EVCIL v. TURKEY
Inadmissible
Nicolas Bratza
The applicant, Hatice Evcil, is a Turkish national who was born in 1944 and lives in Tunceli. She is represented before the Court by Mr Ali Cemal Zülfikar, a lawyer practising in Elazığ. On 6 September 1998, at around 10.00 a.m., Mehmet Evcil, the applicant's husband, was taking his animals out to graze on pastures that were 4 to 5 kilometres outside of the village of Mercümek, when he saw an unidentified object. He bent down and picked it up but when he realised that it could contain explosives he threw it away. At that moment there was a large explosion and Mr Evcil was wounded by shrapnel. His six sheep died on the spot. Mr Düzgün Duran, a shepherd, who was accompanying him, ran towards the village for help. Road workers, who were working on a construction site at approximately 200 metres away from the scene of the incident, also heard the explosion. Mr Haydar Ber, the construction site manager, immediately informed the security forces, who were stationed about 500 metres away. At around 11.00 a.m., the applicant and her children arrived in a minibus, from Pertek which was approximately 15 kilometres away from the scene of the incident. They first took Mr Evcil to the Pertek Health Clinic. Following an initial medical treatment in the Pertek Health Clinic, he died during his transfer to the Elazığ State Hospital. On the same day the Elazığ Public Prosecutor initiated an investigation into the incident. Upon the public prosecutor's request an autopsy was carried out on Mr Evcil in the Elazığ State Hospital. The autopsy report contained a brief summary of the incident. There it was noted that the incident took place around 10.00 a.m. Moreover according to this report, it was established that Mr Evcil had died as a result of a haemorrhage, between 11.30 am and 13.30 am. The applicant's son identified the body in the morgue. Meanwhile the gendarmes drafted an incident report and made a sketch map of the scene of the incident. According to this report the incident occurred at around 11.00 a.m. They also took statements from two eyewitnesses. In his statement taken by the gendarmes Mr Haydar Ber submitted that his colleagues had informed him of the explosion while he was working on the construction site. He reported the incident to the security forces who told him that they had not opened fire. Moreover they told him that a “special team” would arrive shortly. Subsequently, Mr Haydar Ber went to the scene of the incident with the security forces and talked with the applicant's husband about what had happened. After Mr Evcil had been taken to the Pertek Health Clinic, Mr Haydar Ber called the Gendarmerie Command in order to inform them of the incident. In his statement Kenan Polat, a road worker, said that at around 11.00 a.m. he had heard a large explosion and saw smoke. He had also heard someone shouting in Kurdish for help. He stated that he had immediately informed Mr Haydar Ber. On 9 September 1998 the Elazığ Public Prosecutor gave a decision of non-jurisdiction ratione loci and transferred the case file to the Office of the Pertek Public Prosecutor. On 15 September 1998 the Pertek Public Prosecutor took the applicant's statements. She stated that the incident occurred around 9.30 a.m. She expressed the view that the security forces were responsible for the death of her husband because they had not provided him with any help despite having the means of doing so. The applicant claimed that if her husband had been taken to a hospital earlier, his life could have been saved. She believed that the explosive material that caused her husband's death had not been left by terrorists, but by the security forces. On 28 September 1998 the Criminal Laboratory of the Police in Diyarbakır carried out a ballistic examination of the shrapnel collected at the scene of the incident. According to the Criminal Laboratory's report dated 2 October 1998, the pieces gathered from the scene of the incident contained nitro-glycerine and nitrite, both explosive materials. On 16 October 1998 the Pertek Public Prosecutor sent the pieces of shrapnel collected from the scene of the incident to the Tunceli Police Headquarters for further examination. On 4 November 1998 the Tunceli Police Headquarters submitted the results of the ballistic examination to the Pertek Public Prosecutor. In the ballistic report it was stated that the 11 pieces of shrapnel sent for examination bore resemblance to the outer layer of a tracer bullet which could be fired from a 66 mm diameter M-72 A2/A3 type of LAVA missile launcher. It was further stated that the Institute for Machinery and Chemicals (Makina ve Kimya Enstitüsü – hereinafter “MKE”) produced these tracer bullets for military purposes and that their commercial sale was prohibited. In a letter dated 4 December 1998 and addressed to the Pertek Gendarmerie Command, the Pertek Public Prosecutor inquired whether the security forces at the Gendarmerie Command had been using the type of tracer bullet mentioned in the ballistic report. On 22 December 1998 the Pertek Gendarmerie Command replied that they had not been using the type of tracer bullet which was referred to in the ballistic report, however it was probable that other security forces in the district had been using this type of bullet. In a letter dated 4 May 1999 and addressed to the 51. Army Brigade Command in Hozat, the Pertek Public Prosecutor inquired whether the security forces in the entire district of Pertek had been using this type of tracer bullet. On 17 May 1999 the 51. Army Brigade Command in Hozat informed the Pertek Public Prosecutor that it was highly probable that the tracer bullet recovered from the scene of the incident had been left by terrorists. They submitted that it was a well-known fact that terrorists illegally obtain and use the weapons and the bullets produced by MKE. Furthermore, they maintained that, as the incident had taken place outside the area where the security forces practice shooting, there could be no responsibility attributable to the security forces in relation to the death of the applicant's husband. On 18 November 1999 the Pertek Public Prosecutor gave a decision of non-prosecution, as no crime could be attributable to the security forces and those responsible for the incident could not be identified. In 2000 the Public Prosecutor reinitiated the investigation. On 20 February 2001 the Public Prosecutor issued a permanent search warrant valid for 5 years from the date of the incident. According to this warrant the security forces have to carry out a rigorous investigation into the identification of the perpetrator(s) until the search warrant expires. In a letter dated 21 February 2001 the Pertek Public Prosecutor requested information from the Pertek Gendarmerie Command in order to establish if the military forces in the area had used the type of tracer bullet in question at any time and if the residents of the area had been warned about the explosive materials that could be found in the vicinity. Furthermore he asked to be kept informed of any development in the investigation into the death of the applicant's husband until the statutory time limit expired. On 26 February 2001 the Public Prosecutor took statements from the village headman of Mercimek village at the time of the incident; the present village headman; the shepherd who was grazing his sheep with Mr Evcil and the driver of the minibus who took Mr Evcil to the hospital. They all confirmed the facts of the incident, without mentioning the exact time of the incident. On 14 March 2001 the Pertek Gendarmerie Command informed the Public Prosecutor that the Turkish military forces had not used the type of tracer bullet responsible for the death of Mr Evcil since 1993, because it was expensive. However these bullets were still being produced by some NATO allies and it was observed that terrorists had been using them. Moreover they submitted that the villagers had been warned through the local press that any ammunition found in the area could be explosive and therefore they should immediately inform the security forces without handling them personally. On 1 April 2001 the Pertek Gendarmerie Command informed the Pertek Public Prosecutor that the inquiries in relation to the identification of those responsible for the incident conducted so far had remained unsuccessful and that they were still actively being searched for. On 1 May 2001 the Pertek Gendarmerie Command issued a report similar to the previous one and submitted it to the Pertek Public Prosecutor. The last report of similar kind was issued on 19 May 2003. A description of the relevant domestic law can be found in Tepe v. Turkey, no. 27244/95, §§ 115-122, 9 May 2003.