SECOND SECTION
Application no. 48176/11
Melek TORLAK against Turkey lodged on 23 May 2011
and 4 other applications (449/12, 9477/12, 13669/12 and 62981/12)
against Turkey,
lodged on 23 May 2011, 1 December 2011, 23 December 2011, 5 January 2012 and 15 June 2012
STATEMENT OF FACTS
The applicant in application no. 48176/11, Ms Melek Torlak, is a Turkish national of Kurdish origin who was born in 1970 and lives in Diyarbakır. She is represented before the Court by Ms Rehşan Bataray Saman, Ms Pınar Dalkuş and Mr Serdar Çelebi, lawyers practising in Diyarbakır.
The applicants in application no. 449/12, Mrs Aysel Aktaş and Mr Salih Aktaş, are Turkish nationals of Kurdish origin who were born in 1963 and 1964 respectively, and live in Diyarbakır. They are represented before the Court by Ms Rehşan Bataray Saman and Mr Serdar Çelebi, lawyers practising in Diyarbakır.
The applicants in application no. 9477/12, Mr Zülfi Akbulut and Mrs Fatma Akbulut, are Turkish nationals of Kurdish origin who were born in 1961 and 1962 respectively, and live in Diyarbakır. They are represented before the Court by Ms Rehşan Bataray Saman and Mr Serdar Çelebi, lawyers practising in Diyarbakır.
The applicant in application no. 13669/12, Mr M. Sirac Eryılmaz, is a Turkish national of Kurdish origin who was born in 1934 and lives in Diyarbakır. He is represented before the Court by Ms Rehşan Bataray Saman and Mr Serdar Çelebi, lawyers practising in Diyarbakır.
The applicant in application no. 62981/12, Mr Medeni Fidan, is a Turkish national of Kurdish origin who was born in 1965 and lives in Diyarbakır. He is represented before the Court by Ms Rehşan Bataray Saman, Mr Serdar Çelebi and Ms Pınar Dalkuş, lawyers practising in Diyarbakır.
The circumstances of the case
On 24 March 2006 fourteen PKK members were killed in armed clashes in south-east Turkey. A funeral was organised in Diyarbakır on 28 March 2006 for four of the deceased. During the funeral and in the following days large-scale clashes took place between police officers and civilians in Diyarbakır.
In the course of the clashes a total of ten civilians, five of whom were under the age of 18, were killed by the security forces and a further 200 civilians were injured. Fifty-six of those 200 were injured by firearms. Eighteen police officers were also injured by stones thrown by civilians.
In an apparent response to a request from the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, the Diyarbakır prosecutor prepared a report on 1 May 2006. In his report the prosecutor stated that the investigations into the deaths of six persons were in progress. It appears from the report that three of the six persons had been killed when they were hit by cartridges containing CS gas, one had been killed with a blunt object and two had been killed by bullets.
The applicants’ five relatives were among the ten civilians who died during the incidents. The facts of the cases, as submitted by the applicants and as they appear from the documents submitted by them, may be summarised as follows:
1. Application no. 48176/11
On 29 March 2006 the applicant’s then 19-year-old son Mehmet Işıkçı left home at around 6 00 p.m. Around half an hour later the applicant received a telephone call from her relatives. The relatives told the applicant that they had witnessed her son Mehmet Işıkçı being hit by an armoured police vehicle outside their house. The police officers had then beaten him up with the butts of their weapons and with their truncheons. A member of the public had taken him to a hospital.
The applicant immediately went to the hospital but fainted when she saw her son in a critical condition. Her son died later in the day.
According to the report of the post-mortem examination carried out on 30 March 2006, the applicant’s son had died of a brain haemorrhage, internal bleeding and shock caused by the internal bleeding. He had a fractured skull and ruptured right lung and liver. There were also signs of physical trauma on his head, chest and abdomen.
On 19 April 2006 the applicant made an official complaint and asked the Diyarbakır prosecutor to prosecute the police officers responsible for the death of her son.
