CASE OF ALICAN v. TURKEY
Violation of Art. 6-1
Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
4. The applicants were born in 1983, 1946 and 1936 respectively. The first and the third applicant live in Diyarbakır and the second applicant resides in Manisa. The application concerns the wounding of the first applicant, who was eleven years old at the time, and the death of the second and third applicants' sons, Çetin Alican and İlhami Alican, who were fourteen and thirteen years old respectively, as a result of the explosion of an RPG-7 (anti-tank grenade launcher) grenade outside the applicants' village, Kıyıdüzü, in Van. 5. 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. 6. On 22 April 1994 Kamuran Alican, Çetin Alican and Ilhami Alican took their animals out to graze. When the animals returned to the village without the children, the villagers launched a search party and informed the military nearby; the Van 6th Armoured Brigade Barracks. A search was also unsuccessfully conducted within the military confines. The next day, the dead bodies of Çetin Alican and Ilhami Alican were found in a wheat field between the army barracks and Nemrut Mountain. The first applicant, who had injuries to his eyes and legs, was found a few hundred metres away. He was immediately taken to Tatvan State Hospital for treatment. As a result of the explosion, the first applicant suffered partial loss of the sight of one eye and the total loss of sight in the other. 7. According to the first applicant's testimony, given to a prosecutor on 10 June 1994, the children were grazing their sheep in the field when they found an object with an iron head which looked like a bullet. The first applicant left the other two children to find water while they were trying to hit the iron head with pieces of metal. At that moment the bullet exploded. 8. On 23 April 1994 the Tatvan public prosecutor instigated an investigation into the incident. The prosecutor noted that there were numerous trenches around the area for tank and gun practice. The remains of the ammunition at the scene were secured. Reports and sketches were drafted and a postmortem examination was conducted on the deceased. The cause of death was attributed to hemorrhagic shock and the doctor deemed it unnecessary to conduct a classic autopsy of the deceased. 9. On 4 May 1994 the Tatvan public prosecutor decided that he lacked jurisdiction to investigate the incident and forwarded his decision to the military prosecutor's office at the Van 21st gendarmerie border brigade commandership (“the military prosecutor”). 10. The military prosecutor instigated an investigation into the incident. In particular, he requested the official records regarding the use of grenade launchers by the military during training, and medical reports regarding the health of the first applicant. 11. In the course of the investigation evidence was gathered from the first applicant, the third applicant, the head of the village, Mr M. M. Alican, a fellow villager, the soldiers on patrol duty on the day of the incident and a higher-ranking military official. 12. On 6 May 1997 the military prosecutor gave a decision that there was no need to initiate criminal proceedings on the ground that there was no fault or negligence attributable to anyone except Kamuran Alican, Çetin Alican and İlhami Alican. In his decision, the prosecutor noted that the children, while they were grazing their animals, had collected, near the trenches, a grenade from an RPG-7 grenade launcher and parts of a rocket, and that the incident had occurred while they were trying to explode them. He further noted that the incident had occurred 2,200 metres away from the Armoured Brigade Barracks where three fields met and that it was not a military area. In this connection, the prosecutor held that, according to the official military records, no unexploded grenades or rockets had been found after military training exercises, that the origin of these artefacts could not be established and that, even assuming that they were launched from the military training field, their range made it impossible for them to have landed 2,200 metres away from it. 13. The decision of the military prosecutor was served on 29 May 1997 on Ahmet Alican, on 7 July 1997 on Kamuran Alican and on 19 July 1997 on Ramazan Alican. The applicants did not object to the military prosecutor's decision. 14. On 20 February and 20 May 1995 the applicants made applications to the Ministry of the Interior for compensation on account of the injury sustained by the first applicant and the death of the other applicants' sons. They received no positive reply. 15. On 4 May 1995 the first and the second applicants, and on 17 April 1995 the third applicant, brought actions for compensation against the Ministry before the Van Administrative Court. They were represented by the same lawyers. In their petitions, the applicants claimed that Kamuran Alican had been injured and Çetin Alican and Ilhami Alican had died as a result of a mine which had been placed there by the gendarmerie police station. The first applicant requested the court to award 1,000,000,000 Turkish liras (TRL) for pecuniary damage and TRL 100,000,000 for nonpecuniary damage. The second and the third applicant each requested TRL 500,000,000 for loss of income on account of the death of their sons. 16. On 26 January 1998 the Van Administrative Court, basing its decision on the doctrine of “social risk”, awarded the applicant's claim in full. Although the amount determined by experts for pecuniary damage was significantly higher, the court was bound by the amount requested by the applicant. 