CASE OF TOPTANIŞ v. TURKEY
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani
4. The applicant was born in 1974 and lives in İzmir. 5. At the time of the events giving rise to this application, the applicant was working as a watchman on a construction site located in the vicinity of a military compound housing the 7th Gendarmerie Commando Regiment in Foça, İzmir. 6. On 14 October 2008, sometime between 8 p.m. and 9 p.m., the applicant left the construction site to meet three friends, M.K., N.V., and F.T., who worked on nearby farms. While walking towards his friends, the applicant suddenly collapsed for an unknown reason; his friends immediately took him to hospital. The applicant’s initial medical examination at the Foça State Hospital did not reveal any findings other than a cut measuring 0.5 cm on his back between the tenth and eleventh ribs. However, a lung X-ray taken subsequently showed that a foreign object, which appeared to be a bullet, was lodged between his eleventh and twelfth ribs. The applicant was transferred to the Karşıyaka State Hospital to receive further treatment for serious injuries sustained to his lungs and liver. After undergoing various operations, on 23 October 2008 he was discharged from the hospital. According to a medical report issued on 30 December 2008 by the Karşıyaka State Hospital, it had been decided for medical reasons to leave the bullet inside the applicant’s body, to be extracted only in the event of deterioration in the applicant’s condition. The report also noted that the injuries sustained by the applicant had been life-threatening. 7. At 2.30 a.m. on 15 October 2008 two gendarme officers from the crime scene investigation unit of the Menemen Provincial Gendarmerie Command arrived at the site of the incident, which was located by a farm by the name of “Dürüs” (“the Dürüs farm”), to carry out a preliminary investigation and to prepare a scene-of-incident report (on the instructions of the Foça public prosecutor). After photographing the site of the incident, they talked to the witnesses and the gendarmerie patrol unit on duty. According to the information they obtained, the applicant had collapsed abruptly while he was walking to meet his friends. No gunshots had been heard at the site of the incident, but a firing practice had been underway at the relevant time at the nearby military compound housing the 7th Gendarmerie Commando Regiment. The gendarme officers indicated in their report that there were two shooting ranges within the said military compound: one located 1,780 metres to the north of the Dürüs farm, at an altitude of fifty metres (“the first shooting range”); and the other 1,050 metres to the east, at an altitude of ninety metres (“the second shooting range”). The altitude of the Dürüs farm was forty metres. There were three hills between the Dürüs farm and the first shooting range; the first two hills had an altitude of fifty-five metres, and the third hill had an altitude of ninety metres. No information was provided regarding the terrain between the farm and the second shooting range. Firing practice was carried out with G3 rifles at the first shooting range and with 5.56 mm rifles at the second shooting range. According to a sketch map prepared by the gendarme officers, the site of the incident was approximately 15 degrees to the east of the assumed trajectory of bullets fired from the first shooting range. In the gendarme officers’ opinion, the applicant had been hit by a stray bullet that had ricocheted during firing practice, particularly in view of the fact that no evidence of criminal conduct had been found at the site of the incident. The only evidence collected by the gendarme officers was the jacket that the applicant had been wearing at the time of his shooting, which was handed to the İzmir Gürçeşme Criminal Police Laboratory for examination. 8. The gendarme officers visited the site of the incident once again at approximately 9.45 a.m. on the morning of 15 October 2008 to make further investigations, but did not discover any new evidence. It appears that on the same morning they also went – on the instructions of the Foça public prosecutor – to the military compound to photograph the shooting ranges. 9. At approximately 10.15 a.m. on 15 October 2008 the Foça public prosecutor visited the site of the incident together with a police expert, H.Ö. The public prosecutor noted that the investigation had not thus far revealed any spent cartridges, bullet shells, arms or any other such material on or around the site of the incident, nor had any suspects who might have shot at the applicant been identified. According to the information provided by the applicant’s three friends to the public prosecutor, the applicant had collapsed right before their eyes and there had been no one else present at the relevant time. They also told the public prosecutor that they often heard gunfire coming from the military compound during shooting practice and that gunfire had also been audible at the time of the incident, although they had not heard gun shots emanating from anywhere nearby. 10. According to the information in the case file, the applicant was still in a critical condition on the morning of 15 October 2008. Nevertheless, at 3 p.m. on that day, he was interviewed by two gendarme officers in the office of the security team commander (Asayiş Tim Komutanı) of the local gendarmerie. It is not clear whether this office was located inside the hospital or outside. Prior to the commencement of the interview, the applicant was informed of his right to request the appointment of a lawyer from the local bar association to assist him, but it appears that he did not exercise that right. The applicant told the gendarme officers that at approximately 8.45 p.m. on 14 October 2008, he had left his house to check up on the construction site where he worked as a watchman. As he had been walking towards the site, he had heard whizzing sounds above his head. He had continued to hear the same sounds on his way out of the construction site, along with the sound of gunfire from the military compound located nearby. Then, all of a sudden, he had felt a sharp pain in his back and had collapsed to the ground. He had not known what had happened until he had been told in the hospital that he had been shot in the back with a firearm. When the gendarme officers asked the applicant whether he had been in ongoing conflict with anyone and whether he had heard any gunshots at the time of the incident, he replied that he had not been in any conflict and that the only shots he had heard had been those coming from the military compound, which he had been hearing for the past week. The applicant also stated that he did not wish to press charges against anyone regarding the incident. 11. On 16 October 2008 H.Ö., the police expert who had accompanied the Foça public prosecutor during his examination of the site of the incident, issued a report of his findings. He indicated in his report that the distance between the site of the incident and the military shooting ranges, which were spread over hilly terrain, was approximately one and a half kilometres. Having regard to the witness statements, and to the absence of any other factors that might explain the applicant’s injury, the police expert opined that the injury had probably been caused by a bullet that had ricocheted during the firing practice at the military compound. He submitted a simple sketch map of the site of the incident along with his report. 