SECOND SECTION

Application no. 26470/10 Barika GÜZELAYDIN and M. Şi rin GÜ ZELAYDIN against Turkey lodged on 26 April 2010

STATEMENT OF FACTS

1. The applicants, Ms Barika Güzelaydın and Mr M. Şirin Güzelaydın , are Turkish nationals, who were born in 1961 and 1958 respectively and live in Ağrı . They are represented before the Court by Mr C. Demir and Mr K. Türkmen , lawyers practising in Van. Their son, Burhan Güzelaydın (hereinafter referred to as “B.G.”), died on 30 January 2009 while performing his military service in Hakkari .

2. The facts of the case, as submitted by the applicants and according to the case file, may be summarised as follows.

3. On the day of the incident, 30 January 2009, two conscripts asked for the dormitory of the border gendarmerie command in Çobanpınar to be unlocked in order to fetch their parkas. They found B.G. at around 4.30 p.m. lying face-down on the dormitory floor, covered in blood with a rifle nearby. The commissioned officers and medical personnel were notified of the situation. The lieutenant doctor intervened: he turned B.G. on his back, and checked for a pulse and breathing. When a catheter was inserted in his vein, B.G. tried to move his hands and feet. He was unconscious and his blood pressure was recorded as 100/60 mm Hg. As he had no pulse, had stopped breathing and his heart had stopped beating, the doctor attempted cardiopulmonary resuscitation (“CPR”), performing chest compressions. B.G. was then intubated in order to allow artificial respiration. The resuscitation attempts lasted almost forty-five to fifty minutes, during which time drugs, such as adrenaline or atropine, were administered.

4. At 5.40 p.m. B.G. was transferred by helicopter to Yüksekova State Hospital .

5. B.G. died the same day.

6. Following an external examination, the deceased ’ s body was sent to the Hakkari public prosecutor.

7. At 9.30 a.m. on 31 January 2009 an autopsy was carried out. Several incisions were detected on the skin of the deceased. The autopsy report concluded:

“ ...

(1) ... the gunshot wound, by itself, was not fatal;

(2) From the findings about the entry wound and skin tissue, it was a contact shot; in order to ascertain the shooting range accurately, the deceased ’ s clothes should have been dried without washing and sent to the criminal investigation laboratory;

(3) No bullet was removed from the corpse;

(4) The cause of death was mechanical asphyxia due to obstruction of the respiratory tract, resulting from pulmonary aspiration of the stomach ’ s contents;

(5) Regard being had to the time of the death, the morphological changes in the corpse, depending on different factors that vary from person to person, the place where the corpse was found, the weather conditions and the findings of the autopsy, it can be considered that the death occurred approximately twelve to twenty-four hours before the start of the autopsy at 9.30 a.m. on 31 January 2009, although this is not possible to ascertain definitely.”

8. At 5 p.m. on 31 January 2009, pursuant to the order of the public prosecutor on duty, a sergeant conducted an inspection of the incident scene. He observed that the dormitory had one entry door and one exit door; that the latter was closed and not in use; that there was an emergency exit to evacuate the dormitory in the event of an attack and that that emergency exit had no locking system. He further noted that there was no sign of forced entry, either on the main entrance door, or on the locked exit door that was not in use.

9. On the same day, B.G. ’ s father, the first applicant, assisted by his lawyer, gave a statement before the Hakkari public prosecutor. According to this statement, prior to his death B.G. had said that he had been having problems with one of his superiors for the past four or five months. Once, on their return from a military operation, he had not returned with the troop, but had stayed outside that night and returned the following day; nevertheless, he had been considered to have deserted and his trial had been ongoing. B.G. had also said that during another military operation he had had a fight with his commander: the latter had slapped him and then B.G. had slapped the commander, and thereafter they had been having problems. The applicant further submitted before the Hakkari public prosecutor that he had been informed approximately two months previously that his son had been admitted to the Van Military Hospital because he had been beaten up.

10. Pursuant to the recommendation of the Department of Forensic Medicine of Van University, the public prosecutor referred the case file to the Forensic Medicine Institute, seeking an expert opinion on the exact cause of death.