17. The Ministry appealed. 18. On 8 February 2001 the Supreme Administrative Court quashed the judgment of the first-instance court on the ground that the latter had failed to determine which administrative entity, that is either the Ministry of the Interior or the Ministry of Defence, had responsibility for compensating the applicant. 19. On 28 September 2001 the Van Administrative Court, deciding that the Ministry of the Interior had responsibility, gave its judgment. The court held as follows: “ ... According to the report of the public prosecutor, the incident took place 1,500 metres from the Van 6th Armoured Brigade Barracks. (According to the sketch plan the distance is 2,200 metres.) It was a grenade for a rocket launcher called RPG-7, which exploded. The explosion occurred in an area where rockets are launched. Yet the origin of the grenade which caused the explosion is unknown. According to the inventory of the Turkish Military Forces, this type of weapon (RPG-7) is used by the military. However, it was included in the inventory of the 6th Armoured Brigade after the date of the incident in question. The maximum shooting range of the RPG-7 is 700 metres. The results of an investigation into the military units deployed in the region prior to the incident revealed that only one of these units had engaged in shooting practice. According to the records of that unit they had left no unexploded grenades. The rocket launcher in question is frequently used by members of the PKK terrorist organisation. Furthermore, the incident took place 1,500 metres from the barracks, in an area, which according to the attached map, has been declared to be a 2nd degree military security zone. Although it is established that the explosion occurred in the vicinity of the rocket launching zone, since the distance from the barracks was 1,500-2,200 metres it cannot be accepted that the unexploded grenade which caused the explosion was one used during a military unit's training. The investigation conducted by the military prosecutor at the 21st Gendarmerie Division Commander's office resulted in the same conclusion. Moreover, the conditions in the region are particular: the weapon in question is frequently used and hidden by the terrorist organisation. The grenade might have been left by terrorists who attacked the barracks. It should therefore be concluded that the damage in the present case was not caused by the activities of military forces but rather by terrorist activities. Nevertheless, taking into account the fact that a state of emergency was in force in the region at the time and the extraordinary nature of the damage, compensation should be awarded by the administration in accordance with the theory of “social risk”. ... The plaintiff should therefore be paid his claim in full, TRL 1,000,000,000 for pecuniary damage... although according to the expert reports, pecuniary damage in the present case could amount to TRL 19,237,229,000. ... As regards non-pecuniary damage, the plaintiff should be awarded TRL 100,000,000. 20. The Ministry appealed. 21. On 23 May 2002 the Supreme Administrative Court upheld the judgment of the first-instance court. 22. On 19 March 1998 the Van Administrative Court, basing its decision on the doctrine of “social risk”, awarded the applicant a certain amount of compensation. 23. The Ministry appealed. 24. On 22 December 1998 the Supreme Administrative Court quashed the judgment of the first-instance court on the ground that the latter had failed to determine which administrative entity, that is either the Ministry of the Interior or the Ministry of Defence, had responsibility for compensating the applicant. 25. On 16 November 1999 the Van Administrative Court, basing its decision on the doctrine of “social risk”, on the same ground as above, awarded the second applicant TRL 366,954,367 in respect of pecuniary damage together with legal interest running from the date of the incident, 23 April 1994. 26. The Ministry appealed. 27. On 9 April 2001 the Supreme Administrative Court upheld the judgment as regards the amount of compensation awarded but quashed the judgment of the first-instance court in respect of the date from which the interest should run. 28. On 28 November 2001 the Van Administrative Court held that the date of interest would start to run from the date when the applicant lodged an application with the Ministry, i.e. 20 February 1995. 29. On 19 March 1998 the Van Administrative Court, basing its decision on the doctrine of “social risk”, awarded the applicant a certain amount of compensation. 30. The Ministry appealed. 31. On 15 March 2001 the Supreme Administrative Court quashed the judgment of the first-instance court on the ground that the latter had failed to determine which administrative entity, either the Ministry of the Interior or the Ministry of Defence, had responsibility for compensating the applicant. 32. On 9 October 2001 the Van Administrative Court, basing its decision on the doctrine of “social risk” on the same ground as above, awarded the third applicant TRL 305,135,146 in respect of pecuniary damage together with legal interest running from 20 May 1995. 33. The Ministry appealed. 34. On 31 December 2004 the Supreme Administrative Court upheld the judgment of the first-instance court. 35. The relevant domestic law and practice in force at the material time can be found in the following judgments: Doğan and Others v. Turkey (nos. 8803-8811/02, 8813/02 and 8815-8819/02, §§ 68-69 and 75-78, ECHR 2004VI (extracts)), and Tepe v. Turkey (no. 27244/95, §§ 115-119, 9 May 2003).