FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46260/99 by Hatice EVCÄ°L against Turkey

The European Court of Human Rights (Fourth Section), sitting on 6 April 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr R. Türmen , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , Mrs E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 4 December 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Hatice Evcil, is a Turkish national who was born in 1944 and lives in Tunceli. She is represented before the Court by Mr Ali Cemal Zülfikar, a lawyer practising in Elazığ.

A. The circumstances of the case

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

1. The incident

On 6 September 1998, at around 10.00 a.m., Mehmet Evcil, the applicant's husband, was taking his animals out to graze on pastures that were 4 to 5 kilometres outside of the village of Mercümek, when he saw an unidentified object. He bent down and picked it up but when he realised that it could contain explosives he threw it away. At that moment there was a large explosion and Mr Evcil was wounded by shrapnel. His six sheep died on the spot.

Mr Düzgün Duran, a shepherd, who was accompanying him, ran towards the village for help. Road workers, who were working on a construction site at approximately 200 metres away from the scene of the incident, also heard the explosion. Mr Haydar Ber, the construction site manager, immediately informed the security forces, who were stationed about 500 metres away.

At around 11.00 a.m., the applicant and her children arrived in a minibus, from Pertek which was approximately 15 kilometres away from the scene of the incident. They first took Mr Evcil to the Pertek Health Clinic. Following an initial medical treatment in the Pertek Health Clinic, he died during his transfer to the Elazığ State Hospital.

2. The preliminary investigation

On the same day the Elazığ Public Prosecutor initiated an investigation into the incident. Upon the public prosecutor's request an autopsy was carried out on Mr Evcil in the Elazığ State Hospital. The autopsy report contained a brief summary of the incident. There it was noted that the incident took place around 10.00 a.m. Moreover according to this report, it was established that Mr Evcil had died as a result of a haemorrhage, between 11.30 am and 13.30 am. The applicant's son identified the body in the morgue.

Meanwhile the gendarmes drafted an incident report and made a sketch map of the scene of the incident. According to this report the incident occurred at around 11.00 a.m. They also took statements from two eyewitnesses.

In his statement taken by the gendarmes Mr Haydar Ber submitted that his colleagues had informed him of the explosion while he was working on the construction site. He reported the incident to the security forces who told him that they had not opened fire. Moreover they told him that a “special team” would arrive shortly. Subsequently, Mr Haydar Ber went to the scene of the incident with the security forces and talked with the applicant's husband about what had happened. After Mr Evcil had been taken to the Pertek Health Clinic, Mr Haydar Ber called the Gendarmerie Command in order to inform them of the incident.

In his statement Kenan Polat, a road worker, said that at around 11.00 a.m. he had heard a large explosion and saw smoke. He had also heard someone shouting in Kurdish for help. He stated that he had immediately informed Mr Haydar Ber.

On 9 September 1998 the Elazığ Public Prosecutor gave a decision of non-jurisdiction ratione loci and transferred the case file to the Office of the Pertek Public Prosecutor.

On 15 September 1998 the Pertek Public Prosecutor took the applicant's statements. She stated that the incident occurred around 9.30 a.m. She expressed the view that the security forces were responsible for the death of her husband because they had not provided him with any help despite having the means of doing so. The applicant claimed that if her husband had been taken to a hospital earlier, his life could have been saved. She believed that the explosive material that caused her husband's death had not been left by terrorists, but by the security forces.

On 28 September 1998 the Criminal Laboratory of the Police in Diyarbakır carried out a ballistic examination of the shrapnel collected at the scene of the incident. According to the Criminal Laboratory's report dated 2 October 1998, the pieces gathered from the scene of the incident contained nitro-glycerine and nitrite, both explosive materials.

On 16 October 1998 the Pertek Public Prosecutor sent the pieces of shrapnel collected from the scene of the incident to the Tunceli Police Headquarters for further examination.

On 4 November 1998 the Tunceli Police Headquarters submitted the results of the ballistic examination to the Pertek Public Prosecutor. In the ballistic report it was stated that the 11 pieces of shrapnel sent for examination bore resemblance to the outer layer of a tracer bullet which could be fired from a 66 mm diameter M-72 A2/A3 type of LAVA missile launcher. It was further stated that the Institute for Machinery and Chemicals ( Makina ve Kimya Enstitüsü – hereinafter “MKE”) produced these tracer bullets for military purposes and that their commercial sale was prohibited.

