SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 46820/09
by Güler KARATAŞ and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 21 September 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos,
Guido Raimondi, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 19 August 2009,
Having deliberated, decides as follows:
THE FACTS
The applicants, Güler Karataş, Pınar Şafak Karataş, Berdan Ulaş Karataş, Bıra Karataş, Kumru Karataş, Perince Ataş, Nebahat Ateş, Yıldız Deniz, Serincan Çiçek, Rıza Çiçek and Zeynep Çiçek are Turkish nationals and live in Tunceli. They are represented before the Court by Mr H. Aygün, a lawyer practising in Tunceli. The application concerns the killing of Bülent Karataş, relative of the first nine applicants, and the wounding of Rıza Çiçek by security forces.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 27 September 2007 Bülent Karataş and Rıza Çiçek were shot by soldiers while they were in the vicinity of a village of Hozat, a district of Tunceli. As a result of the shooting Bülent Karataş died and Rıza Çiçek was seriously wounded.
On the same day a post-mortem examination and an autopsy were carried out on the deceased. According to the report signed by the Elazığ public prosecutor, a number of doctors and police officers, Bülent Karataş received three bullets to his left upper arm, left upper leg and left upper back. The experts considered that the deceased’s clothes were needed in order to determine the range at which he had been shot. They concluded that Bülent Karataş’s death had been caused by the laceration of a principal vein (the left saphenous vein). The report issued in respect of Rıza Çiçek on the same day demonstrated that he received a bullet in the left part of the sternum area which left his body behind his left upper arm.
On 28 September 2007 a crime scene investigation was carried out by four gendarmerie officers from the Tunceli Provincial Gendarmerie Command. According to the report drafted by the officers, several spent bullet cases from a Kalashnikov-type automatic rifle were found in the area which Bülent Karataş and Rıza Çiçek, referred to as members of an illegal organisation in the report, ran towards and hid in. The officers also observed blood stains. They found tea, pasta, sugar, flour, batteries and cables in a pit in the same area.
On 2 and 3 October 2007 a number of soldiers who had participated in the military operation on 27 September 2007 made statements to the Hozat public prosecutor. They all maintained that they had been in the region for a military operation, as the PKK operated in the region in question. They all heard voices at around noon, and estimated that there were 4 to 5 people in the vicinity. Subsequently, Bülent Karataş and Rıza Çiçek came into view and one of the soldiers ordered them to stop. As the terrorists began running, the soldiers fired warning shots. Thereafter, the soldiers heard gunfire coming from the direction in which Bülent Karataş and Rıza Çiçek had run and they fired back. According to the statements, the soldiers had found both men wounded, provided them with first aid and transferred them to a helicopter. Bülent Karataş died in the helicopter and Rıza Çiçek had surgery and survived. The soldiers contended that they had found 8-10 spent bullet cases from a Kalashnikov-type automatic rifle.
On 6 November 2007 Rıza Çiçek made statements to the Tunceli public prosecutor. He maintained that they had been in the area in order to collect firewood. They were stopped by the soldiers, who asked them for their identity documents. Subsequent to the identity check, the soldiers left, warning Bülent Karataş and Rıza Çiçek that they were in danger in the area. Twenty minutes later, the same soldiers came back. Their commander re-requested their identity cards. He then asked them to go a little further, to take off their pullovers and to lie down. The commander approached them and told them to run. When they started running Rıza Çiçek heard gunfire. He was then shot in the chest and left arm. The soldiers surrounded him. Rıza Çiçek heard the commander saying that he did not wish to kill anyone during Ramadan. He was then taken to the helicopter and transferred to Elazığ hospital.
On 9 November 2007 Rıza Çiçek made statements before the Hozat Magistrates’ Court, having been accused of membership of a terrorist organisation by the Hozat public prosecutor. He maintained that he had been the victim of the shooting. He had not had any firearm or munitions and did not have any connection with the spent bullet cases found in the area. The judge ordered Rıza Çiçek’s pre-trial detention on the same day.
On 31 March 2008 the Malatya public prosecutor filed a bill of indictment with the Malatya Assize Court charging Rıza Çiçek with aiding and abetting a terrorist organisation.
On 11 April 2008 the Malatya Assize Court rejected the bill of indictment holding that it had not been established that Rıza Çiçek had been taking any goods to the members of the terrorist organisation on the day of the incident.
On 15 April 2008 the Malatya public prosecutor objected to the decision of 11 April 2008, submitting that the security forces had found supplies in a pit in the area which had been destroyed upon the order of the Hozat public prosecutor.
