SECOND SECTION

DECISION

Application no . 3952/11 Fırat ÇAKMAKÇI against Turkey

The European Court of Human Rights (Second Section), sitting on 2 May 2017 as a Chamber composed of:

Robert Spano, President ,

Ledi Bianku,

Işıl Karakaş,

Nebojša Vučinić,

Paul Lemmens,

Valeriu Griţco,

Jon Fridrik Kjølbro, judges,

and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 26 November 2010,

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

1. The applicant, Mr Fırat Çakmakçı, is a Turkish national who was born in 1985 and lives in Istanbul. He was represented before the Court by Mr S. Durak, a lawyer practising in Istanbul.

2. The Turkish Government (“the Government”) were represented by their Agent.

A. The circumstances of the case

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

4. At the time of the events giving rise to this application, the applicant was a conscript soldier (private rank) serving at the BozkuÅŸ gendarmerie station in Kars.

1. The incident

5. According to the information provided by the applicant in his application, on 7 June 2006 the commander of the Bozkuş gendarmerie station, S.Ö., ordered him and another conscript, K.Ö., to make some poles for the purpose of tethering the guard dogs of the station. Accordingly, the applicant and K.Ö. found some metal rods and cut them in half. When looking for tools in the generator room of the station to straighten the curved ends of the poles, the applicant found what he thought to be a used mortar shell, which he believed presented no risk of exploding, and decided to hit the poles with it. The mortar shell exploded upon impact with the metal pole, as a result of which the applicant lost a finger and a toe, and K.Ö. lost both his feet. The applicant was first taken to the Sarıkamış Military Hospital in Kars, and was then transferred to the GATA Military Hospital in Istanbul for further medical treatment.

6. It appears that the commander of the gendarmerie station, S.Ö., lost consciousness after the incident due to anxiety and was also taken to the Sarıkamış Military Hospital, where he was given sedatives.

7. On 17 January 2007 the GATA Military Hospital issued a medical report, declaring the applicant unfit for military service on account of the injuries he had sustained. According to this report the third finger of his left hand, the fifth toe of his left foot and the fourth toe of his right foot had had to be amputated. The applicant had also sustained various fractures to his feet and suffered from some loss of vision in his left eye. This report was approved on 6 March 2007.

2. Criminal investigation

8. The Sarıkamış military prosecutor ’ s office initiated an investigation of its own motion into the circumstances of the incident. Accordingly, all the evidence at the site of the incident was photographed and recorded, and an incident report was prepared on 7 June 2006. The military prosecutor also took witness statements from fourteen soldiers serving at the Bozkuş gendarmerie station. The pertinent witness statements are summarised below:

- Lt. H.A.S.:

“ ... while S.Ö. was in the emergency room [at the hospital], the military prosecutor called me ... he asked to talk to S.Ö. S.Ö. told the [prosecutor] that he had found an old [mortar shell] two years ago, which he had placed on the roof of the station, and that he did not know how the [mortar shell] had ended up at the scene of the incident.”

- Sgt. S.Ç.:

“ ... I first saw the bomb in September 2005. When I asked the station commander what it was, he told me it was unexploded ordnance.”

- Pte. S.Ç.:

“ ... I was responsible for cleaning the generator room. I saw a shiny object in that room. Yet I did not know what it was.”

- Pte. M.F.:

“The mortar shell has been in the generator room since I first arrived at the station in November 2005. I did not know it was a bomb though, none of the privates at the station did. We had not been given any information about it.”

9. On 8 June 2006 the military prosecutor interrogated S.Ö. It appears that S.Ö. did not remember talking to the military prosecutor on the phone while in hospital, as he had been under the effect of sedatives. However, he did not deny that he may have made the statement alleged by Lt. H.A.S.

