SECOND SECTION

Application no. 30247/11 Zemci HORUZ and Hatun HORUZ against Turkey lodged on 7 March 2011

STATEMENT OF FACTS

1 . The applicants, Mr Zemci Horuz and Ms Hatun Horuz , are Turkish nationals who were born in 1955 and 1961 respectively and live in Adana . They are represented before the Court by Mr K. Derin , a lawyer practising in Adana . Their son Sedat Horuz (“S.H.”) was performing his compulsory military service at the Şırnak Motorised Infantry Brigade Command at the material time. The facts of the case, as submitted by the applicants and as they appear from the case file , may be summarised as follows.

2 . On 26 November 2009 the applicants ’ son was found dead at around 1.15 a.m. in the part of the dormitory where the toilets and bathroom were located.

3 . At 3.50 a.m. two officers from the Şırnak Gendarmerie Command carried out an inspection of the incident scene and gathered evidence. No fingerprints suitable for analysis were detected on the G3 infantry rifle. Photographs were taken and a sketch map was drawn.

4 . The public prosecutor of Şırnak attended; he carried out an inspection of the incident scene and an external examination of the deceased. He referred the corpse to the Diyarbakır Military Hospital for an autopsy and the case to the military public prosecutor of the Diyarbakır 2 nd Air Force Command, who had the requisite jurisdiction.

5 . The investigation was thereafter conducted by the military public prosecutor of the Diyarbakır 2 nd Air Force Command, who established the facts as follows. On 25 November 2010 at 6 a.m., the group to which the deceased was assigned attended at a site where they were to carry out the duties of detection of landmines, surveillance and reconnaissance activities. Sergeant L.B., who had been on duty that night, called to S.H. and asked him to whom the phone number noted down on a paper belonged. Since S.H. did not reply, the sergeant demanded that he give him his mobile phone. S.H. took his mobile out of his pocket and gave it to L.B. The latter took the phone without saying anything and returned to the brigade command along with his subordinate soldiers. S.H. was silent and upset all day. At 6 p.m. sergeants L.B. and Y.A., together with the military personnel on the night shift, came to the site. After those on the night shift had been stationed in their positions, the sergeants convened the soldiers who had been on the day shift. They addressed S.H. in front of the others and asked for the PUK code of his mobile phone. S.H. replied that he did not know it. They then asked for the maiden name of his mother. Y.A. obtained the PUK code through the GSM operator. The sergeants stated that they were going to examine the mobile phone. Shortly after the soldiers on the day shift had set out to return to the brigade command, L.B. shouted and ordered them to stop and come back. They called S.H. to them. L.B. said that harassing text messages had been sent to his former mobile phone number, now being used by his wife, from S.H ’ s phone. At first, S.H. denied having sent the text messages but then fell silent. L.B. and Y.A. hit him several times. L.B. yelled at him: “I will take you to court, I will inform the commander about it, how would you feel if I did something like this to your fiancée?”, and so on. Subsequently, the group returned to the military base. S.H. did not attend dinner and stayed in the dormitory. His friends saw him writing something in his diary and tried to chat with him in the evening. S.H. hid what he had been writing. He is said to have been upset and in low spirits. He smoked a cigarette with a close friend, D.O., and then went to sleep. At 12.45 a.m. a sergeant came to the dormitory to wake up five conscripts, including S.H., for guard duty. At around 1.15 a.m. S.H. took the infantry rifle belonging to his friend that had been hung on their bunk, entered the hall leading to the bathrooms, placed the rifle under his chin and shot himself.

6 . The military public prosecutor took into consideration the incident report and the post-mortem examination report of the public prosecutor of Şırnak , the findings of the autopsy and of blood, urine and swab tests, the ballistic examination, the suicide note, a forensic handwriting analysis report, the witness evidence, and the breakdown of calls and messages sent from the deceased ’ s phone number submitted by the Telecommunications Directorate ( Telekomünikasyon İletişim Başkanlığı ).

7 . In the post-mortem examination, the diameter of the star-shaped entry wound under the chin was given as 0.5 cm and that of the exit wound on the cranium as 2.5 x 2 cm . The exact cause of death was determined as external haemorrhage resulting from a broken hyoid bone, face bones and skull, together with brain damage, cerebral haemorrhage and large vessel injury caused by the gunshot wound, which was reported to have been a contact shot. No alcohol, anaesthetic drug or narcotic was found in the blood or urine of the deceased.

8 . The rifle had been loaded with 16 bullets out of 18, one being stuck in the barrel. One spent bullet case had been recovered at the scene. According to the ballistic examination, the rifle had no mechanical faults and the bullet used in the incident had been fired from it. Lead , barium and antimony were found in swabs taken from the left hand and face of S.H .

9 . Among the personal belongings of the deceased there was a suicide letter addressed to S.H ’ s close friend D.O., another conscript performing his military service in the same group. It read as follows:

“I knew you very well ... this ten-month friendship has enabled me to get to know you ... I wish everybody was like you, please tell our teams, Isparta 24 th branch, Şırnak 1 st branch that I love them very much, I apologise to all those whose hearts I have broken; also tell sergeant L.[B.] and non-commissioned officer Y.[A.] I thank them very much, they should continue with their wrongful beating of soldiers; are they not afraid of my God on the other side.

In fact, I had chosen sergeant L.[B.] as my big brother, I always shared my sorrow, my problems in the field with him, he should not forget that we are from Adıyaman [a city in Turkey], the son of our fathers, I am a child of the East, the education I received, the order [tradition], does affect me but we are notorious [just] because we are from the East; they regard us as being either the PKK or guerrillas, hence, no eastern soldiers or civilians better; in any case, we are eastern; all of us live in the same age, if we all live under the Turkish flag, we are brothers, nobody should forget that, ‘ How happy is he or she who says “I am Turkish” ‘ . [1]

Y.[A.] should take care of himself in civilian life.

In addition, [I would request] from you that you call my mother and father, tell them to write on my gravestone ‘ he died for his honour ’ ; they must not tell Mehtap , the daughter of my aunt, that I have died; they should tell my brother and cousins that I love and will miss them very much. Take good care of yourself my brother D.[O.], always be as good as you are ... take this letter to my family.”

10 . A forensic handwriting analysis was sought in order to make sure that this letter had indeed been written by the deceased. The Diyarbakır Criminal Police Laboratory concluded that the handwriting was that of the deceased.

11 . The military public prosecutor heard a number of witnesses, including the wife of L.B. T he impugned text message s read as fo llows:

“ H i, it ’ s Yılmaz . How are you, I would like to meet with you and invite you to dinner, yours sincerely Mrs. D. ...”

“It seems it [ the reply she had given ] does not suit you, I look forward to some beautiful word from you, for now, have a nice day”.

D. B., the wife of L.B., submitted that following these messages the same number had rung her phone a couple of times but she had not answered. She had received two other text message s stating as follows:

“ [Y] ou have missed [ your chance for ] the Food Festival of Iskenderun to be held today because you said the wrong word, the Derya Restaurant wi shes you all the best Mrs. D.B.”

“Apologies, We mistook you for D.P . , we are sorry for any inconvenience caused, the Derya Restaurant” .

She later learn ed that there was no such restaurant in Iskenderun . After telling her husband what had happened she sent a message to the GSM operator t o find out who was the owner of the phone number . She w as notified that it was S.H.

12 . D.O., an eyewitness to the suicide of S.H, was among the witnesses heard by the military public prosecutor. According to his witness statement, that morning S.H. took up his position 15 minutes late. S.H. explained that L.B. had caught him with the mobile phone, that some text messages had been sent from it and that before his home leave he and L.B. had exchanged phone numbers. S.H. added that if his father became aware of all this, he would be furious and would not allow him home. D.O. gave the following account of S.H. ’ s suicide:

“C. woke me up at 1 a.m. We were going to go on duty together - S.H, and I, and three or four other soldiers from other branches - ... I put on my clothes ... C. came up to me and asked where S.H. was. I checked his bunk, he was not there. I thought and replied that he might have gone to the depository to pick up his “ bixi ” machine gun. (Infantry rifles were usually hung on the bunks of the holders in the dormitory whereas bixi machine guns were kept in the depository.) C. left the dormitory. Five or ten minutes later he returned and said he could not find S.H. I thought he might be in the toilets and headed towards that area. As soon as I turned the corner in the hall where the toilets were located I saw S.H. with a G-3 infantry rifle placed under his chin. He pulled the trigger without my being able to say or do anything ... I was shocked ...”.

D.O. pointed out that there was nobody else around at the material time.

13 . On 24 December 2009 the applicant Zemci Horuz applied to the public prosecutor of Adana and made new submissions. He submitted that his son had told his brother-in-law that the troop commander hated Kurds and that once he had insulted him in Kurdish and asked whether he had understood.

14 . In connection with this allegation, six conscripts who had been carrying out their military service in the same troop as the deceased, and the troop commander, were summoned by the military public prosecutor to give witness evidence. The conscripts stated that there had been no discrimination on the basis of ethnic origin and that the troop commander and other superiors had not demonstrated any discrimination or ill-treatment against the eastern conscripts. The troop commander denied the accusation and maintained that he had become aware of the deceased ’ s ethnic origin only after the family had made this allegation.

15 . At the request of the military public prosecutor, the Telecommunications Directorate submitted a detailed account of incoming and outgoing calls and text messages sent from and received by S.H ’ s phone. T he mobile phone and sim card were also examined by an expert.

16 . The military public prosecutor found that although the circumstances that had led the deceased to commit suicide had not been ascertained, it had been established that S.H . had killed himself by pulling the trigger of the gun intentionally, as nobody had been found responsible through his or her fault or negligence under the criminal law. He considered that although there was evidence suggesting assault and battery by L.B. and Y.A . , no causal link could be established between th o se acts and the deceased ’ s suicide , and that th o se acts could only give rise to the offence of assault and b attery against a subordinate. On 15 July 2010 the military public prosecutor gave a decision of non-prosecution in respect of the death of S.H. but initiated criminal proceedings against the non-commissioned army officers concerned for assault on a subordinate.

17 . The applicants filed an objection against that decision on 24 November 2010.

18 . On 2 November 2010 the Military Court dismissed the objection, upholding the account of the death of the applicants ’ son given by the military public prosecutor.

19 . The final decision was served on the applicants on 1 February 2011.

20 . Y.A. and L.B. were tried before the Military Court of the Diyarbakır 2 nd Air Force Command. On 6 December 2011 the Military Court convicted them of assault and battery of a subordinate. It sentenced L.B. to four months ’ imprisonment; decreased the sentence by three quarters (one month) on account of provocation (mitigating circumstances); reduced it again by one sixth (twenty-five days), taking into account the accused ’ s demeanour and behaviour during the proceedings, as well as his sincere confessions; and commuted the prison sentence to a fine (of a total of 500 Turkish liras (TRL)), taking into account the circumstances in which the offence had been committed and the accused ’ s financial situation. The Military Court sentenced Y.A. to four months ’ imprisonment; reduced the sentence by one sixth, taking into account the accused ’ s demeanour and behaviour during the proceedings (three months and ten days); and commuted the prison sentence to a fine (of a total of TRL 2000), taking into account the circumstances in which the offence had been committed and the accused ’ s financial situation. It ordered the payment of the sum in ten instalments .

21 . An appeal was still pending before the Court of Cassation as at 18 October 2012.

COMPLAINTS

22 . The applicants complain ed under Article 2 of the Convention that their son ’ s right to life had been violated and that the State Party had failed to take appropriate steps to protect his life while he was performing his compulsory military service. They alleged that their son could not have committed suicide and that he had been murdered. They added that even if he had killed himself, he had been driven to suicide because of the torture and inhuman and degrading treatment to which he had been subjected by State agents. Relying on Article 6, the applicants argued that the perpetrators had gone unpunished and that the investigation carried out by the domestic authorities had not been effective.

23 . They further alleged that the State Party had failed to fulfil both its positive and negative obligations arising from Article 3 on account of the physical and verbal assaults that had occurred on the eve of their son ’ s death. They also alleged a violation of Article 5 in this regard.

ITMarkFactsComplaintsEND

QUESTIONS TO THE PARTIES

1. In the light of the Court ’ s judgment in the case of Abdullah Yilmaz v Turkey (no. 21899/02, 17 June 2008 ), h as the applicant s ’ son ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case?

2. Having regard to the procedural prote ction of the right to life (see, among others, Abdullah Yilmaz , cited above, § 58) was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

3. Was the applicant s ’ son subjected to inhuman treatment prior to his death , in breach of Article 3 of the Convention?

4. Having regard to the procedural protection from inhuman treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

The parties are invited to submit information on the appeal pending before the Court of Cassation as well as other proceedings initiated against the army officers concerned, if any.

[1] . ‘ Ne Mutlu Türküm Diyene ’ a national motto coined by Mustafa Kemal Atatürk.