SECOND SECTION

Application no. 33614/10 Salih ACAR and others against Turkey lodged on 4 May 2010

STATEMENT OF FACTS

The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Ms Türkan Aslan Oğaç , a lawyer practising in Izmir .

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

At the time of the events, the applicants resided in the Çalpınar village, attached to the district of Midyat in the Mardin province of south-east Turkey .

On 20 April 1992, at around 6.30 a.m., a group of villagers, including the first and second applicants and the third applicant ’ s father, Mr Ahmet Acat [1] , set out from the Çalpınar Village for Midyat by a minibus and a truck. On their way, a group of armed persons, wearing military uniforms, stopped the vehicles. They forced the villagers to get out, lined them up near the road and opened fired on them. During the incident, the first applicant was shot in his chest and the second applicant, who was four years old at the time, was shot in her arm. The third applicant ’ s father was also injured by gunshots. According to the information in the case file, in total six villagers died and nine were wounded by gunshots fired from close range.

After the incident, an on-site inspection was carried out by the Midyat Public Prosecutor and the local gendarme officers. The injured persons informed the Public Prosecutor that they had been shot by village guards.

The prosecutor asked the gendarme soldiers who were in the area to collect the spent bullet cases. When the soldiers refused to help him, the prosecutor himself collected and secured a total 66 spent cartridges discharged from the village guards ’ rifles. The rifles had been given to the village guards by the gendarmerie. As the soldiers also refused to take the injured persons to the hospital, the prosecutor ’ s clerk had to do it himself. The prosecutor expressed the opinion that the village guards had set up an ambush to kill the villagers. However, the incident report, prepared by the gendarme officers, stated that a group of terrorists, wearing military uniforms, had stopped a minibus and a truck near the Kuyubaşı village and killed six villagers and wounded nine others.

During the investigation, several statements were taken from the villagers who had been wounded, and from the local officers who had conducted the on-site inspection. On 3 June 1992, the first applicant gave a statement to the Midyat Public Prosecutor and maintained that Mr E. and Mr C., two village guards from the village of Kutlubey , were amongst the group that had attacked them.

In a ballistic report issued by the Diyarbakır Provincial Criminal Police Laboratory on 23 June 1992, it was recorded that sixty-six cartridges of 7.62 x 39mm calibre had been submitted for examination. In carrying out the ballistic examination, the laboratory fired the weapons belonging to the village guards from Kutlubey and compared the empty cartridges with those found at the site of the incident. The report found that twelve of the examined cartridges had been fired from T.S. ’ s weapon, twelve from N.A. ’ s weapon, nine from S.S. ’ s weapon, six from H.A. ’ s weapon, six from R.K. ’ s weapon, six from M.Ö. ’ s weapon, five from E.S. ’ s weapon, four from T.A. ’ s weapon, two from A.T. ’ s weapon and finally one from M.S. ’ s weapon. The report further stated that three cartridges bore no resemblance to the cartridges examined by the laboratory. Following the examination the weapons were deposited in safe storage at the Nusaybin Gendermarie Command.

On 30 June 1992 the judge at the Midyat Assize Court took statements from the ten village guards, whose names were mentioned in the ballistic report, and ordered their detention on remand.

On 8 July 1992 the Midyat public prosecutor filed a bill of indictment with the Midyat Assize Court against the twenty-seven village guards of Kutlubey .

On 9 February 1993, upon the requests of the Midyat Public Prosecutor, the Governor and the director of the Midyat prison, the Midyat Assize Court decided to transfer the case to Denizli Assize Court in order to maintain public security in the area. It held that it was necessary to transfer the case due to the hostility that the parties had shown to each other, the difficulty that they had in travelling to the court house and the tension created in Midyat on the day of the hearings.

