Violation Of The Material And Procedural Aspects Of The Right To Life Due To The Ineffectiveness Of Criminal Proceedings After Death And Injury
Events
Upon learning in the evening of the unconfirmed information that two members of a terrorist organisation had come to the house of Ş.A. in his village, an operation was carried out by the Gendarmerie Special Operations (JÖH) Team with the approval of the Governor of Mardin. At around 20.20-21.00 hours, in front of the house of the applicant Mehmet Eren, Y.A., the wife of the applicant Fatma Akın, and Mehmet Eren were wounded as a result of the fire opened by some soldiers in the JÖH Team because they mistook the hilt in Y.A.’s hand for a weapon and shot at them after the stop warning. Y.A. died in hospital.
At the end of the investigation conducted by the Nusaybin Chief Public Prosecutor’s Office, the Chief Public Prosecutor’s Office of Nusaybin sent a summary of proceedings to the Chief Public Prosecutor’s Office of Mardin to initiate a public prosecution on the charge of causing death and injury by negligence against some soldiers on the grounds that they were responsible for the death of Y.A. and the injury of the applicant Mehmet Eren because they mistook the hilt in the image taken from the thermal camera for a gun.
The Mardin Chief Public Prosecutor’s Office filed a public case against the suspects before the criminal court. Mardin 1st Assize Court (Criminal Court) ruled that the defendants should not be sentenced. The applicants’ appeal was definitively rejected by the 16th Criminal Chamber of the Gaziantep Regional Court of Appeals (Criminal Chamber).
Following the death of Y.A. and the injury of the applicant Mehmet Eren, an administrative investigation was initiated by the Mardin Gendarmerie Commando Battalion Command. The report prepared by the Administrative Investigation Commission made findings and stated that there was no administrative fault or negligence on the part of any personnel in the incident.
Allegations
The applicants claimed that the right to life was violated due to the death and injury caused by the use of armed force by the security forces and the ineffectiveness of the criminal proceedings concerning this incident.
The Court’s Assessment
1. In terms of the Material Aspect of the Right to Life
Although the applicants complained of targeted shooting by the security forces, they did not support their allegations with convincing evidence. Therefore, it is considered that the aforementioned allegation cannot be credited.
It is difficult to say that the soldiers in question did not use armed force in a situation of absolute necessity in order to protect themselves from the attack and in a proportionate manner in line with the aim to be achieved in relation to the force encountered. However, the soldiers in question made a mistake in the person of the person who fired at them, causing the death of Y.A. and the injury of the applicant Mehmet Eren. The Criminal Court concluded that the defendants could not be held responsible for the incident because they had made an unavoidable mistake, but the report of the Criminal Police Laboratory (the Laboratory) found that the tiny holes in the jacket of Y.A.
Although the report issued by the Criminal Police Laboratory (Laboratory) stated that the holes in question were caused by a shot fired at close range according to the distribution of the shot residues around the tiny holes found in the jacket of Y.A., and although the matter explained in the report contradicted the statements of the applicant Mehmet Eren regarding the distance between them and the soldiers, the Court did not obtain an additional report from the Laboratory or a report from a different expert to resolve this contradiction; it did not reconstruct the incident by conducting a discovery at the scene of the incident. However, re-enactment of the incident is a necessity for determining the circumstances of the incident. Therefore, the Constitutional Court is not convinced that the mistake of the defendants was inevitable according to the findings in the criminal proceedings subject to the application.
In the operation order for the operation subject to the application, it was stated that attention would be paid to ambushes or improvised explosive devices that could be set up by terrorists, that the residents of the village would not be distracted, that thermal cameras would be used to the maximum extent, that in case of detection of terrorists, an audible warning would be given to surrender, that in case of failure to comply with the warning, shots would be fired first in the air and then at the feet, and that in case of exposure to fire, the shots would be returned without stopping or pausing. In accordance with this planning, thermal binoculars were attached to the rifles of three soldiers and the team commander carried a thermal hand-held binocular.
However, while planning the operation, it was not taken into consideration that the tip-off contained information that needed confirmation, i.e. it was not conclusive, that the operation would be carried out in the village settlement area and that villagers could be found on the street at the time of the operation. As a matter of fact, the statement of witness M.Ö. that the operation was carried out urgently on the day of the incident shows that the necessary measures to protect the lives of third parties were not sufficiently considered before the operation.
For the reasons explained above, the Constitutional Court decided that the substantive dimension of the right to life was violated.
2. In terms of the Procedural Aspect of the Right to Life
In the concrete case, despite the actions taken after the incident, important deficiencies affecting the effectiveness of the criminal proceedings stand out.
First of all, in the report prepared by the laboratory, according to the distribution of shot residues around the tiny holes found in the jacket of Y.A. Although it was stated in the report issued by the Laboratory that the holes in question were caused by a shot fired at close range according to the distribution of the shot residues around the tiny holes found in the jacket belonging to Y.A. and the matter explained in the report contradicted the statements of the applicant Mehmet Eren regarding the distance between the soldiers,
no action was taken to reconstruct the incident by conducting a discovery at the scene of the incident, to obtain an additional report from the Laboratory or a report from a different expert in order to eliminate this contradiction; the requests of the applicants for a discovery at the scene of the incident were not met on the grounds of the stage of the file and the security situation. However, carrying out the aforementioned procedures would enable the Criminal Court to determine the circumstances of the incident in a healthier way.
Considering that the Criminal Chamber rejected the applicants’ appeal, the criminal proceedings could be completed in 5 years, 3 months and 3 days. However, none of the factors in the proceedings justify such a prolongation of the proceedings. For this reason, it is concluded that the criminal proceedings subject to the application were not conducted with reasonable diligence and speed, which may cause damage to the important role in preventing similar violations of the right to life that may arise later.
For the reasons explained, the Constitutional Court decided that the procedural dimension of the right to life was violated.
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