CASE OF ATİMAN v. TURKEY
Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano
5. The applicant was born in 1974 and lives in Van. 6. According to the incident and the crime scene investigation reports, upon receipt of intelligence that terrorists were hiding in the area, on 24 June 2008 a large group of gendarme officers from the Hakkari Mountain Commando Brigade blocked the road near the village of Armutdüzü in the Yüksekova district. At about 1.30 a.m. the gendarme officers stopped a lorry on suspicion of fuel smuggling. Subsequently, another lorry approached the gendarme officers. The applicant was travelling in this vehicle and it was being driven by his cousin, N.A. The soldiers ordered them to stop, but N.A. continued to drive. According to the report drafted by the gendarme officers, the driver attempted to escape and the gendarme officers fired a warning shot in the air and then fired at the tyres of the lorry to stop it. According to the applicant, they were driving down a steep hill at high speed, and as the brakes had failed, they could not stop. They maintained that they had shouted from the window that the brakes were not working and N.A. had tried to avoid hitting the other lorry, which was parked in the middle of the street, by trying to pass it on the right. He then headed towards the hills, where there was a group of gendarme officers. The gendarme officers opened fire, first in the air and then at the vehicle. The applicant was wounded in the hip and his cousin in the leg during the incident as a result of ricochet bullets. 7. The crime scene investigation report revealed that there were no bullet holes on the left side or the back of the lorry. Three of the tyres were flat, namely the two front tyres and the rear right tyre. Eight bullet holes were observed on the right wing over the tyres, three bullet holes in the petrol tank, a bullet entry and exit hole on the front right door, and another bullet hole on the right wheel rim. The gendarme officers further collected a total of nine bullet cases from the scene of the incident. 8. On the same day, a major from the District Gendarmerie wrote to the Yüksekova Public Prosecutor and requested authorisation to search the two vehicles which had been stopped by the gendarmes. Upon receipt of authorisation, the gendarme officers searched the two lorries. They found sixtysix barrels of smuggled fuel in the first lorry and forty-five barrels in the applicant’s cousin’s lorry. No other illegal items were found in the vehicles. The applicant’s cousin, N.A., declined to sign the search report. 9. Also on the same day, two gendarme officers tested the lorry belonging to the applicant’s cousin in the presence of the village mayor. They reported that the vehicle had three flat tyres, that there were four bullet holes in the petrol tank, that the engine was working correctly and that the brake system was intact. 10. Subsequently, on the same day, the applicant’s cousin gave a statement to the Yüksekova Public Prosecutor and stated that the applicant had been taken to Van Hospital. He requested that criminal proceedings be initiated against the gendarme officers who had used force against them. He emphasised that when he had been told to stop he had been driving down a steep hill at high speed, and when he could not stop, he had shouted from the window that the brakes were not working. He had had no intention of escaping from the gendarmes. He further denied that he had been transporting smuggled fuel and maintained that the barrels found by the gendarmes must have been from the other vehicle. 11. The public prosecutor also took statements from two eyewitnesses to the incident. These two individuals had also been in the lorry which had been stopped by the gendarmes on suspicion of fuel smuggling. According to their statements, while they were being questioned by the gendarme officers about the barrels found in their lorry, they saw another vehicle approaching. The gendarmes ordered the driver to stop but the driver failed to obey, shouting from the window that the brakes had failed. The driver then tried to pass their vehicle, which was blocking the road, on the right. The gendarmes opened fire, first into the air and then at the tyres. Both witnesses stated that the driver had no intention of escaping and was shouting that he was unable to stop. 12. On 15 December 2008, the applicant’s cousin, N.A., gave a statement to the Hakkari Public Prosecutor. He explained that on the day of the incident, while he was driving down a steep hill, the gendarme officers ordered him to stop. He called out that he would stop, but the gendarmes opened fire and he was shot in the leg. He was able to stop the vehicle by using the handbrake. He stated that he had had no intention or reason to escape. 13. On 20 February 2009 a statement was taken from the applicant at Iskele police station. He explained that on the day of the incident he had been travelling in his cousin’s lorry. His cousin had told him that there was a problem with the brake system of the vehicle. When they approached the checkpoint, a gendarme officer ordered them to stop, and they shouted out that there was a problem with the brakes and that they were not able to stop. The gendarme thought that they were trying to escape and fired a shot in the air and then started shooting at them. The applicant was shot in the hip. He concluded that the gendarme who had shot at them was not at fault, as he must have thought that they were trying to escape. 14. On 22 July 2008 statements were taken from the accused gendarme officers by a sergeant from the Yeniköprü Gendarme Command. They all stated that they had ordered the driver of the lorry to stop on suspicion of fuel smuggling. The driver initially stopped the vehicle. When the officers asked about the load of the lorry, he started driving away in an attempt to escape. The officers explained that they first fired warning shots in the air and then shot at the tyres to stop the lorry. They considered that the force they had used had been proportionate as they had only used their guns, whereas they were also equipped with heavy machine guns and hand grenades. 15. Based on the evidence in the file, on 26 April 2009 the Yüsekova Public Prosecutor delivered a decision not to prosecute. He concluded that the use of force had been legal pursuant to Article 11 of Law no. 2803 on the establishment, duties and jurisdiction of the gendarmerie and section 39 (i) of the Regulation on the Duties and Powers of the Gendarmerie. He found it established that the driver of the vehicle in which the applicant was travelling had disobeyed the order to stop and had continued driving. He further pointed out that the lorry had not stopped and that the officers had first fired warning shots in the air and had then shot at the tyres of the lorry. 16. On 4 June 2009 the Van Assize Court dismissed the applicant’s appeal, finding the decision of the Yüksekova Public Prosecutor to be in line with domestic law.