SECOND SECTION
\nDECISION<\/p>\n
Application no. 51181\/10
\nRefik G\u00dcZ\u00dcPEK
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 26\u00a0February 2019 as a Chamber composed of:<\/p>\n
Robert Spano, President,
\nLedi Bianku,
\nI\u015f\u0131l Karaka\u015f,
\nValeriu Gri\u0163co,
\nJon Fridrik Kj\u00f8lbro,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m,
\nIvana Jeli\u0107, judges,
\nand Stanley Naismith, Section Registrar,<\/p>\n
Having regard to the above application lodged on 9 July 2010,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr Refik G\u00fcz\u00fcpek, is a Turkish national, who was born in 1934 and lives in Van. He was represented before the Court by Mr\u00a0Cemal Demir, a lawyer practising in Van.<\/p>\n 2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0Killing of the applicant\u2019s son and the related criminal proceedings<\/em><\/p>\n 4.\u00a0\u00a0According 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.<\/p>\n 5.\u00a0\u00a0It 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\u2019 orders and had started running away. The soldiers had then fired in their direction, injuring one of them.<\/p>\n 6.\u00a0\u00a0Having 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 \u0130sa G\u00fcz\u00fcpek, the applicant\u2019s 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\u00a0metres from the Iranian border.<\/p>\n 7.\u00a0\u00a0It was stated in another document handwritten and signed by three members of the military that day that the five men who had been \u201capprehended at 5 a.m. on suspicion of smuggling\u201d had been handed over to a military commander. According to another handwritten report, one of the men apprehended \u201cat 5 a.m.\u201d was H.A. and he had been injured during the incident.<\/p>\n 8.\u00a0\u00a0On the same day a non-commissioned officer questioned the five men who had been smuggling fuel together with the applicant\u2019s son. They told the officer that on their way back from Iran the applicant\u2019s 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.<\/p>\n 9.\u00a0\u00a0The 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.<\/p>\n 10.\u00a0\u00a0The 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.<\/p>\n 11.\u00a0\u00a0During the prosecutor\u2019s visit the men who had been smuggling fuel together with the applicant\u2019s 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 \u0130sa G\u00fcz\u00fcpek 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.<\/p>\n 12.\u00a0\u00a0On the same day an examination of the applicant\u2019s son\u2019s 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.<\/p>\n 13.\u00a0\u00a0On 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\u00a0a.m. and asking for the perpetrators to be prosecuted.<\/p>\n 14.\u00a0\u00a0The 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\u2019 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.<\/p>\n 15.\u00a0\u00a0One 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. \u0130sa G\u00fcz\u00fcpek 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\u2019s other sons. They told the prosecutor that when they had tried to help their brother \u0130sa G\u00fcz\u00fcpek the soldiers had prevented them from doing so.<\/p>\n 16.\u00a0\u00a0Four 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\u00a0a.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.<\/p>\n 17.\u00a0\u00a0On 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 \u0130sa G\u00fcz\u00fcpek\u2019s body had been found.<\/p>\n 18.\u00a0\u00a0On 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\u2019s office.<\/p>\n 19.\u00a0\u00a0On 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.<\/p>\n 20.\u00a0\u00a0The 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 \u0130sa G\u00fcz\u00fcpek 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.<\/p>\n 21.\u00a0\u00a0On 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.<\/p>\n 22.\u00a0\u00a0On 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.<\/p>\n 23.\u00a0\u00a0The four soldiers\u2019 trial took place before the Van Assize Court. On 19\u00a0October 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.<\/p>\n 24.\u00a0\u00a0On 9 December 2005 the applicant lodged an appeal against the Assize Court\u2019s judgment. He maintained that the incident had taken place at around 3\u00a0a.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.<\/p>\n 25.\u00a0\u00a0On 28 November 2007 the Court of Cassation upheld the judgment but replaced the Military Court\u2019s conclusion of \u201cthere [were] no grounds to sentence the defendants\u201d with that of \u201cacquittal of the defendants\u201d.<\/p>\n 26.\u00a0\u00a0In their observations the Government submitted that the exact date on which the Court of Cassation\u2019s decision had been returned to the Van\u00a0Assize Court\u2019s 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\u2019s 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\u00a0January 2008 at the latest.<\/p>\n 2.\u00a0\u00a0Compensation proceedings before the administrative courts<\/em><\/p>\n 27.\u00a0\u00a0In the meantime, on 2 July 2003 the applicant brought compensation proceedings against the Ministry of Defence (\u201cthe Ministry\u201d) before the Van\u00a0Administrative Court. He alleged that his son had been shot by soldiers at around 3.30\u00a0a.m. on 3 January 2003 and had died when they had failed to take him to hospital. He also referred to the prosecutor\u2019s on-site report (see\u00a0paragraph 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.<\/p>\n 28.\u00a0\u00a0In 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\u2019s son.<\/p>\n 29.\u00a0\u00a0On 20 September 2004 the Van Administrative Court dismissed the applicant\u2019s 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\u00a0metres 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\u2019s 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\u2019s son by following a trail of blood. Thus, the applicant\u2019s allegation that the soldiers had kept his son waiting in the area did not represent the truth.<\/p>\n 30.\u00a0\u00a0On 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.<\/p>\n 31.\u00a0\u00a0On 19 March 2008 the Supreme Administrative Court upheld the Administrative Court\u2019s 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\u00a0March 2010.<\/p>\n COMPLAINTS<\/strong><\/p>\n 32.\u00a0\u00a0Initially 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.<\/p>\n 33.\u00a0\u00a0Relying 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.<\/p>\n 34.\u00a0\u00a0Lastly, 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.\u00a07 to the Convention. However, he did not maintain these complaints in his observations.<\/p>\n