19 September 2018 Wednesday

Fatma Bildik and Hasan Bildik (no. 2014/14995, 19 September 2018)

The Facts

The applicants’ relative, who was performing his military service, threw himself out of the patrol car and died at the hospital where he had been taken.

During the investigation conducted by the military prosecutor’s office, it was revealed that the deceased suffering psychological problems had been taken first to police station, where he had been caused to wait for a while, before the hospital. The report issued by the forensic medicine institute indicates that the period during which the deceased waited at the police station did not have any effect on his death.

In the expert report, it is noted that there was negligence on the part of the deceased’s immediate superior having failed to ensure his proper examination and treatment, as well as of the patrol commander having failed to inform the relevant superiors of the deceased’s crying, attempts to desert and statements that he would throw himself in front of cars.

The military prosecutor’s office rendered a decision of non-prosecution.

The incumbent military court, examining the applicants’ challenge to the decision of non-prosecution, revoked the decision and held that an indictment be issued against certain suspects for misconduct in office on account of negligence as well as ordered an extension of investigation against one suspect. At the end of the investigation conducted thereupon, the prosecutor’s office once again issued a decision of non-prosecution. The applicants’ challenge to this decision was rejected with final effect.

Thereafter, the applicants lodged an individual application with the Court.

It has been observed that in the criminal case filed against certain suspects for misconduct in office due to negligence, an acquittal decision was rendered; however, the appellate procedure is still pending.

Besides, the applicants applied to the Ministry of National Defence and requested redress of the pecuniary and non-pecuniary damages they had sustained. However, the Ministry dismissed their request. Thereafter, the applicants brought an action for compensation before the relevant administrative court which rendered a decision of lack of jurisdiction. The case-file was then sent to the Supreme Military Administrative Court (SMAC).

The SMAC dismissed the action as time-barred. The applicants’ request for rectification of the decision was also dismissed by the SMAC. Thereafter, the applicants lodged an individual application with the Court. The two individual applications lodged by the applicants were joined.

The Applicants’ Allegations

Maintaining that a decision of non-prosecution had been rendered without an effective investigation, the applicants alleged that the obligation to conduct an effective investigation inherent in the right to life had been violated. They also maintained that the right to access to court within the scope of the right to a fair trial had been violated due to dismissal of their action for compensation as time-barred.

The Court’s Assessment

  1. Alleged Violation of the Obligation to Conduct an Effective Investigation under the Right to Life

The right to life safeguarded by Article 17 of the Constitution entails both positive and negative obligations for the State.

The negative obligation prohibits the intentional and unlawful taking of life by agents of the State. The positive obligation requires the State to take appropriate steps to safeguard the lives of those within its jurisdiction against risks likely to result from acts of both public authorities and other individuals as well as those of the individual himself.

The procedural aspect of the positive obligations incumbent on the State requires conduct of an independent investigation capable of leading to the clarification of the death in all aspects and identification of those responsible.

In the present case, it has been observed that the investigation process was launched late; that the car and the scene where the incident took place were not secured; and that the relevant authorities failed to give necessary orders and take necessary measures for securing the evidence.

The authorities did not take necessary steps to prevent washing of the relevant car before necessary inquiries were carried out, which rendered impossible the collection of the material evidence –if any− in the car.

Nor did the investigation clarify the questions who had received the materials that had been on the deceased on the day of the incident and why the materials had been found in the garden of the police station.

It has been accordingly concluded that the investigation authorities failed to take action ex officio immediately upon being aware of the incident, as well as to collect all evidence capable of leading to clarification of the deceased’s death and identification of those responsible.

For the reasons explained above, the Court found a violation of the obligation to conduct an effective investigation within the scope of the right to life safeguarded by Article 17 of the Constitution.

  1. Alleged Violation of the Right to Access to Court

The expert report obtained at the investigation stage reveals that there was negligence on the part of certain military officers in the incident. The applicants accordingly applied to the administrative court within one year following the expert report.

The SMAC took the date when the death had occurred as a basis for the calculation of the period for filing an action but did not make any explanation as to the time when the applicants became aware of the administration’s faults in the incident or considered the probability of fault on the part of the administration.

In such cases, those concerned must know the exact cause of death, which plays an important role in determination of the procedure they will follow as well as of the administrative and judicial bodies they will have recourse to.

The applicants, becoming aware of the fact, by being notified of the decision of non-prosecution, that their relative had committed suicide and the administration had had fault in his suicide, applied to the administration within due time as from the notification date.

The authorities considered that the applicants became aware of the damage allegedly sustained as of the date of the deceased’s death; and that the period for bringing an action would therefore start running as from this date, which is a strict interpretation of the right to access to court. It is obvious that this interpretation hampered, to an excessive extent, enjoyment of the right to access to court by the applicants.

For the reasons explained above, the Court found a violation of the right to access to court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution.