CASE OF PEKER v. TURKEY (No. 2)
Violation of Art. 2;Remainder inadmissible;Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto
5. The applicant was born in 1966 and lives in Istanbul. 6. On 19 December 2000 security operations were conducted in a number of prisons in Turkey, during which scores of detainees were killed and hundreds injured (for details of these operations, see İsmail Altun v. Turkey, no. 22932/02, 21 September 2010; Keser and Kömürcü v. Turkey, no. 5981/03, 23 June 2009; and Gülbahar and Others v. Turkey, no. 5264/03, 21 October 2008). 7. The operation in Gebze prison, where the applicant was serving a prison sentence, started in the early hours of the day. As the remaining facts of the case are disputed between the parties, they will be set out separately. 8. At around 5.00 a.m. on 19 December 2000 a large number of gendarmes went into the prison by the main entrance and started firing without giving any warning. At that moment the applicant was in the corridor just outside his dormitory. He was hit in the leg by a bullet fired by the gendarmes. A doctor friend of the applicant who was a remand prisoner in the same prison provided first aid to the applicant. 9. When the inmates set up barricades to protect themselves, the gendarmes threw in explosives containing various gases and smoke. They also continued firing. Heavy machinery was used to make large holes in the prison roof, through which the gendarmes poured boiling water and sprayed gases. 10. At around 7.00 p.m. the same day the applicant and the other injured inmates were taken into the courtyard of the prison. There the applicant was handcuffed and dragged through a 100-metre-long human corridor formed by the gendarmes. While this was being done the gendarmes kept hitting the applicant until he passed out. While the prison governor and other civilian authorities were checking the inmates' identity documents, a gendarme dragged the applicant into a corner and beat him up there. He was subsequently taken to Gebze State Hospital but was brought back to the prison four days later, before his treatment was complete. 11. The operation, named “Return to Life”, began at around 4.30 a.m. on 19 December 2000, when members of the security forces went into the prison through the main entrance. At that moment one of the inmates tried to close the door and told fellow inmates that the security forces were there. The inmates then locked and barricaded the second door of the main hall. The gendarmes heard a gunshot coming from the barricaded side where the inmates had gathered. 12. Despite a number of warnings given by the security forces, the inmates did not lift the barricades. The security forces overcame the inmates' resistance and went into the cells. Seven inmates who were on hunger strike at the time and a further six who had been injured during the operation were taken to Gebze State Hospital. The applicant was wounded by a bullet and was among those who were taken to the hospital. 13. The operation ended at around 9.00 p.m. the same day. Materials used by the inmates as weapons, namely wooden sticks and iron bars, were found in the dormitories and confiscated by the security forces. 14. The following information is disclosed by the documents submitted by the parties. 15. According to two reports drawn up by a prosecutor and gendarmerie personnel on 19 December 2000, the operation in the prison started at 4.30 a.m. the same day. The reason for the operation was to take a number of prisoners who were on hunger strike to a hospital. When the inmates refused to co-operate, force had to be used to remove them from the prison. According to these reports, a gunshot was heard from behind the barricades where the inmates were standing. 16. After the operation, a number of inmates who were on hunger strike were taken to hospital. Furthermore, the applicant and five other inmates who were injured in the operation were also taken to hospital. A doctor examined the applicant at Gebze hospital on 20 December 2000, noted a gunshot wound on his left foot and began treating it. 17. No firearms were found in the prison during the searches carried out in the immediate aftermath of the operation, or during the searches carried out on 12 January, 16 January, 18 January, 19 January, 23 March and 25 May 2001. 18. In an official complaint on 15 April 2001 the applicant asked the Gebze prosecutor to prosecute those responsible for the shooting and the ill-treatment. He alleged that the gendarmes had opened fire on the inmates. 19. On 16 May 2001 the Gebze prosecutor questioned the applicant about these complaints. The applicant maintained his complaints and informed the prosecutor that on his return from the hospital he had been beaten up again by the gendarmes. He added that according to information he had obtained subsequently, an officer named either “Abdullah” or “Abdurrahman” had shot him with his pistol. He also told the prosecutor that bullet marks were still visible in the ceiling of the prison. 