10. Later on the same date S.Ö. was taken before the military court in Sarıkamış ( Kara Kuvvetleri Komutanlığı Dokuzuncu Motorlu Piyade Tugay Komutanlığı Askeri Mahkemesi ). Before that court, he said the following:

“I took up duty at the Bozkuş gendarmerie station in 2004. During the period of my duty, I never found any ordnance. Therefore, I did not put any such mat e rial on the roof. I have been a soldier for nineteen years, I know what action to take if I find [explosive] ordnance ... we have received orders on [handling and storage of ordnance]; we have also participated in a seminar. Yet, since I had not found any ordnance, I had not had to take [the ordered] precautions ... I lost consciousness [after the incident]. I remember talking to the military prosecutor on the phone, but I do not remember saying that I had found a [mortar shell] two years ago which I had placed on the roof ... There is a sergeant in charge of the generator room, A.E. Both he and I inspect the generator room on a daily basis. There was no ordnance in the generator room ... ”

The military court ordered S.Ö. ’ s arrest after taking his statement.

11. On 12 June 2006 the military prosecutor took the statement of the applicant ’ s friend K.Ö., who said the following:

“ ... Upon receiving orders from S.Ö. to fix dog chains, I went to the generator room with [the applicant] ... We found a used mortar shell there. I do not know how long that object had been there. I had not noticed it before. [The applicant] told me that we could use that object, that it would not present any danger as it had already exploded. The mortar shell exploded when we started ... meddling with it ... ”

12. On 28 June 2006 a military prosecutor took the applicant ’ s statement, recording the following:

“ ... We went to the generator room to find other tools. There was normally a generator, [the soldiers ’ ] suitcases and building supplies in the generator room. We found a hollow iron cylinder there. We did not initially realise that it was ordnance. We fixed two of the metal rods [with the help of that object]. S. Ö. in fact saw us [handling that object]. He told us that what we were holding was ordnance. He asked us if there was any TNT inside it. I told him there was nothing in it as I had already fixed two metal rods with it and nothing had happened, and the hollow part [of the object] looked empty and rusty ... As we were fixing the third metal rod, the object exploded ... The object that we used in the generator room had been there since I had started my military service”.

The applicant later repeated this statement before the court on 20 February 2009.

13. The ballistic report dated 1 August 2006 confirmed that the explosion had been caused by a military-grade mortar shell.

14. On 26 October 2007 S.Ö. was indicted by the military prosecutor for causing bodily harm by negligence under Article 89 § 4 of the Turkish Criminal Code (Law no. 5237), by virtue of Article 146 of the Military Criminal Code (Law no. 1632), on account of his failure to obey the orders to store the mortal shell in question safely, despite having received specific instructions and having attended a seminar on the matter. The military prosecutor stressed in the indictment that despite his denials, there was witness evidence to confirm that S.Ö. had been aware of the presence of the mortar shell in the station.

15. In a statement he made before the military court on an unspecified date, S.Ö. maintained that he did not remember talking to the military prosecutor while at the Sarıkamış Military Hospital. He further claimed that Lt. H.A.S. had come to the gendarmerie station two days before the incident for an inspection, that he had also inspected the generator room, and that neither of them had seen a mortar shell there. He added that all the arms and ammunition at the station were kept in a special storage room, and that keeping mat e rial outside of that room was against regulations. He lastly claimed that all soldiers under his command had been under strict orders to inform him if they found any explosives, and that he had received no such information.

16. On 19 September 2008 K. Ö. stated before the military court that he and the applicant had found a mortar shell outside the storage room. When they had asked S.Ö. whether the mortar shell was at risk of exploding, he had responded that it would not explode owing to its age.

17. Based on the witness statements and other evidence furnished by the prosecution, including an order dated 11 November 2005 from the Selim provincial gendarmerie command regarding the storage of firearms and munitions, and the training documents on a seminar given at the Bozkuş gendarmerie station in April 2006 regarding explosives, the military court in Sarıkamış convicted S.Ö. as charged on 13 November 2009 and sentenced him to five months ’ imprisonment. The military court held that S.Ö. ’ s failure to store the mortar shell, which had apparently been in the station for over two years, with caution and to hand it over to the responsible authorities, despite strict orders regarding the safe storage and handling of munitions, had been clearly negligent. The pronouncement of the judgment was, however, conditionally suspended ( hükmün açıklanmasının geri bırakılması ) for a period of five years, in accordance with Article 231 of the Code of Criminal Procedure (Law no. 5271).

