Press Release No: Individual Application 7/22
Press Release concerning the Judgment Finding Violations of Both Substantive and Procedural Aspects of the Right to Life due to Ineffectiveness of Criminal Proceedings Conducted into Death and Bodily Harm
On 10 November 2021, the Plenary of the Constitutional Court found violations of both substantial and procedural aspects of the right to life safeguarded by Article 17 of the Constitution in the individual application lodged by Fatma Akın and Mehmet Eren (no. 2017/26636).
The Gendarmerie Special Operations Team, upon receiving unconfirmed information in the evening that two terrorists had come to the house of Ş.A. located in his village, carried out an operation with the authorisation of the Mardin Governor. At around 8.20 p.m. - 9 p.m. the applicant Mehmet Eren and Y.A. who was holding a hammer drill which was mistaken for a weapon by the soldiers were shot and wounded after a stop warning. However, Y.A., who was the husband of the applicant Fatma Akın, lost his life at the hospital he was taken to.
At the end of the investigation, the Nusaybin Chief Public Prosecutor's Office issued a report for a criminal case to be initiated against some of the soldiers for reckless killing and bodily injury on the ground that they were responsible for the death of Y.A. and the injury of the applicant Mehmet Eren, as they had mistaken the image observed from the thermal camera as a weapon. The said report was sent to the Mardin Chief Public Prosecutor’s Office.
Relying on the relevant report, the Mardin Chief Public Prosecutor’s Office filed a criminal case against the suspects. The 1st Chamber of the Mardin Assize Court (“the assize court”) held that there was no ground for sentencing the accused. The applicants’ subsequent appellate request was dismissed by the 16th Criminal Chamber of the Gazinantep Regional Court of Appeal (“the criminal chamber”) with final effect.
After the death of Y.A. and the injury of the applicant Mehmet Eren, the Mardin Gendarmerie Commando Battalion Command launched an administrative investigation. In the report issued by the Administrative Investigation Commission, it was stated that there had been no administrative fault or negligence in the incident attributable to the soldiers.
The Applicants’ Allegations
The applicants claimed that there had been a violation of the right to life due to the death and bodily harm caused by the security forces having had recourse to armed force and the ineffectiveness of the criminal investigation conducted into the incident.
The Court’s Assessment
1. Alleged Violation of the Substantive Aspect of the Right to Life
Although the applicants claimed that the security forces had fired targeting the deceased and the second applicant, they failed to adduce convincing evidence to substantiate their allegations. Thus, the aforementioned claim cannot be taken into account.
It may be said that the soldiers had had recourse to armed force in an absolutely necessary situation in order to protect themselves from any attack and proportionately in accordance with the aim sought to be achieved vis a vis the threat they had faced. However, the aforementioned soldiers had mistaken the person who had fired at them, thus causing the death of Y.A. and injury of the applicant Mehmet Eren. The criminal court concluded that the accused could not be held responsible for the death incident, since they had made an inevitable mistake. However, although it was stated in the report issued by the criminal police laboratory (“laboratory”) that the analysis of the residues around the little holes on the coat worn by the deceased at the material time showed that he had been shot from close distance, and the issue explained therein contradicted the statements of the applicant Mehmet Eren as regards the distance between them and the soldiers, the court failed to obtain an additional report from the laboratory or another expert report. Nor did it carry out a reconstruction of the incident at the crime scene. In fact, reconstruction of the incident is obligatory in order to determine the facts surrounding the incident. Therefore, having regard to the findings of the criminal proceedings, the Court has not been convinced that the mistake made by the accused was inevitable.
According to the order regarding the said operation, soldiers were required to be careful against the ambush and hand-made explosives likely to be laid down by terrorists; no attention of the villagers would be drawn; the thermal cameras would be used in the most efficient manner; if a terrorist was detected, a verbal warning would be made to make him surrender; in case of a failure to obey the warning, shots would first be targeted at the air and then at the feet of the person; and in case of exposure to any shot, it would be responded by shooting without stopping and with no hesitation. In accordance with this plan, thermal binoculars had been placed on the rifles of three soldiers, and the team commander had carried thermal binoculars by hand. However, in the planning of the operation, it had been ignored that the information they had received had not been confirmed and thus had not been precise, that the operation would be carried out in the residential area of a village, and that the villagers would likely to be around at the time of the operation. As a matter of fact, according to the statement of a witness named M.Ö., the operation had been carried out immediately, which shows that the necessary precautions to protect the lives of third parties had not been adequately considered before the operation.
Consequently, the Court has found a violation of the right to life in its substantive aspect.
2. Alleged Violation of the Procedural Aspect of the Right to Life
Despite the actions taken after the impugned incident, there were apparently significant deficiencies hindering the effectiveness of the criminal proceedings.
Although it was stated in the report issued by the laboratory that the residues around the little holes on the coat worn by Y.A. showed that he had been shot from close distance, and that the issue explained therein contradicted the statements of the applicant Mehmet Eren as regards the distance between them and the soldiers, the incumbent authorities failed to obtain an additional report from the laboratory or another expert, as well as no reconstruction of the incident at the crime scene was carried out. In addition, the applicants’ request for a reconstruction of the incident to be carried out at the crime scene was not met given the status of the case file and for security reasons. As a matter of fact, the performance of the aforementioned acts would enable the determination of circumstances of the case in a more efficient and sound way.
Regard being had to the fact that the criminal chamber had dismissed the applicants’ appellate request, the proceedings lasted 5 years and 3 months, which was not justified in the circumstances of the case. Thus, it has been concluded that the criminal proceedings were not carried out with due diligence and speed, which would undermine the significant role undertaken by the judicial authorities in preventing similar violations
Consequently, the Court has found a violation of the right to life in its procedural aspect.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.