Individual Application

The Facts

The necessary security measures were taken in the Kulp district of Diyarbakır upon the information that dead bodies of three persons allegedly being a member of a terrorist organisation, namely the PKK, would be taken to the city for burial. The applicants maintained that the security officers had asked for the handing over of the bodies as they would not allow for their burial; that upon their refusal to hand over the dead bodies, the security officers had opened fire on the crowd on account of which seven persons had lost their lives and several persons had been injured.

In the incident report, it was however indicated that a group of 1000-1500 persons had marched to the district centre by chanting political and separatist slogans, with a view to protesting the killing of the members of the PKK terrorist organisation; and that necessary measures had been taken so as to control the group and maintain the security. As stated in the report, the group being informed of the unauthorised nature of their meeting and demonstration attacked the security officers with stones and sticks; and that thereafter, a military officer had been martyred owing to a shot fired by the crowd. The deaths among the crowd took place while the security officers were trying to bring the events under control.

At the end of the criminal case filed against them, the demonstrators were acquitted. The incumbent chief public prosecutor’s office (“the prosecutor’s office”) launching an investigation into the incident leading to the death and injury of several demonstrators communicated the file to the Ministry of Justice (“the Ministry”), seeking for a leave to conduct an investigation against the provincial gendarmerie regimental commander. The Ministry returned the file to the prosecutor’s office to remedy the certain deficiencies. Thereafter, the prosecutor’s office issued a decision of lack of jurisdiction in respect of all suspects, save for one, and sent the investigation file to the District Administrative Board. There is no information concerning the actions conducted by these authorities.

Some of the applicants, considering that the investigation into the incident had failed, filed a request with the prosecutor’s office to initiate a new investigation. At the end of this investigation, a decision of non-prosecution was issued in respect of the suspects as the security officers had acted within the limits of legitimate defence. The applicants’ challenges were dismissed by the magistrate judge.

The Applicants’ Allegations                                                  

The applicants maintained that their right to life had been violated, stating that the law enforcement officers had led to death and injury of several persons by using firearms without the necessary legal conditions being satisfied; and that the investigation authorities failed to conduct an effective and prompt investigation into the impugned incident.

The Court’s Assessment

For an effective criminal investigation, the investigation authorities must take an ex officio and immediate action to secure all the evidence capable of elucidating the circumstances surrounding the impugned death and leading to the identification of those responsible. An investigation may be considered effective when the decision issued at the end of the investigation is based on thorough, objective and impartial analysis of all relevant elements, and in case of any interference with the right to life, it involves an assessment as to whether the impugned interference is proportionate and results from an exceptional circumstance specified in the Constitution. 

In the present case, the prosecutor’s office, separating the investigation against one of the suspects from the impugned investigation and referring the file to the Governor’s Office for necessary action, issued a decision of lack of jurisdiction with respect to the other suspects and accordingly communicated the investigation file to the District Administrative Board. However, it failed to pursue the outcomes of these two investigations. It was found out upon a request lodged with the prosecutor’s office that the investigation files had indeed got lost. Nevertheless, the prosecutor’s office had remained inactive to launch a new investigation into the incident until the applicants filed a criminal complaint. Besides, despite being notified of the fact that the act imputed to the suspects was subject to the ordinary investigation procedure, the prosecutor’s office applied to the Regional Administrative Court in order to obtain a leave for investigation, deeming it necessary. These issues are sufficient for the Court to reach the conclusion that the investigation was not conducted with reasonable speed and due diligence.

In cases where there is different and restricted information concerning the way how an incident has taken place and the identity of the perpetrators, the material findings concerning the incident must be immediately secured and examined, and those who may probably witness to, or have any knowledge about, the incident must be questioned within the shortest time possible. This is of great importance for the clarification of the cause of the impugned death or for the identification of those responsible. In the present case, despite being possible immediately after the incident, no action was taken so as to identify the security officers who had used firearms during the incident and make a ballistic examination of the firearms used. The authorities failed to exert an effort to take the statements of persons having knowledge about the incident, those injured or the witnesses.

Regard being had to the fact that what is of importance in the present case is to determine under which circumstances the security forces used firearms and whether their use of firearms amounted to a legitimate defence, it has been observed that the evidence, which has not been collected yet, has a direct bearing on the outcome of the investigation.

It has been concluded that the investigation authority, issuing a decision of non-prosecution in respect of the officers as they had acted in a legitimate defence despite the lack of any concrete evidence as to how the impugned deaths and injuries had taken place, failed to satisfy the requirement that all evidence obtained during the investigation be subject to thorough, objective and impartial analysis.

Consequently, the Court has found a violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution.