SECOND SECTION

Application no. 31420/11 Mehmet ÖNAL and Gü lten Ö NAL against Turkey lodged on 22 January 2011

STATEMENT OF FACTS

1 . The applicants, Mr Mehmet Önal and Ms G ü lten Önal , are Turkish nationals who were born in 1949 and 1956 respectively and live in Mersin . They are represented before the Court by Mr H. Turgut , a lawyer practising in Van. 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 October 2009 at around 3-3.30 p.m., the applicants ’ son, Cemal Önal (“C.Ö.”), who was performing his military service in the Hakkari Yüksekova Mountain and Commando Brigade, had a quarrel with the troop commander, E.S., in the latter ’ s office. In his statement, taken on 28 October 2009, E.S. gave the following account. C.Ö. went to his office to obtain his signature for a list. After having the list signed, C.Ö. asked E.S. if he could talk to him and asked for the door to be closed. He said that the canteen wanted him to work there and that he would also like to work in the canteen instead of in the transport team. E.S. asked how he had come to know this. C.Ö. replied that he had heard it, but was reluctant to give further information. C.Ö. appeared tense, stressed, timid and close to tears. E.S. repeated his question. C.Ö. answered in a fearful tone that sergeant H. had drawn up the list, but he had not become a cobra driver and he did not want to work in the transport team but wanted to work in the canteen. E.S. asked where he had been assigned. C.Ö. said that he had been told that he would have to work in the transport registry and do “fetch and carry” work in his free time. E.S. stated that C.Ö. should not worry and that he would talk to sergeant H. C.Ö. then added that he did not want H. to know about this conversation since he had come to see the troop commander without informing him. E.S. replied that he could come to him whenever he wished as he was his troop commander, but enquired as to why he did not want to work in the transport team and whether there was any problem. C.Ö. stated: “I am a ‘ hundred-and-fifty-day ’ soldier, I understand how the armed forces function: you should never tell your superiors your own opinions to them”. He raised his voice and started to make gestures. E.S. said: “You think you know what military service is, how old are you?” C.Ö. answered that he was twenty five years old. He repeated what he had said. E.S stated: “You have not even learned to listen; you are showing disrespect to me by interrupting me”. C.Ö. complained with gestures: “I did not want to be a cobra driver either, they made me a cobra driver by force. I did not want to become a commando; they made me a commando by force, they sent me here.” E.S. became angry and what happened thereafter remains disputed. In E.S. ’ s submission, he threw a lighter he had been holding in his hand to the floor, told C.Ö. “get out” and thumped the desk. He then thumped the door and a cabinet. He ordered C.Ö. to wait for him in the clerk ’ s office. While C.Ö. was waiting there, E.S. left his office and asked him where he was from. He returned to his office and summoned sergeant H. In the meantime, E.S. consulted lieutenant A.E., who was in the office, on whether they should demand an inquiry into C.Ö ’ s personal records for a second time. On the arrival of H., E.S. explained the situation to him. E.S. warned him that he should not get angry and should have a closer relationship with C.Ö. H. said that C.Ö. had been a reserve cobra driver, without a vehicle registered under his name, and that as he was good with computers he had been assigned to the registry. E.S. ordered C.Ö. to continue with his previous duty and that H. should observe him for one week. E.S. said he would reconsider C.Ö ’ s situation subsequently. Other witness statements suggest that E.S. slapped C.Ö. According to those statements, E.S. went after him after he left his office, asked him where he was from and ordered that it should be enquired whether or not his family had had any connection with the PKK. C.Ö. stated loudly to his friends in the clerk ’ s office that he had simply asked to work in the canteen and they had then heard what had happened. He added that he was very dispirited.

3 . On the same day, at around 5.30 to 6 p.m., C.Ö. was found severely injured in the toilets of the garage with a rifle nearby.

4 . Doctors from the infirmary attended; however, as the scene of the incident was not conducive to a medical intervention, C.Ö. was immediately taken away. He was transferred by helicopter to the Hakkari Military Hospital, where he died.

5 . An investigation was conducted by the Van military public prosecutor. On 11 August 2010 he gave a decision of non-prosecution in respect of C.Ö. ’ s death but initiated criminal proceedings against E.S. for the offence of inflicting bodily harm on a subordinate.

6 . With regard to allegations of assault and battery, the military public prosecutor noted the following. Both E.S. and A.E., who had been present in the office during the quarrel, denied that E.S. had slapped the deceased. However, the witnesses who had been in the next office at the material time submitted that they had heard cries and the sound of slaps from outside and that when C.Ö. had come out of the office there had been a red mark on his face. According to their statements, E.S. went after the deceased and shouted an order that it should be examined whether his family had had any connection with the PKK since he had said that they had made him a commando by force. One witness stated that he had seen E.S. slap C.Ö. and another submitted that C.Ö. had told him that he had been beaten by E.S. In view of the foregoing, the military public prosecutor concluded that there was sufficient reasonable suspicion to initiate criminal proceedings.

7 . With regard to the death, the Van military public prosecutor noted as follows.

8 . According to the inspection report of the incident scene, an infantry rifle was found near the door in one-shot mode. The safety catch of the rifle was off ; it had been loaded with three rifle bullets , one being in the barrel. One spent bullet case was recovered under a washing machine . A little distance away on the floor below the urinal there was pool of blood and a blue beret.