In a letter dated 4 December 1998 and addressed to the Pertek Gendarmerie Command, the Pertek Public Prosecutor inquired whether the security forces at the Gendarmerie Command had been using the type of tracer bullet mentioned in the ballistic report.

On 22 December 1998 the Pertek Gendarmerie Command replied that they had not been using the type of tracer bullet which was referred to in the ballistic report, however it was probable that other security forces in the district had been using this type of bullet.

In a letter dated 4 May 1999 and addressed to the 51. Army Brigade Command in Hozat, the Pertek Public Prosecutor inquired whether the security forces in the entire district of Pertek had been using this type of tracer bullet.

On 17 May 1999 the 51. Army Brigade Command in Hozat informed the Pertek Public Prosecutor that it was highly probable that the tracer bullet recovered from the scene of the incident had been left by terrorists. They submitted that it was a well-known fact that terrorists illegally obtain and use the weapons and the bullets produced by MKE. Furthermore, they maintained that, as the incident had taken place outside the area where the security forces practice shooting, there could be no responsibility attributable to the security forces in relation to the death of the applicant's husband.

On 18 November 1999 the Pertek Public Prosecutor gave a decision of non-prosecution, as no crime could be attributable to the security forces and those responsible for the incident could not be identified.

3. The second investigation

In 2000 the Public Prosecutor reinitiated the investigation. On 20 February 2001 the Public Prosecutor issued a permanent search warrant valid for 5 years from the date of the incident. According to this warrant the security forces have to carry out a rigorous investigation into the identification of the perpetrator(s) until the search warrant expires.

In a letter dated 21 February 2001 the Pertek Public Prosecutor requested information from the Pertek Gendarmerie Command in order to establish if the military forces in the area had used the type of tracer bullet in question at any time and if the residents of the area had been warned about the explosive materials that could be found in the vicinity. Furthermore he asked to be kept informed of any development in the investigation into the death of the applicant's husband until the statutory time limit expired.

On 26 February 2001 the Public Prosecutor took statements from the village headman of Mercimek village at the time of the incident; the present village headman; the shepherd who was grazing his sheep with Mr Evcil and the driver of the minibus who took Mr Evcil to the hospital. They all confirmed the facts of the incident, without mentioning the exact time of the incident.

On 14 March 2001 the Pertek Gendarmerie Command informed the Public Prosecutor that the Turkish military forces had not used the type of tracer bullet responsible for the death of Mr Evcil since 1993, because it was expensive. However these bullets were still being produced by some NATO allies and it was observed that terrorists had been using them. Moreover they submitted that the villagers had been warned through the local press that any ammunition found in the area could be explosive and therefore they should immediately inform the security forces without handling them personally.

On 1 April 2001 the Pertek Gendarmerie Command informed the Pertek Public Prosecutor that the inquiries in relation to the identification of those responsible for the incident conducted so far had remained unsuccessful and that they were still actively being searched for. On 1 May 2001 the Pertek Gendarmerie Command issued a report similar to the previous one and submitted it to the Pertek Public Prosecutor. The last report of similar kind was issued on 19 May 2003.

B. Relevant domestic law and practice

A description of the relevant domestic law can be found in Tepe v. Turkey , no. 27244/95, §§ 115-122, 9 May 2003.

COMPLAINTS

The applicant complained under Article 2 of the Convention that her husband died as a result of an explosion of a tracer bullet that had been abandoned by the security forces. She argued that the national authorities were under the obligation to ensure the security of the citizens by way of collecting mines and ammunition that had been used for military purposes and later left behind. She further complained under the same Article of the Convention that the security forces acted negligently as they failed to take her husband promptly to a hospital.

The applicant also complained that the death of her six sheep caused by the explosion constituted a violation of her right guaranteed under Article 1 of Protocol No.1 to the Convention.

