SECOND SECTION

Application no. 54915/09 Mihdi PERİNÇEK against Turkey lodged on 13 October 2009

STATEMENT OF FACTS

The applicant, Mr Mihdi Perinçek , is a Turkish national who was born in 1957 and lives in Diyarbakır . He was represented before the Court by Mr Tugay Bek and Mr Mustafa Çinkılıç , lawyers practising in Adana .

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.

On 28 May 2004 the applicant ’ s son, Şiyar Perinçek , was shot and killed by a police officer in Adana while he was on a motorcycle with another person. The other person was subsequently arrested on suspicion of having committed terrorism-related offences.

On 16 July 2004 the prosecutor filed an indictment with the Adana Assize Court and charged the police officer with the offence of manslaughter.

In its judgment of 6 March 2007 the Assize Court acquitted the police officer and held that he had acted in self defence. The Assize Court concluded that the applicant ’ s son had been a member of a terrorist organisation and come to Adana to carry out terrorist attacks. When police officers had given chase to the motorcycle, he had fired two rounds towards the police officers. The defendant police officer had then fired one round and injured Şiyar Perinçek , who had subsequently died in hospital. After the incident the police officers had found explosives in a bag on the motorcycle. The pistol used by Şiyar Perinçek and two spent cartridges had also been recovered at the site of the incident. It had not been possible to find the spent cartridge discharged from the police officer ’ s pistol.

The clothes Şiyar Perinçek had been wearing at the time of the incident had got lost at the hospital when he was taken into the operating theatre. Thus, it had not been possible to establish the distance from which he had been shot.

The appeal lodged by applicant against the judgment was rejected by the Court of Cassation on 5 March 2009. The final decision was returned to the Adana Assize Court on 15 April 2009.

In the meantime, criminal proceedings were brought against three police officers and a private security guard who had been working at the hospital at the time of the applicant ’ s son ’ s death, for having neglected their duties and lost Şiyar Perinçek ’ s clothes. They were acquitted on 7 February 2007.

COMPLAINTS

The applicant alleges that his son, Şiyar Perinçek , was deliberately killed after having been apprehended, in breach of Article 2 of the Convention. He also alleges that his son was unarmed at the time of the shooting and the police officers destroyed crucial evidence to cover up their tracks.

Relying on Articles 6 and 13 of the Convention the applicant complains that no effective and timely investigation was conducted into the killing of his son.

QUESTIONS TO THE PARTIES

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

In particular, did the applicant ’ s son ’ s death result from a use of force which was absolutely necessary for the purposes of paragraph 2 of this Article?

In this connection, has an effective investigation been conducted by the national authorities in order to establish whether the use of force had been absolutely necessary and proportional? To that end:

– Who conducted the initial examination at the site of the incident and collected the evidence?

– What steps have been taken to find the clothes Şiyar Perinçek was wearing at the time of the shooting?

– Have the pistol and the explosives, allegedly owned by Şiyar Perinçek , been examined with a view to establishing whether or not they were handled by him?

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?

3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 2, as required by Article 13 of the Convention?

The Government are requested to submit to the Court a copy of the investigation file, together with their answers to the questions above.