SECOND SECTION

Application no. 51181/10 Refik GÃœZÃœPEK against Turkey lodged on 9 July 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Refik Güzüpek , is a Turkish national who was born in 1934 and lives in Van. He is the father of İsa Güzüpek (hereinafter, İ.G.), He was represented before the Court by Mr C. Demir , a lawyer practising in Van.

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

A. Criminal investigation into the death of the applicant ’ s relative

In the early hours of 3 January 2003 the applicant ’ s son İ.G. was shot by an unidentified infantry soldier in the right hip near Kapıköy Village of Saray District in Van. He and six other persons were carrying fuel which had been smuggled from Iran on horseback.

According to a document, at around 5.00 a.m. on 3 January 2003 a group of persons illegally crossing the borde r close to the border-stone no. 285 was observed by soldiers through a thermal camera. In an incident scene report bearing the time of 7.30 a.m., a medical third-lieutenant declared that the victim had died of bleeding resulting from a gunshot. He required an autopsy to determine the exact cause of death. At the scene, eight G.3 rifle bullet cartridges and the empty container of a signal light were found. A sketch map was also drawn which shows the tracks of blood stains going towards the point where İ.G . ’ s body was found.

On 3 January 2003 the Saray public prosecutor conducted an on-site examination at which the other six persons, who had been with the victim at the time of the shooting, were heard as witnesses. Five of them stated that firing had come from the direction of two ruined buildings and nearby stones. According to their respective submissions, İ.G. had been 17 metres behind or up to 23 metres in front of them. The sixth witness stated that he had been 70 metres behind the others and heard gunshots following the firing of the signal light to illuminate the area. The position of the body was described in the report as follows: on a village road 500 met re s from the main road to Kapıköy Customs and 800 metres from a train station, customs building and housing facilities, just in fro nt of two ruined houses and six kilometres away from the Turkey-Iran border.

On the same day as the incident an autopsy was carried out by two doctors. After having examined the body, the doctors established that a bullet had entered the right hip of the victim and exited through the right calf fifteen centimetres above the knee. They declared that the victim had died of loss of blood as the bullet had severed the main blood vessel.

The soldiers involved in the incident and the civilians who had been smuggling fuel were heard both at a nearby gendarmerie station and by the Saray Public Prosecutor. However, the exact time of the taking of statements is not clear from the case file.

The infantry soldiers stated in general that at around 4.30 a.m. they had encountered a group of people and their horses illegally crossing the border. Their commander had shouted a warning and then one or two warning shots had been fired into the air but the members of the group had started fleeing. The soldiers added that, upon the commander ’ s order, three or four of them had fired towards the horses, not at the people, to stop the group and that they had subsequently chased and caught five of the people one kilometre away. The soldiers further mentioned that they had seen blood stains on the ground and found İ.G. dead a hundred and fifty metres behind the group.

The civilians said in the gendarmerie station that they had been caught by the gendarmerie while smuggling fuel from Iran at around 2.30 a.m. Before the public prosecutor, they claimed that they had been shot at from inside and behind the ruined buildings just after the firing of a signal light and without any prior warning. They stated that Ä°.G. had fallen to the ground following the firing. They further said that all of them had been walking and not been on horseback. A witness mentioned that the incident had taken place at around 3.30 or 4.00 a.m.

On 3 January 2003 the applicant made an official complaint against the soldiers. He claimed that the shooting had taken place around 3.30 to 4.30 a.m. and without any warning having been made first. The applicant also alleged that it was not a forbidden zone and that no information had been given to the family about the autopsy.

On 8 January 2003 the Saray Public Prosecutor visited the incident scene again. Two soldiers from the intervening infantry team, a corporal and a private, said that they and seven other soldiers had been waiting behind rocks and that the people, who had been coming up from a river bed, had reached the road at a point some 130 metres away from the rocks. The soldiers added that they had fired as the people on horseback had begun running away after the warning to stop. They further mentioned that they had found the body of Ä°.G. in front of the two ruined houses by following the blood stains on the ground. An expert witness stated that the river bed was 450 metres away from the border line and the distance between the point where the body had been found and the river bed was 3.520 metres.

On 21 October 2003 the Van Military Public Prosecutor filed an indictment with the Van Military Court of Gendarmerie against an infantry soldier and three ex-soldiers. Although the prosecutor stated that the soldiers had acted within their powers, the prosecutor eventually charged them with the offence of homicide by an unidentified perpetrator.

On 9 December 2003 the Military Court declined jurisdiction in favour of the civil courts, as three of the offenders had already completed their military service and no military offence was at issue.

On 19 October 2005 the Van Assize Court decided that there were no grounds to sentence the accused as they had acted within their powers to use weapons as laid down by Article 11 of the Law on the Duties and Powers of the Gendarmerie (no. 2803) , Article 39 of the By-Law on the Duties and Powers of the Gendarmerie and Article 18 of the Law on the Fight against Smuggling (no. 4926). The Assize Court concluded that the victim had been killed in the circumstances laid down in Articles 24 and 25 of the Turkish Penal Code. Article 24 governs the enforcement of the law or an order of a superior and the latter is about the case of necessity ( zorunluluk hali ).