3. Compensation proceedings

18. On 28 April 2009 the applicant submitted a request to the Ministry of Defence, asking to be compensated for the injuries he had sustained on account of the explosion. The applicant claimed that the Ministry of Defence had failed in its responsibility to properly store and dispose of the mortar shell, and had likewise failed to provide proper training on firearms and munitions and to issue warnings regarding the explosives found in the BozkuÅŸ gendarmerie station.

19. On 11 May 2009 the Ministry of Defence dismissed the applicant ’ s request, on the grounds that the gendarmerie forces were under the responsibility of the Ministry of the Interior.

20. Accordingly, on 2 June 2009 the applicant submitted his compensation request to the Ministry of the Interior. Upon that Ministry ’ s failure to respond to his request, on 3 September 2009 the applicant filed an action for compensation against the Ministry of the Interior with the Supreme Military Administrative Court.

21. By a judgment of 2 June 2010 the Supreme Military Administrative Court rejected the applicant ’ s compensation claim for being out of time. The court held that if the applicant believed that he had suffered damage on account of a wrongful act of the authorities, then he should have lodged a compensation claim with the relevant authorities within one year of the notification of the impugned act or from the date on which he had otherwise learned of the impugned act and, in any event, within five years of the commission of that act, in accordance with section 43(1) of the Supreme Military Administrative Court Act (Law no. 1602). Bearing in mind that the relevant incident had occurred on 7 June 2006 and that the medical report issued by the GATA Military Hospital in relation to his injuries resulting from the mortar shell explosion had become final on 6 March 2007, the petition he had lodged with the Ministry of Defence on 28 April 2009 had been lodged out of time.

B. Relevant domestic law and practice

22. Section 43 of the Supreme Military Administrative Court Act (Law no. 1602 of 20 July 1972) reads as follows:

“Anyone who considers himself or herself to have suffered damage on account of a wrongful act of the authorities must lodge an application for compensation with the relevant authority within a year of notification of the impugned act or from the date on which he or she learned of the impugned act and, in any event, within five years of the commission of that act.

Should all or part of the claim be dismissed, or if no reply is received within sixty days, an application for judicial review may be lodged ...”

23. Article 146 of the Military Criminal Code (Law no. 1632 of 15 June 1930) provides:

“Anyone who causes injury or death to someone due to negligence [in handling] his or her arms and munitions or non-compliance with rules and orders shall be punished in accordance with Articles 455 and 459 of the [now defunct] Turkish Criminal Code.”

24. Article 89 §§ 1 and 4 of the new Turkish Criminal Code (Law no. 5237 of 12 October 2004) provides as follows:

“ Negligent injury

1. Anyone who negligently inflicts physical pain on someone, or impairs someone ’ s health or cognitive capacity shall be sentenced to a term of imprisonment of between three months and one year, or to a fine.

...

4. Where the [negligent] act leads to the injury of more than one person, [the offender] shall be sentenced to a term of imprisonment of between six months and three years.”

25. The relevant domestic law and practice on the storage and handling of munitions and the training provided to soldiers on these matters are outlined in paragraph 30 below.

COMPLAINTS

26. The applicant complained under Article 2 of the Convention that the State authorities had failed to protect his life.

27. The applicant further maintained, under Articles 6 and 13 of the Convention, that he had been denied access to an effective remedy as the Supreme Military Administrative Court had erroneously rejected his case against the Ministry of the Interior as being lodged out of time.

