SECOND SECTION

Application no. 5809/13 Mustafa KARACA against Turkey lodged on 12 December 2012

STATEMENT OF FACTS

The applicant, Mr Mustafa Karaca , is a Turkish national, who was born in 1963 and lives in the Kulp district of Diyarbak ı r . He is represented before the Court by Ms R. Bataray Saman , a lawyer practising in Diyarbakır . The applicant is the father of Nedim Karaca , who was born in 1991 and died on 31 May 2007 after having received a bullet in his head fired by a member of a group of village guards.

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

On 30 May 2007 at around 10 p.m. the applicant ’ s son was shot when he was on a farm in the vicinity of İ ncekavak village, in the district of Hazro , in Diyarbak ı r. He died next day in a hospital where he had been taken by gendarmerie officers.

According to the scene of incident report drafted and signed by three gendarmerie officers, a witness, the mayor of Ä° ncekavak and the head of the village guards, the gendarmerie had arrived at the scene of incident after having heard gunshots in the area. When they arrived, they found Nedim Karaca lying down on a farm. They also found a firearm and a cartridge clip next to Nedim . According to this document the incident had started when Nedim had fired his weapon towards E.G., a village guard. Thereafter, a group of village guards had followed Nedim who had not surrendered and had continued firing his weapon. The village guards had also opened fire. They had however not targeted Nedim but had fired next to him. In total nine village guards had fired their riffles during the chase.

On 31 May 2007 two officers from the crime scene investigation unit of the Silvan Gendarmerie Command prepared a scene of incident report to be submitted to the Hazro public prosecutor ’ s office. According to this report, officers arrived at the scene of incident at around 12.10 a.m. on 31 May 2007. No fingerprints were found on the firearm found next to Nedim . It was explained that as the weather was humid and there were drops of water on the firearm, the fingerprints had been erased. According to the report, the Hazro public prosecutor did not require swabs to be obtained from the village guards ’ hands as they all maintained that they had fired. The gendarmerie officers found a firearm loaded with ten bullets of 9 mm calibre, a cartridge clip containing twelve bullets of 9 mm calibre, a pair of jeans, gloves and a mobile phone. They then left the area. The officers from the crime scene investigation unit went back to the scene of incident at 6.30 a.m. the same day. They examined the area with mine detectors and found an empty cartridge of 9 mm calibre and three empty cartridges from Kalashnikov-type rifles. They obtained swabs from the face and hands of the deceased and sent them to the public prosecutor ’ s office together with the other items that had been found at the scene of the incident.

On the same day an autopsy was carried out on the deceased. The doctor found that there was a bullet entry wound on Nedim Karaca ’ s left temple and a bullet exit wound on the right side of his forehead. The medical expert concluded that the cause of Nedim Karaca ’ s death was skull fracture and brain damage caused by a bullet. It was also noted in the autopsy report that the bullet had been fired at long range.

On 31 May and 1 June 2007 two gendarmerie officers took statements from twelve village guards regarding the killing of Nedim Karaca . E.G. stated that Nedim had passed by his house and told him that he was from a nearby village when asked where he was from. As E.G. knew everybody in that village and did not recognise him, he asked him to show his identity card. Nedim refused to do so. Subsequently, E.G. asked Nedim to stop but he started firing his weapon.

Other village guards all stated that they had heard gunshots from the vicinity of E.G. ’ s home and therefore they went there. Subsequently, Nedim ran away towards a farm and they followed him. The village guards, including E.G., submitted that F.G., the head of the village guards, tried to convince Nedim to drop his weapon but he failed to do so. Nedim Karaca had insulted them, contended that he would either die or kill and asked them to leave. According to the village guards, Nedim Karaca had continued firing his weapon. They further maintained that F.G. asked the village guards not to kill the boy but to keep him at the farm until the gendarmerie officers arrived. They therefore had not fired at Nedim directly but next to him. They contended that they had been numerous and would have killed Nedim Karaca long before if they had intended to do so. The village guards stated that later on gendarmerie officers had arrived at the farm, found Nedim and taken him to hospital.

