formed the view that the evidence “ did not fully disclose the means whereby the cause of death arose ” or if there was insufficient evidence to return a verdict of death by misadventure .

The jury found that the cause of death was “ methadone , diazepam and alcohol poisoning ” ( Item CARDINAL ) and it returned a verdict of death by misadventure ( Item CARDINAL ) . The Coroner then closed the Inquest as follows :

“ From the evidence we heard , [ PERSON ] certainly needed help but there is no evidence to suggest that all the professionals , or indeed the health care professionals , had done anything other than acted in good faith , professionally and tried to help her within quite difficult circumstances . [ PERSON ] died as a result of a drug overdose , by her own volition , which is very sad and tragic indeed . Clearly , no one who had any knowledge of this tragic death could not but have the deepest sympathy for [ PERSON ] mother who clearly was at the end of her tether trying to do the best for her . Her frustration was compounded by the unfortunate ‘ cock up’ of the inappropriate warrant which then brought [ PERSON ] to GPE where she died . [ PERSON ] mother ’s distress and , indeed , palpable anger , was entirely understandable , and ORG at the very least , owe her a big apology indeed . No doubt there will be an inquiry into this matter , which is entirely outside of the remit of my court and I shall comment no more and ..... I wish them luck in their quest in seeking answers to address her concern . ”

The applicant complained to ORG ( “ PERSON ” ) and a report was sent to her solicitors in DATE ( not submitted ) . ORG ( “ ORG ” ) investigated and reported on the complaint in so far as it concerned the GPE area . Following a meeting with , among others , the applicant and her solicitors on DATE and other inquiries , the ORG issued a report dated DATE . It found that , while the probation officer was not required to supervise PERSON on DATE , he did all that was necessary to ensure a travel warrant was issued ; that the erroneous warrant for arrest was not a matter for the probation service but it would be raised by the ORG before ORG ; and that the ORG and the GPE court staff did as much as they could for PERSON .

The applicant appealed to ORG and GPE who conducted an investigation into the applicant ’s claims about the ORG and the PERSON . In the ORG ’s report of DATE he supported the conclusions of the ORG , finding that the probation staff had behaved professionally at the GPE court and had assisted PERSON as far as it was within their means to do so . On DATE the ORG ’s report found that the PERSON had fulfilled all of their obligations in respect of the conditions of the deferred sentence , noting that the relevant probation officer in GPE had gone above and beyond what was required of her .

NORP The applicant also claimed to have made various complaints to the police which were “ unrecorded ” . She submitted that her appeal to ORG ( “ ORG ” ) was “ upheld ” in DATE and that the ORG noted that the complaint might not be investigated because of the lapse of time since the incident . She referred to a letter of DATE wherein ORG declined to “ further investigate the circumstances of the applicant ’s complaints ” . The applicant also believed that she had unsuccessfully pursued complaints to ORG . No substantiating documents were submitted .

In DATE the applicant ( who had legal aid ) applied to challenge the Inquest under LAW of LAW , arguing mainly that the Inquest failed to comply with LAW . Leave was granted on DATE .

On CARDINAL DATE the case was dismissed by judgment of ORG . That court defined the key question as : where a Coroner conducted an Inquest into a pre - HRA death , was the approach to the question of “ how ... the deceased came by his death ” ( section CARDINAL(CARDINAL)(b)(ii ) of LAW ) to be considered by reference to the pre - HRA test ( a Jamieson Inquest ) or by reference to the post - HRA test ( a ORG ) .