THE LAW

A. The parties ’ arguments

28. The applicant complained under Article 2 of the Convention that the State authorities had failed in their positive obligation to take the necessary precautions to protect his life. He claimed in particular that they had failed to take appropriate regulatory measures to prevent the risks posed by the presence of a mortar shell on the premises of the gendarmerie station, including through regulating the storage of munitions and providing adequate training to soldiers. He further complained under Articles 6 and 13 that he had been deprived of access to an effective remedy as the Supreme Military Administrative Court had rejected his case against the Ministry of the Interior as being lodged out of time, despite the fact that the criminal proceedings regarding the accident had been still been ongoing at the time. He argued in this connection that the time-limit for bringing an administrative action should not have started running prior to the finalisation of the criminal proceedings against his commanding officer, because without having been informed of the verdict of the criminal court, he could not have known whether the State authorities had had any liability for the mortar shell explosion that had wounded him severely.

29. The Government argued that the applicant in the instant case had not been wounded intentionally, but on account of the negligence of his commanding officer. For that reason, the effective remedy in respect of his grievances was not a criminal-law remedy but a civil action for compensation. The applicant had, however, failed to bring a civil action against the State authorities within the prescribed time-limit set out under the domestic law, and had thus failed to duly exhaust the available domestic remedies in relation to his complaints. The Government stated in this connection that, contrary to the applicant ’ s allegations, it was not necessary to wait for the conclusion of the criminal proceedings before bringing a case before the Supreme Military Administrative Court, and that an administrative court judge would not be bound by the assessment made by the criminal court. In these circumstances, the applicant could have been expected to lodge his compensation claim within one year from the final medical report issued in this connection.

30. The Government further maintained that contrary to the applicant ’ s allegations, the issue of the safe storage and handling of munitions, as well as the provision of training to soldiers on these matters, was sufficiently dealt with in domestic law and practice. In support of their argument, the Government submitted the Directive and the Instruction on Security and Accident Prevention, which contained detailed information on the prevention of accidents involving munitions. The Government claimed, and the applicant did not contest, that both the Directive and the Instruction had been served on the applicant at the time of his conscription. The Government also submitted two letters dated 10 January and 11 November 2005 prepared by the Selim district gendarmerie command and the Kars provincial gendarmerie command respectively, and one “daily order” issued by the Selim district gendarmerie command on 19 January 2006, all of which had been sent to the gendarmerie stations under their control, including the Bozkuş gendarmerie station, where the applicant had been performing his military service. The letters and the order involved detailed information and instructions concerning the control, maintenance and storage of munitions in the gendarmerie stations, and warned the officers in charge to comply with the security measures in order to prevent accidents. The letter dated 11 November 2005 in particular made it clear that munitions could not be left in the open and that they had to be kept in designated rooms under lock and key, and that the commanding officers were under a duty to check their stations regularly to make sure that none had been left out in the open. The Government lastly provided information in relation to a seminar that had been held at the Bozkuş gendarmerie station between 6 and 28 April 2006 on the safety precautions to be taken in respect of explosive substances, bombs, suspect packages and mines, including any munitions discovered on military property or elsewhere. According to the documents submitted, all gendarmes in the Kars area, which apparently included the applicant and his commanding officer S.Ö., had participated in that seminar.

31. The applicant did not contest the accuracy of the information provided by the Government.

B. The Court ’ s assessment

32. The Court considers at the outset that the applicant ’ s complaints fall to be examined under Article 2 of the Convention alone. The Court notes in this connection that the fact that the applicant fortuitously survived the explosion does not prevent an examination of his complaints under Article 2, since the explosion in the instant case was potentially lethal and put his life at risk (see Alkın v. Turkey , no. 75588/01, § 29, 13 October 2009) .

33. The Court next considers that it is not necessary to examine whether the applicant made proper use of civil remedies, in addition to the criminal remedies he had already sought, in order to satisfy the exhaustion requirement prescribed by Article 35 § 1 of the Convention as alleged by the Government, as the present complaints are in any event inadmissible for the reasons set out below (see, mutatis mutandis , R.B. v. Hungary , no. 64602/12 , § 42, 12 April 2016 ).

