SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 62279/09
by Hamdi ATİMAN
against Turkey
The European Court of Human Rights (Second Section), sitting on 27 September 2011 as a Chamber composed of:
Françoise Tulkens, President,
Danutė Jočienė,
Dragoljub Popović,
Giorgio Malinverni,
Işıl Karakaş,
Guido Raimondi,
Paulo Pinto de Albuquerque, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 17 November 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Hamdi Atiman, is a Turkish national who was born in 1974 and lives in Van. He is represented before the Court by Mr C. Caniş, a lawyer practising in Van.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 24 June 2008 the applicant was travelling in a vehicle which was being driven by his cousin Mr Namık Atiman. Just as they were driving past Armutdüzü village in Yüksekova district, they saw that gendarme officers had blocked the road. The soldiers ordered them to stop, but as they were driving at high speed and the brakes had failed, they could not stop. Both the applicant and Mr Namık Atiman shouted from the window that the brakes were not working. The driver tried to avoid hitting another truck which was parked in the middle of the street by trying to pass it on the right. He then headed towards the hills where there was a group of gendarme officers. The gendarme officers opened fire, first in the air and then towards the vehicle. The applicant was wounded in the hip and his cousin in the leg during the incident.
The same day, the applicant’s cousin gave a statement to the Yüksekova Public Prosecutor and stated that the applicant had been taken to Van Hospital. He further requested that criminal proceedings be initiated against the gendarme officers who had used force against them. He emphasised that when he had been told to stop he had shouted from the window that his brakes did not work. He had had no intention of escaping from the gendarmes.
On the same day, the public prosecutor took statements from two eyewitnesses to the event. These two individuals had also been stopped by the gendarmes on suspicion of petrol smuggling. According to their statement, while they were being questioned by the gendarme officers about petrol barrels found in their truck, they saw another vehicle approaching. The gendarmes ordered the driver to stop but the driver failed to obey, shouting from the window that his brakes had failed. The driver then tried to pass on the right of the vehicle, which was blocking the road. The gendarmes then opened fire, first into the air and then at the tyres. Both witnesses stated that the driver had no intention of escaping and was shouting that he was unable to stop.
On 26 April 2009 the Yüsekova Public Prosecutor delivered a decision not to prosecute, holding that the use of force had been legal as the applicant had failed to stop when ordered by the gendarme officers. On 4 June 2009 the Van Assize Court refused leave to appeal, finding the decision of the Yüksekova Public Prosecutor to be in line with domestic law.
In the meantime, two separate criminal proceedings were initiated against the applicant; first because illegal petrol barrels had been found in the truck, and second for resisting the gendarme officers. Both proceedings are pending before the Assize Court.
COMPLAINTS
1. The applicant complains that as a result of the use of disproportionate force by the security forces he had been shot and seriously injured. He also states that during the domestic investigation the authorities did not take into account the witness statements which confirm that he and his cousin had shouted that the brakes of the vehicle had failed. In this connection he cited Articles 2 and 8 of the Convention.
2. In respect of the two sets of criminal proceedings initiated against him, the applicant complained under Article 6 of the Convention that the proceedings were unfair.
THE LAW
1. The applicant complains that he was seriously injured as a result of the use of force which was not absolutely necessary, and that the domestic authorities failed to investigate the incident thoroughly. He also states that because of his injury his right to private life has been breached. In this connection the applicant relied on Articles 2 and 8 of the Convention.
The Court considers that the applicant’s complaint should be examined from the standpoint of Article 2 alone.
It further notes that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. Referring to the two sets of criminal proceedings initiated against him, the applicant states under Article 6 of the Convention that his right to a fair trial has been breached.
The Court observes that both sets of criminal proceedings brought against the applicant are still pending before the domestic courts. As a result, this part of the application is premature and should be rejected for non-exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning his right to life;
Declares the remainder of the application inadmissible.
Françoise Elens-PassosFrançoise Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy