AYDIN v. TURKEY
Inadmissible
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
1. The applicant, Mr Seyithan Aydın, is a Turkish national who was born in 1969 and lives in Izmir. He was represented before the Court by Mr S. Çetinkaya and Mr A. Terece, lawyers practising in Izmir. The Turkish Government (“the Government”) were represented by their Agent. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. At the time of the events giving rise to the present application the applicant was working as a health officer in Batman. 4. On 4 February 1992 he was shot at and seriously injured in an attack by two men in his house in Batman. The three bullets fired by one of the assailants entered the applicant’s stomach and seriously injured him. 5. The applicant was immediately taken to a hospital by his neighbours and their guest, F.C., who was a police officer. The operation to remove the bullets from the applicant’s body was performed in the intensive care unit of the Diyarbakır Hospital since his injuries were life-threatening. He spent twenty days in the hospital. 6. On the same day the police officers prepared a sketch-map of the scene of the incident which described the interior of the house and location of the spent cartridges. They also prepared an incident report in which they noted their findings at the scene of the incident as well as a protocol stating that they had recovered six cartridges and three bullets found at the scene. The police officers took statements from the persons who had taken the applicant to the hospital. The witnesses G.K., E.K. and Ö.F.C. stated that they had heard gunfire and had gone to the applicant’s flat and had found him injured. They then took him to the hospital. Another witness, F.C. stated that the applicant had described the perpetrators and had told him that they were members of an illegal terrorist organisation, the Hizbullah. The witness H.Y. stated he had gone to help the applicant following the assault. He had not seen the assailants. 7. On 6 February 1992 police officers took statements from the applicant at the hospital. The applicant described the assailants and course of events leading to his injuries and asked the officers to bring them to justice. He noted that he had no problem with any person. 8. On 10 February 1992 the bullets as well as their outer casing were examined in the District Criminal Police Laboratory. The experts concluded that the bullets had been fired from a 7.65 mm pistol; however they had not matched with bullets fired from any other weapon which had been used in previous criminal incidents. The experts thus decided that the incident should be classified as attack by an unknown perpetrator and that the bullets and cartridges should be kept in the laboratory. 9. On 19 February 1992 the police superintendent (Başkomiser) sent an investigation report on the incident to the Batman Security Directorate (Bölge Asayiş Şube Müdürlüğü) for transmission to the Batman Public Prosecutor. He noted in the report that the applicant had suffered lifethreatening injuries and that the perpetrators of the attack had not yet been found. 10. On the same day the Batman Public Prosecutor received the investigation report on the incident. However he did not initiate a criminal investigation into the incident but merely sent a reply to the Batman Security Directorate noting that the investigation documents should be sent after the identification of the perpetrators. 11. On 27 October 2000 the applicant’s representative filed a petition with the Batman Public Prosecutor’s office and requested information about the ongoing investigation into the incident. 12. On 3 November 2000 the Batman Public Prosecutor sent letters to the Batman Antiterrorist Branch and the Homicide Office attached to the Batman Security Directorate (Cinayet Büro Amirliği) and requested information on the investigation which had been carried out until that date. 13. On the same day a police superintendent sent the investigation documents and a report in which he noted that the perpetrators had not yet been found. 14. The Batman public prosecutor received the documents and sent a further letter to the Batman Security Directorate (Batman Emniyet Müdürlüğü) attached to the Batman Governor’s office requesting information on the investigation which had been carried out until that date. 15. On 6 November 2000 the Batman Security Directorate sent a reply noting that there were no documents in their archives concerning the incident in question. They further noted that the incident had been registered in their records as one of infliction of bodily harm rather than a terrorist act. The investigation into the incident had been followed by the Homicide Office attached to the Batman Security Directorate. 16. On 8 November 2000 the Batman Security Directorate sent a reply to the Batman Public Prosecutor and noted that the investigations were still pending. 17. On 10 November 2000 the Batman Public Prosecutor sent a letter to the Homicide Office attached to the Batman Security Directorate and requested their office to carry out an investigation into the perpetrators of the attack and to inform him of their findings. 18. On the same day, the Batman Public Prosecutor sent a letter to the applicant’s representative and informed him that the investigation was still pending and that the perpetrators could not be identified. 19. On 6 December 2001 police officers from the Anti-terrorist branch of the Istanbul Security Directorate arrested a person, R.D., on suspicion of membership of an illegal organisation, the Hizbullah. In his statements to the police, R.D. gave a detailed account of the activities he had carried out in the Hizbullah and stated, among other things, that he had perpetrated the attack on the applicant together with a certain M.H. and that he had shot the applicant in his flat in Batman. 20. On the same day, police officers took R.D. to the applicant’s flat in Batman. R.D. told them the details of the attack on the applicant. 21. In a letter of 11 December 2001 the Chief Public Prosecutor at the Diyarbakır State Security Court informed the Batman Chief Public Prosecutor that the Istanbul police had caught a member of the Hizbullah and that this person had admitted having been involved in the attack on the applicant. 22. On 12 December 2001 the Batman Public Prosecutor sent an investigation report (fezleke) to the Chief Public Prosecutor’s office at the Diyarbakır State Security Court noting R.D. as an accused who had perpetrated the attack on the applicant. 23. On 7 January 2002 the Batman Public Prosecutor filed a bill of indictment against R.D. charging him under Article 146 § 1 of the Criminal Code, with attempting to undermine the constitutional order. In the bill of indictment the public prosecutor noted that R.D. had perpetrated the armed assault on the applicant on the instructions of another Hizbullah member V.D. The applicant was named as one of the complainants. 24. In its assessment report (tensip zaptı) dated 15 January 2002 the Diyarbakır State Security Court stated that the applicant should be heard as a complainant. 25. On 12 March 2002 the Diyarbakır State Security Court heard oral evidence from R.D. When asked about his involvement in the attack on the applicant, R.D. claimed that he did not know him and he had not been involved in the attack. 26. In a letter of 21 October 2002 the Diyarbakır State Security Court asked the Nusaybin Assize Court to take statements from the applicant. 27. On 20 November 2002 the Nusaybin Assize Court heard the applicant who stated that he did not know who had shot him. He asked the court to bring the perpetrators of the attack to justice. 28. On 15 October 2002 the case file concerning the prosecution of R.D. was joined to the main investigation file (no. 2000/171) concerning the Hizbullah. 29. As a result of dispute over jurisdiction between the Diyarbakır State Security Court and the Assize Court, case file no. 2000/171 was sent to the Court of Cassation. 30. On 18 February 2003 the Court of Cassation decided that all cases concerning the prosecution of members of the Hizbullah should be joined to the main file no. 2000/171 pending before the Diyarbakır Assize Court. 31. On 20 February 2003 the case concerning the trial of R.D. was joined to the main file before the Diyarbakır Assize Court. 32. According to the Government’s submissions dated 29 September 2006, it appears that the criminal proceedings against R.D. and other Hizbullah members are still pending before the Diyarbakır Assize Court. 33. The relevant domestic law and practice are set out in the Yaşa v. Turkey judgment of 2 September 1998 (Reports of Judgments and Decisions 1998VI, §§ 47-55)