11. The First Specialist Committee of the Forensic Medicine Institute issued its expert opinion on 30 September 2009. It concluded:

“ (1) Although no major blood vessel damage was detected in the autopsy, given that that the witness statement of the troop doctor suggested that there had been two or two and a half litres of blood at the incident scene and that B.G. had been in a state of shock, the death was caused by an external haemorrhage resulting from damage to small and medium-sized blood vessels from the gunshot wound.

(2) Regard being had to the location of the fractures described in the autopsy, at the level of the front left armpit ( axillary ), it was likely that the ribs had been broken during CPR. It was not possible to ascertain, on the basis of the existing data, whether the deceased had had any trauma prior to CPR.

(3) In performing resuscitation, it is possible that ribs ... break. The time at which the ribs were broken could have been determined through a histopathological examination of the samples that should have been taken from the broken bones and surrounding soft tissue during the autopsy. In the initial period it is possible to make a distinction between 0-4 hours and 3 days through a histopathological examination of bones and between 0-4 hours and 90 hours through a histopathological examination of ecchymoses in the soft tissue.

(4) The stomach contents found in the respiratory tract might have been caused during resuscitation or when the deceased was in acute pain.

(5) Considering the location of the entry wound, the shooting range and the gun used, we are of the opinion that the death might have been caused by the deceased shooting himself or a gunshot fired by someone else, and that it is not possible to distinguish between the two.”

12. On 5 February 2009 a commission appointed by the Yüksekova public prosecutor carried out an inspection of the scene of the incident. The incident scene had been cleaned and there was no evidence to be collected. The commission was informed about the general organisation of the building. It was submitted that although the dormitory was kept locked, the emergency exit was always open. The commission observed that a soldier could easily get out of the dormitory through that emergency exit. It further noted the fact that the deceased ’ s bunk had been close to the bunk of the conscript whose firearm had been used in the incident. The commission also heard a number of witnesses.

13. On 7 February 2009 statements from the witnesses were taken by the public prosecutor. The deceased was generally described as an unpredictable, volatile and obstinate person with family and psychological problems. According to the witness statements, he was having a nervous breakdown. His superiors had been lenient with him: no important duties had been assigned to him; he had not been given a firearm; instead, he had been put in charge of the mess hall. A couple of days earlier, he had fled from the station to a nearby village, but had been brought back after having surrendered in the village. Once, he had smashed the mirrors in the toilets. He had thrown a hand grenade just because he had been missing his wife. He had been intentionally harming himself, burning his arms with cigarettes. From time to time, he had been talking to himself, questioning what he was doing there. New conscripts had shied away from him. His family had not been calling him; his parents had not been taking care of his wife and his children had died. On the day of the incident, as he was leaving the mess hall, he had bid farewell to a friend of his. His aim had been to obtain home leave. He had not told anybody in the troop about the alleged ill-treatment by his superiors.

14. The lieutenant doctor whom the deceased had consulted at the counselling and guidance centre stated:

“ ... he was sent to me on 5 November 2008 ... He told me that he had been harming himself with razors and cigarettes; he even showed me some scars, saying ‘ my body is covered now, it is time for me to cut my throat with a razor ’ . I deduced from this conversation that he had serious psychopathological problems and told him to come again the next day ... The following day we had another session and talked about the same matters. The major problems preoccupying him were his brother ’ s suicide, the death of his two children, his wife ’ s sickness and his drug use. All the details were recorded in the consultation form. After I had referred him to the lieutenant doctor, S.E.C., the latter called me. We had another meeting all together and tried to help him as far as we could. Subsequently, our doctor referred him to the psychiatry department of Van Military Hospital.”

