Information Note on the Court’s case-law 97

May 2007

Kamil Uzun v. Turkey - 37410/97

Judgment 10.5.2007 [Section II]

Article 2

Article 2-1

Life

Effectiveness of a continuing twelve-year inquiry into a fatal explosion in the state-of-emergency region: violation

Facts : At the material time the applicant’s parents lived in the state-of-emergency region, where serious fighting raged between security f orces and the PKK (Kurdistan Workers’ Party). One night in September 1994 a shell blast struck a neighbour’s house. Fragments of the shell hit the applicant’s mother in the head and neck. Within half an hour she succumbed to her wounds. The next day the ap plicant’s father filed a complaint at the local police station; according to the applicant, while there his father allegedly saw a mortar pointing in the direction of the neighbourhood where the explosion had occurred. Gendarmerie officers drew a sketch of the site and assessed the damage done to the homes. One officer prepared messages for the public prosecutor, enquiring inter alia whether he intended to have an autopsy carried out on the body, which had already been buried with the commanding officer’s a uthorisation. It subsequently became clear that the messages were never sent. The local garrisons maintained that no shells had been fired at the time of day concerned and that the two mortars present were out of service. The applicant took the matter to t he Istanbul branch of the Human Rights Association, which transmitted the complaint to the Turkish Parliament’s Human Rights Committee, which in turn forwarded it to the public prosecutor’s office.

The public prosecutor’s office ordered an investigation, w hich revealed, amongst other things, serious omissions in the correspondence between the military and the prosecuting authorities. As the deceased had been buried before the prosecuting authorities were informed of what had happened, her body was exhumed i n June 1996 to be autopsied. In November 1996 a gendarmerie officer and a non-commissioned officer were charged with abuse of authority. The former was accused of neglecting to inform the prosecuting authorities of the incident, failing to pass on the form al complaints lodged by the victims, precipitating the victim’s burial without having an autopsy performed, and removing the shell fragments collected at the scene. The other officer was accused of concealing evidence by failing to mention it in the report drawn up the day after the tragedy. In 1999 the accused were found guilty of abuse of authority and interfering with the course of justice. They received suspended sentences. In May 2000 the prosecuting authorities issued a warrant valid until 2009, the t ime-limit for prosecution, authorising the investigation to continue. The investigation was still pending when the Strasbourg Court delivered its judgment.

Law : The origin and context of the impugned shell blast were a source of legitimate doubt, but the e vidence at the Court’s disposal did not enable it to conclude beyond reasonable doubt, as the standard of proof required, that the applicant’s mother had been killed by members of the armed forces.

However, it was still necessary to determine whether it wa s the investigating authorities’ failure to take effective action, when called in to deal with the case, that had made it impossible to establish the facts conclusively.

The inquiry had been carried out by investigators from the local police station, who h ad not informed the judicial authorities but had acted without their knowledge until the applicant’s complaint was transmitted to the public prosecutor’s office via the Parliament’s Human Rights Committee. So, throughout the initial stage of the investigat ion, the same people presumed responsible for the incident, all of whom were from the local gendarmerie, had been in charge of the investigation. That was not in keeping with the requirement for an impartial investigation, especially as it had gone on for four months before the public prosecutor took it over. The investigators had effectively deprived the preliminary investigation of any public or judicial control and prevented the true culprits from being identified and called to account. There were flagra nt shortcomings in the investigations, including the concealment by the military personnel present at the scene the day after the incident of the shell fragments collected on site. Then certain individuals had removed these pieces of evidence which, if sub jected to ballistic tests, might well have provided cogent evidence of the origin of the fatal shot. The public prosecutor could hardly have been expected to make up for the loss of this evidence with the help of the few small fragments handed over to him by the villagers. Nor could he be blamed, for example, for failing to have tests carried out on the mortars present. Like the belated autopsy, this would have been unlikely to produce any reliable evidence to move the investigation forward, in so far as th e local police had revealed a propensity to conspire among themselves.

True, there had been a conviction for abuse of authority, although the sentence had been suspended. However, the persons responsible for the death remained unidentified. And as for the possibility of any implication of the armed forces in the death, if onl y through negligence, it had to all intents and purposes been excluded from the investigations. The investigations had now been going on since 1995, without any credible progress seeming to have been made, which merely confirmed the feeling of impunity and insecurity that had reigned in the region at the time.

Conclusion : procedural violation of Article 2 (unanimously). The Court considered that with this finding of a violation, the main legal issue raised by the application had been examined. It decided no t to rule separately on the other claims, based on Articles 6, 8, 13 and 14 and Article 1 of Protocol No. 1.

Article 41 – EUR 5,000 to the applicant and EUR 15,000 to the victim’s other heirs for pecuniary and non-pecuniary damage.

© Council of Europe/Eu ropean Court of Human Rights This summary by the Registry does not bind the Court.

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