Communicated on 12 December 2013

SECOND SECTION

Application no. 65815/10 Fatma GÃœLER and Emin TEKDAL against Turkey lodged on 18 October 2010

STATEMENT OF FACTS

The applicants, Ms Fatma Güler and Mr Emin Tekdal , are Turkish nationals, who were born in 1981 and 1966 respectively and live in Diyarbakır . They are represented before the Court by Ms Rehşan Bataray Saman and Mr Serdar Çelebi , lawyers practising in Diyarbakır .

The circumstances of the case

The facts of the case, as submitted by the applicants and as they appear from the documents submitted by them , may be summarised as follows.

At the time of the events, the first applicant ’ s brother and the second applicant ’ s nephew, Murat Tekdal , was thirty years old and lived in Ecemiş village near the town of Lice within the administrative jurisdiction of the province of Diyarbakır.

On 12 September 2008 Murat Tekdal returned to his village of EcemiÅŸ after having visited his uncle, the second applicant. Later the same day he left his home to walk to the nearby Åženlik village.

Between 5 and 7 p.m. the same day, villagers in Ecemiş village heard gunfire. The following day the headman of the village was informed that a person had been killed. The headman, accompanied by 20-30 villagers, went to Lice, where he was handed over the body of the applicants ’ relative, Murat Tekdal .

According to a report drawn up on 13 September 2008 by seven members of the military, a military operation was being carried out in the area near the applicants ’ village on 12 September 2008 when at 11.15 p.m. soldiers encountered 3-4 persons in the area whom they considered to be members of the PKK. The soldiers asked the persons to stop and surrender, but the persons opened fire at the soldiers. The soldiers returned fire and a clash ensued which continued for a period of approximately five minutes.

At 5 a.m. the following morning the soldiers conducted a search in the area and noticed the footsteps of four persons. The footsteps disappeared some two kilometres away, next to a little brook in a valley. At that location the soldiers also found six big bags of flour and two big bags of salt. The soldiers continued their search to the north of the brook, and found the body of Murat Tekdal in Karaçay hill area. Next to the body was a hunting rifle still loaded with two unexploded cartridges.

The Lice prosecutor arrived at the scene at 10.45 a.m. and searched Murat Tekdal ’ s pockets where he found his identity card and a tube of glue. The body was then taken to the Lice State Hospital.

The soldiers concluded in their report that there had been five PKK members in the area the previous evening who had either been planning to attack the security forces, or transporting food stocks to the PKK bases. Having regard to the particular brand of the glue which some people used for sniffing, as well as to the hunting rifle, the seven soldiers concluded in their report that the applicant ’ s relative had been a “terrorist posing as an ordinary citizen”.

The Lice prosecutor and a crime scene officer, who arrived at the scene at 10.45 a.m. on 13 September 2008 and took the body to the Diyarbakır State Hospital, subsequently drew up their own reports.

According to the crime scene officer ’ s report, a bullet had entered Murat Tekdal ’ s abdomen. A cursory examination of the barrel of the hunting rifle found next to the body did not reveal any gunpowder smells. In a small bag found next to the body there were personal effects such as toothpaste, toothbrush, a flick-knife, a packet of cigarettes, two sim cards, gloves, a tax ‑ payer ’ s identity card and a bank card. Swabs were taken from Murat Tekdal ’ s hands and face and from the barrel of the hunting rifle, in order to verify the existence or otherwise of gunpowder residues. He was fingerprinted and his jacket through which the bullet had gone was sent for forensic analysis. The body was photographed and taken to the hospital.

It appears from the report prepared by the prosecutor that an autopsy was carried out at the hospital. The prosecutor stated in his report that he had gone to the scene after having been informed by the military that “a terrorist had been killed”. The headman of the applicant ’ s village formally identified the body as that of Murat Tekdal , and told the prosecutor that Murat lived in Ecemiş village.

During the autopsy the doctor observed two bullet holes on Murat Tekdal ’ s lower left abdomen. He also noted that bullets had skimmed both hands and the lower right side of the abdomen and caused superficial injuries. There was also a superficial injury on the front of the right axilla. The internal examination of the body revealed injuries to the stomach, liver, diaphragm, spleen, intestines and lungs, all caused by bullets. A bullet measuring approximately 0.7 centimetres was found inside the body. Samples taken from the body were sent for further forensic analyses. An x ‑ ray of the body showed a large number of metallic objects inside the abdomen. The doctor concluded that the death had been caused by bullets which had either entered or exited from the lower left abdomen. He also recommended that the clothes with bullet holes in them be sent to the forensic authorities with a view to determining the distance and the direction from which he had been shot.