12. On 23 October 2008 the applicant was discharged from the hospital. 13. On 12 November 2008 two gendarme officers visited the applicant at his home on the instructions of the Foça public prosecutor to enquire about the bullet that had wounded him. The applicant informed the gendarme officers that the bullet had still not been extracted from his body and that the doctors would re-evaluate the situation once he had fully recovered from the earlier operations. The applicant was requested to inform the authorities in the event that the doctors decided to remove the bullet. 14. On 13 November 2008 the İzmir Criminal Police Laboratory issued a report on the analysis carried out on the applicant’s jacket. According to the report, a hole measuring 0.5 cm in diameter was found in the back of the jacket, but no gunshot residue was found around that hole. Having regard to the shape and other characteristics of the hole, it was decided that it had been caused by a firearm and that the shot had been fired from a long distance. 15. On 14 November 2008 the Foça public prosecutor took the applicant’s statement for the first time. The applicant was reminded of his right to request the assistance of a lawyer, which he once again declined to do. The applicant largely reiterated the statement he had made to the gendarme officers earlier. He also repeated that he did not want to press charges against any particular person, as he did not believe that he had been shot intentionally. He did, however, reserve his right to claim compensation. 16. On 24 November 2008 the Foça public prosecutor delivered a decision not to prosecute. The public prosecutor found firstly that, in view of the statements of the applicant and of the witnesses and the manner in which the incident had occurred, the applicant had not been shot intentionally. He noted secondly that the forensic examination conducted on the applicant’s jacket had revealed that the shot had been fired from a long distance; however, the source of the shot had not been identified, as the bullet had for medical reasons not yet been extracted from the applicant’s body. Nevertheless, having regard to all the information in the case file and to the fact that a military firing practice had been underway a few kilometres away at the time of the incident, the public prosecutor found that the applicant had probably been hit by a stray bullet that had ricocheted during the firing practice. According to the public prosecutor, this offence was to be classified as one of causing bodily harm through negligence (taksir), as opposed to recklessness (bilinçli taksir), in view of the significant distance of the shooting range from the site of the incident. Since the prosecution of the offence of causing bodily harm through negligence required a formal complaint to be made by the victim (which was lacking in the instant case), the Foça public prosecutor decided to close the investigation. 17. On 12 January 2009, after medical complications had arisen, the bullet was extracted from the applicant’s body and handed over to the hospital police. On 6 February 2009 it was registered in the custody of the Foça public prosecutor’s office. 18. In the meantime, on 16 January 2009 the applicant lodged an objection against the decision of the Foça public prosecutor, with the assistance of his lawyer. The applicant’s lawyer stated that the decision to close the investigation had been taken prematurely, before the investigation process had been completed and the gun from which the bullet had been fired and the identity of the shooter had been identified. There had also not been an attempt to establish whether the bodily harm had been caused through negligence, recklessness, lack of experience or breach of duty or with intent. Moreover, requesting the victim to indicate whether he wanted to press charges without first having established the perpetrator and the nature of the offence did not comply with due procedure. 19. The applicant’s objection was rejected by the İzmir Assize Court on 24 April 2009. The assize court did not provide any justification for its decision, apart from stating that the Foça public prosecutor’s decision had been in compliance with the law. This decision was served on the applicant on 20 May 2009. 20. On 3 March 2009 the applicant lodged a request with the Ministry of the Interior (“the Ministry”) for pecuniary and non-pecuniary damages in respect of his wounding. The Ministry refused the request; the applicant then brought an action for compensation before the İzmir Administrative Court. 21. On 22 February 2012 the İzmir Administrative Court dismissed the applicant’s action. It held that while it was not disputed that the applicant had been wounded by a bullet, there was no tangible evidence to prove that the bullet in question had in any way been connected to the firing practice held by the 7th Gendarmerie Commando Regiment in Foça on the date in question. The criminal investigation into the incident had been closed on account of the applicant’s decision not to bring an official complaint, and the bullet extracted from his body after the closing of the investigation had therefore not been subjected to a ballistic examination. In these circumstances, by not pursuing his complaints the applicant had hindered the collecting of evidence that could have proved a causal link between the administrative act (idari eylem) and the damage sustained. In the administrative court’s opinion, the applicant had thus not proved his allegations. 22. On 22 October 2015 the Supreme Administrative Court upheld the judgment of the İzmir Administrative Court. 23. An internal administrative inquiry was also conducted by the military authorities into the applicant’s shooting. During the course of that inquiry thirteen gendarme officers of various ranks who had attended the firing practice in question were interviewed on 15 October 2008 by a lieutenant-colonel. The officers stated, in virtually identical words, that a firing practice had been held on 14 October 2008 between 7 p.m. and 10 p.m. with G3 rifles, that all necessary security measures had been taken at the shooting range prior to the commencement of the practice, in line with the applicable laws and instructions, that all rifles had been fired under the supervision of senior officers, that no firing had been permitted outside the designated shooting areas, and that, in view of the security measures in place and the distance of the applicant from the shooting range, the applicant should not have been affected by bullets fired during the practice. 24. On 22 October 2008 a report was issued on the findings of the administrative inquiry. According to this report, all requisite safety measures had been implemented at the shooting range on the date in question, in compliance with the relevant security regulations, and no fault or negligence had been found on the part of the military officers who had participated in the firing practice. The report indicated that additional security precautions had nevertheless been taken on the shooting range in the aftermath of the incident, such as adding to the sand bags and barrels behind the target boards, and building barriers in order to reduce the incidence of ricochets, and surrounding the gun-target line with additional barrels.