CASE OF AKPINAR AND ALTUN v. TURKEY
No violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);No violation of Art. 3;Violation of Art. 3;Not necessary to examine Art. 3 (procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
4. The applicants were born in 1957 and 1949 and live in Aydın (Turkey) and Australia respectively. The application concerns the killing of the first applicant's brother, Seyit Külekçi, and the second applicant's son, Doğan Altun, the alleged mutilation of their corpses by security forces and the alleged failure to conduct an effective investigation into the applicants' allegations. 5. On 14 April 1999 Seyit Külekçi, and Doğan Altun were killed by security forces in the course of an armed clash which occurred in the village of Yeşilalan, Turhal district (province of Tokat). 6. According to the scene-of-incident report (olay yeri tespit tutanağı) drawn up and signed by four gendarmerie officers from the Turhal district gendarmerie command, security forces had set up an ambush in Yeşilalan in order to capture members of the TKP-ML/TIKKO (Communist Party of Turkey / MarxistLeninist / Turkish Workers and Peasants' Liberation Army). Six members of the organisation arrived in the village and were ordered to surrender. A clash broke out after they opened fire. When the firing ceased the security forces found two corpses. They also found two automatic rifles, four chargers and fifty cartridges next to the bodies. The other four persons fled. It is stated in the report that the security forces used 10 hand grenades, 2,780 Bixi-type bullets, 1,420 G3-type bullets, 2,620 Kalashnikov-type bullets, and other ammunition used for illumination. The gendarmerie officers further drew a sketch-map of the scene of the incident. 7. On 15 April 1999 the rifles and the cartridges found after the clash were sent to the Tokat provincial gendarmerie command for a ballistic examination. 8. On 14 May 1999, upon the request of the Tokat gendarmerie command, three ballistic experts at the gendarmerie general command conducted a ballistic examination of two rifles and 44 of the cartridges found at the scene. 9. Following the incident, officers from the Turhal gendarmerie command took the corpses to their command's yard. The bodies had been identified as those of Seyit Külekçi and Doğan Altun. 10. On 15 April 1999 post-mortem examinations were carried out on the deceased in the Turhal gendarmerie command's yard by a medical expert, in the presence of the Turhal public prosecutor. According to the expert's report, Doğan Altun had received nine bullets to his head, shoulders, chest and legs. It was also noted that half of his left ear had been cut off. The medical expert observed that Seyit Külekçi had received eight bullets to his head, shoulders, arms, chest, abdomen and lumbar region. He further observed that both of Seyit Külekçi's ears had been cut off. The expert noted numerous other wounds on the bodies. He concluded that the cause of their deaths was haemorrhaging and damage to the cerebral tissue as a result of wounds caused by firearms. He considered that there was no need to carry out a full autopsy as the cause of death was clear from the findings of the examination. During the post-mortem examination, photographs of the deceased were taken. After the examination the corpses were placed in the Turhal State Hospital morgue. 11. On the same day, the gendarmerie officers took the statement of Z.U., an inhabitant of Yeşilalan who was wounded during the armed clash on 14 April 1999. Z.U. maintained, inter alia, that at 9 p.m. terrorists had arrived at the village and asked him to take them to the house of the village headman (muhtar). On their way, shots were fired. He hid in a ditch and, subsequently, in the garden of a house. Z.U. contended that he had remained hidden until the following morning, whereupon, having dressed his wound, soldiers had taken him to Turhal hospital. 12. On 16 April 1999 the corpses of Doğan Altun and Seyit Külekçi were returned, respectively, to the second applicant, Fevzi Altun, and to Seyit Külekçi's brother, Ali Külekçi. 13. On an unspecified date, the Turhal public prosecutor initiated an investigation (no. 1999/624) against the deceased and four others, who were all suspected of belonging to the terrorist organisation TKP-ML/TIKKO. 14. On 15 June 1999 the applicants filed a complaint with the Turhal public prosecutor's office. In their complaint they maintained that Doğan Altun's left arm had been cut. They further contended that the ears of Seyit Külekçi and Doğan Altun had been cut off and that there were various injuries on their bodies which could not have been caused by firearms. The applicants alleged that their relatives had been tortured before they died or, alternatively, that the security forces had ill-treated the corpses. The applicants requested the public prosecutor to initiate an investigation against those members of the security forces who were responsible for the mutilation of their relatives' bodies. 15. On an unspecified date the Turhal public prosecutor opened an investigation into the applicants' allegations (no. 1999/1117). 16. On 11 October 1999 the Turhal public prosecutor decided to join investigations nos. 1999/624 and 1999/1117, since they concerned the same incident. 17. On 15 February 2000 S.Ş., a gendarmerie private who had participated in the military operation in Turhal on 14 April 1999, gave statements to the Turhal public prosecutor. He contended that there had been an armed clash between terrorists and the security forces on the day in question and that, at the end of the clash, two terrorists had been found dead. S.Ş. further maintained that these two persons had been killed by special teams. He stated that the ears of the deceased had already been cut off when he saw them, and that he had signed the scene-of-incident report without having read it. 18. On 17 February 2000 the Turhal public prosecutor took statements from K.K., the deputy gendarmerie station commander in the Turhal gendarmerie command. He maintained that in April 1999 there had been a military operation conducted by gendarmerie commando teams together with a special team, and that he had participated in this operation as a guide. He stated that, following the armed clash between the terrorists and the security forces, he and his team had taken the corpses to the town centre. He did not realise that the terrorists' ears had been cut off since the corpses were covered with mud. He opined that the inhabitants of Yeşilalan village could have cut off the terrorists' ears out of fear because the armed clash had occurred in their village. 19. On 30 March 2000 M.Ç., another gendarmerie private who was performing his military service in Turhal in 1999, gave statements to the Kurşunlu public prosecutor in Çankırı. He maintained that Seyit Külekçi and Doğan Altun had been killed by special teams. He contended that he had not approached the corpses. He saw that hand grenades had exploded on the bodies. He denied the allegation that he had ill-treated them. 20. On 18 April 2000 S.Y., a sergeant who had served in Turhal between 1996 and 1999, gave statements to the Elazığ public prosecutor. The sergeant contended that he had neither seen nor ill-treated the corpses. He maintained that the damage to the corpses could have been caused by firearms. 21. On 3 September 2000 the Turhal public prosecutor decided to separate the investigation against the officers who had participated in the operation conducted on 14 April 1999 from the investigation against the deceased and the four other suspects who had fled on the same day. In his decision, he noted that these matters fell within the jurisdiction of different courts. The public prosecutor identified the charge against the security forces as that of “insulting corpses”. 22. On 10 October 2000 the Turhal public prosecutor filed a bill of indictment charging the gendarmerie officers M.Ç., K.K., S.Ş. and S.Y. with “insulting” the corpses of Seyit Külekçi and Doğan Altun, contrary to Article 178 § 1 of the Criminal Code. 23. On the same day the Turhal Criminal Court of First Instance placed those officers on trial. 24. On 31 October 2000 M.Ç. made statements before the Kurşunlu Criminal Court of First Instance, denying the allegation that he had cut the ears off the corpses. He maintained that he had neither seen nor ill-treated them. 25. On 20 December 2000 the Turhal Criminal Court of First Instance held a hearing. 26. On 5 January 2001 the first-instance court decided to defer the imposition of a final sentence upon the accused, pursuant to section 1 of Law no. 4616. The court held that the criminal proceedings against the accused would be suspended and a final sentence imposed should they be convicted of a further intentional offence within five years of this decision. 27. The judgment of 5 January 2001 became final, as neither the public prosecutor nor the accused officers appealed against it. 28. A description of the domestic law at the material time can be found in Ergi v. Turkey (judgment of 28 July 1998, Reports of Judgments and Decisions 1998IV, §§ 48 and 51), İlhan v. Turkey ([GC], no. 22277/93, §§ 36, 41 and 42, ECHR 2000VII) and Şahmo v. Turkey ((dec.), no. 37415/97, 1 April 2003).