On 16 September 2008 the second applicant applied to the Diyarbakır branch of the Human Rights Association of Turkey, and asked for assistance in bringing the perpetrators of the killing of his nephew to justice. He also stated that, since the killing soldiers had been setting fire to the area where his nephew had been killed, and deliberately destroying the evidence.

On 6 October 2008 the Lice prosecutor sent the investigation file to the Diyarbakır prosecutor who had jurisdiction to investigate incidents perpetrated by illegal organisations. In his letter accompanying the file the Lice prosecutor named the first applicant Fatma Güler as the “victim of a crime”, and her deceased brother Murat Tekdal as the “deceased/suspect”. The offence in question was stated as the “destruction of the unity and integrity of the state and the country”. The Lice prosecutor stated in his letter that on the evening of 12 September 2008 a number of soldiers from the Lice Infantry Brigade had had an armed clash with a group of five PKK members and that the body of Murat Tekdal had been found in the search conducted by the soldiers the following morning.

On 22 October 2008 the Diyarbakır prosecutor decided not to bring any criminal proceedings against Murat Tekdal for the above-mentioned offence, because of his demise.

On 24 November 2008 the applicants sent a letter to the Diyarbakır prosecutor and stated that the Lice prosecutor had started an investigation into the killing of their relative, but had subsequently decided that he had no jurisdiction to continue the investigation because the deceased had been a member of a terrorist organisation. In their letter the applicants denied that their relative had been a member of the PKK, and informed the Diyarbakır prosecutor that their relative had been living in the village of Ecemiş for the previous seven years and that all his fellow villagers knew him. They argued that there had been no evidence to show that an armed clash had taken place prior to his killing. Indeed, the fact that his hunting rifle was found loaded with unfired cartridges had shown that there had been no armed clash. They asked the prosecutor to identify and prosecute those responsible for the killing of their relative.

On 5 October 2009 the applicants lodged an objection against the prosecutor ’ s above-mentioned decision of 22 October 2008. In their objection petition they repeated their arguments of 24 November 2008 and referred to, inter alia , Article 2 of the Convention. They alleged that no effective investigation had been conducted into the killing, and urged the Assize Court to order the investigating authorities to carry out an investigation.

The applicants ’ objection was rejected by the Malatya Assize Court on 9 April 2010. The Assize Court stated that the prosecutor ’ s decision had concerned an offence which the applicants ’ deceased relative was suspected of having committed. The objection lodged by the applicants, on the other hand, concerned the killing of their relative. The Assize Court stated that there was no on-going investigation into the killing of Murat Tekdal and that there had not been a decision not to prosecute anyone in respect of his killing. In any event, incidents of “killings of persons in armed clashes with members of the military” were investigated and prosecuted by local prosecutors. As there was no on-going investigation into the killing, the applicants had no standing to bring an objection against the Diyarbakır prosecutor ’ s decision.

COMPLAINTS

The applicants complain under Article 2 of the Convention that their relative was killed unlawfully by the soldiers . They submit that the fact that his hunting rifle was still full at the time of the killing, coupled with the absence of any bullets or bullet cases which might have been discharged from the soldiers ’ weapons, showed that no armed clash had taken place at all.

Relying on Article 13 of the Convention the applicants complain that the only investigation opened by the authorities after the killing was an investigation to prosecute their deceased relative for membership of the PKK. No investigation was conducted by those authorities to investigate the killing.

QUESTIONS TO THE PARTIES

1. Has the applicants ’ relative ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case?

In particular, did the applicants ’ relative ’ s death result from a use of force which was absolutely necessary for the purposes of paragraph 2 (a), (b), (c) of this Article?

2. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention? In particular, what steps were taken by the investigating authorities in respect of the applicants ’ letter of 24 November 2008 submitted to the Diyarbakır prosecutor?

The Government are requested to submit documentary evidence in support of their replies to the questions above. They are further requested to provide the Court with a copy of the file of the investigation into the killing, including, in particular, the following documents:

i ) sketch of the place of the incident;

ii) report pertaining to the forensic examination of the bullet found in the body of the deceased;

iii) ballistic reports showing the attempts made to find the weapon from which the bullet had been fired;

iv) reports pertaining to the forensic examinations of the samples taken from the deceased ’ s body and his clothes;

v) statements taken from the soldiers who took part in the operation;

vi) statements taken from any eyewitnesses and the villagers living in the applicants ’ village; and

vii) statements taken from the applicants and any other members of their family.

The applicants are requested to provide the Court with documentary evidence, showing the date of communication to them of the Malatya Assize Court ’ s decision of 9 April 2010.