Communicated on 9 January 2014
SECOND SECTION
Application no. 11716/10
Adalet CAVLANLAR and others
against Turkey
lodged on 11 February 2010
STATEMENT OF FACTS
The applicants, whose names appear in the appendix, are Turkish nationals and live in Kars and Erzurum. They are represented before the Court by Mr O. Gündoğdu, a lawyer practising in Kars.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 14 August 1993 the applicants left their villages to go to Digor to take part in a demonstration. The march in question was organised by the PKK (Kurdistan Workers’ Party), an illegal armed organisation, which allegedly forced the people of Digor and Kağızman to participate in the march.
When the crowd arrived at Digor, it was stopped by security forces, i.e., the police and military forces. The crowd was then surrounded by officers from the Special Operations Department of the Kars Security Directorate (Kars İli Emniyet Müdürlüğü Özel Harekat Şube Müdürlüğü). Members of the special teams were also positioned on the hills around the road where the crowd had gathered. The applicants maintain that there were no PKK members in the crowd. Nor did anyone in the crowd have a firearm.
The special teams located on the hills allegedly opened fire abruptly on the demonstrators. As a result, officially, seventeen persons died and sixty‑three were seriously wounded. The applicants were among those who were wounded by gunshots (see also Hacıoğlu and Others v. Turkey (dec.), nos. 7253/04, 7260/04, 7266/04, 7268/04, 7270/04, 7272/04, 14873/04, 15047/04, 15071/04, 15093/04, 15113/04, 4 January 2007 and Çağdavul and others v. Turkey (dec.), no. 9542/06, ECHR 27 September 2011 which concern the same events).
When the shooting stopped, the security forces allegedly prevented the wounded from receiving medical treatment.
On 23 August 1993 Selim Sadak, Ali Yiğit, Mahmut Alınak and Sırrı Sakık, members of the Turkish National Assembly and of the Democracy Party (DEP) at the material time, visited Digor. They subsequently filed a petition with the Digor public prosecutor’s office and requested the latter to open an investigation into the incidents.
On 22 April 1996 the Kars public prosecutor filed a bill of indictment with the Kars Assize Court against eight police officers from the Special Operations Department of the Kars Security Directorate on duty at the time of the demonstration. The defendants were charged with attempted manslaughter and manslaughter.
On various dates in 1996 the accused police officers made statements before various criminal courts. They all denied the allegations made against them.
On various dates the Kars Assize Court obtained statements from the applicants. All the applicants, except Maynur Karasu, claimed that they had been forced to participate in the demonstration by PKK members. They declared that they had not seen the persons who wounded them. Gövercin (Aydın) Gönen said that she wanted to lodge a complaint against those who wounded her, whereas the other applicants contended that they would not be lodging any complaint.
On 21 February 2006 the Kars Assize Court, taking into account the evidence in the case file, including guns collected from the scene and witness statements, found it established that members of the PKK had been present in the crowd and that they had fired at the police officers, who had responded by firing back in order to protect themselves. It accordingly acquitted the eight police offices of all the charges against them on the ground that they had acted in self-defence.
On 7 April 2009 the Court of Cassation quashed the judgment on procedural grounds and returned the case to the first-instance court.
On 5 October 2010, the Kars Assize Court made the procedural corrections and discontinued the proceedings against one of the police officers who had since died. The Assize Court once more acquitted the other seven police officers of all the charges against them on the ground that they had acted in self-defence.
On 25 June 2012 the Court of Cassation quashed the judgment on the grounds that there was no evidence showing that the police officers were responsible for the death and injuries of the people and no offence was committed by the police officers. According to the Court of Cassation, the “possibility” that the fire had been opened by the PKK members but not by the police officers should not be disregarded.
On 16 April 2013, in line with the decision of the Court of Cassation, the Kars Assize Court acquitted the police officers.
The case is still pending before the Court of Cassation.
COMPLAINTS
The applicants claim a violation of Articles 2 and 3 of the Convention in that they were wounded and their lives were put at extreme risk as a result of the security forces’ actions. Under this head, the applicants submit that the force used by the security forces was disproportionate.
The applicants further complain that neither the investigation nor the criminal proceedings brought against the accused police officers were effective. The applicants complain under Article 6 of the Convention about the length of the criminal proceedings brought against the accused police officers. They also complain that they were not informed about the accusation brought against the said officers.
QUESTIONS TO THE PARTIES
Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, or, alternatively, can they be considered to be dispensed from the obligation to exhaust further domestic remedies, bearing in mind that the proceedings are still pending before the Court of Cassation?
Have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention?
Do the injuries of the applicants constitute a violation of Article 2 of the Convention? In particular, did the injuries result from the use of force by the police officers which was “absolutely necessary”?
Were the applicants subjected to ill-treatment, in breach of Article 3 of the Convention?
Having regard to the procedural protection under Articles 2 and 3 (and the applicants’ complaint about the length of the criminal proceedings against the police officers), was the investigation in the present case by the domestic authorities in breach of the Convention?
The Government are requested to provide a copy of the full investigation file and the court proceedings.
The Government are further requested to provide information on the security forces on duty that day and information on how the security forces prepared for and supervised the demonstration in question.
Appendix Adalet CAVLANLAR born on 1 February 1972 Abdüsselam ALTAY born on 21 June 1966 Güzel GEÇENER born on 10 January 1937 Gövercin GÖNEN born on 1 January 1972 Maruf ÇAĞLAN born on 2 February 1964 Memet Zeki KAPLAN born on 20 June 1963 Pero KURTAAL born on 2 December 1985 Maynur KARASU born on 1 January 1973
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