On 20 November 2000 the Denizli Assize Court decided to acquit the village guards. The court drew the following conclusions from the evidence:

“ ... In the ballistic report by the Forensic Medicine dated 28 October 1993, it was stated that 66 cartridges had been found at the scene of the crime, 63 of which had been fired from weapons belonging to the accused village guards. However, that evidence in itself is not sufficient to convict the village guards. It is still not known from whose weapon the remaining cartridges were fired. In their submissions the accused village guards stated that the empty cartridges found at the scene of the crime had been placed there by their enemies in order to implicate them in the crime. In fact, on 21 March 1992 the village guards and the security forces had opened fire in order to stop a march that was being carried out by members of the terrorist organisation. Furthermore, in a clash between the security forces and members of the illegal organisation on 13 April 1992 the security forces, as well as the village guards, had opened fire on the PKK members. In a report dated 13 April 1992, it was stated that 447 bullets had been fired and 215 empty cartridges had been recovered from the scene of the crime. It therefore appears that 232 empty cartridges were not found. It is highly probable that empty cartridges from the incident of 20 April 1992 were placed at the scene of the crime before or after the villagers were killed by unknown persons.”

On 9 February 2001 the applicants lodged an appeal with the Court of Cassation against the decision of the Denizli Assize Court .

On 7 February 2002 the Court of Cassation upheld the decision of the first-instance court in respect of seventeen of the accused village guards. Moreover, in the light of the findings in the ballistics reports dated 23 June 1992 and the statements of the Midyat Public Prosecutor, the Court of Cassation quashed the decision of the first-instance court in respect of ten of the accused.

The criminal proceedings were reopened before the Denizli Assize Court against ten of the accused village guards.

On 25 May 2003 Denizli Assize Court convicted the accused village guards as charged and sentenced them to life imprisonment. The summary of the court ’ s decision is as follows:

“ ... the court comes to the conclusion that the allegation concerning the placing of empty cartridges at the scene of the incident, in order to implicate the village guards in the crime, is not corroborated in any persuasive manner by eyewitnesses or other evidence.

Moreover the fact that three of the sixty-six cartridges were not fired from the village guards ’ weapons cannot be taken as a proof of their innocence. It is possible that one of the village guards had a weapon that had not been seized by the authorities after the incident.

In conclusion, relying on the findings of the ballistic report and the statements of the Midyat Public Prosecutor who had an impartial position in the present case, the court decides that ten of the accused village guards are responsible for the wounding and killing of the villagers whom they considered to be PKK supporters.”

The village guards filed an appeal against the judgment of the first-instance court.

On 9 December 2004 the Court of Cassation quashed the decision of the first instance court in respect of two of the village guards for procedural reasons and upheld it as regards eight of them.

The case was accordingly remitted before the Denizli Assize Court in respect of the two accused village guards. After a re-examination of the case file, on 18 September 2008 the first-instance court once again sentenced the two accused village guards to life imprisonment.

On 7 December 2009 this judgment was upheld by the Court of Cassation.

COMPLAINTS

1. The first and second applicants alleged that their right to life had been violated in that the village guards had deliberately shot them in an attempt to kill them. Based on the same facts, the third applicant further maintained that his father ’ s right to life had been breached due to the deliberate shooting. Finally, the fourth applicant, who is the wife of the first applicant, complained about the emotional distress that she had had to endure as a result of her husband ’ s wounding. Furthermore, all of the applicants stated that the national authorities had failed to comply with their positive obligations to carry out an adequate and effective investigation into the incident. In respect of their allegations, the applicants relied on Articles 2, 6, and 13 of the Convention.

2. Under Article 8 of the Convention the applicants complained that they had been forced by security forces to become village guards and when they refused, they had been forced to leave their village.

QUESTIONS TO THE PARTIES

1. Has the right to life of Mr Salih Acar , Ms Semra Akan and Mr Ahmet Acar , ensured by Article 2 of the Convention, been violated in the present case?

2. Having regard to the procedural protec tion of the right to life (see, Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000 ‑ VII), were the investigation and the trial in the present case in breach of Article 2 of the Convention?

3. What safeguards were in place at the time of the events against any wilful or unintentional abuses of position carried out by the village guards?

The Parties are further requested to submit a copy of the inheritance certificate regarding the third applicant ’ s father, Mr Ahmet Acar .

APPENDIX

LIST OF APPLICANTS

[1] According to the information in the case file, Mr Ahmet Acat died on an unspecified date before the int r oduction o f the present case with the Court.