The High Court found that an Inquest into a pre - HRA death did not have to be LAW given the ORG judgment of ORG ( In re ORG [ DATE ] CARDINAL WLR CARDINAL ) . ORG concluded :

“ ... I therefore conclude that the [ ORG ] does not require a Coroner now investigating a death which occurred before the coming into force of the [ ORG ] to conduct an inquest in an LAW compliant manner . It may be that his failure to do so may be actionable in international proceedings in GPE , just as the failure of the Secretary of ORG resulted in a successful application to GPE in ORG . However , that does not assist the claimant in the domestic context . ”

In addition , the Coroner had retained and properly applied the correct PERSON requirements . Having noted the considerable amount of evidence obtained by the Coroner , ORG considered that the Coroner was “ undoubtedly entitled to conclude that , under the pre - HRA law , it was unnecessary for there to be a detailed investigation into how the warrant came to be executed erroneously . ”

In commenting on the final passage of the Coroner ’s speech closing the Inquest and , in concluding itself , ORG noted :

“ ... I wish to associate myself with the deep sympathy expressed by the Coroner . I well appreciate that the claimant , as a loving parent , will continue to feel aggrieved by the scope of the inquest . It will be no consolation to her that if [ PERSON ] had died after DATE , different considerations would have applied to the parameters of the inquest . Sadly , however , the less generous law which applies to the inquest in the present case fails to provide her with all the answers to which she , understandably , feels entitled . I am sorry to say that her appeal must be dismissed . ”

Leave to appeal to ORG was granted , the single judge noting that an intervening judgment of ORG was in the applicant ’s favour ( R.(Hurst ) v GPE LOC Coroner [ DATE ] EWCA CARDINAL ) . The applicant was legally aided and represented .

The appeal was therefore stayed pending the ORG of Lords’ judgment in the PERSON case . On DATE that judgment was delivered ( R.(Hurst ) v GPE LOC [ DATE ] UKHL CARDINAL ) , ORG reversing ORG judgment and confirming that there was no duty on a Coroner to hold an Inquest complying with LAW in relation to a death that pre - dated the entry into force of the ORG even if the Inquest took place thereafter . Lord PERSON approved the judgment of ORG in the present applicant ’s case .

Accordingly , on DATE Counsel advised he applicant that her appeal had no prospects of success and should be withdrawn . On DATE ORG dismissed the appeal on a consent basis .

On DATE the applicant issued civil proceedings for damages against a number of respondents , including the Greater London ORG , alleging negligence and false imprisonment as regards the arrest and detention of PERSON on the basis of an unlawful warrant . The case was stayed pending the above - described judicial review proceedings . Legal aid was discharged in DATE and the applicant acted in person when the case was re - activated thereafter .

On DATE the Greater London ORG agreed to compensate the applicant in the sum of MONEY ( “ GBP ” ) and for previously incurred legal costs in the sum of GBP CARDINAL .

The ORG came into force in GPE , GPE and GPE on DATE .

Section CARDINAL of the ORG provides that so far as it is possible primary and secondary legislation must be read and given effect in a Convention compatible manner . Section CARDINAL of the ORG makes it unlawful for a public authority to act incompatibly with Convention rights , unless it is not possible to act differently by virtue of primary legislation . A successful claim under LAW would render the relevant public authority liable to the plaintiff under LAW ORG and a judge has power to award damages under section CARDINAL of the ORG .

Section CARDINAL(CARDINAL ) of LAW DATE ( “ the DATE LAW to hold an Inquest in circumstances where there are grounds to suspect that the person ( a ) has died a violent or an unnatural death or ( b ) has died a sudden death of which the cause is unknown .

Section CARDINAL(CARDINAL)(b ) of the DATE Act outlines the content of the Inquisition Form ( the document completed by ORG jury at the end of the evidence ) as follows :

“ ( i ) who the deceased was ; and

( ii ) how , when and where the deceased came by his death ; ... ”

Rule CARDINAL of LAW ( “ the DATE Rules ” ) requires that proceedings be directed solely to ascertaining : ( a ) who the deceased was ; ( b ) how , when and where he came by his death ; and ( c ) the particulars required by LAW to be registered concerning the death . Rule DATE provides that no verdict shall appear to determine any question of criminal or civil liability on the part of a named person .