15. The relevant parts of S.E.C. ’ s witness statement read as follows:

“ ... unless I am mistaken, he came to the infirmary four or five times: once for the cigarette burns on his hands, the other times for his psychological problems. He had problems. I noticed that he had a number of burns on his hands and lower arms ... each time he came, I tried to reinvigorate him; it was rather like a therapy session ... I had sessions with him for a while and then we had sessions together with the lieutenant counsellor. As far as I understood, he was having family-related problems. He said that his brother had committed suicide in front of him, which had had a serious impact; that he had been addicted to and was using a variety of narcotics. Aside from that, he told me that one of his children had died at birth and another had died seven days after birth. He said that he and his wife had been having problems with their families. He also declared that once before his recruitment, and once while doing his military service at the Çobanpınar station, he had attempted suicide. At the station he had tried to kill himself with a hand grenade. As a doctor, I can tell three things in relation to this patient ’ s personality: he was suffering from anxiety, antisocial personality disorder, and severe depression. On the patient ’ s first visit, I made a physical examination and noticed scars where he had cut his chest and arms. I asked him why he had been doing that. He replied that, after all he had gone through, it was normal and that if he had not done so he would have harmed other people; he had been unable to calm down. On another occasion ... he had had a fight with another conscript and came to me in a state of nervous breakdown. I talked to him and calmed him down, and during his stay here he did not indulge in self-harm ... On the day of the incident we took the helicopter together with ... and went to the scene. But it was foggy, we had bad weather, we took forty minutes to travel the ten-minute distance, as the station could not be found. We managed to land only after a flare had been fired from the station ... the patient was taken to the helicopter ... he had no pulse and his limbs were cold. I immediately started heart massage ... it was very difficult to do it owing to the bad weather ... we continued the heart massage on a rotating basis without a break until we reached the Yüksekova State Hospital. When we started the compressions, we vaguely perceived one or two broken bones. Subsequently, when we were in the ambulance, I could clearly feel the broken bones ... during the heart massage at the hospital I saw that the fractures were really evident and the left side of his chest had hollowed ... furthermore, at the hospital the patient was subjected to aspiration; nothing came out, which means that the tract was clean and open ... ”

16. According to the account given by one of B.G. ’ s superiors, approximately a month earlier he had requested home leave in order to take his wife to the doctor. However, he had no leave entitlement at that time and, accordingly, was not granted any leave. His superior recommended that he should be patient.

17. On 9 February 2009 the Van Military Court ruled that, by virtue of Article 153 of the Code of Criminal Procedure, access to the case file would be restricted on the grounds that the content of the investigation file had been disclosed in the press and that it contained sensitive information on first-degree prohibited military zones located on the border, and the names and addresses of the personnel stationed there. The court further pointed out that even the autopsy carried out by the Hakkari public prosecutor had triggered a public outcry in the region and that the collection of evidence and the investigation were still ongoing. The parties were prevented from examining the investigation file and making copies of it.

18. In a petition dated 20 February 2009 which the applicants filed with the Van military prosecutor, they alleged that the deceased had been subjected to torture and ill-treatment prior to his death. They relied on the findings obtained from the post-mortem examination. They also requested that the ruling on confidentiality be revoked and those involved detained.

19. On 16 March 2009 the deceased ’ s sister, brother and close friend gave statements at the police station. According to their statements, the deceased had told them that he had been assigned the most difficult tasks and had been having problems with his superiors; that he had been tortured, beaten and kept starving by a non-commissioned officer and a lieutenant; that he had been excluded on account of his ethnic origins and beaten up for having spoken Kurdish with a friend. B.G. had told his brother that if his brother had lodged a complaint, his military service would never end and that he had not had the strength to stand up.

20. On 31 December 2009 the Van military prosecutor issued a decision not to prosecute. Referring to the reports of the medical examination and autopsy, as well as to the expert evidence, he noted that B.G. ’ s gunshot wound alone had not been lethal; that it had been a contact shot; that his broken ribs and haematoma had resulted from a trauma caused by another person; that the likelihood that his ribs had been broken during CPR was minimal; and that the cause of death was mechanical asphyxia caused by the aspiration of the stomach contents associated with vomiting. The military prosecutor also relied on the report issued by the commission appointed to inspect the incident scene, according to which the rifle had been found near the fifty-first and fifty-second bunks, in one-shot mode, without a cartridge and with no bullet in the barrel; one spent bullet case had been recovered seven metres to the left; a trail of blood stretching eleven metres towards the entry of the dormitory had been detected; and there had been a bullet hole in the wall on the side of the emergency exit of the dormitory. He further took into consideration the ballistic examination, which established that the spent bullet case had been fired from the rifle found at the incident scene and that it had been a contact shot to the right shoulder, which had left gunpowder residue on the deceased ’ s clothes. He also took note of the fact that blood and urine tests on the deceased revealed ethanol in his blood.

