CASE OF DURMAZ v. TURKEY
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano
5. The applicant was born in 1955 and lives in İzmir. 6. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 7. The applicant’s daughter, Gülperi O., worked as a nurse at the Aegean University Hospital in İzmir. She was married to O.O., who worked in the pharmacy at the same hospital. 8. According to the applicant, the couple had frequent rows and O.O. used violence against Gülperi O. on a number of occasions. 9. At 5.30 p.m. on 18 July 2005 O.O. brought Gülperi O. to the accident and emergency department of the Aegean University Hospital and told the doctors and nurses at the hospital that she had taken an overdose of two medicines called “Prent” and “Muscoril”. 10. A police officer at the hospital took a statement from O.O. at 6.45 p.m. In his statement O.O. was reported as having stated that he and Gülperi O. had had a row earlier in the day; she had attacked him and he had hit her. He had then left home and some time after his return at 3.00 p.m. Gülperi O. had felt unwell. He had then brought her to the hospital. 11. It was stated in a report prepared by police officers that a police officer had spoken to the prosecutor over the telephone at 6.50 p.m. and that the prosecutor had instructed that police officer to question Gülperi O. and her husband, O.O. 12. At the time of her admission to the hospital, Gülperi O. was conscious but drowsy. Doctors and nurses, who had been informed about O.O.’s assertion that she had taken an overdose of the two medicines, pumped her stomach. When her pulse slowed down the doctors unsuccessfully tried to resuscitate her. Gülperi O. died at 10.10 p.m. 13. The doctor and the prosecutor who subsequently examined her body were unable to establish the cause of death and they decided, in view of the fact that the deceased’s husband, O.O., had told the police officers that he had hit her, that a post-mortem examination was necessary. 14. The post-mortem examination was carried out the following day and samples taken from Gülperi O.’s body were sent for forensic analysis. 15. On 20 July 2005 the police prepared a report summing up their inquiry. It was stated in this report that Gülperi O. had committed suicide by taking an “overdose of medicines”. 16. On 22 July 2005 the applicant’s husband, Mr Elaattin Kanter, lodged an official complaint with the İzmir prosecutor against O.O., and alleged that O.O. had been responsible for the death of his daughter. Mr Kanter stated in his complaint petition that O.O. had beaten Gülperi O. up on a number of occasions and, as a result, she had been thinking of divorcing him. However, O.O. had apologized and had persuaded her to change her mind by promising to her that he would not be violent towards her again. Mr Kanter informed the prosecutor that Gülperi O. had telephoned her sister during the afternoon of the day of her death, and that they had had a normal conversation; she had not been suicidal at all. 17. Mr Kanter alleged that O.O. had forced Gülperi O. to take the medicines and had subsequently dumped her body at the hospital. The family had heard nothing from O.O. since that date and he had not even attended the funeral. 18. On 25 July 2005 the İzmir prosecutor questioned the applicant and her husband. The applicant told the prosecutor that O.O. had beaten up her daughter before and that as a result she had had to be hospitalised twice with suspected head injuries. Mr Kanter told the prosecutor that his daughter had never been suicidal and that in his opinion O.O. had been responsible for her death. 19. On 29 July 2005 police officers forwarded photographs of Gülperi O.’s body to their head office with a covering letter stating “...find attached photographs of Gülperi O. who committed suicide by taking an overdose of medicines”. 20. Also on 29 July 2005 the İzmir prosecutor questioned the hospital personnel who had been on duty on the day in question and had tried to resuscitate Gülperi O. A doctor told the prosecutor that O.O. had told him that Gülperi O. had taken “Muscoril” and “Prent”. 21. On 19 December 2005 the İzmir prosecutor informed the Registry Office for births, marriages and deaths that Gülperi O. had taken an overdose on 18 July 2005 and had killed herself and that her death could be entered in the records. 22. According to a report drawn up by the Forensic Medicine Institute on 30 December 2005, no medicines, other drugs or alcohol had been found in the blood and other bodily samples taken from Gülperi O.’s body. 23. On 30 January 2006 the Forensic Medicine Institute published its report on the post-mortem examination and other forensic examinations carried out on the samples taken from Gülperi O.’s body. According to the report, there was advanced oedema in her lungs and there were no drugs or other foreign substances in her body. The cause of death was established as “acute alveolar swelling and intra-alveolar haemorrhage” in the lungs. 24. On 13 February 2006 the İzmir prosecutor in charge of the investigation sent a letter to the Forensic Medicine Institute and asked whether suicide or some form of illness could have been the cause of death. 25. In its response to the İzmir prosecutor the Forensic Medicine Institute confirmed on 24 February 2006 that there had been no foreign substances or medicines ‒ including “Prent” and “Muscaril” (see paragraph 9 above) ‒ in Gülperi O.’s body. The Institute also stated in its letter that, should the judicial authorities conclude that Gülperi O. had committed suicide by taking an overdose, then those judicial authorities should also conclude that the medicines she had used were of a type which could not be detected in forensic examinations of samples taken from internal organs. 26. On 28 February 2006 the İzmir prosecutor decided to close the investigation. In the decision the prosecutor stated that “the post-mortem report of 30 January 2006 states that Gülperi O. died as a result of lung complications caused by medicinal intoxication”. In the opinion of the prosecutor, Gülperi O. had committed suicide because she had had an argument with her husband. 27. On 4 April 2006 the applicant lodged an objection with the Karşıyaka Assize Court against the prosecutor’s decision. The applicant drew the Assize Court’s attention to the prosecutor’s failure to question O.O., despite the fact that by his own admission he had beaten Gülperi O. up on the day of her death. She also argued that the prosecutor’s conclusion that her daughter had committed suicide by taking an overdose ran contrary to the conclusions set out in the two reports issued by the Forensic Medicine Institute. She added that the prosecutor had not visited the flat where Gülperi O. used to live with O.O., even though they had informed the prosecutor that the flat had been a mess and that windows had been broken. She alleged in her petition that the prosecutor had accepted from the outset that Gülperi O. had committed suicide and that that had been the reason why she had not conducted an investigation into the allegations brought to her attention. 28. On 20 June 2006 the applicant and her husband, assisted by a lawyer, submitted another petition to the Assize Court in which they set out additional arguments in support of their request for the prosecutor’s decision to be set aside. 29. The objection was dismissed by the Karşıyaka Assize Court on 11 July 2006. The Assize Court considered that the prosecutor’s decision had been correct and in accordance with domestic law and procedure. 30. When notice of the application was given to the respondent Government, the Court asked the Government ‒ pursuant to the parties’ duty to cooperate with the Court under Article 38 of the Convention ‒ to invite the Forensic Medicine Institute to prepare a report, based on the above-mentioned existing medical reports and the prosecutor’s decision of 28 February 2006, and to render an expert opinion as to whether there exist medicines which cannot be detected in forensic examinations of samples taken from internal organs and which could nevertheless have caused the fatal lung problems. The Government were also asked, should the Institute’s answer be in the negative, to invite the Institute to elaborate, on the basis of the documents in the investigation file, on the cause of the lung problems which, according to the report of 30 January 2006, caused the death. 31. The Government complied with that request and submitted to the Court two reports prepared by the Forensic Medicine Institute on 16 April 2013 and 15 July 2013. 32. In these two reports, three experts working for the Forensic Medicine Institute confirmed that the samples taken from Gülperi O.’s body had been checked against the list of known substances in their database ‒ including the two medicines named specifically by Gülperi O.’s husband, O.O. (see above in paragraph 9) ‒ and stated that she had not died as a result of having taken any of those substances. It was also stated in the report that the possibility could not be completely ruled out that she might have taken another toxic substance which was not in their database. 33. The experts at the Forensic Medicine Institute also stated in their reports that they did not agree with the conclusion reached in the autopsy report of 30 January 2006, namely that Gülperi O. had died as a result of “acute alveolar swelling and intra-alveolar haemorrhage” in the lungs. In their opinion, the “acute alveolar swelling and intra-alveolar haemorrhage” was a histopathological finding often caused by anoxia (total oxygen depletion), and could thus not be stated as the cause of death. In the opinion of the three experts, it should have been stated in the autopsy report of 30 January 2006 that the cause of Gülperi O.’s death could not be established.