SECOND SECTION
DECISION
Application no. 51181/10
Refik GÜZÜPEK
against Turkey
The European Court of Human Rights (Second Section), sitting on 26 February 2019 as a Chamber composed of:
Robert Spano, President,
Ledi Bianku,
Işıl Karakaş,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström,
Ivana Jelić, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 9 July 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Refik Güzüpek, is a Turkish national, who was born in 1934 and lives in Van. He was represented before the Court by Mr Cemal Demir, a lawyer practising in Van.
2. The Turkish Government (“the Government”) were represented by their Agent.
The circumstances of the case
3. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.
1. Killing of the applicant’s son and the related criminal proceedings
4. According to a document drawn up by two soldiers on patrol near the Turkish-Iranian border, at around 5 a.m. on 3 January 2003 a group of people were observed on their night vision cameras illegally crossing the border and entering into Turkey from Iran.
5. It was stated in an incident report drawn up at 7.30 a.m. that day that an army captain in charge of the soldiers had telephoned the nearby military headquarters to say that he and the soldiers under his command had given verbal warnings to the men after they had crossed the border at 4.50 a.m. and had asked them to stop. However, they had failed to obey the soldiers’ orders and had started running away. The soldiers had then fired in their direction, injuring one of them.
6. Having been informed of the incident by the captain, a group of officers from the nearby military headquarters arrived at the scene of the incident at 5.30 a.m. and drew up the above-mentioned report. It was stated in the report that, after opening fire at the group and injuring one of its members, the soldiers had followed a trail of blood on the ground and had found and apprehended five members of the group. They had then seen the injured man falling from his horse and when they had approached him, they had realised that he was already dead. They had observed that the deceased had been shot in the back of the leg and considered that he had died from loss of blood. The man had been identified by the soldiers as İsa Güzüpek, the applicant’s son. It had also been established that the group were smugglers, bringing diesel from Iran into Turkey in containers on horseback. According to the report, the location of the incident was 550 metres from the Iranian border.
7. It was stated in another document handwritten and signed by three members of the military that day that the five men who had been “apprehended at 5 a.m. on suspicion of smuggling” had been handed over to a military commander. According to another handwritten report, one of the men apprehended “at 5 a.m.” was H.A. and he had been injured during the incident.
8. On the same day a non-commissioned officer questioned the five men who had been smuggling fuel together with the applicant’s son. They told the officer that on their way back from Iran the applicant’s son and another member of their group had been walking ahead of them at some distance and that they had not seen them afterwards. They stated that they had been apprehended by soldiers at 2.30 a.m.
9. The same day the non-commissioned officer also questioned the soldiers who had taken part in the incident. The nine soldiers all stated that they had first spotted the smugglers at 4.30 a.m.
10. The same day a prosecutor from the nearby town of Saray arrived at the scene of the incident with a crime scene investigator and conducted an on-site examination. The area was covered in snow and the prosecutor noticed a large pool of blood on the ground, in front of two derelict buildings. He was told that the location of the incident was six kilometres from the Iranian border and that there was a railway station 450 metres away.
11. During the prosecutor’s visit the men who had been smuggling fuel together with the applicant’s son at the time of the shooting and who had been apprehended by the soldiers were also present. They were questioned by the prosecutor as witnesses. They told the prosecutor that İsa Güzüpek had been standing where the pool of blood was and that they had been some 10 to 25 metres behind him when the soldiers had opened fire from the direction of the two derelict buildings.
12. On the same day an examination of the applicant’s son’s body was carried out at the local hospital by two doctors, in the presence of the prosecutor. It was noted in the relevant report that the deceased had not yet been identified. The doctors established that a bullet had entered the right hip of the victim and exited through the right calf. The doctors concluded that the victim had died from loss of blood as the bullet had severed the main blood vessel.
13. On the same day the applicant submitted an official complaint to the Saray prosecutor, alleging that his son had been unlawfully killed between 3.30 and 4 a.m. and asking for the perpetrators to be prosecuted.
14. The soldiers involved in the incident and the civilians who had been smuggling fuel were also questioned by the Saray prosecutor that day and their statements were recorded. T.D., who had been in charge of the soldiers, told the prosecutor that the incident had taken place at 4.30 a.m. He told the prosecutor that he and his soldiers had warned the smugglers to stop but they had not obeyed their orders and had started running away. They had then fired two warning shots in the air but the smugglers had not stopped. He had then ordered the soldiers to fire at the smugglers’ horses but even that had not stopped them. They had then chased the smugglers for one kilometre before managing to apprehend them. They had then noticed a trail of blood on the ground and when they had followed it for 150 metres, they had seen someone lying on the ground. When they had approached him they had realised that he was dead. The remaining soldiers made similar statements but did not specify the time the incident had occurred.
