SECOND SECTION

Application no. 55099/12 Alya OÄžUR against Turkey lodged on 25 June 2012

STATEMENT OF FACTS

The applicant, Ms Alya Oğur , is a Turkish national, who was born in 1955 and lives in Şırnak . She is rep resented before the Court by Mr C. Kayhan , a lawyer practising in Ankara.

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

On 3 February 2006, at around 1 p.m., a dispute broke out between villagers from the applicant ’ s village, Oyalı , and those from the neighbouring village of Kırca , which concerned a forest between the boundaries of the two villages.

Immediately after, upon the order of the public prosecutor, a group of gendarmerie officers went to the area together with several officers from the Department of Forestry and ten village guards.

During the events which followed, the applicant ’ s husband, Naif Oğur , was shot dead.

According to the gendarmerie officers ’ incident report describing the events, when the group consisting of gendarmerie officers, village guards and forestry officers reached Oyalı village, the villagers blocked the road and displayed resistance, as a result of which the gendarmerie lieutenant fired three warning shots in the air . The officers stated that as the villagers had kept moving forward despite the warning shots, some of the village guards from Kırca village had opened fire, to which the other villagers had responded. During the clash, it was noticed that one of the village guards, Y.Ü., fired towards Naif ’ s direction . The latter fell to the ground shortly after and was wounded. He was immediately taken to the İdil State Hospital but was found to have died on the way. The report maintained that subsequently, the gendarmerie officers had gone back to Kırca village and seized the guns of all village guards, including those who had not been involved in the incident.

On the same day, at around 3 p.m., the İdil public prosecutor attended the post mortem examination, together with the mayor of Oyalı , the doctor who had performed the initial examination at the İdil State Hospital , an expert doctor and an expert photographer. The mayor confirmed that the deceased was indeed Naif Oğur and maintained that he had been shot by village guards from Kırca village. The first doctor stated that N aif had already died by the time he arrived at the hospital and that two bullet holes had been found on his body, one in the middle of the chest and the other below the left shoulder blade. Subsequently, the expert doctor performed an external examination of the body and noted that the bullet had entered in the middle of the chest and had exited the body at the shoulder blade. He further reported that there was no other lesion on the body and that it was not necessary to perform a full autopsy as the cause of death was clearly cardiopulmonary arrest due to gunshot - related haemorrhage . Finally, the public prosecutor concluded that no autopsy would be conducted on the body and that it could be buried.

Meanwhile, a gendarmerie lieutenant took the statements of four officers from the Department of Forestry, who had witnessed the events. The officers maintained that the dispute between the villagers from the two villages had turned into a clash, as a result of which Naif OÄŸur had been shot dead. They maintained that they had not seen who had shot him, as the two sides had been firing at each other.

Around midnight, an on-site report was prepared by gendarmerie officers. The report stated that after having gone to the İdil State Hospital and obtained evidence consisting of N aif ’ s clothes, at around 4 p.m. the gendarmerie officers had left for the on-site inspection of the area where the incident had taken place. The officers had not swabbed the hands of the deceased to find gun residue as they had already been washed during first aid. Upon their arrival at the Gendarmerie Command in the area, the officers took the hand and face swabs, jackets and hats of all involved village guards, including Y. Ü ., who had been seen shooting in the direction of Naif . The report also indicated the owner of each gun the officers had seized, including that of the mayor of Oyalı and the Kalashnikov rifle of Y. Ü .

The next day, on 4 February 2006, the gendarmerie officers resumed the inspection. In the on-site report they drew up that afternoon, the officers stated that the footprints on the terrain had disappeared as a result of the rain. They noted that they had found several spent bullet cases and cartridges in the rather large area and identified which kind of guns they belonged to. After having taken photographs of all the evidence and drawn a plan of the spots where they had found the spent cases and cartridges, the officers examined the terrain with a mine detector but found nothing else which could be of importance.

On an unspecified date the Midyat public prosecutor filed an indictment with the Midyat Assize Court, accusing all involved village guards and the mayor of Oyalı village of homicide, attempted homicide and incitement to crime.

On 28 February 2006, experts from the Van District Criminal Gendarmerie Laboratory conducted an analysis and noted that no gun residue had been found on the swabs and clothes taken from the village guards, except for those belonging to R.G. and A.G. They also indicated that there were bullet holes in the clothes of the deceased and that according to the chemical analysis of those clothes, he must have been shot at close range .

On 20 March 2006 the Van District Criminal Gendarmerie Laboratory issued a ballistic report, matching the spent bullet cases and cartridges with the guns which had been secured. The report noted accordingly that a number of cartridges had been discharged from R.G. ’ s and A.G. ’ s rifles, two from the gun of the mayor of Oyalı village, and several from the rifles of village guards M.A.G., M.S.D. and Y.E. It also indicated that around fifty cartridges and one deformed spent bullet case had been fired from guns which were not among the secured ones.

On 29 April 2006, following the request of the applicant , Naif ’ s body was exhumed with a view to undergoing an autopsy.

Subsequently, on 26 May 2006 the Directorate of Forensic Medicine carried out the autopsy of the body. The report issued afterwards noted that some of his ribs had been broken as a result of the gunshot and established the cause of death as haemorrhage caused by gunshot-related damage to internal organs. It stated however that the bullet could not be found in the body. The report also indicated that it was not possible to determine the shooting range due to decomposition but that it could be determined by examining Naif Oğur ’ s clothes.

On 14 March 2007 the Ä°dil public prosecutor informed the Midyat Assize Court that the clothes Naif OÄŸur had been wearing during the incident had not been secured as evidence because they had been completely rotten.

During the criminal proceedings, on 26 March 2007, an on-site inspection was conducted by the Midyat Assize Court with the attendance of all the defendants as well as an expert, several witnesses and the applicant. The court heard the statements of the defendants and the witnesses, who pointed out the spots where the events had taken place.

Subsequently, on 3 April 2007 the expert produced a report, analysing the findings of the on-site inspection. He maintained that as the bullet which had caused Naif Oğur ’ s death could not be found, he could not determine which gun it had come from. Nor could he speculate on who had fired at him, as none of those involved had seen that person in the midst of the clash. He noted that the witness statements conflicted with each other as each of those present had seen the incident from a different perspective and as a result he could not establish the exact spot where Naif had been standing when he was shot. The expert concluded that taking account of all the statements, the deceased must have been shot from approximately 200 m, which would be possible if fired by a long-barreled rifle, such as the machine guns used in the incident.

On 20 July 2007 the Directorate of Forensic Medicine submitted a report to the Midyat Assize Court, evaluating all the findings of the previous reports and concluding that the shooting range could not be determined solely on the basis of the autopsy report, which had been carried out after the body ’ s dec omposition , without the possibility of evaluating the gun residue under the skin.

On 24 September 2007, upon a request from the Midyat Assize Court, experts from the Ballistics Department of the Directorate of Forensic Medicine reported that they could not confirm the findings of the Van District Criminal Gendarmerie Laboratory to the effect that the shot had been fired at close range without having examined Naif Oğur ’ s clothes.

Following that report, the clothes worn by Naif when he was shot were found and delivered to the Ballistics Department. The new ballistic report drawn up on 27 December 2007 verified that he had been shot at close range, between 35 and 100 cm depending on the length of the gun barrel.

On 29 February 2008 the Midyat Assize Court acquitted the accused village guards of homicide, holding that the evidence did not enable it to find them guilty of the alleged offence. It also acquitted the mayor of Oyalı village as his acts had been unintentional. Having regard to the post-mortem, on-site and ballistic reports and the statements of the defendants and the witnesses, the court stated that R.G. was the village guard standing closest to Naif Oğur during the incident but he had still been at 92 m distance, much further than the 100 cm shooting range established by the Ballistics Department of the Directorate of Forensic Medicine . It found that none of the defendants had stood at such a distance from Naif and that his ribs would not have been broken by a long-range shot coming from where the village guards had been. The court concluded therefore that Naif might have been shot by one of his own villagers, who, according to the gendarmerie officers ’ statements, had fired their guns as well. It also decided to transfer a copy of the judgment to the İdil public prosecutor in order for him to continue searching for the perpetrators of the shooting until expir y of the limitation period.

On 23 May 2012 the Court of Cassation upheld the judgment of the Midyat Assize Court. The higher court noted that although the first-instance court had not delivered a judgment as regards the accusation of attempted homicide, it could do so until expiry of limitation period.

COMPLAINTS

The applicant complains under Article 2 of the Convention that her husband was killed as a result of village guards opening fire by during a dispute .

Relying upon Articles 2 and 13 of the Convention the applicant argues that the domestic authorities failed to conduct an effective investigation which would lead to the identification and punishment of those responsible for her husband ’ s death. In that connection, she alleges in particular that the authorities did not perform an autopsy in a timely manner and failed to act diligently as the public prosecutor had been absent during the collection of the evidence.

QUESTIONS TO THE PARTIES

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

In particular, did the applicant ’ s husband ’ s death result from a use of force which was absol utely necessary f or the purposes of paragraph 2 (a) and (c) of this Article ?

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

In particular, what safeguards were in place at the time of the events against any wilful or unintentional abuses of position carried out by the village guards?

3 . Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), were the investigation and the ensuing criminal proceedings against the village guards in the present case conducted in compliance with Article 2 of the Convention?

To that end, has an effective investigation been carried out by the national authorities in order to establish the circumstances of the death? In this connection:

(a) was the Ä°dil public prosecutor present during the collection of evidence by the gendarmerie officers, in particular during the collection of the spent bullet cases and cartridges from the terrain on 4 February 2006?

(b) w ere all potential eyewitnesses, including the villagers from both the Oyalı and Kırca villages, questioned by the judicial authorities?

(c) were any gendarmerie officers questioned during the investigation?

(d) have any investigative steps been taken since the judgment of the Midyat Assize Court dated 29 February 2008, to search for the perpetrator of the killing?

(e) has the Midyat Assize Court delivered a judgment as regards the charge of attempted homicide against the village guards involved in the incident, following the decision of the Court of Cassation on 23 May 2012?