THE LAW

1. The applicant complained under Article 2 of the Convention that a tracer bullet, which was abandoned by the security forces, caused the death of her husband. Furthermore she alleged that the security forces acted negligently in that they did not promptly take her husband to a hospital. Article 2 of the Convention provides:

Article 2

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

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

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

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

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

The Government contended that the applicant has failed to exhaust all domestic remedies available to her as the preliminary investigation carried out by the Pertek Public Prosecutor was still continuing when the applicant lodged her application with the Court. Moreover they contended that the applicant failed to file an objection against the Public Prosecutor's decision of non-prosecution.

The Government further submitted that the applicant has also failed to bring any of the ordinary civil, administrative or criminal actions that were available under Turkish law, despite the fact that they were effective.

The applicant contended that in the state of emergency region, where the incident has occurred, domestic remedies were ineffective.

The Court does not consider it necessary to decide whether the applicant can be considered to have complied with the requirements of Article 35 § 1 of the Convention since the application should be declared inadmissible as being manifestly ill-founded.

1. The death of the applicant's husband

As regards the merits of the applicant's complaints under Article 2 of the Convention the Government contended that there was no evidence which proved that the tracer bullet which exploded was abandoned by the security forces. According to the investigation carried out by the Public Prosecutor it was a well-known fact that the terrorists illegally obtained these bullets produced for military purposes. Therefore it was not possible to identify the person(s) who abandoned it.

They also alleged that considering the geographical features of the area, it was not possible to clear it entirely of the left over ammunition. It was also not feasible to prevent the villagers from entering the area. However they argued that both the District Governor and the District Gendarmerie Commander informed the villagers about the possible danger.

Moreover the Government argued that the Gendarmerie Command was in possession of two jeeps which were not suitable for carrying a seriously injured person. They therefore had to wait for a more appropriate vehicle to transport the applicant's husband.

The applicant contended that it was an established fact that the tracer bullet that caused her husband's death was produced by the Institute for Machinery and Chemicals and that their commercial sale was prohibited. Therefore she alleged that there was no doubt that it was abandoned by the security forces.

Furthermore she submitted that the incident occurred around 9.30 a.m. However the security forces did not provide any help and waited for the minibus to arrive from the nearest village until 11.00 am. She therefore claimed that her husband died because of the security forces' negligent behaviour.

The Court notes that it is confronted with a dispute concerning the identity of those responsible for the incident, as well as concerning the exact time of the incident. In this regard, it considers that it must reach its decision on the basis of the available evidence submitted by the parties (see, Messina v. Italy judgment of 26 February 1993, Series A no. 257-H, p. 104, § 31).

In view of the parties' allegations the Court considers that to conclude that the applicant's husband was killed due to an explosion of a tracer bullet abandoned by the security forces would be mere speculation on the basis of the material before the Court. It considers that the evidence before it is not capable of supporting that conclusion.

The Court accordingly finds that it can not conclude that the security forces were responsible for the abandoned tracer bullet which caused the death of the applicant's husband by exploding.

As regards the applicant's complaint concerning the authorities' allegedly negligent behaviour in taking her husband promptly to a hospital, the Court notes that when Haydar Ber informed the security forces about the explosion they told him that they had also heard the explosion and that they would send a “special team” to the scene of the incident immediately. However there is nothing in the case file which shows when exactly the security forces called for help.

The Court also observes that there is a dispute concerning the exact time of the incident. According to the applicant the incident occurred around 9.30 a.m., while the witnesses confirmed that the incident took place around 11.00 a.m. On the other hand in the autopsy report, the time of the incident was noted as 10.00 a.m.

In the light of the above information, the Court cannot conclude certainly how long the applicant's husband had to wait for the minibus to arrive. In any case it observes that, considering the road conditions in the area, it is not unreasonable that it took around one hour for a minibus to arrive at the scene of the incident. Moreover it notes that when faced with a seriously injured person, it is comprehensible that the security forces chose not to move him and to wait for a more suitable vehicle to transport him.

The Court therefore dismisses the applicant's complaints concerning the State's responsibility for the death of the applicant's husband as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The nature of the investigation

The Government claimed that the Pertek Public Prosecutor carried out a thorough investigation which complied with the procedural obligation enshrined under Article 2 of the Convention.

The applicant alleged that if the authorities had conducted an effective investigation the responsible person(s) for the abandoned tracer bullet would have been found by now.