34. The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also involves a duty to take reasonable measures to ensure the safety and to safeguard the lives of individuals within its jurisdiction as necessary (see, amongst many authorities, L.C.B. v. the United Kingdom , 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III). In principle, this positive obligation under Article 2 will arise in the context of any activity, whether public or not, in which the right to life may be at stake (see Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004 ‑ XII, and Brincat and Others v. Malta , nos. 60908/11 and 4 others , § 101, 24 July 2014 ). It entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life.

35. In the context of individuals undergoing compulsory military service, the Court has previously had occasion to emphasise that, as with persons in custody, conscripts are within the exclusive control of the authorities of the State, since any events in the army lie wholly, or in large part, within the exclusive knowledge of the authorities, and that the authorities are under a duty to protect them (see Abdullah Yılmaz v. Turkey , no. 21899/02, § 56, 17 June 2008, and the cases cited therein, and Tikhonova v. Russia , no. 13596/05 , § 68, 30 April 2014 ).

36. The State ’ s duty to safeguard the right to life must be considered to involve not only the taking of reasonable measures to ensure the safety of individuals in public places but also, in the event of serious injury or death, having in place an effective independent judicial system securing the availability of legal means capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see, for instance, Dodov v. Bulgaria , no. 59548/00, § 83, 17 January 2008; Anna Todorova v. Bulgaria , no. 23302/03, § 72, 24 May 2011 ; and CiechoÅ„ska v. Poland , no. 19776/04, § 66, 14 June 2011). Even if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties, the Court has said on a number of occasions that the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law (see, for instance, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I).

37. Turning to the facts before it, the Court considers that the storage and handling of munitions involves an inherently hazardous activity that requires regulation by the State, having particular regard to the State ’ s special duty in the present context to protect the non-professional conscript soldiers under its exclusive control (see paragraph 35 above). The applicant claimed that no such regulatory framework existed in the respondent State at the material time.

38. The Court observes that the Government did not provide information as to any primary or secondary legislation that specifically governed the safe storage and handling of munitions, or the training of soldiers on those matters. However, they have submitted copies of orders sent to all gendarmerie stations, including the Bozkuş gendarmerie station, during the applicant ’ s period of service, specifically dealing with the storage of munitions (see paragraph 30 above). The letter of 11 November 2005 in particular made it clear that munitions should not be kept in the open: the commanding officers were under a duty to check their stations regularly to ensure that no munitions had been left lying around outside the designated areas and to take immediate action in respect of any such ordnance. The Court notes that this letter was served on all officers and other ranks by order of the Selim district gendarmerie command, which apparently included the applicant and S.Ö. The Court further notes from the information provided by the Government that all the officers and other ranks under the command of the Kars provincial gendarmerie command had participated in a seminar on security measures concerning explosives, bombs, mines and suspect packages between the dates of 6 and 28 April 2006. It appears that the seminar also included training on how to handle munitions that the soldiers happened upon on military premises or elsewhere.

39. Even supposing for the sake of argument that there was no primary or secondary legislation at the material time specifically concerning the safe storage and handling of munitions on military grounds or the training of soldiers on such matters, the Court considers, on the basis of the foregoing, that the absence of general legislative guidelines had been compensated for by other specific instructions and measures by the relevant authorities (see Mikhno v. Ukraine, no. 32514/12, § 127, 1 September 2016), which appeared sufficiently effective to protect the lives and safety of military personnel, if duly implemented. The Court notes in this connection that in his observations in response to those of the Government, the applicant neither denied having received the relevant orders and training, nor challenged their efficacy to protect against the dangers posed by munitions.