In GPE v Her Majesty ’s Coroner for LOC of GPE ex parte PERSON , PERSON and Manners ( unreported DATE ) , Lord Justice PERSON said :

“ In short the inquiry must focus on matters directly causative of death and must , indeed , be confined to these matters alone ... . The recent , eleventh edition of GPE on Coroners puts it thus :

‘ The question of how the deceased came by his death is of course wider than merely finding the medical cause of death , and it is therefore right and proper that the coroner should enquire into acts or omissions which are directly responsible for the ORG . ”

This latter case informed the findings of ORG in the principal case concerning the role and function of an Inquest as a fact - finding inquiry concerning a death pre - dating the ORG ( NORP v. PERSON for GPE and GPE ex p. PERSON [ DATE ] Q.B. CARDINAL ) . Sir PERSON held that the words “ How ... the deceased came by his death ” in section CARDINAL(CARDINAL)(b ) of LAW DATE and Rule CARDINAL were to be understood as meaning “ by what means ” :

“ ... the task is not to ascertain how the deceased died , which might raise general and far - reaching issues , but ‘ how ... the deceased came by his ORG , a more limited question directed to the means by which the deceased came by his death . ”

A ORG provides therefore for narrow circumstances in which a lack of vigilance on the part of the third party could feature in the Inquest verdict . Having emphasised that the Inquest could not be concerned with matters of ordinary negligence ( a failure to take reasonable care ) , the judgment defined the verdict of neglect ( or lack of care ) as a term of art :

“ Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence .

Since many of those seeking that verdict do so as a stepping - stone towards such a claim the boundary is bound to become blurred . But lack of care in the context of an inquest has been correctly described as the obverse of self - neglect . It is to be hoped that in future the expression ‘ lack of care’ may for practical purposes be deleted from the lexicon of inquests and replaced by “ neglect . ”

Neglect in this context means a gross failure to provide adequate nourishment or liquid , or provide or procure basic medical attention or shelter or warmth for someone in a dependent position ( because of youth , age , illness or incarceration ) who can not provide it for himself . Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect . ”

On DATE House of Lords decided ( NORP ( PERSON ) ν GPE [ DATE ] CARDINAL A.C. CARDINAL ; and NORP ( PERSON ) v. GPE [ DATE ] CARDINAL W.L.R. CARDINAL ) that the limited scope of ORG , being insufficient to provide a meaningful conclusion as to whether the conduct of ORG agents might reasonably have prevented a death , was incompatible with the procedural requirement of LAW . In so deciding and using the interpretation mechanism of section CARDINAL of the ORG an Inquest , in deciding “ how ” the deceased came by his death , was to consider both “ by what means ” and “ in what circumstances ” the deceased came by his death . This would be applicable to cases where it was plausibly alleged that unjustified lethal force had been used by agents of the ORG as well as in cases where it was alleged that the ORG had breached its positive duty to take reasonable steps to safeguard the lives of individuals . In this latter respect , ORG noted that :

“ The decision in [ PERSON v. GPE , no . CARDINAL , ORG CARDINALIII ] shows that it does apply to a broader category of cases , since although in that case no breach of the state ’s investigative obligation was alleged or found , the court based its conclusion that LAW had been violated in part on its opinion ... that the inquest , which did not permit any determination of liability , did not furnish the applicant with the possibility of establishing the responsibility of the prison authorities nor did it ... constitute an investigation capable of leading to the identification and punishment of those responsible for the deprivation of life . A statement of the inquest jury ’s conclusions on the main facts leading to the suicide of PERSON would have precluded that comment .

Lord GPE therefore made the following observation as to how those Rules would henceforth be applied :

“ The prohibition in rule PERSON ) of the expression of opinion on matters not comprised within sub - rule ( CARDINAL ) must continue to be respected . But it must be read with reference to the broader interpretation of “ how ” in section CARDINAL ) and rule CARDINAL ) and does not preclude conclusions of fact as opposed to expressions of opinion . However the jury ’s factual conclusion is conveyed , rule CARDINAL should not be infringed . Thus there must be no finding of criminal liability on the part of a named person . Nor must the verdict appear to determine any question of civil liability . Acts or omissions may be recorded , but expressions suggestive of civil liability , in particular “ neglect ” or “ carelessness ” and related expressions , should be avoided . Self - neglect and neglect should continue to be treated as terms of article ”

On DATE ( DATE ) ORG gave judgment in In re PERSON ( [ DATE ] CARDINAL WLR CARDINAL ) . Following a finding of a breach of the procedural obligation under LAW by ORG ( ORG v. GPE , no . CARDINAL/CARDINAL , ECHR CARDINALIII ) , that case determined that an obligation to conduct an LAW inquiry into a fatal shooting did not apply to a death which pre - dated the entry into force of the ORG .