The Court reiterates that the obligation to protect the right to life under Article 2 read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis , McCann and Others v. the United Kingdom , 27 September 1995, Series A no. 324, p. 49, § 161; and Kaya v. Turkey , 19 February 1998, Reports 1998-I, p. 329, § 105).

The aforementioned obligation is not confined to cases where it has been established that the killing was caused by an agent of the State. The mere fact that the authorities have been informed of the death will give rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances in which it occurred (see, mutatis mutandis , Ergi v. Turkey , 28 July 1998, Reports 1998-IV, p. 1778, § 82, Yaşa v. Turkey , 2 September 1998, Reports 1998-VI, p. 2438, § 100; and Jordan v. the United Kingdom , no. 24746/94, §§ 107-109, 4 May 2001). However this is not an obligation of result, but of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, for example, Salman v. Turkey [GC] , no. 21986/93, ECHR 2000-VII, § 106; Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 109; Gül v. Turkey , 22676/93, § 89, 14 December 2000).

In the present case there is no dispute over the steps that were taken by the security forces and by the public prosecutor as the preliminary investigation.

The evidence in the case file shows that immediately after the incident the gendarmes took the statements of the witnesses, drafted an incident report and made a sketch map of the scene of the incident. Moreover an autopsy was carried out on Mr Evcil's body in the presence of the Elazığ Public Prosecutor, in order to establish the cause and the time of death.

On 28 September 1998 a ballistic examination of the shrapnel collected at the scene of the incident was carried out in the Criminal Laboratory of the Police in Diyarbakır. The result of this ballistic examination was later on compared with the outcome of the ballistic examination carried out at the Tunceli Police Headquarters.

In December 1998 the Pertek Public Prosecutor inquired of the Pertek Gendarmerie Command and the 51. Army Brigade whether any of the security forces in the entire district of Pertek had been using this type of tracer bullet.

At the end of the preliminary investigation which lasted approximately one year the Public Prosecutor gave a decision of non-prosecution as no crime could be attributed to the security forces and those responsible for the incident could not be identified. However within one year from the decision of non-prosecution, the Pertek Public Prosecutor reinitiated the investigation. He issued a search warrant which was valid for 5 years from the date of the incident. In conformity with this search warrant the Pertek Gendermarie Command continued to seek to establish the identity of those responsible for the incident. They submitted a progress report in this regard to the Public Prosecutor every month. Moreover the Pertek Public Prosecutor questioned the village headman of Mercimek village at the time of the incident; the present village headman; the shepherd who was grazing his sheep with Mr Evcil and the driver of the minibus who took Mr Evcil to the hospital.

The Court finds that the evidence in the investigation file shows that, although it did not result in the identification of the person(s) responsible for abandoning the tracer bullet, the investigation was not devoid of effect and it cannot be maintained that the relevant authorities took no action with regard to the circumstances in which the applicant's husband was killed.

The Court notes that the applicant also complained before the Public Prosecutor about the security forces' failure to take her husband promptly to a hospital. However the Public Prosecutor did not investigate this complaint.

The Court notes that there is a dispute concerning the exact time of the incident. It observes that when the Public Prosecutor took the applicant's statements on 15 September 1998 she said nothing concerning the disputed incident time. Thus, considering the information available in the investigation file, it was not apparent how long the applicant's husband had to wait.  In the Court's opinion the applicant has not laid the basis of an arguable claim before the Public Prosecutor that her husband was not taken to a hospital promptly.

In the light of the aforementioned findings and having examined the various measures that were taken in the instant case, the Court finds that the investigation into the circumstances in which the applicant's husband was killed may be regarded as satisfying the requirements of Article 2 of the Convention.

Consequently the Court holds that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant also alleged that the death of her six sheep by the explosion of the tracer bullet constituted a violation of her right guaranteed under Article 1 of Protocol No. 1 to the Convention which provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

(...) ”

The Court observes that the applicant did not bring her complaint concerning the death of her six sheep before any domestic authorities. Furthermore, apart from briefly stating her complaint under Article 1 of Protocol 1 to the Convention in her application form to the Court, she did not submit any details on this matter.

The Court, in the light of the material in its possession, finds that the applicant's complaint is unsubstantiated. It must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President