Communicated on 15 December 2014

SECOND SECTION

Application no. 3952/11 Fırat ÇAKMAKÇI against Turkey lodged on 26 November 2010

STATEMENT OF FACTS

The applicant, Mr F ı rat Çakmakç ı , is a Turkish national, who was born in 1985 and lives in Istanbul . He is represented before the Court by Mr S. Durak , a lawyer practising in İstanbul .

A. The circumstances of the case

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

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

1. The incident

On 7 June 2006 the commander of the gendarmerie station, S.Ö., ordered the applicant and another conscript, K.Ö., to construct some poles for the purpose of attaching dogs . 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 gendarmerie station to straighten the curved ends of the poles, the applicant found what he deemed 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 on the spot. 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 intervention.

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 suf fered from some loss of vision i n his left eye. This repor t was approved on 6 March 2007.

2. The criminal investigation

On an unspecified date the Sarıkamış military prosecutor ’ s office initiated an investigation of its own motion into the circumstances of the incident. The military prosecutor took witness statements from fourteen soldiers serving at the Bozkuş Gendarmerie Station. Some of the soldiers stated that the object in question, which they found out to be a mortar shell only after the explosion, had been lying around in the generator room for over two years, and was occasionally used as a doorstop. The investigation revealed that the mortar shell had been brought to the station for safe storage by some village guards who had found it in the vicinity of the gendarmerie station a few years back.

On 26 October 2007 the commander of the gendarmerie station, 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) .

Based on the witness statements and other evidence furnished by the prosecution, including the incident report and photos, the report of the criminal laboratory of the Van district gendarmerie, an order dated 11 November 2005 from the Selim Provincial Gendarmerie Command regarding the storage of firearms and munition s , and the training documents on a seminar given in the Bozkuş Gendarmerie Station in April 2006 regarding explosives, the military court in Sarıkamış ( Kara Kuvvetleri Komutanlığı Dokuzuncu Motorlu Piyade Tugay Komutanlığı Askeri Mahkemesi ) convicted S.Ö. as charged on 13 November 2009, but decided to suspend the pronouncement of the judgment ( hükmün açıklanmasının geri bırakılması ) for a period of five years, pursuant to Article 231 of the Code of Criminal Procedure (Law no. 5271). The military court held that S.Ö. ’ s failure to store the mortar shell, which had been in the station for over two years, with caution and to hand it over to the responsible divisions , despite strict orders regarding the safe storage and handling of munitions , was a clear manifestation of his negligence.

According to the information in the case file, the judgment of the military court was served on the applicant , who had joined these proceedings as a civil party ( müdahil ) , on 15 April 2010, and in the absence of any appeals , it became final on 29 December 2010.

3. The compensation proceedings

On 28 April 2009 the applicant filed a petition with the Ministry of Defence and requested 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 for the proper storage or disposal of the mortar shell, and had likewise failed to provide proper training on firearms and munition s and issue warnings regarding the explosives found in the BozkuÅŸ Gendarmerie Station.

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

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 before the Supreme Military Administrative Court.

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 administration, 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 pursuant to section 43 ( 1 ) of the Supreme Military Administrative Court Act (Law no. 1 602). Bearing in mind that the relevant incident had occurred on 7 June 2006 and 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 out of time.

B. Relevant domestic law

Section 43 of the Supreme Military Ad ministrative Court Act (Law No. 1 602 of 20 July 1972) reads as follows:

“Anyone who considers him self or herself to have suffered damage on account of a wrongful act of the administration 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 ....”

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

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

Article 89 § § 1 and 4 of the 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 imprisonment of three months to 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 imprisonment of six months to three years.”

The suspension of the pronouncement of the judgment is regulated by Article 231 of the Code of Criminal Procedure (Law no. 5271), the relevant paragraphs of which read as follows:

“...

(5) If the accused, after being tried on the charges against him, is sentenced to a judicial fine or to imprisonment for less than two years, the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment means that the judgment does not have any legal consequences for the offender.

(6) Suspension of the pronouncement of the judgment may be decided provided that;

a) the offender has never been found guilty of a wilful offence;

b) the court is convinced, taking into account the offender ’ s personality traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; and

c) the damage caused to the victim or to society has been repaired by way of restitution or compensation.

...

(8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years.

...

(10) If the offender does not commit another wilful offence and abides by the obligations set out in the supervision order, the judgment of which the pronouncement has been suspended shall be annulled and the case discontinued.

(11) If the offender commits another wil ful offence or acts in violation of the obligations of the supervision order, the court shall impose the sentence. Nevertheless, the court may assess the offender ’ s situation and may decide that a certain part of the sentence, up to the half of the total sentence, will not be executed. If the conditions so permit, the court may also suspend the execution of a sentence of imprisonment or commute it to other optional measures.

(12) An objection may be lodged against the decision to suspend the pronouncement of the judgment.”

COMPLAINTS

The applicant complains under Article 2 of the Convention that the State authorities failed in their positive obligations to take the necessary precautions to protect his life , including by establishing an effective legal and administrative framework for that purpose .

The applicant further maintains under Article s 6 and 13 of the Convention that he was deprived of an effective remedy as the Supreme Military Administrative Court erroneously rejected his case against the Ministry of the Interior as being out of time , whereas the criminal proceedings against his commanding officer regarding the same incident were still pending at the time.

QUESTIONS TO THE PARTIES

1. Having regard to the State ’ s positive obligation und er Article 2 of the Convention to protect the right to life , was there a violation of that provision in the circumstances of the instant case in view of the explosion of the mortar shell at the Bozku ş Gendarmerie Station, which put the applicant ’ s life at risk? In particular, was there an adequate regulatory framework governing the safe storage and handling of munitions, as well as training on these matters, and was the applicant provided with sufficient training as a conscript soldier?

The Government are requested to inform the Court about the legislation ( including all regulations, guidelines and similar legal instruments ) in force at the material time, governing the storage of firearms and munitions and the training provided to soldiers at all levels, including conscripts, regarding the safe storage and use of such material.

2. Was the judicial response of the authorities in the aftermath of the incident that severely wounded the applicant capable of establishing the facts, including any shortcomings in the scope or the operation of the relevant regulatory system, and the alleged liability of the State for the incident, in accordance with the procedural requirements under Article 2 of the Convention? In particular, did the rejection of the applicant ’ s case by the Supreme Military Administrative Court impair his procedural rights under Article 2, on account of the alleged excessive formalism in the application of the time ‑ limit rule in section 43( 1 ) of the Supreme Military Administrative Court Act (Law no. 1 602) , which had the effect of denying him access to the available administrative remedies? Could the applicant be reasonably expected to bring his case before the Supreme Military Administrative Court while the criminal proceedings regarding the same incident were still pending?

The Government are requested to indicate whether there has been an internal military investigation into the incident in question , in addition to the criminal investigation conducted by the military prosecutor . They are also requested to submit a copy of the case file pertaining to the proceedings before the military court in Sarıkamış ( Kara Kuvvetleri Komutanlığı Dokuzuncu Motorlu Piyade Tugay Komutanlığı Askeri Mahkemesi ) .