Further to the delivery of this ORG ’s judgment in ORG v. GPE ( [ ORG ] , no . CARDINAL , DATE ) , ORG accepted that an Inquest compliant with LAW should be held into the use of lethal force which took place prior to the entry into force of the ORG ( PERSON and Another , Re Application for Judicial Review [ DATE ] ORG ) . PERSON did not consider that this required the re - opening of an Inquest that had already taken place , unless there was important new material .

The ORG refers to LAW outlined in its judgment in PERSON v. GPE ( DATE , § § CARDINAL - CARDINAL , Reports of Judgments and Decisions CARDINAL ) and in Z and Others v. GPE ( [ ORG ] , no . CARDINAL , § § DATE ) , ORG CARDINALV ) . It would add as follows .

ORG judgment in GPE v. Chief Constable of GPE ( [ DATE ] A С CARDINAL ) was later relied upon in PERSON ( [ DATE ] CARDINAL AU . E.R.CARDINAL ) and is also described in the judgment of this Court in its above - cited PERSON judgment .

The public policy constraints on recognising a duty of care by public authorities were further considered in PERSON v. Commissioner of Police for the Metropolis ( [ DATE ] CARDINAL W.L.R. CARDINAL ) . The claimant was the friend of PERSON . Both men had been subjected to a racist attack by CARDINAL white youths , which resulted in the death of PERSON . A subsequent public inquiry held that the investigation , and in particular the treatment of PERSON , was open to criticism on a number of fronts , as well as indicating unwitting racism on the part of several officers and a generalised problem of institutional racism on the part of ORG . ORG allowed the appeal of the Commissioner of Police against the decision of ORG refusing to strike out the claimant ’s action in damages for negligence . Lord PERSON gave the main judgment and considered the continuing status of PERSON ’s case under LANGUAGE law . He conceded that it was no longer appropriate to articulate the public policy issue in terms of an entitlement of public institutions to blanket immunities from civil proceedings . However , the underlying refusal in PERSON ’s case to recognise a duty of care when the police merely exercise their public functions was upheld . The judgments of Lord PERSON and Lord PERSON recognised , however , that a duty of care would be held to exist in exceptional cases .

Since the PERSON case , a number of cases have exhibited a sufficient degree of special relationship to displace the public policy consideration preventing the recognition of a duty of care . They include circumstances where a person acts as an informant of the police ( Swinney v. Chief Constable of GPE [ DATE ] Q.B. CARDINAL ) ; or has their property targeted in the course of police operations ( PERSON v. Chief Constable of GPE [ DATE ] CARDINAL All . ORG ) ; or is employed within their service ( Waters v. Commissioner of Police [ CARDINAL ] CARDINAL WLR CARDINAL ) ; or where a person is in detention ( PERSON v. Chief Constable of GPE [ DATE ] CARDINAL Q.B. CARDINAL ) .

There is a parallel common law line of authority concerning the duty of care of local authorities . It is authoritatively expressed in the case of X and Others v. ORG ( [ DATE ] CARDINAL All England Law Reports CARDINAL and described in the above - cited Z and Others v. the GPE judgment ) , where ORG held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children . CARDINAL later significant judgments found the local authority to owe a duty of care , including to parents , as regards children placed by , or in the care of , a local authority ( PERSON and Others v. ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ; and PERSON v. GPE of GPE [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) .