21. The relevant parts of the decision read as follows:

“ ... since at the material time, the personnel, except for those on duty and on guard, were in the mess hall, there are no eyewitnesses; the dormitory was locked and its key was with the person responsible; the deceased was last seen prior to the preparation for eating; he either entered the dormitory through the emergency exit or had never left the dormitory to go to the mess hall; owing to the distance from the dormitory to the troop building, its location, the snowstorm and the functioning generator, nobody heard the gunshot; the deceased had not been involved in any dispute which could have caused enmity or a grudge ...

The examination of the deceased ’ s file, medical records and records concerning the psychiatric treatment he received shows that the deceased went to the troop doctor several times with headaches, anxiety ... depression; and several times with razor scars and burn marks. He was referred to the psychiatric service of the infirmary for those reasons. Following his interview with the psy chologist at the infirmary on 5 November 2008, the latter noted: ‘ .. he has been harming himself when he gets angry since his childhood. At the age of seventeen he had a nervous breakdown; he fainted foaming from the mouth ... his brother committed suicide. One year later his son died at birth. When he started his military service, his wife had been pregnant. The second baby died at three days old. His wife is severely ill. He has suicidal tendencies. He has razor scars on his chest and body; he suffers from insomnia, lack of appetite, weakness, and pins and needles. He is using narcotic drugs. ’ On 6 November 2008 he was referred to Van Military Hospital psychiatry department. On 10 November 2008 he was diagnosed with anxiety and antisocial personality disorder; ten days ’ leave, unarmed passive service and continuation of the treatment were recommended ... the deceased ’ s self-harming and suicidal tendencies were noted in the troop doctor ’ s observations; he had been suffering from adaptation problems ...

Contrary to the allegations, the fractures would have occurred as a result of the cardiac massage performed during the resuscitation procedure, which lasted one and a half hours; neither the post-mortem examination, nor the expert and witness evidence indicated any wound, other than the gunshot wound, or any bruising that might have resulted from beatings ...

There is no evidence or indication suggesting any fault or negligence that might be attributed to any other person but the deceased in relation to his death.

It is understood that prior to the incident, the deceased was harming himself and receiving treatment for his family-related and psychological problems. His mental health was not good; he had been placed on restricted duties; he had not been given a firearm. On the day of the incident, as a result of a sudden bout of depression due to his psychological, personal or other problems, when the others were in the mess hall, he stayed in the dormitory. He took a rifle that had been hung on a bunk in accordance with the rules and shot himself in the right shoulder, probably with the intention of inflicting injury on himself to get home leave. Despite all the efforts at the scene of the incident, in the helicopter and in the Yüksekova State Hospital , he died of external bleeding as a result of damage to blood vessels from the gunshot wound.

Consequently, except for the deceased, nobody was involved in the incident, either intentionally or through negligence ... ”

22. The applicants filed an objection against the decision not to prosecute, referring to the conclusions of the report of the Forensic Medicine Institute. In particular, they pointed out that the time at which B.G. ’ s ribs had been broken could not be determined with certainty, since the authorities had failed to gather samples in time. They further complained about the ruling on the confidentiality of the case file made at the beginning of the investigation. They also submitted that B.G. had been threatened by his superiors for the past five or six months and that he had informed them about his concerns that he was in a life-threatening situation. They claimed that B.G. had had no psychological problems.

