CASE OF FADİME AND TURAN KARABULUT v. TURKEY
Violation of Art. 2 (substantive aspect);Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
5. The applicants were born in 1963 and 1950 respectively and live in Sivas. They had two daughters, Nermin Karabulut and Serap Karabulut. 6. According to the applicants, on 29 July 1998 at about 1 p.m. the two girls were hitchhiking to Sivas when a military vehicle stopped and the soldiers who got out started shooting at them. Nermin Karabulut, who was fourteen years old, was shot and died later in the day in a hospital. Serap Karabulut, who was sixteen, was beaten by the soldiers before being taken to a gendarmerie station. She was released the same evening. 7. The same day a scene of incident report was drawn up by the gendarmerie officers. According to that report, a person who wanted to remain anonymous telephoned the gendarmerie and stated that he had seen a female behaving suspiciously. A number of gendarme officers and soldiers arrived at the scene at around 2 p.m. and saw the female in question. When the female saw the soldiers she began to run away. The soldiers unsuccessfully called out to her to stop and then fired fifteen to twenty warning shots in the air. The female responded by throwing a hand grenade at the soldiers and the soldiers continued firing warning shots. When she attempted to throw another grenade, the soldiers shot her. When they searched her the soldiers found a stick, two knives, a screwdriver, a two-metre-long electricity cable, a syringe with a yellow liquid inside and a hand grenade. None of the soldiers were injured in the incident. Nermin Karabulut was then taken to a hospital in the city of Sivas where she died later the same day. 8. On 30 July 1998 the second applicant and his surviving daughter Serap Karabulut made statements to a prosecutor. The second applicant maintained that his two daughters had been trying to flag down a car in order to go to a hospital in Sivas where they had had operations previously. When no cars stopped, the girls had decided to walk to their uncle's house but then the soldiers arrived and told the two girls to stop. Serap Karabulut raised her hands and stopped but Nermin Karabulut started to run away from the soldiers because she was scared. The soldiers then shot her. The second applicant asked the prosecutor to find and prosecute those responsible for the killing of his daughter. 9. Serap Karabulut confirmed the version of the events described by her father and added that she would recognise the soldier who shot her sister. She also stated that the soldiers had beaten her up. 10. The same day Serap Karabulut was taken to the Sivas Numune Hospital where she was examined by a doctor. The medical report indicated that there was an area of bruising measuring 4 x 5 cm, on her right shoulder and a scratch measuring 3 x 4 cm on her left shoulder. 11. Also the same day an autopsy was conducted on Nermin Karabulut's body at the Cumhuriyet University Medical Department, with the attendance of a prosecutor. Just before the autopsy her mother formally identified her deceased daughter. She told those present at the hospital that her daughter Nermin Karabulut had been carrying the knives and the screwdriver in order to defend herself from any possible attacks while she was herding animals. She added that the syringe was hers and contained a tranquilliser which had been prescribed to her by her doctor; she did not know why her daughter had taken it from the house. She asked for those responsible for the killing of her daughter to be prosecuted and punished. 12. According to the autopsy report drawn up the same day, Nermin Karabulut had died as a result of internal bleeding caused by a single bullet which had entered from the back at the level of the eleventh left rib and exited at the front at the level of the ninth rib. The prosecutor who was present during the autopsy observed that the hand grenade which was allegedly found on Nermin Karabulut (see paragraph 7 above) was not among the objects submitted to his office. 13. According to a report prepared the same day at the Gendarmerie Laboratories, the yellow liquid in the syringe was identified as heroin. 14. On 5 August 1998 a scene of incident report was drawn up by the prosecutor who went to the area where Nermin Karabulut was killed. The prosecutor was accompanied by Hafik district gendarmerie commander Mehmet Elagöz, the applicants' surviving daughter Serap Karabulut, the applicants' representative, the village headman (muhtar) and an expert on explosives. A search was carried out in the area, during which a spent bullet case and a grenade fuse were found. A hole, 25-30 cm wide and 810 cm deep, was observed by those present. According to the expert, the hole could have been caused by a hand grenade as well as by numerous other things. No pieces of the hand grenade allegedly thrown by Nermin Karabulut could be found in the area. The Hafik district gendarmerie commander Elagöz told the prosecutor that the second hand grenade which was found on Nermin Karabulut had been destroyed by the soldiers after the incident. 15. On various dates in August, the prosecutor took statements from six gendarmerie officers who had been involved in the incident. The officers stated that they had acted under the belief that Nermin Karabulut was a terrorist because she had thrown a hand grenade at them and also because they had thought that the wooden walking stick hidden under her jacket was a rifle. They had fired warning shots, and when she was about to throw the second hand grenade, they had fired shots at her, aiming below the waist and at the hand with which she had been holding the hand grenade. Their intention was not to kill but to injure her so that they could arrest her. 16. On 12 August 1998 the applicants lodged a complaint with the Sivas prosecutor and informed the prosecutor that the gendarmerie personnel responsible for the killing of their daughter had been issuing press releases in which claims such as “the suicide bomber was on heroin” were made. 17. On 31 August 1998 the Police Laboratory issued its report on the fuse and a sample of soil taken from the hole found at the scene. According to the report, the fuse belonged to a hand grenade of NATO standard, the origin of which could not be identified. It was also established that the soil sample contained traces of Trinitrotoluene (TNT). 18. On 29 September 1998 the Forensic Medicine Institute issued its report on the results of tests carried out on a blood sample taken from Nermin Karabulut's body and on the yellow liquid in the syringe found with her. According to the report, there were no drugs in Nermin Karabulut's blood. The liquid in the syringe was identified as chlorpromazine, a type of tranquilliser. 