15. One of the smugglers told the prosecutor that they had crossed the border at midnight and that at between 3.30 and 4 a.m. they had arrived outside the derelict buildings, where they had been fired at by soldiers. İsa Güzüpek had been shot and had fallen to the ground. The soldiers had then emerged from behind the derelict buildings and apprehended them. One of the soldiers had then hit him on the head with the butt of his rifle and injured him. The soldiers had kept them there until the morning. Two of the smugglers were the applicant’s other sons. They told the prosecutor that when they had tried to help their brother İsa Güzüpek the soldiers had prevented them from doing so.
16. Four people working at the nearby train station were also questioned by the prosecutor and stated that they had heard two rounds of gunfire between 1.30 and 2 a.m. They had gone outside the station to see what was happening. When they had seen soldiers outside the derelict buildings they had gone back into the station. At around 3.30 and 4 a.m. they had heard another round of gunfire and had again gone outside to look. They had returned inside the station when they had again seen the soldiers at the same location.
17. On 8 January 2003 the prosecutor revisited the scene of the incident with a crime scene investigator. They measured the distance from the location of the incident to the border as 3,970 metres. The crime scene investigator also noted that there were no traces of blood in the area, with the exception of the large pool of blood where İsa Güzüpek’s body had been found.
18. On 10 January 2003 the Saray prosecutor decided that the military prosecutor had the requisite jurisdiction to continue the investigation on account of the nature of the offence and the identities of the perpetrators, and sent the file to the military prosecutor’s office.
19. On 4 February 2003 a military prosecutor questioned the soldiers who had taken part in the incident. They told the military prosecutor that the incident had taken place at 4.30 a.m. Four of them also admitted that they had opened fire during the incident.
20. The military prosecutor questioned the smugglers on 3 March 2003. They told the prosecutor that the soldiers had opened fire without any prior warning and had not allowed them to offer any help to İsa Güzüpek after he had been shot and injured. They told the military prosecutor that the soldiers had opened fire at around 2.30 to 3 a.m.
21. On 15 October 2003 the military prosecutor was informed by the army headquarters in the city of Van that the area where the incident had taken place had been designated as a military zone in 1990 and had been out of bounds to civilians since then.
22. On 21 October 2003 the Van military prosecutor filed an indictment with the Van Military Court against the four soldiers who had admitted to firing in the direction of the smugglers (see paragraph 19 above). They were charged with the offence of homicide. On 9 December 2003 the Military Court declined jurisdiction in favour of the civil courts on the grounds that three of the defendants had by then completed their military service and no military offence was at issue.
23. The four soldiers’ trial took place before the Van Assize Court. On 19 October 2005 the court decided that there were no grounds to sentence the defendants as they had acted within the scope of their powers in using their weapons.
24. On 9 December 2005 the applicant lodged an appeal against the Assize Court’s judgment. He maintained that the incident had taken place at around 3 a.m. in a residential area and that two of the official documents (mentioned in paragraph 7 above) had been manipulated by the soldiers so that the time of the incident would read 5 a.m. instead of 3 a.m. The applicant alleged that his son had died from loss of blood because the soldiers had not taken him to hospital immediately after they had shot him and had kept him at the location of the incident for hours.
25. On 28 November 2007 the Court of Cassation upheld the judgment but replaced the Military Court’s conclusion of “there [were] no grounds to sentence the defendants” with that of “acquittal of the defendants”.
26. In their observations the Government submitted that the exact date on which the Court of Cassation’s decision had been returned to the Van Assize Court’s registry could not be determined from the case file. However, they submitted a document drawn up on 23 January 2008 which confirmed that the Court of Cassation’s decision of 28 November 2007 had become final. They submitted that in the circumstances, since the exact date was unknown, it would be fair to assume that the decision had been sent on 23 January 2008 at the latest.
2. Compensation proceedings before the administrative courts
27. In the meantime, on 2 July 2003 the applicant brought compensation proceedings against the Ministry of Defence (“the Ministry”) before the Van Administrative Court. He alleged that his son had been shot by soldiers at around 3.30 a.m. on 3 January 2003 and had died when they had failed to take him to hospital. He also referred to the prosecutor’s on-site report (see paragraph 10 above) and argued that his son had been shot some five kilometres away from the border in an area where civilians lived. Contrary to what had been claimed by the soldiers (see paragraph 6 above), no traces of blood had been observed by the prosecutor (see paragraph 17 above) in the area between the border and the place where his son had been shot. Thus, it was clear that the military were trying to manipulate the truth surrounding the killing of his son and there was no evidence to show that his son had been running away from the soldiers.
28. In a reply dated 19 November 2003 the Ministry rejected the allegations and argued that no fault could be attributed to it for the death of the applicant’s son.