23. On 15 March 2010 the Military Court dismissed the objection on the following grounds: according to the expert report, it was possible that the fractures could have occurred during CPR. According to the testimony of the doctors who had provided the initial care and treatment at Yüksekova State Hospital, there was no bruising or evidence of beatings or use of force on the deceased ’ s body, and the location of the broken bones matched that of the chest compressions. According to the testimony of the lieutenant doctor who made the initial intervention, chest compressions had been performed for forty-five to fifty minutes, notwithstanding the fact that a cavity had been discerned in the deceased ’ s chest, since that was a generally accepted risk in the context of cardiac massage. According to all the witness statements of the deceased ’ s fellow conscripts, B.G. had not been subjected to ill-treatment but had had family-related and psychological problems. According to the statements of the lieutenant troop doctors, the deceased had been diagnosed with antisocial personality disorder and had received psychological assistance several times. According to the deceased ’ s medical record at the Van Military Hospital dated 10 November 2008, he had been suffering from anxiety and antisocial personality disorder. The detachment survey showed that B.G. had been self-harming and had had suicidal tendencies as well as family problems.

COMPLAINTS

The applicants complain of violations of Articles 6 and 13 of the Convention. They allege that B.G. had no reason to commit suicide and that death threats had been made against him by his superiors. They submit that their son had told them several times prior to his death that he had been subjected to pressure from his superiors and that his life had been at risk. According to the applicants, their son was ill-treated and then killed, and the findings of the autopsy give rise to serious doubts regarding the official account provided by the authorities. The applicants argue that the authorities failed to carry out an effective investigation into the circumstances surrounding their son ’ s death . Relying on the principle of equality of arms, they also call into question the ruling made under Article 153 of the Criminal Procedure Code on the confidentiality of the case file.

QUESTIONS TO THE PARTIES

1. Regard being had to the questions listed below, has the applicant s ’ son ’ s r ight to life, ensured by Article 2 of the Convention, been violated in the present case? Could it be considered in the circumstances of the present case that the authorities did all that could reasonably have been expected of them to prevent the death of the applicants ’ son?

(a) Did B.G. go through a medical examination and/or psychological assessment in the recruitment process?

(b) Did B.G. attempt to commit a suicide while performing his military service? If so, in view of Article 41 of the Regulation governing the medical examinations of conscripts (“TSK Sağlık Yeteneği Yönetmeliği ”), how was that suicide attempt taken into account in the subsequent decisions taken in respect of the deceased?

(c) Did the counsellor and the troop doctor to whom B.G. was referred have any training in psychology or psychiatry?

(d) Are there effective procedures in place, through which the psychological health of those who are serving their military service is monitored? In particular, after B.G. had displayed psychopathological behaviour;

ba ) Did B.G. receive any medical treatment while performing his military service? What kind of treatment did he receive after the diagnosis at the Van Military Hospital on 10 November 2008?

bb) Was his aptitude for military service reconsidered or checked? If yes, when, where and how? If no, why?

bc ) Were the applicants ’ relatives informed of his condition?

bd ) Was there any negligence attributable to the military health personnel involved in the incident in light of the Court ’ s judgment in Kılınç and Others v. Turkey (no. 40145/98, § 42 , 7 June 2005 )?

(e) Regard being had to the requirements of Article 2, could it be considered that the decisions taken by the authorities, for example, not to give a firearm to B.G., were adequate and sufficient? In view of the deceased ’ s known condition, was there any specific reason for which the deceased was stationed in a border gendarmerie station and kept there, where tension was high, conditions were tough and extraordinary measures were in place?

The Government are requested to submit information about the nature, manner and extent of the examinations carried out in respect of B.G. and to submit all the relevant medical records, in particular, those kept at the Van Military Hospital where he had been referred to prior to his death.

2. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

(a) In particular, could it be held that the family was able to participate effectively in, and to be informed of the progress of, the military prosecutor ’ s investigation?

(b) Has there been any failure in the collection of the evidence, in particular, the samples required for the determination of the exact time of trauma and shooting range and/or the fingerprints on the trigger of the rifle?

(c) Did the expert opinion issued by the Forensic Medicine Institute duly deal with the findings of the autopsy report? Could it be held that the inconsistencies in their conclusions were resolved in the end?

(d) Could it be held that the domestic authorities duly investigated the circumstances surrounding B.G. ’ s death, including whether the military personnel involved had been negligent in th e supervision of the deceased?