SECOND SECTION

Application no. 72957/12 Abdullah YILDIRIM and others against Turkey lodged on 15 September 2012

STATEMENT OF FACTS

The applicants, M r Abdullah Yıldırım, Mr Lezgin Yıldırım, Mr Bilal Yıldırım, Mr Mehmet Yıldırım and Mr Hasan Yıldırım , are Turkish nationals who were born in 19 5 3, 19 73 , 19 84 , 19 86 and 19 7 6 respectively. The first four applicants live in Siirt and the fifth applicant lives in Adana . They are represented before the Court by M r Tahir Elçi , a lawyer 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.

Until 1994 the applicants lived in the village of Kuşkonar , which was located within the administrative jurisdiction of the province of Şırnak in south-east Turkey .

At around 11 a.m. o n 26 March 1994 , a number of military planes and a helicopter bombed the applicants ’ v illage and the surrounding areas , including the nearby village of Koçağılı . As a result, more than 25 people in the applicants ’ village of Kuşkonar and 1 5 people in the nearby Koçağılı village lost their lives . A number of houses belonging to the villagers were also destroyed in the bombing.

Three of the dead were the applicants ’ close relatives (the death of 33 other villagers and injury of three persons in Kuşkonar and Koçağılı villages during the same attacks were the subject matter of the Court ’ s examination in the case of Benzer and Others v. Turkey , no. 23502/06 , 12 November 2013 (not final)) .

At the time of the bombing the first applicant ’ s wife and the second to fourth applicants ’ mother, Asiye Yıldırım, was seven months pregnant, expecting twins. During the bombardment she was critically injured; she was taken to the Diyarbakır State Hospital, where subsequently she and her unborn twins died. She was buried in the nearby Kumçatı village.

The first applicant ’ s son and the second to fourth applicant ’ s brother six ‑ year-old Kerem , as well as the fifth applicant ’ s two-year-old son, Mirza , were also killed instantly during the aerial bombardment. The two boys were buried in KuÅŸkonar village.

Although the gendarmerie and local prosecutors were aware of the bombing, they did not go to KuÅŸkonar village to establish the identities of the deceased and carry out post mortem examinations. The persons killed in KuÅŸkonar village had to be buried in a mass grave by the surviving villagers . The injured persons were taken to hospitals and the remaining villagers abandoned the village in order to save their lives . The village is still uninhabited.

No investigation was opened into the bombing of the applicants ’ village of Kuşkonar . An investigation was opened into the bombing of the nearby Koçağılı village, but the steps taken in that investigation were limited to the transfer of the case-file between prosecutors without taking any meaningful steps.

In October 2004 the applicants and the relatives of the other deceased villagers appointed a lawyer and with the assistance of that lawyer filed official complaints with the offices of the Şırnak and Diyarbakır prosecutors. They submitted that two planes and a helicopter had bombed their villages. The holes made by the bombs were still visible and the bodies of the people who had been killed were in the mass grave. The applicants asked the prosecutors to investigate the bombing of their villages and prosecute those responsible.

Between 2004 and 2005 the Diyarbakır and Şırnak prosecutors questioned a number of eyewitnesses and noted that according to the information given to them the villages had been bombed by planes. They issued decisions of non-jurisdiction and sent the case-file to the military prosecutor ’ s office at the 2nd Air Force Command in Diyarbakır which had jurisdiction to investigate offences committed by members of the military.

After having been informed by the 2nd Air Force Command in Diyarbakır that no flying activity had taken place in Şırnak area, the military prosecutor decided on 28 February 2006 that there was no evidence to support the applicants ’ allegations that their villages had been bombed by military aircraft. He thus decided that he also lacked jurisdiction to investigate the killings . The objection lodged against the military prosecutor was rejected and the case files were returned to the Şırnak prosecutor ’ s office .

In 2007 the Şırnak prosecutor sent the case-file to the Diyarbakır prosecutor, who decided to open a new investigation file (file no. 2007/1934).

On 13 February 2012 the Civil Aviation Directorate of the Ministry of Transport sent a letter to the Diyarbakır public prosecutor and attached a copy of a flight log showing the movements of a number of military jets on 26 March 1994. T he Director of the Civil Aviation Directorate informed the Diyarbakır prosecutor that two flying missions had been carried out on the day in question by the Turkish Air Force to locations ten nautical miles to the west and north-west of Şırnak .

On 23 July 2012 the lawyer representing the villagers sent a letter to the Diyarbakır prosecutor , and submitted that the information in the flight log confirmed the accuracy of the allegations which his clients had been bringing to the attention of the investigating authorities since 1994 . He reminded the prosecutor that the military authorities had been denying that they had bombed their villages , and asked the prosecutor to identify the crew s of the fighter jets which had bombed the villages, as well as their superiors who had given the orders to bomb the villages, and to question them.

COMPLAINTS

The applicants complain that the intentional bombing of their village, which caused the deaths of their three relatives, coupled with the failure to investigate the bombing and the killings, was in breach of Article 2 of the Convention.

They also submit that the y witnessed the killing of their relatives, buried them in an atmosphere of fear and panic created by the bombardment , and fled from their village afterwards. They argue that these aspects of the bombing amounted to inhuman treatment within the meaning of Article 3 of the Convention.

Finally, the applicants complain that the failure to carry out an effective investigation into the bombing was in breach of Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Having regard to the flight log and the information provided by the Civil Aviation Directorate to the Diyarbakır prosecutor on 13 February 2012 , was the applicants ’ village bombed by aircraft belonging to the Turkish military forces?

If your answer is in the affirmative, has the applicants ’ deceased relatives ’ right to life, ensured by Article 2 of the Convention, been violated in the present case?

In particular, was the use of force absolutely necessary for the purposes of paragraph 2 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, and in response to the information provided to him on 13 February 2012, what steps have been taken by the Diyarbakır prosecutor to identify and prosecute those responsible for the killing of the applicants ’ relatives?

3. If the villages were bombed by military aircraft, did the bombing and its consequences amount to inhuman treatment, in breach of Article 3 of the Convention?

The Government are requested to provide documentary evidence in support of their replies to the questions above. They are further requested to submit to the Court a copy of the documents drawn up by their authorities after 13 February 2012.