The Diyarbakır prosecutor asked the police on 6 August 2007 to identify police officers who had been driving the armed police vehicles at the time of the incidents. On 10 September 2007 the Diyarbakır Police Headquarters sent the prosecutor the names and addresses of the police officers.
Subsequently, some of the police officers who had driven the vehicles were questioned by the prosecutor. They denied having killed the applicant’s son.
On 30 June 2008 the Diyarbakır prosecutor issued a standing order to the local police forces to search for the perpetrator of the killing. This decision was forwarded to the applicant’s legal representative on 23 February 2011.
2. Application no. 449/12
The applicants’ son İlyas Aktaş was a university student and also worked as a journalist in Diyarbakır.
On 30 March 2006 he was covering the incidents for the newspaper for which he worked when he was shot on the face by a bullet fired by a police officer. According to his colleagues who had been working with him at the time, İlyas Aktaş was shot by police officers from inside the nearby 10 Nisan Police Station, located some 15-20 metres away.
İlyas Aktaş was taken to the local hospital and was subsequently transferred to a hospital in Ankara. The attempts to save his life were not successful and on 14 April 2006 he died in the Ankara hospital.
Two post-mortem examinations revealed that he had been shot by a rubber bullet measuring 2x5 centimetres. The doctors concluded that the rubber bullet had caused the death, and sent it to the Diyarbakır prosecutor.
On 29 March 2007 the applicants made an official complaint and asked the Diyarbakır prosecutor to prosecute the police officers responsible for the death of their son.
Ten police officers who had taken part in the incidents were questioned by the prosecutor in 2010 and 2011. They all told the prosecutor that they had not used the type of weapon from which the rubber bullet in question could have been fired and that they had not seen any of their colleagues doing so either.
3. Application no. 9477/12
On 28 March 2006 the applicants’ then 18-year-old son Mehmet Akbulut left his house to go to a local shop. While he was walking to the shop he was shot by police officers working at the 10 Nisan Police Station. He was taken to a local hospital and then on to a university hospital, where he died on 31 March 2006.
According to the report of the post-mortem examination, the death was caused by a bullet which had entered the right side of his torso. A deformed bullet was found inside the body.
A number of eyewitnesses questioned by the prosecutor confirmed that Mehmet Akbulut had been shot by a bullet fired by police officers inside the 10 Nisan Police Station.
On 19 April 2006 the applicants made an official complaint and asked the Diyarbakır prosecutor to prosecute the police officers responsible for the death of their son.
A police chief wrote to the prosecutor on 14 June 2007 and claimed that no police officer had used firearms during the incidents. In his letter the police chief also mentioned the existence of video footage of the incidents.
On 16 February 2010 the Diyarbakır prosecutor asked the forensic authorities to examine the bullet found in Mehmet Akbulut’s body. On 15 March 2010 the forensic authorities informed the prosecutor that the bullet had been fired from a nine-millimetre automatic or semi-automatic firearm.
No police officers were questioned by the prosecutor.
4. Application no. 13669/12
On 29 March 2006 the applicant was informed by telephone that his son Mustafa Eryılmaz had been shot and taken to the local hospital. He and his son’s pregnant wife went to the hospital immediately and saw Mustafa in intensive care.
The applicant’s son died in the hospital on 31 March 2006. According to the report of the post-mortem examination conducted the following day, he had been shot on the face with a bullet fired from a 7.65 millimetre firearm. The doctors found the bullet inside the head. The cause of death was established as the destruction of the brain by the bullet.
On 19 April 2006 the applicant made an official complaint and asked the Diyarbakır prosecutor to prosecute the police officers responsible for the death of his son.
No meaningful steps were taken by the prosecutors in the investigation in order to find the perpetrators of the killing of the applicant’s son.
5. Application no. 62981/12
On 29 March 2006 the applicant’s then 17-year-old son Emrah Fidan left home. When he failed to return home in the evening the applicant and other family members went to local hospitals lo look for him. They found him in the intensive care unit of the hospital the following day. He died on 3 April 2006.
A post-mortem examination carried out on 3 April 2006 revealed that he had been shot by a pellet fired from a firearm. The pellet was removed from the body and the cause of death was established as brain haemorrhage caused by the pellet.
The applicant, who was subsequently told by eyewitnesses that his son had been shot by police officers, made an official complaint on 15 June 2006 and asked the Diyarbakır prosecutor to find and prosecute the police officers responsible for the death of his son.
On a number of occasions between 2009 and 2012 the prosecutors requested the police headquarters to hand over CCTV footage covering the incidents. No response was given by the police to the prosecutors’ letters.
COMPLAINTS
Relying on Article 2 of the Convention the applicants complain that their relatives were intentionally killed by police officers.
Under Articles 2 and 13 of the Convention the applicants complain that no effective investigations were carried out by the national authorities.
The applicants also complain that they were subjected to ill-treatment within the meaning of Article 3 of the Convention on account of their suffering stemming from the arbitrary killing of their relatives, as well as on account of the indifference displayed by the judicial authorities to the killings.
Relying on Article 14 of the Convention the applicants allege that their rights under the Convention were violated because of their Kurdish origin.
Finally, under Article 17 of the Convention the applicants complain that the police officers abused the second paragraph of Article 2 of the Convention.
QUESTIONS TO THE PARTIES
1. Has the right to life of the applicants’ children, ensured by Article 2 of the Convention, been violated in the present case?
In particular, did the applicants’ children’s deaths result from use of force which was absolutely necessary for the purposes of paragraph 2 of this Article?
2. Were all necessary steps taken by the police officers when organising and regulating the operation with a view to minimising to the greatest extent possible any risk to the right to life (see Makaratzis v. Greece [GC], no. 50385/99, § 60, ECHR 2004‑XI)?
3. 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), did the investigations in the present cases by the domestic authorities meet the requirements of Article 2 of the Convention? To that end, have effective investigations been carried out by the national authorities in order to establish the circumstances of the deaths? In this connection:
A. Questions applicable to all five applications
(a) What investigate steps were taken by the prosecutors, who became aware of the killing when the post-mortem examinations were performed on the bodies of the applicants’ children, before the introduction of the formal complaints by the applicants?
(b) Were the police officers who took part in the incidents questioned by the judicial authorities in a timely manner?
(c) Were all potential eyewitnesses questioned by the judicial authorities?
Your Government are requested to submit documentary evidence in support of their replies to the questions above.
B. Questions specific to each application
1. Application no. 48176/11
What investigative steps have been taken since the prosecutor issued the standing order on 30 June 2008 to the police to search for the perpetrator of the killing?
2. Application no. 449/12
(a) What attempts were made to identify the weapon from which the rubber bullet had been fired?
(b) Why were the police officers not questioned until some four to five years after the incident?
(c) Were police officers working at the 10 Nisan Police Station who, according to the applicants, caused the death of their son, identified and questioned by the prosecutors?
3. Application no. 9477/12
(a) What attempts were made to identify the weapon from which the bullet had been fired? In this connection, why was the bullet not sent for a ballistic examination until some four years after the incident?
(b) Have any police officers been questioned by the prosecutor?
Your Government are requested to submit to the Court a copy of the video footage of the incidents mentioned by Diyarbakır Anti-Terrorism Department Chief Mr Sedat Selim Ay in his letter of 14 June 2007 addressed to the public prosecutor’s office.
4. Application no. 13669/12
What attempts were made to identify the weapon from which the bullet had been fired?
5. Application no: 62981/12
What attempts have been made between 2006 and 2009 to obtain the video footage of the incidents and to identify and question any eyewitnesses to the incidents?
The Government are requested to submit to the Court a copy of the video footage of the incidents which the prosecutors unsuccessfully requested from the police in their numerous letters between 2009 and 2012.
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