On 15 June 2007 the applicant lodged a complaint with the Hazro public prosecutor ’ s office requesting that the village guards who had killed his son be identified and punished.

According to an expert report dated 24 July 2007 issued by the Diyarbak ı r Criminal Police Laboratory, as a result of the swab test, no gunpowder residue had been found in Nedim ’ s hands, face, his clothes or gloves.

On an unspecified date the Hazro public prosecutor sent a report to the Diyarbakır public prosecutor ’ s office, recommending that an investigation be initiated into Nedim Karaca ’ s killing and that nine village guards be charged with “ causing death by negligence and carelessness”.

On an unspecified date the Diyarbakır public prosecutor filed a bill of indictment with the Diyarbakır Assize Court against nine village guards. The public prosecutor considered that the use of firearms by the village guards had been lawful as they had acted with the aim of capturing an armed person. However, they should not have aimed at the deceased ’ s head and therefore they had caused the deceased ’ s death by negligence and carelessness .

On 25 September 2008 the Diyarbakır Assize Court held the first hearing on the merits of the case.

During the hearing of 2 April 2009 the Diyarbakır public prosecutor requested the first-instance court not to impose any punishment on the accused village guards in accordance with Articles 24 (1) and 25 (1) of the Criminal Code, submitting that they had acted in self-defence.

On 7 April 2009 the applicant ’ s lawyer responded to the public prosecutor ’ s observations. He submitted, inter alia , that there was no evidence showing that Nedim Karaca had fired at the village guards and that the fact that he had been shot in his temple with one bullet demonstrated that it had been an execution. He further noted that there had been hundreds of empty cartridges found in the area and that it was unreasonable that no other bullet had hit the deceased. The lawyer also drew the court ’ s attention to the fact that the village guards ’ statements to the gendarmerie were almost identical and therefore not reliable. Relying on Article 2 of the Convention and the relevant provisions of other international human rights treaties, the applicant ’ s representative requested to court to convict the village guards of murder.

On the same day the Diyarbakır Assize Court rendered its judgment in the case and decided “not to impose a punishment on the accused”. The first-instance court noted, in its judgment, Article 68 of Law no. 442 according to which village guards have the duty to protect all persons ’ lives, dignity and property within the borders of villages and the authority to use firearms in order to fulfil these duties and in self-defence. The assize court held that the applicant ’ s son had insulted the accused and fired towards them and that the accused had first fired warning shots. The court considered that the incident had continued for around 1 ½ -2 hours and that the village guards had not immediately killed Nedim although they had had the means and opportunity to do so. The court therefore concluded that the accused had acted in self-defence and with a view to capturing the deceased. The court also noted that there were certain indications that Nedim Karaca might have been involved in illegal activities as he had been missing for three months prior to his death and since he had been wearing two pairs of trousers and gloves at the time of the incident.

On 24 May 2012 the Court of Cassation upheld the judgment of 7 April 2009. The Court of Cassation noted in its decision that the conclusion of the judgment should be amended as “it has been decided to acquit the accused of the charges against them and therefore there is no need to impose a punishment on them”.

On 19 June 2012 the decision of 24 May 2012 was deposited with the registry of the Diyarbakır Assize Court.

COMPLAINTS

The applicant complains under Article s 2 and 13 of the Convention that his son was unlawfully killed by the village guards and that the investigation and the ensuing criminal proceedings regarding his son ’ s killing were ineffective.

QUESTIONS TO THE PARTIES

Did the circumstances surrounding the killing of the applicant ’ s son constitute a violation of Article 2 of the Convention?

I n particular, did the killing of the applicant ’ s son result from a use of force which was absolutely necessary for the purposes of paragraph 2 of that Article?

In this connection:

a. W hat safeguards were in place at the time of the events against any deliberate or unintentional abuses of position carried out by village guards ?

b. H as an effective investigation been carried out at the national level showing that the resort to the use of fatal force by the soldiers was absolutely necessary and that the force used was proportional to achieving one of the aims set out in paragraph 2 of Article 2 of the Convention?