SECOND SECTION

Application no. 58429/12 Fikri KARAKUÅž against Turkey lodged on 21 June 2012

STATEMENT OF FACTS

The applicant, Mr Fikri Karakuş , is a Turkish national, who was born in 1977 and lives in Tunceli . He is repres ented before the Court by Mr B. Yı ld ı r ı m , a lawyer practising in Tunceli .

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

The applicant was working as a shepherd at the time of the incident. On 11 August 2010 the applicant and his friend, Mr Serkan Onay , took out 1,000 sheep to graze around the Pülümür / Buyurbaba plain. As his friend was watching the herd, the applicant lay down behind a rock to have a rest. He had with him a bundle full of his snacks, and he covered himself with a canvas sheet to have a nap.

At around 5 p.m. the applicant heard military helicopters circling around, and suddenly the helicopters started firing and bombarding. The applicant took shelter near the rock but as a result of the intense firing, he was severely injured in his legs. According to the applicant, the helicopters stayed in the area until 7 p.m. In the meantime, his friend, who had gone back to the village, brought help. Four villagers arrived around 8 p.m. and tried to transfer him to the hospital. On the way to the hospital, the group was stopped at the Kocatepe gendarme station, where the applicant ’ s clothes were torn off and he was treated as a terrorist. The applicant claimed that although there was a doctor in the gendarme station, he was not provided with any medical help. The applicant was then transferred to the Tunceli State Hospital. On 16 August 2010 the applicant was operated on and nine metal objects, measuring 3 x 2 mm and 1 x 1 mm respectively, were taken out of his body.

On 20 August 2010 the applicant filed a complaint with the Tunceli Public Prosecutor. The same day the prosecutor questioned him as an accused/complainant, in the presence of his lawyer. Before the prosecutor, the applicant stated that he had been seriously wounded as a result of the firing of the gendarme officers. He explained that as his friend was watching the animals, he had wanted to have a nap beside a rock and had covered himself with a canvas sheet. He also said that he had had snacks in his bundle. According to the applicant, without any warning, the military helicopter started firing and as a result he was seriously wounded in his legs. When the applicant ’ s questioning was over, his lawyer referred to Article 2 of the Convention and stated that the disproportionate use of force by the military had constituted a violation of the Convention. He further stated that by tearing off the applicant ’ s clothes at the gendarme station, the authorities had tampered with crucial evidence.

On 7 September 2011 the Tunceli public prosecutor declared lack of jurisdiction and transferred the file to the Elazığ Military Public Prosecutor ’ s office.

On 27 September 2011 the Elazığ Militar y Public Prosecutor delivered a non-prosecution decision. In delivering this decision, the prosecutor relied on an experts ’ report, prepared by three soldiers from the Air Force. According to this report, the area of t he incident had been declared a security zone and entry to the area had been banned. The experts further stated that as a precaution, this measure had been published in the local press. The experts stated that at the time of the incident, the soldiers had been carrying out a military operation against the PKK in the area, because they had received intelligence reports that certain PKK militants had been carrying food supplies with donkeys. According to the report, the helicopters had fired to destroy the food supplies they had noticed and there had been no sign that there were villagers in the area. Based on this report, the public prosecutor concluded that no fault could be attributed to the soldiers.

On 17 October 2011 the applicant appealed. In his appeal petition, the applicant referred to Articles 2, 6 and 13 of the Convention and stated that the soldiers had not given any warning before starting to fire.

On 12 December 2011 the Malatya Criminal Military Court, composed of three military judges, decided to uphold the decision of the public prosecutor. The court held that the applicant should not have entered the area as it had been declared a security zone and, since he had taken shelter behind a rock, the helicopters had not seen him. The court further stated that if the soldiers had aimed to kill the applicant, they would not have missed the target and that their aim was solely to destroy the food supplies that they had seen. It was also concluded that the applicant had not been shot but had been wounded by pieces of rock.

The decision of the Military Court was notified to the applicant on 26 December 2011.

COMPLAINTS

The applicant complain s that he w as seriously wounded as a result of the disproportionate use of force by the security forces. He also complain s that no effective and independent investigation was conducted into the circumstances of his wounding. In respect of his complaints, he relies on Articles 2, 3, 6 and 13 of the Convention.

QUESTIONS TO THE PARTIES

1 . Does the wounding of the applicant constitute a violation of Article 2 of the Convention? In particular, did the injuries result from the use of force by the security forces which was “absolutely necessary”?

2. Were all necessary steps taken by the security force s when organising and regulating the operation with a view to minimising to the greatest extent possible any risk to the right to life (see Makaratzis v. Greece [GC], no. 50385/99, § 60, ECHR 2004 ‑ XI)?

3. Has an effective investigation been carried out at the national level showing that the resort to the use of 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?

The Government are further requested to provide a full copy of the domestic investigation.