29. On 20 September 2004 the Van Administrative Court dismissed the applicant’s compensation claims and held that the Ministry had not been at fault. The court found that the incident had started at a place some 550 metres away from the Iranian border and thus in a military zone. It further stated that, according to the on-site report, the incident had taken place at around 4.50 a.m. and the applicant’s son had already been dead when the soldiers had found him. According to the on-site report prepared by a group of soldiers who had arrived at the scene at 5.30 a.m. (see paragraph 6 above), the soldiers had found the applicant’s son by following a trail of blood. Thus, the applicant’s allegation that the soldiers had kept his son waiting in the area did not represent the truth.
30. On 24 December 2004 the applicant lodged an appeal. He complained that the Administrative Court had delivered its decision without examining the case file concerning the above-mentioned criminal proceedings, which were still pending before the Van Assize Court. He argued that, had the Administrative Court examined the case file of the Van Assize Court, it would have seen that the two documents mentioned above (see paragraph 7) had been manipulated by the soldiers so that the time of the incident would read 5 a.m. instead of 3 a.m. The applicant also repeated his arguments that the soldiers had been at fault for the death of his son and that they had not taken him to hospital in time.
31. On 19 March 2008 the Supreme Administrative Court upheld the Administrative Court’s decision. A subsequent request by the applicant for rectification, in which the applicant repeated his allegations about the alleged manipulation of the two documents, was rejected by the Supreme Administrative Court on 23 October 2009. According to a handwritten note on the top right corner of that decision, the final decision was served on the applicant on 25 March 2010.
COMPLAINTS
32. Initially in his application form and without relying on any particular Article of the Convention, and subsequently in his observations and by relying on Article 2 of the Convention, the applicant complained that the killing of his son had been unlawful as the use of force by the soldiers had been unwarranted. He also alleged that his son had died from loss of blood because he had been left at the scene of the incident for hours. In support of this latter allegation he argued that the soldiers had manipulated the time of the incident on two documents to hide this fact.
33. Relying on Article 6 of the Convention, the applicant complained that the criminal and administrative proceedings had not been fair. He added that the Ministry should have been liable to pay compensation without any causal connection being established. The applicant also complained that the judicial decisions had not been adequately reasoned.
34. Lastly, and without arguing how and why, the applicant alleged in his application form breaches of Articles 5 and 14 of the Convention, as well as Article 3 of Protocol No. 7 to the Convention. However, he did not maintain these complaints in his observations.
THE LAW
A. The complaints under Articles 2 and 6 of the Convention
35. Relying on Articles 2 and 6 of the Convention, the applicant complained that the killing of his son had been unlawful and that the criminal and administrative proceedings had not been fair.
36. The Court reiterates that the scope of a case referred to it in the exercise of the right of individual application is determined by the applicant’s complaint. A complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, ECHR 2018).
37. In the light of the above, the Court considers it appropriate to examine the applicant’s complaints solely from the standpoint of Article 2 of the Convention, the relevant parts of which read as follows:
“1. Everyone’s right to life shall be protected by law ...
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
38. The Government argued that the applicant had not complied with the six-month rule set out in Article 35 of the Convention. In that connection they pointed out that the Court of Cassation’s decision had been deposited with the registry of the Van Assize Court on 23 January 2008 but that the applicant had not lodged his application within six months of that date.
39. Relying on the cases of Amaç and Okkan v. Turkey (nos. 54179/00 and 54176/00, § 35, 20 November 2007), Nikolova and Velichkova v. Bulgaria (no. 7888/03, §§ 55 and 64, 20 December 2007) and Leonidis v. Greece (no. 43326/05, § 46, 8 January 2009) the Government argued that breaches of Article 2 could not be remedied solely by an award of compensation to the relatives of the victim. This was so because, if the authorities could limit their reaction to incidents of wilful police ill-treatment or killings to the mere payment of compensation, while not doing enough to prosecute and punish of those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the general legal prohibitions of killing and torture and inhuman and degrading treatment, despite their fundamental importance, would be ineffective in practice.
40. In the light of the foregoing, and relying also on the judgment in the case of Alkın v. Turkey (no. 75588/01, §§ 31-33, 13 October 2009), the Government submitted that the relevant remedy for the applicant’s complaint which would have had the potential to offer adequate redress had been the criminal proceedings, and that the administrative proceedings by which the applicant had sought to obtain compensation did not affect the running of the six-month period.
41. The applicant did not respond to the Government’s arguments.
42. The Court observes that the applicant’s complaints are twofold. Firstly, he complained about the soldiers’ use of lethal force against his son which, in his opinion, had been unwarranted, and of the authorities’ failure to carry out an effective criminal investigation into the shooting. In addition, the applicant also complained that the soldiers had failed to take his son to hospital after he had been shot and injured and that his death had therefore been caused by their negligence.
43. The Court considers that the shooting of the applicant’s son by the soldiers and the subsequent alleged omission, namely allegedly keeping the applicant’s injured son at the place of the shooting for hours instead of taking him to a hospital, form parts of a chain of events inseparable from the shooting itself. The perpetrators of the shooting were the same soldiers who, according to the applicant, then failed to take his son to hospital and thereby caused his death. For the Court, the applicant’s allegation that the soldiers had let his son bleed to death cannot be regarded as a matter of a simple neglect of duty by the soldiers. As such, the soldiers’ alleged omission cannot be held to fall within the ambit of the respondent State’s positive obligation to take steps to protect the right to life, for which the adequate domestic remedy could have been the administrative compensation action brought by the applicant (see Sakine Epözdemir and Others v. Turkey, no. 26589/06, §§ 42-43, 1 December 2015).
44. The Court considers that the soldiers’ initial actions and their subsequent alleged omission to take the applicant’s son to hospital amount to an allegation of causing death intentionally, which is an offence under the Turkish Criminal Code. Although the specific charge against the soldiers in the course of the criminal proceedings was the allegation that they had shot and unlawfully killed the applicant’s son, the Court observes that the applicant did raise in his appeal his complaint regarding the soldiers’ alleged failure to take his injured son to hospital (see paragraph 24 above). The Court considers therefore that the criminal courts were adequately informed about that further allegation and the proceedings conducted by them were thus an adequate and relevant forum for those allegations to be examined.
45. In the light of the foregoing the Court considers that both of the applicant’s complaints should be examined from the standpoint of the negative obligation inherent under Article 2 of the Convention.
46. To that end the Court reiterates that, in cases concerning deprivations of life, Contracting States have a procedural obligation under Article 2 of the Convention to conduct an effective investigation capable of leading to the identification and punishment of those responsible (see, inter alia, Özcan and Others v. Turkey, no. 18893/05, § 54, 20 April 2010 and the cases cited therein). It must also be reiterated at this juncture that, in cases where, as in the present application, the respondent Government bear the burden of justifying a killing, the examination of the steps taken in an investigation does not only serve the purpose of assessing whether the investigation was in compliance with the requirements of the procedural obligation mentioned in the preceding sentence, but also of deciding whether it was capable of leading to the establishment of whether the force used was or was not justified in the circumstances and whether the Government have thus satisfactorily discharged their burden to justify the killing (see Cangöz and Others v. Turkey, no. 7469/06, § 115, 26 April 2016). Thus, the relevant domestic remedy for the applicant’s complaint which would have enabled the Government to discharge their burden, while also at the same time having the potential to offer adequate redress for the killing of the applicant’s son, was the investigation conducted by the prosecutors and the ensuing criminal trial conducted by the Van Assize Court. As noted above, the final decision taken by the Court of Cassation at the end of that trial reached the registry of the Van Assize Court on 23 January 2008 (see paragraph 26 above) and from that date onwards it was accessible to the applicant. However, the applicant did not lodge his application with the Court within six months of that date.
47. In relation to the issue of “adequate redress” mentioned in the preceding paragraph the Court should also refer to its case-law on this issue, which was also highlighted by the Government (see paragraphs 39-40 above), and reiterates that the Contracting States’ above-mentioned obligation would be rendered illusory if, in respect of complaints under Article 2 of the Convention, an applicant’s victim status were to be remedied by merely awarding damages. The Court finds, therefore, that although the applicant lodged the present application within six months of the date of notification to him on 25 March 2010 of the final decision taken at the end of the compensation proceedings (see paragraph 31 above), those proceedings do not affect the running of the six-month period (see, mutatis mutandis, Alkın, cited above, § 33; see also Erkan v. Turkey (dec.), no. 41792/10, §§ 64-65, 28 January 2014, and Jørgensen and Others v. Denmark (dec.), no. 30173/12, §§ 62-63, 28 June 2016). It follows that the starting point in time of the six-month period in respect of these complaints was 23 January 2008, the date on which the final decision taken at the end of the criminal proceedings was deposited with the Van Assize Court.
48. In the light of the foregoing, the Court finds that the applicant has failed to comply with the six-month rule in respect of his complaints under Article 2 of the Convention. These complaints must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
B. The remaining complaints
49. Lastly, and without arguing how and why, the applicant alleged in his application form breaches of Articles 5 and 14 of the Convention, as well as Article 3 of Protocol No. 7 to the Convention. However, he did not maintain these complaints in his observations.
50. The Court notes, in any event, that Turkey has not ratified Protocol No. 7 until 2016. The complaint under Article 3 of that Protocol is therefore incompatible ratione personae with the Convention and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
51. The Court has examined the applicant’s remaining complaints. It finds that, in the light of all the material in its possession, those complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 21 March 2019.
Stanley NaismithRobert Spano
RegistrarPresident
Full & Egal Universal Law Academy