40. In these circumstances, the Court considers that, contrary to the applicant ’ s allegations, the accident at issue occurred neither because of the absence of a regulatory and administrative framework on storage and handling of munitions, nor owing to the unavailability of adequate training for soldiers on munitions. The Court rather notes from the criminal proceedings conducted before the Sarıkamış Military Criminal Court that the accident took place on account of the applicant ’ s commander S.Ö. ’ s failure to properly store or dispose of the mortar shell at issue in compliance with the relevant regulatory and administrative framework, despite having been aware of its presence in the gendarmerie station for more than two years. The Court notes in this respect that S.Ö. was convicted of negligence for that failure.

41. As for the applicant ’ s complaint that he had been denied access to an effective judicial remedy in the aftermath of the incident, the Court notes that the criminal proceedings instituted against the applicant ’ s commander S.Ö. resulted in the latter ’ s conviction and sentencing to five months ’ imprisonment by the Sarıkamış Military Criminal Court, although the pronouncement of that judgment was conditionally suspended in accordance with Article 231 of the Code of Criminal Procedure. The Court notes that the applicant did not complain about the conduct or the outcome of those criminal proceedings, which are in any event outside the six-month time ‑ limit. He rather complained of the denial of his access to an effective remedy before the Supreme Military Administrative Court.

42. The Court notes in this regard that while the criminal proceedings against his commander were still pending, the applicant brought an administrative action for compensation against the Ministry of the Interior, requesting the establishment of the latter ’ s responsibility for the incident at issue, as well as compensation for his injuries. However, the Supreme Military Administrative Court rejected the applicant ’ s claim for having been lodged outside the one-year statutory time-limit set out in section 43(1) of the Supreme Military Administrative Court Act. According to the Administrative Court, the time-limit started on 6 March 2007 at the latest, that is to say the date on which the GATA Military Hospital ’ s medical report concerning the applicant ’ s injuries became final.

43. The Court notes that the applicant did not as such complain about the one-year time-limit, but argued that the time-limit rule had been applied unreasonably in the present circumstances.

44. In the view of the Court, it may raise an issue under Article 2 of the Convention if a time-limit for instituting proceedings for compensation for damage starts to run at a moment when the applicant was not or could not have been aware of the claim or of the factual basis for making such claim, as it may unduly prevent the applicant from accessing such remedy (see, mutatis mutandis , Eşim v. Turkey , no. 59601/09, §§ 21-27, 17 September 2013, and Sefer Yılmaz and Meryem Yılmaz v. Turkey , no. 611/12 , §§ 62-74, 17 November 2015). However, in view of the specific circumstances of this case, the Court does not consider that the time-limit rule under section 43(1) of the Supreme Military Administrative Court Act was applied unreasonably or otherwise arbitrarily.

45. The Court firstly notes in this connection that the Supreme Military Administrative Court started the one-year time-limit not from the date of the accident, but from the date of the final medical report issued in respect of the applicant, on which date he may be considered to have become aware of all the consequences of the incident (see paragraph 21 above). The Court considers that such application of the time-limit rule appears to be in line with the Convention standards (see, mutatis mutandis , Eşim , cited above, §§ 16-27, and the cases cited therein ).

46. Secondly, bearing in mind that the case brought by the applicant before the Supreme Military Administrative Court concerned solely the responsibility of the Ministry of the Interior for the accident – an issue the administrative courts had the competence to examine independently – and not the criminal liability of any individuals for negligence, it is not evident why the Supreme Military Administrative Court should have suspended the commencement of the time-limit in question until the finalisation of the criminal proceedings against the applicant ’ s commanding officer.

47. The Court lastly notes that contrary to his argument that he could not have been expected to lodge his compensation claim before the finalisation of the criminal proceedings, the applicant did not actually wait for the delivery of the criminal court ’ s judgment before applying to the administrative courts (see paragraph 18 above); it is therefore not clear why the applicant, who was moreover represented by a lawyer, delayed in bringing his case before the administrative courts at the risk of missing the relevant time-limit in section 43(1) of the Supreme Military Administrative Court Act.

48. In the light of the foregoing, the Court considers that the applicant ’ s complaints are manifestly ill-founded and must be declared inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 June 2017 .

             Stanley Naismith Robert Spano Registrar President