Communicated on 20 June 2014
SECOND SECTION
Application no. 75404/10
Saime PEKER and others against Turkey
lodged on 1 October 2010
STATEMENT OF FACTS
The applicants, Mrs Rahime Peker, Mr Mehmet Peker, Mrs Mecbure Karabaş, Mr Ramazan Peker, Ms Saime Peker, Mr Abdullah Peker and Ms Gülsün Peker are Turkish nationals, who were born in 1950, 1944, 1972, 1973, 1977, 1982, and 1984 respectively. They all live in Manisa. The first two applicants are the parents and the remaining applicants are the sisters and brothers of Mr Ahmet Peker, who died on 18 December 2007. Before the Court, the applicants are represented by Mrs Dilek Akgün Kaval, a lawyer practising in Manisa.
The facts of the case, as submitted by the applicants, may be summarised as follows.
At the beginning of December 2007, Ahmet Peker, who was twenty years old at the time, started his military training in Samsun. He did not have health problems before joining the army.
On 17 December 2007, on the last day of his training, Ahmet Peker participated in the rehearsal of the oath ceremony which would take place the following day. The soldiers had the afternoon off, as after the oath ceremony, they would all be taking a short leave before taking up their duties as conscript soldiers.
In the morning of 18 December 2007 Ahmet Peker was found dead in his bed in the dormitory. The soldiers who found him immediately informed their superiors. The Samsun Public Prosecutor was also informed about the incident, and upon his instructions the body was transferred to the Trabzon Forensic Medicine Institute for an autopsy.
An autopsy was conducted at 5 p.m. on the same day at the Trabzon Forensic Medicine Institute. According to the report, the body was identified as belonging to a man who was 20-21 years old, measuring around 1.70 metres and weighing around 60-65 kilos. It was reported that rigor mortis had set in and post-mortem lividity had partially commenced. The report stated that there were no signs of traumatic injuries on the body. The doctors however noted an ecchymosis on the lower left side of the neck, measuring 0.5 x 3 cm. Samples of his organs were sent for further analysis.
On 4 January 2008 the Trabzon Forensic Medicine Institute issued its final opinion. The report reiterated the findings of the previous report and stated that Ahmet Peker’s death might have been caused due to a disease that had induced lung and heart failure, but that it had not been possible to establish the disease in the post mortem examination. Reference was also made to histopathology and toxicology reports, which had not revealed anything unusual.
On 23 May 2008 the Trabzon Military Public Prosecutor decided that there was no need to initiate further proceedings. In his decision, the prosecutor stated that Ahmet Peker had joined the army recently and that he had had no health problems. He noted that during his time in the regiment, Ahmet Peker had visited the infirmary only once due to muscle pain in his wrist. Relying on the autopsy and the crime scene investigation report, the prosecutor decided not to initiate any further proceedings. It is not clear from the documents in the case file whether the applicants appealed against this decision.
On 3 December 2008 the applicants initiated compensation proceedings before the Supreme Military Administrative Court.
In its written submissions, the Ministry of Defence stated that the military authorities had no responsibility in the death of Ahmet Peker and claimed that the case should be dismissed.
During the proceedings, the Chief Military Public Prosecutor attached to the Supreme Military Administrative Court submitted his written opinion on the merits of the case. Noting that Ahmet Peker had died during his military service, he concluded that the military authorities carried an objective responsibility towards the applicants. He recommended that an experts’ report be obtained.
On 13 January 2010 the Supreme Military Administrative Court delivered its decision by three votes to two. Without ordering an experts’ report, and basing its decision solely on the autopsy report and the non-prosecution decision of the public prosecutor, the court held that it had not been established that military service had had any negative effect on Ahmet Peker’s health. The court held that Ahmet Peker had developed a disease which had led to lung and heart failure. As a result, the applicants’ case was dismissed. The dissenting judges criticized the court for failing to order an experts’ report, which would have provided valuable information to ascertain the cause of death. The dissenting judges noted that the autopsy report was based on presumptions and an experts’ report was required to assess whether military training conditions had caused deterioration in the new conscript’s health. In their view, the court should have considered if the authorities had any objective responsibility in Ahmet Peker’s death.
On 7 April 2010 the applicants’ rectification request was rejected.
COMPLAINT
Relying on Article 2 of the Convention, the applicants allege that the domestic authorities failed to conduct an effective investigation into the death of their relative. In this connection, they maintain that the Supreme Military Administrative Court should have ordered an experts’ report to determine the exact cause of death of Ahmet Peker.
QUESTION TO THE PARTIES
Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?
The Government are further requested to submit a copy of the medical file of Ahmet Peker, in particular the results of the mandatory medical tests that had been obtained at the time when he was drafted into the army.
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