The Court of Appeal judgment in the case of PERSON ν. Chief Constable of GPE ( [ DATE ] CARDINAL W.L.R. DATE ) concerned a death ( the killing of a witness in a criminal prosecution ) which post - dated the entry into force of the ORG . The applicant ’s claim under LAW ORG , for a breach of LAW , was upheld .

In so doing , ORG analysed the differences between that action under section CARDINAL of the ORG and common law negligence , ORG observing that the claimant would not have succeeded if the claim had been brought in negligence :

“ [ Counsel for the claimant ] stressed the fact that the claimants did not frame their claim in negligence before the judge and they have not done so before us . That was because of the difficulty of persuading the court that the police owed them a duty of care in the light of the decisions of ORG in [ PERSON and PERSON ] . Although there was a suggestion in the course of the argument that a duty of care might be owed on the particular facts of this case and , indeed , the judge ’s judgment gives the claimants some encouragement , the claimants have never advanced their case on that basis and it seems to us to be fraught with difficulty . We shall proceed on the footing that on the authorities as they stand at present no duty of care was owed by the police to the claimants . ”

In analysing the differences between the common law action and an action under section CARDINAL of the ORG ( of a breach of LAW , ORG noted that the public policy concerns about finite police resources were acknowledged in the LAW case - law , by setting the threshold for a breach of LAW at a relatively high point , although not so high as to require gross negligence . Having cited the relevant paragraph QUANTITY of the above - cited PERSON judgment of this ORG , ORG observed :

“ .. in [ PERSON v. the GPE ] the [ ORG ] stressed that not every claimed risk to life gives rise to a positive obligation under LAW . That is because of policy considerations which are very similar to those which led ORG in [ the LOC ] case to conclude that no duty of care is owed by the police to those in the position of PERSON . However , unlike the solution so far adopted by the common law , the solution adopted by the court under the Convention was not to hold that there was no positive obligation actionable at the suit of a victim to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual , but to hold that such an obligation must be interpreted so as not to impose an impossible or disproportionate burden on the authorities . ”

ORG ( [ DATE ] ORG DATE allowed the appeal of the Chief Constable in the PERSON case , finding that the claimants had not satisfied the “ PERSON threshold ” so that there had been no violation of the substantive requirements of LAW .

The parallel appeal before ORG decided at the same time ( ORG ) v. Chief Constable of Sussex Police [ DATE ] ORG CARDINAL ) concerned a claim under the common law of negligence only . ORG confirmed the “ robust ” approach of the above - cited PERSON judgment and explicitly contrasted that with the remedy available under the ORG .

LAW ( Miscellaneous ) LAW DATE ( “ the DATE LAW ) provides for the survival of causes of action for the benefit of the deceased ’s personal estate . The relevant part of LAW CARDINAL(CARDINAL ) provides :

“ Subject to the provisions of this section , on the death of any person after the commencement of this LAW all causes of action subsisting against or vested in him shall survive against , or , as the case may be , for the benefit of , his estate . ”

This enables recovery on behalf of the estate of damages for losses suffered by the deceased before death , including non - pecuniary damages for pain and suffering between the infliction of injury and death . Where death is instantaneous , or where it can not be proved that the deceased experienced pain and suffering before death , damages are not recoverable under LAW ( the only recoverable amount being funeral expenses ) .

The Fatal Accidents Act DATE ( “ CARDINAL Act " ) confers a right of action for a wrongful act causing death . LAW ) provides :

“ If death is caused by any wrongful act , neglect or default which is such as would ( if death had not ensued ) have entitled the person injured to maintain an action and recover damages in respect thereof , the person who would have been liable if death had not ensued shall be liable to an action for damages , notwithstanding the death of the person injured . ”

The statutory right of action is reserved to the deceased ’s dependants ( parents are not considered dependants ) and allows the recovery of their pecuniary loss . If there are no dependants , no pecuniary loss is recoverable . Bereavement damages ( fixed at GBP CARDINAL ) are available to parents if the deceased child was DATE . Funeral expenses are recoverable . LANGUAGE law does not recognise a tort of wrongful death .