On the same day the Malatya Assize Court dismissed the objection, holding that there was no evidence demonstrating that the goods in the pit had been put there by Rıza Çiçek.
On an unspecified date Rıza Çiçek was released.
Meanwhile, the first, fourth and eleventh applicants lodged a criminal complaint with the Hozat public prosecutor’s office and requested that the members of the military forces who shot Bülent Karataş and Rıza Çiçek be punished.
On 23 June 2008 the Hozat public prosecutor rendered a decision of lack of jurisdiction ratione materiae, holding that the suspects were military officers, and referred the investigation to the Elazığ military public prosecutor’s office.
On 4 July 2008 the initial complainants and Rıza Çiçek objected to the decision of 23 June 2008. Their objection was dismissed.
On 26 December 2008, taking into consideration the statements of the soldiers who had participated in the military operation, the statements of Rıza Çiçek, the content of the forensic reports, the crime scene investigation report and the ballistic reports, the Elazığ military public prosecutor rendered a decision not to prosecute in respect of the complainants’ allegations. In his decision, the military public prosecutor found it established that Bülent Karataş and Rıza Çiçek had run away when the soldiers told them to stop, that his injuries had caused Bülent Karataş’ death and that Rıza Çiçek’s wounding had occurred as a result of the use of lawful and proportionate force. The public prosecutor noted that Bülent Karataş and Rıza Çiçek had been unarmed but had gone to the area in order to meet armed terrorists who had opened fire in the direction of the soldiers. He therefore considered that the soldiers had opened fire in self-defence. The military public prosecutor did not find the submissions of Rıza Çiçek credible and concluded that the circumstances described by the soldiers reflected the truth.
On 12 January 2009 Rıza Çiçek, Güler Karataş, Zeynep Çiçek and Bıra Karataş objected.
On 23 March 2009 the Malatya Military Court dismissed their objection.
COMPLAINTS
1. Güler Karataş, Pınar Şafak Karataş, Berdan Ulaş Karataş, Bıra Karataş, Kumru Karataş, Perince Ataş, Nebahat Ateş, Yıldız Deniz and Serincan Çiçek complained under Article 2 of the Convention about the killing of Bülent Karataş. Rıza Çiçek and Zeynep Çiçek complained under the same head about the wounding of Rıza Çiçek.
2. Relying on Article 3 of the Convention, Rıza Çiçek alleged that his pre-trial detention for seven months had constituted ill-treatment, since he had been shot in the chest shortly before his detention.
3. The applicants complained under Articles 6 and 13 of the Convention that the authorities had failed to conduct an adequate investigation into the killing of Bülent Karataş and wounding of Rıza Çiçek.
THE LAW
1. The applicants alleged a violation of Articles 2, 6 and 13 of the Convention on account of the death of Bülent Karataş, of the wounding of Rıza Çiçek and of the ineffectiveness of the investigation into these incidents.
As regards the eleventh applicant, Zeynep Çiçek, the Court observes that her complaints concern the circumstances surrounding the wounding of her son, Rıza Çiçek, who is also among the applicants. Given that Zeynep Çiçek was not involved in the incident giving rise to the present application on which her complaints under the Convention are based and that her son was able to lodge the present application on his own behalf, she cannot have standing as a victim within the meaning of Article 34 of the Convention. It follows that in so far as the application has been lodged by the eleventh applicant, it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
In so far as these complaints were brought by the remaining applicants, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application 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. Relying on Article 3 of the Convention, Rıza Çiçek maintained that his pre-trial detention for seven months had constituted ill-treatment.
The Court notes that the mere fact that Rıza Çiçek was detained pending trial cannot be considered to be treatment going beyond the threshold set by Article 3 of the Convention. In this connection, the Court observes that the applicant failed to demonstrate how his detention adversely affected his physical or mental health or that his suffering reached the threshold level required by Article 3. The Court therefore considers that the applicant failed to substantiate his allegation.
In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they 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 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the complaints brought by Güler Karataş, Pınar Şafak Karataş, Berdan Ulaş Karataş, Bıra Karataş, Kumru Karataş, Perince Ataş, Nebahat Ateş, Yıldız Deniz, Serincan Çiçek and Rıza Çiçek concerning the death of Bülent Karataş, the wounding of Rıza Çiçek and the alleged ineffectiveness of the investigation conducted by the domestic authorities;
Declares the remainder of the application inadmissible.
Stanley NaismithFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy