22 September 2009

SECOND SECTION

Application no. 24957/04 by Abdullah AVUL and Zümeyran AVUL against Turkey lodged on 7 June 2004

STATEMENT OF FACTS

THE FACTS

The app licants, Mr Abdullah Avul and Mrs Zümeyran Avul, are Turkish national s who live in Yukarı Tulgalı village in the Özalp district of Van. They are repres ented before the Court by Mr M. Timur, a lawyer practising in Van.

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

On the night of 29 June 2003 the applicants ’ son, Adem Avul, who was fifteen years old at the time, was shot dead 80 metres from the border between Turkey and Iran, on the Turkish side.

On the same day a post-mortem examination was carried out on the deceased. The public prosecutor and the doctor observed a bullet entry wound on the deceased ’ s back and a bullet exit wound on his neck. The doctor considered that no autopsy was needed since the cause of death was circulation insufficiency caused by internal bleeding as a result of disintegration of the internal organs and the lungs. According to the post-mortem examination report, the Özalp public prosecutor decided to conduct an on-site examination the next day.

The same night, A.A., the mayor of Yukarı Tulgalı village made statements to the Özalp public prosecutor. He submitted that he had heard from the villagers that Adem Avul had been shot. He then went to the gendarmerie station and took his body to the hospital since the gendarmerie commander had told him to do so. The mayor further noted that he had no information as to whether Adem Avul had been with his uncle, F.A., at the time of his death.

On 30 June 2003 an examination was conducted of the site where the applicants ’ son had died. The Özalp public prosecutor heard F.A., who said that he had been with the deceased at the time of his death. F.A. stated that at around 9 p.m. on 29 June 2003 they had left their village and gone towards the border on their horses to meet an Iranian national who was going to provide him with fuel to be transported to Turkey illegally. F.A. further maintained that Adem Avul had been 20 metres ahead of him when he heard six or seven gunshots coming from the Iranian side. He then heard Adem Avul asking for help and found him lying down on the ground. F.A. called his fellow villagers and told them their location. He then put his nephew on his own horse and moved towards the village. On the way back, he met the villagers and they put Adem Avul in a minibus. When they arrived in the village, soldiers were there. Adem Avul was subsequently taken to the gendarmerie station and then to a hospital. F.A. noted that he had not heard gunshots coming from Turkish soldiers and that he had heard people speaking in Farsi after the gunshots.

During the on-site examination, C.C., a military commander, also made statements. He contended that on the night of the killing he had been close to the border. He had heard a total of eight or nine gunshots and seen two riders entering Turkish territory. When they arrived in the village, they took Adem Avul to the gendarmerie station and he ordered his immediate transfer to the hospital. C.C. stated that he did not know whether Adem Avul had been still alive when he was taken to the hospital. He maintained that he and his team had not opened fire.

On the same day the Özalp governor requested the Özalp public prosecutor to provide a copy of the documents in the file of the investigation into the killing of Adem Avul in order to examine them before the on-site examination to be conducted in cooperation with the Iranian border authorities and during the subsequent interviews.

According to the information submitted to the Court by the applicants on 26 November 2008, the investigation into the killing of the applicants ’ son is still pending.

COMPLAINTS

The applicant s complain under Article 2 of the Convention that their son was unlawfully killed .

Relying on Article 3 of the Convention, the applicants further complain that their son was not immediately taken to the hospital, and that he died as a result.

The applicants contend under Articles 6 and 13 of the Convention that the investigation into their son ’ s killing was not effective as it was still pending and the perpetrators of the killing have not been brought to justice.

They finally maintain under Article 1 of Protocol No. 1 that they suffered financial loss on account of their son ’ s death.

QUESTIONS TO THE PARTIES

1. Has the Government ’ s responsibility been engaged in the death of the applicants ’ son and has the substantive limb of Article 2 of the Convention been violated in the present case? In particular:

a. Was the applicants ’ son shot by members of the Turkish security forces?

b. Were the necessary steps taken to protect the right to life of the applicants ’ son? In particular:

i. Was the applicants ’ son alive when he was taken to the gendarmerie station?

ii. What steps were taken by the security forces to ensure that the applicants ’ son would receive prompt and adequate medical assistance? In this connection, why was he taken to the gendarmerie station instead of being taken to a hospital straight away, given the seriousness of his injury?

2. Has an effective investigation been carried out into the killing of the applicants ’ son, capable of satisfying the requirements of an “ effective investigation ” within the meaning of the Court ’ s case-law concerning the procedural limb of Article 2 of the Convention?

The Government are invited to submit a copy of the file of the investigation into the killing of the applicants ’ son , as well as all documents issued by the gendarmerie officers and the doctors at the hospital to which Adem Avul was taken, in particular the document showing the time of his death.