SECOND SECTION

Application no. 61170/09 Abbas TOPTANIÅž against Turkey lodged on 11 November 2009

STATEMENT OF FACTS

The applicant, Mr Abbas Toptanış , is a Turkish national who was born in 1974 and lives in İzmir . He is represented before the Court by Mr Çetin Bingölbalı , a lawyer practising in İzmir .

The circumstances of the case

The facts of the case, as submitted by the applicant and as they appear from the documents submitted by him, may be summarised as follows.

The applicant worked as a night watchman at a building site located near the Gendarmerie Commando Regiment in Foça , near İzmir .

Between 8 and 9 pm on 14 October 2008 the applicant was walking from the building site where he was working to a nearby building site where his friends worked as security guards.

As he was walking he could hear gunfire coming from the shooting polygon at the barracks. He then heard two bullets as they whizzed past him. He subsequently heard gunfire and then felt a pain on his back and collapsed. His friends, who had been seen him collapse, came to his rescue and put him in a taxi to take him to hospital. It was established at the hospital that he had been shot and that the bullet was still lodged in his body.

A prosecutor went to the site of the incident the same night and questioned the eyewitnesses. The eyewitnesses told the prosecutor that they often heard gunfire coming from the firing range at the military installation, and thought that their friend had been shot with a stray bullet.

The same day two military officers questioned the applicant at a gendarmerie station. The applicant described the incident and stated that he did not want to press charges against anyone.

Also on the same day the prosecutor appointed a police officer as an expert witness to examine the shooting. On 16 October 2008 the expert witness submitted his report to the prosecutor in which he concluded that the applicant had probably been shot with a stray bullet fired by the soldiers.

According to a medical report drawn up on 23 October 2008, the applicant ’ s injury required a sixty-day period to heal.

On 14 November 2008 the applicant was questioned by the prosecutor. He told the prosecutor that he did not think he had been shot deliberately and that he did not want to press charges against anyone. He also added that the bullet had not yet been extracted from his body.

On 24 December 2008 the prosecutor decided to close the investigation. In his decision the prosecutor stated that, according to the medical evidence, the applicant ’ s injury had been life-threatening. He also noted that soldiers had been carrying out firing exercises on the day in question, and concluded that the applicant had probably been shot with a stray bullet. As the bullet had not been taken out from the applicant ’ s body it had not been possible to identify the type of weapon it was fired from. The prosecutor considered that the offence in question would be unintentionally causing bodily harm. However, prosecution of that offence depended on an official complaint by the victim and, as the applicant did not want to press charges against anyone, the prosecutor decided to close the investigation.

On 7 January 2009 the applicant was taken to hospital for complications with several of his internal organs, caused as a result of the shooting. On 12 January 2009 the bullet was extracted from his body and handed over to a police officer. The applicant was discharged from the hospital on 16 January 2009.

On 16 January 2009 the applicant, with the assistance of his legal representative, lodged an objection against the prosecutor ’ s decision and argued that the prosecutor had failed to carry out a through investigation and had not even investigated whether the shooting had been carried out intentionally, by negligence or by recklessness. He also argued that, asking him whether he wanted to press charges against anyone, without first having found the perpetrator, was not compatible with the applicable procedure.

The objection lodged by the applicant was rejected by the İzmir Assize Court on 24 April 2009. The Assize Court ’ s decision was forwarded to the applicant on 20 May 2009.

In the meantime, on 3 March 2009 the applicant applied to the Ministry of the Interior and asked for compensation. His request was rejected in May 2009 and in June 2009 the applicant brought a compensation claim before the Ä°zmir Administrative Court . The proceedings are still pending.

COMPLAINTS

The applicant complains under Articles 6 and 13 of the Convention that that the investigation conducted into the shooting was not effective. He argues, in particular, that the national authorities failed to examine the bullet and thus failed to establish the weapon and the perpetrator. As a result of that failure, it was not established whether the shooting had been an attack on his physical integrity.

QUESTIONS TO THE PARTIES

1. Has the applicant ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case?

In this connection, has an effective investigation been conducted to establish the circumstances of the shooting which threatened the applicant ’ s life? To that end, did the national authorities examine the bullet in order to find out from which weapon it had been fired from and by whom? Furthermore, did the authorities question the military personnel who had been on the firing range on the day in question?

2. Are there adequate regulations and protective measures in place to protect the lives of individuals from the dangers emanating from the firing range in question?