The court had regard to the statements of the accused and witnesses and to the contents of the case file. It accordingly drew the following conclusions; the soldiers had not fired just from 30-40 metres as claimed by three witnesses; the incident had happened in a customs area at night and the range of vision had been short; the victim had been shot at a non life-threatening point, namely above the right hip; and the victim and others had been smuggling fuel.

On 9 December 2005 the applicant lodged an appeal. He maintained that the incident had taken place at around 3.00 a.m. in a residential area and that two official documents had been manipulated by the gendarmerie soldiers so that the time of the incident would read 5.00 a.m. instead of 3.00 a.m. The applicant argued that there was no evidence indicating that h is son İ.G. had attempted to run away, as the blood stains had been found only around the place of his son ’ s body. Finally, the applicant claimed that his son had died since the soldiers had not taken him to hospital but had made him stay at the place of incident for hours.

On 28 November 2007 the Court of Cassation upheld the judgment but replaced the conclusion of “there were no grounds to sentence the accused” with that of “the acquittal of the accused”. There is no information in the case file to show the date when the high court ’ s decision was deposited with the registry of the Van Assize Court .

B. Compensation proceedings before the administrative courts

On 2 July 2003 the applicant also brought compensation proceedings against the Ministry of Defence before the Van Administrative Court . He relied on the responsibility of the administration for the fault of the public officers. The applicant stated that his son had not been taken to hospital and had died of loss of blood.

In its reply of 19 November 2003, the Ministry rejected the claims, arguing that no fault of service had been established in the death of Ä°.G. . The Ministry also argued that the starting poi nt of the incident had been 550 metres inside the border, which had been a military forbidden zone of first degree, and that the victim had been at gross fault as he had tried to run away in spite of the warning to stop.

On 20 September 2004 the Van Administrative Court dismissed the applicant ’ s compensation claims, noting that there had not been any fault of service. The Administrative Court further stated that, according to the incident report drawn up at around 5.30 a.m., the incident had taken place at around 4.50 a.m. and that the applicant ’ s son had already been dead.

On 24 December 2004 the applicant lodged an appeal. He contended that, as stated in the on-site examination report of the public prosecutor, the place of the incident was five kilometres away from the border, thus, in a residential area. The applicant further maintained that the Administrative Court had delivered its decision without having examined the case file of the criminal proceedings then still pending before the Van Assize Court . The applicant also repeated his arguments to the end that the soldiers had been at fault in having killed his son and that they had not taken him to hospital.

On 19 March 2008 the Supreme Administrative Court upheld the judgment and dismissed the applicant ’ s request for rectification on 23 October 2009. According to a hand-written note on the top right corner of the latter decision, the final decision was served on the applicant on 25 March 2010.

COMPLAINTS

Without relying on any Article the applicant complains that the killing of his son was unlawful. He argues that his son died of loss of blood because he was left at the scene of the incident for hours. The applicant also argues that the gendarmerie manipulated the time of the incident on two documents to hide this fact.

Relying on Article 6 of the Convention, the applicant contends that the criminal and administrative proceedings were not fair. He adds that the administration should have been liable to pay compensation without any causal connection being established. The applicant also complains under this provision that the judicial decisions were not adequately reasoned.

Lastly, without arguing how and why, the applicant alleges breaches of Articles 5 and 14 of the Convention, as well as Article 3 of Protocol No. 7.

QUESTIONS TO THE PARTIES

1. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention (see Alkın v. Turkey , no. 75588/01 , § 31 ‑ 33, 13 October 2009; and, a contrario , Hüsna Kara and Others v. Turkey , no. 37446/97, ( dec .) 3 December 2002)?

2. Has the applicant ’ s son ’ s right to life, guaranteed by Article 2 of the Convention, been violated in the pr esen t case? In particular, was it absolutely necessary, for the purposes of Article 2 § 2, to resort to the use of force which killed the applicant ’ s son?

In this connection did the national courts, which concluded that the infantry soldiers ’ actions had been in compliance with Article 11 of the Law on the Duties and Powers of the Gendarmerie (no. 2803), Article 39 of the By-Law on the Duties and Powers of the Gendarmerie and Article 18 of the Law on the Fight against Smuggling (no. 4926) , make an assessment as to whether the resort to the use of firearms by those soldiers had been absolutely necessary and strictly proportionate to the achievement of the aims set out in Article 2 § 2 of the Convention?

Also in this connection, were all steps taken to take the applicant ’ s son to hospital within the shortest time possible?

3. 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 pr esen t case by the domestic authorities in breach of Article 2 of the Convention?

In this regard what steps were taken to determine the exact time of the death of the applicant ’ s son?

The Government are requested to submit documentary evidence in support of their answers to the questions above and a full copy of all documents in the investigation file.