19. On 22 October 1998 gendarmerie lieutenant-colonel Sabri Semen was appointed as the investigator on the case and began questioning the gendarmerie personnel who had taken part in the incident. On 25 October 1998 the lieutenant-colonel concluded his investigation and recommended that no permission be given for the prosecution of the six gendarmerie personnel. The report contains a summary of the statements made by, inter alia, the six gendarmerie officers, the applicants and Serap Karabulut. The lieutenant colonel considered that the gendarmerie officers had had reason to believe that Nermin Karabulut, who had not stopped when warned and had thrown a hand grenade at the soldiers, was a terrorist. Referring to the applicable legislation according to which gendarmerie officers had the right to use firearms when confronted, the report concluded that there had been no intention to kill and therefore no prosecution should be brought against the six gendarmerie officers involved in the incident. 20. On 10 November 1998 the Commission on the Prosecution of Civil Servants (“the CPCS”) held that the report prepared by the investigator concentrated solely on the issue of the killing and did not examine whether the soldiers had exceeded their powers. The CPCS also considered that the report lacked information on a number of issues. For example, the identity of the gendarmerie officer who shot Nermin Karabulut and the identity of the person who had informed the gendarmerie about “the suspicious female” had not been established. The soldiers' failure to preserve the purported second-hand grenade instead of destroying it had also not been questioned. The villagers had not been questioned about Nermin Karabulut's character, whether she had previously been involved in terrorist activities and where she could have obtained hand grenades. 21. On 8 December 1998 the investigator took additional statements from four of the gendarmerie officers who maintained that they had all fired at Nermin Karabulut at the same time and did not know which bullet had hit her. They had aimed below the waist in order to avoid killing her. Nevertheless, as the terrain was rough, she had received a lethal shot. The grenade found by her side had already been partially detonated by her and therefore would have posed a threat if preserved as evidence. 22. On the same day the lieutenant-colonel took statements from three villagers, who stated that Nermin Karabulut often took long walks in the countryside, sometimes with her father who was a shepherd, and sometimes alone. They did not know whether she had been involved in any terrorist activities before and they did not know from where she could have obtained the hand grenades. A gendarmerie officer who worked as a telephone operator on the switchboard told the investigating lieutenant-colonel that the person who informed them about “the suspicious female” had not given his name. 23. On 9 December 1998 the lieutenant-colonel prepared an additional report. The CPCS decided on 22 December 1998 to decline permission to prosecute the gendarmerie personnel who had killed Nermin Karabulut. The CPCS's decision was quashed by the Council of State on 26 June 2002. 24. On 22 August 2002 the Sivas prosecutor filed a bill of indictment with the Sivas Assize Court and charged six gendarmerie personnel with unintentional homicide, contrary to Article 452 of the Turkish Criminal Code. On 16 October 2002 the applicants intervened in the criminal proceedings. 25. On 28 January 2004 the Sivas Assize Court issued a decision of non-jurisdiction, on the ground that the defendants were military personnel and the act complained of had taken place in the course of their military duties. The case file was sent to the Sivas Military Court. 26. On 14 April 2005 the Sivas Military Court also issued a decision of non-jurisdiction. This decision was upheld by the Military Court of Cassation on 18 October 2005 and on 6 March 2006 the Jurisdiction Disputes Court (Uyuşmazlık Mahkemesi) held that the case fell within the jurisdiction of the Sivas Assize Court since the offence by gendarmes had been committed in the course of their administrative and civil duties. 27. A new trial was conducted by the Sivas Assize Court, during which the defendants were questioned by different criminal courts pursuant to rogatory letters issued by the Sivas Assize Court. 28. On 7 December 2007 the Sivas Assize Court considered that the gendarmes had exceeded their powers on the use of firearms by firing at Nermin Karabulut's back rather than at non-vital parts of her body. The Assize Court also considered that alternative and non-lethal methods could have been employed by the gendarmes to catch Nermin Karabulut. It found the gendarmes guilty of manslaughter and sentenced them to one year and eight months' imprisonment. However, the sentences were then suspended pursuant to Article 51 of the Criminal Code, which gave criminal courts discretion to suspend prison sentences shorter than two years. 29. The applicants and the defendants appealed. On 22 December 2008 the Court of Cassation upheld the Sivas Assize Court's judgment of 7 December 2007 in so far as it concerned its conclusion concerning the finding of guilt. Nevertheless, it quashed the sentencing part of the judgment in so far as it concerned five of the six gendarmes, and remitted the case to the Sivas Assize Court so that the provisions of a new law which had entered into force in the meantime (Law no. 5728 of 23 January 2008) could be applied to them and the pronunciation of their sentences could thus be deferred. As the sixth gendarme already had a criminal record in respect of another offence, the Court of Cassation held that he could not benefit from the favourable provisions of the new law, and upheld his suspended sentence handed down by the Sivas Assize Court on 7 December 2007. 30. A new trial was conducted by the Sivas Assize Court which reiterated on 17 December 2009 the conclusion it had reached on 7 December 2007, and found the remaining five gendarmes guilty of the offence of manslaughter. They were sentenced to one year and eight months' imprisonment but the execution of the sentences was suspended. The Sivas Assize Court observed that the defendants had no previous convictions and considered that they would not commit any such offences in future. The applicants lodged an appeal against the judgment, the outcome of which is unknown to the Court.