9 . According to the records of post-mortem examination, including the autopsy report dated 27 October 2010, there was no evidence of assault, battery, burning, hanging, ligature or poisoning. The entry wound was located under the chin on the neck, the exit wound on the forehead. The cause of death was damage to the b rain membrane and haemorrhage resulting from gunshot wounds. Since the soft tissues around the entry wound were marked with soot and burns, it appeared to have been a contact shot. The bullet had entered the body when C. Ö. was still alive.

10 . A toxicology report by the Istanbul Forensic Medicine Institute dated 31 December 2009 indicated ethanol in the deceased ’ s blood.

11 . According to the ballistic examination, the spent bullet case had been fired from the infantry rifle found at the scene of the incident.

12 . Lead was detected in swabs taken from the right hand of C.Ö .

13 . During the medical intervention inside the helicopter the lieutenant doctor E.G. had come upon a notebook concerning C.Ö. One of the notes written in it read as follows:

“The only reason I am inflicting self-harm is to draw attention to the Turkish Armed Forces, the internal structure of which has deteriorated. What the commissioned personnel does is to impose its own wish, instead of asking the soldier how he could contribute, what he wants to do ... I wish I could in fact have died in the mountain [1] but this Military does not allow to be killed, it kills.”

14 . A forensic handwriting analysis was obtained in order to make sure that this note had indeed been written by the deceased. In its report dated 11 November 2009, the Van Gendarmerie Regional Criminal Laboratory came to the conclusion that the handwriting was that of the deceased. At the request of the deceased ’ s brother, another forensic handwriting analysis was obtained from the General Commandership Criminal Department of the Ankara Gendarmerie. In its report, dated 20 May 2010, it was also concluded that the handwriting belonged to C.Ö.

15 . The deceased had declared in reply to questions in the personnel information form and socio-psychological risk factor survey that he had never had any psychological problems. Nor had he been referred to hospital.

16 . According to the witness statements, nobody had ill-treated the deceased or induced him to commit suicide. The Van military public prosecutor gave this account of the death of C.Ö.:

“[A]t the vehicle dispatch centre , where the incident took place, the guns of the soldiers who were going to be on guard duty that night were stored; that duty is performed with an unloaded gun; however, on the day of the incident sergeant A.S. had hung his loaded military assault vest on the coat rack, and at about 5.30-6 p.m. C.Ö. availed himself of power cuts in order to take E.K. ’ s rifle and a loaded cartridge from A.S. ’ s military assault vest. [He] went to the toilet located inside the vehicle dispatch centre ; as also understood from the note ... found on the deceased on the day of the incident, C.Ö., affected by what had happened with the troop commander E.S. and their dialogue, or affected by some other occurrence known only to the deceased himself, committed suicide by placing the gun under his chin and firing one shot”.

17 . On the basis of the foregoing, the military public prosecutor considered that, except for the deceased, no one was at fault and there had been no negligent act in relation to the fatal incident, and that no one had induced the deceased to commit suicide; he held that the incident had taken place as a result of the deceased ’ s own actions.

18 . At a hearing held before the Mersin 4 th Criminal Court of General Jurisdiction on 4 October 2010 the applicants requested permission to join the criminal proceedings against E.S. as victims. C.Ö. ’ s mother, G ülten Önal , submitted that she had been aware of problems between E.S. and their son and that the former had ill-treated their son and beaten him. They alleged that their son had fallen into a depression because of E.S. and that therefore E.S. should be held responsible for their son ’ s death.

19 . On 21 October 2010 their request was granted.

20 . On 10 December 2010, upon an objection filed by the applicants, the Ağrı military court upheld the decision of non-prosecution. It relied on the investigation of the military public prosecutor, witness statements, the forensic handwriting examination reports, and the suicide note left by the deceased.

COMPLAINTS

21 . The applicants complained under Articles 2 and 6 of the Convention that the troop commander had repeatedly beaten and insulted their son and that he had persistently forced him to do jobs beyond his psychological capabilities. They called into question the domestic authorities ’ assumption that their son had had no psychological problems prior to his death. The applicants also submitted that the death of their son remained suspicious. They maintained that in any case the State Party should be held responsible for having failed to take preventive measures and comply with its supervisory duties in the context of compulsory military service.

22 . They submitted that the investigation carried out into the death of their son had been neither adequate nor effective in that the authorities had failed to take a number of crucial steps when examining the facts and that the investigatory authorities had excluded the possibility that military personnel might be responsible at least for negligence . The applicants also complained that they had not been able to participate in the investigation. In this connection, they claimed that their witnesses had not been summoned. The applicants also argued that the military courts should not have adjudicated on the death of a civilian.

23 . The applicants maintained under Article 13 that there was no real prospect of obtaining compensation, partly owing to the cause of death, as established by the investigatory authorities, partly owing to the procedural rules of the military administrative courts and their practice of not granting compensation following a decision of non-prosecution. They pointed out that it was the Supreme Military Administrative Court that would decide a compensation claim on appeal and not a civil court.

24 . The applicants complained of a violation of Article 3 in that their son had been subjected to torture and inhuman treatment simply because he had declared that he did not want to perform his service as a commando.

25 . They also claimed to be victims on account of the suffering and emotional distress they had endured following their son ’ s death.

26 . With reference to the same facts, the applicants further relied on Articles 5, 10, 14, 17 and Protocol No. 12.

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QUESTIONS TO THE PARTIES

1. In light of the Court ’ s judgment in the case 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 and, if any, the decisions given by the domestic courts in the criminal, disciplinary and/or administrative proceedings initiated against the troop commander concerned.

[1] . Which means: while fighting against terrorists in the mountain.