20. An officer by the name of A.Y. who had taken part in the operation was questioned by the Gebze prosecutor on 17 July 2001. The officer told the prosecutor that he had heard a shot from the other side of the barricades, but added that he had not used his weapon during the operation. No bullets or spent bullet cases had been found after the operation. 21. In his indictment of 17 July 2001 the Gebze prosecutor indicted the applicant and over 200 of his fellow inmates. The inmates were accused of obstructing law-enforcement personnel in the execution of their duties and causing criminal damage. 22. During a search conducted at the prison on 29 August 2001 a pistol and seven bullets were found by the prison authorities. 23. On 6 December 2001 gendarme officer S.Y., who had been responsible for the security of the applicant's prison, was questioned by the Gebze prosecutor. Officer S.Y. informed the prosecutor that a total of three pistols had been found during searches conducted in the prison some months after the operation. It was possible that the applicant had been shot with one of those pistols by the inmates during the operation. Neither officer S.Y. nor any of the gendarmes under his command had fired shots during the operation. 24. Two more pistols and thirty-three bullets were found in the prison on 22 January 2002. 25. Three other gendarmerie personnel questioned by the prosecutor on 29 March 2002 stated that the gendarmes had not fired shots during the operation. They all considered that the applicant had probably been shot by his fellow inmates with one of the pistols found in the prison. 26. In a statement on 11 June 2002 the applicant repeated his allegations and gave the prosecutor the names of the four friends who had assisted him after he had been shot. In a large number of letters sent between 19 August 2002 and 21 February 2004 the Gebze prosecutor unsuccessfully requested the authorities to locate and question these four inmates. 27. On 24 February 2004 one of the above-mentioned four inmates was found and questioned by a prosecutor. He told the prosecutor that the gendarmes had opened fire on the inmates and that the applicant had been injured by a bullet fired by the gendarmes. Another inmate, questioned subsequently by the prosecutor, stated that he had not seen the applicant being shot. 28. In his letter of 27 May 2004 addressed to the Gebze governor the Gebze prosecutor requested permission to prosecute two gendarmerie officers allegedly responsible for the applicant's injury. The Gebze governor appointed a gendarmerie officer to investigate the allegations. 29. Two gendarmerie officers questioned by the investigator appointed by the Governor stated that they had not fired their weapons during the operation. One of them stated that a ballistic examination of their weapons would confirm the accuracy of their statements. 30. Having regard to the denials of the gendarmerie personnel, the investigating officer advised the governor on 19 October 2004 not to grant the authorisation sought by the prosecutor. 31. Acting on the investigator's advice the governor refused the request for authorisation on 21 October 2004. 32. On 15 June 2005 the Regional Administrative Court in Sakarya examined the objection lodged by the applicant against the governor's decision on 10 January 2005, and quashed the decision. It held that a judicial investigation should be carried out. 33. On 13 September 2005 the Gebze prosecutor wrote to the Gendarmerie Command in Gebze Prison and asked for the two officers to be sent to his office for further questioning. When the prosecutor received no responses to his letter, he repeated his request on 7 October 2005. On 15 November 2005 an officer informed the prosecutor that the two officers were no longer working at the prison. 34. On 18 November 2005 the prosecutor decided not to prosecute the two gendarmes alleged to have fired at the applicant. According to the prosecutor, there was insufficient evidence that the applicant had been injured by shots fired by the gendarmes. In his opinion the applicant had been shot with a bullet fired by inmates. 35. The applicant lodged an objection to the prosecutor's decision on 26 December 2005. He argued, inter alia, that the investigation had not been conducted in a timely manner or in an impartial and independent fashion. He also alleged that the prosecutor had failed to collect all available evidence, such as TV footage of the incident, statements by other eyewitnesses and medical reports. 36. The objection lodged by the applicant was dismissed by the Kartal Assize Court in Istanbul on 14 March 2006. The decision was communicated to the applicant on 21 April 2006. 37. On 12 March 2009 the case brought against the applicant and his fellow inmates (see paragraph 21 above), in so far as it concerned the offence of obstructing law-enforcement officials in the enforcement of their duties, was rejected as the period of limitation had already expired. 38. In the meantime, the applicant was released from the prison in 2004.