SECOND SECTION

Application no. 39870/11 Taner ATAY and others against Turkey lodged on 14 March 2011

STATEMENT OF FACTS

The applicants , Mr Taner Atay , Ms Cihan Atay and Mr G ürkan Atay, are Turkish nationals who were born in 1963, 1968 and 1991 respectively and live in Elazığ . They are the father, mother and brother of Güven Atay , who shot and killed himself with his infantry rifle on 27 December 2009 while performing his compulsory military service in Northern Cyprus . They are represented by S. Coşkun , a lawyer practising in Ankara .

The facts of the case, as submitted by the applicants and appearing from the case file, may be summarised as follows.

While performing his compulsory military service, Güven Atay (hereinafter referred to as “G.A.”) paid a visit to the Rehabilitation and Support Centre (“RSC”) on 18 November 2009. He talked with a non-commissioned officer about his problems.

The officer subsequently reported that G.A. had intentionally cut himself with a razor, that he was suffering from adaptation problems and that he had requested a change of place of duty.

After having seen the visit report, the troop commander called G.A. to his office and asked about his problems. By then, it had been three months since he had joined the troop. G.A. told him that his family was in trouble, that the girl he loved was getting married to someone else and that since he was away he could not do anything. He explained that for these reasons he had taken an impulsive decision, gone to the toilet and injured himself with a razor. He added that he had concealed this from others except for the officer at the RSC. In response to the question of how he was going to solve his problems, G.A. said that he needed leave and that he did not have any problem with his troop. As a result, he was granted leave of absence from duty between 5 and 21 December 2009.

On his return on 21 December 2009, the troop commander assigned him to the firing squad. In his witness statement given after the incident, the troop commander stated that he had taken this decision because the deceased had been good at firing and he had thought that he would feel better this way as a part of the team.

On 27 December 2009 the firing practice started by 9.30-10.30 a.m.

The soldiers were supposed to run 25 metres, take the shooting position lying flat on the ground, stand up and run another 25 metres, get into the shooting position once again, load the rifle and fire three times, in one and a half minutes in total.

By 10.25-11.30 a.m. G.A., after having run the second 25 metres, took the final shooting position, loaded the rifle but placed it under his chin pointing at his head and shot himself.

G.A., taken in an ambulance, died on the way to the hospital. The hospital later reported that G.A. was admitted at 2.45 p.m. but he had already passed away.

The military public prosecutor who had been notified of the incident by 11.30 a.m. came to the premises, together with the police of the “TRNC”, and started an inspection of the scene of the incident by 1.00 p.m.

By 2.20 p.m. the public prosecutor began to take witness statements. Eight persons were heard until 5.10 p.m. In their statements, G.A. ’ s friends and superiors from the troop described him as an introvert, reserved, not talkative person. Three of them, including the troop commander and the lieutenant in charge of training, stated that they knew about his problems.

The pertinent parts of the statement of the lieutenant read as follows:

“ ... G.A. told me that he did not manage to adapt to the military life and that he had avoided military service previously. (I subsequently heard that) he visited the RSC for his psychological problems; he said there that he had a girlfriend and that his parents were separated; hence, the troop commander gave him leave as from the 5 th of December so that he could solve his problems. He returned on the 21 st of December. I talked to him after that. He did not te ll anything about his problems ... ”

The troop commander gave the account of his meeting with G.A. summarised above and explained why he had assigned him to the firing squad. He had taken this decision because G.A. had been good at firing and he had thought that G.A. would feel better this way as a part of the team.

One of his friends stated that G.A. had told him that he had had family problems, without giving any detail in spite of his questions.

His allegedly closest friend in the troop submitted that although they had been close and known each other from their hometown, G.A. had not talked about his problems. He added that in the morning G.A. had wanted to hug him (as if to bid farewell) without giving any explanation.

The military public prosecutor went to the morgue of the State hospital for the identification and external examination of the corpse.

It was found out that in the notebook G.A. was carrying with him that day was written:

“Mum, I ’ ve missed death, while I desire to live foolishly, I do not have the strength to stand, I am exhausted.”

The external examination was carried out together by two expert surgeons. Among other things, a number of razor wounds, already healed or in the process of healing, were discovered on his chest. The cause of death was identified as cardiac and respiratory arrest resulting from brain damage induced by the contact shot under the chin. It was decided to send the corpse to the Gülhane Military School of Medicine (“GATA”) for an autopsy. The investigation was closed by 7.00 p.m.

On 28 December 2009 the autopsy was performed. The radius of the entrance wound was measured as 10 x 5 cm and the exit wound as 4.5 x 3 cm. The range was reported as close to a contact shot. The cause of death was determined to be brain damage due to a gunshot wound.

On 8 April 2010 the military public prosecutor gave a decision of non ‑ prosecution based on the forensic and ballistic evidence, witness statements and examination of the crime scene. He considered that G.A. had committed suicide and none of the personnel present at the firing practice could have intervened. He further considered that nobody could be blamed for having solicited, incited or assisted the suicide in question, nor could anybody be held responsible for negligence.

The applicants ’ representative filed an objection against this decision. They submitted that the troop commander had been aware of the deceased ’ s psychological problems but acted negligently. Accordingly, they called for further investigation into the circumstances surrounding the death.

On 8 October 2010 the objection was dismissed by the military court on the grounds that the court was fully convinced that G.A. had intentionally killed himself, that neither the commanders nor any other soldier in the troop had had any information or document which could have prevented the death and that the investigation conducted by the authorities had been adequate and effective.

COMPLAINTS

The applicants complain under Article 2 of the Convention that the authorities knew of the existence of a real and immediate risk to the life of their son and brother and failed to take measures which, judged reasonably, might have been expected to avoid it. They submit that the assignment of the deceased to the firing squad, instead of specialist referral, despite his acknowledged practice of self-harm, was a negligent and ignorant decision and in contravention of the relevant rules and regulations.

The applicants allege a violation of Article 6 in that, in light of the foregoing, the investigation should not have been discontinued. According to the applicants, the investigation could not be considered as adequate and effective since the decision taken by the troop commander and his resulting liability in the death of their son and brother was by no means dealt with.

QUESTIONS TO THE PARTIES

1. Regard being had to the questions listed below, has the applicants ’ son and brother ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case?

(a) Did G.A. go through a medical examination and/or psychological assessment in the recruitment process? If so, the Government are requested to submit information about the nature, manner and extent of the examinations carried out and to submit all the medical records kept in relation to G.A.

(b) Are there effective procedures in place, through which the psychological health of those who are serving their military service is monitored?

(c) Was G.A. referred to a specialist (a counsellor, a psychologist or a psychiatrist) at the RSC? Did the officer he consulted at the RSC have any training in the field?

(d) On his return from the leave granted by the troop commander, was G.A. ’ s psychological condition examined? If so, how? If not, why?

(e) Could it be considered in the circumstances of the present case that the decisions taken by the authorities, namely the grant of a leave of absence and assignment to the firing squad, were adequate?

(f) 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 suicide of the applicants ’ son and brother?

(g) In which circumstances and on what basis could military personnel incur liability for negligence and/or breach of supervisory duties in the context of compulsory military service?

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?

The State Party is kindly invited to submit the entire investigation file.