ÇAKMAKÇI v. TURKEY
Inadmissible
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano
1. The applicant, Mr Fırat Çakmakçı, is a Turkish national who was born in 1985 and lives in Istanbul. He was represented before the Court by Mr S. Durak, a lawyer practising in Istanbul. 2. The Turkish Government (“the Government”) were represented by their Agent. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. At the time of the events giving rise to this application, the applicant was a conscript soldier (private rank) serving at the Bozkuş gendarmerie station in Kars. 5. According to the information provided by the applicant in his application, on 7 June 2006 the commander of the Bozkuş gendarmerie station, S.Ö., ordered him and another conscript, K.Ö., to make some poles for the purpose of tethering the guard dogs of the station. Accordingly, the applicant and K.Ö. found some metal rods and cut them in half. When looking for tools in the generator room of the station to straighten the curved ends of the poles, the applicant found what he thought to be a used mortar shell, which he believed presented no risk of exploding, and decided to hit the poles with it. The mortar shell exploded upon impact with the metal pole, as a result of which the applicant lost a finger and a toe, and K.Ö. lost both his feet. The applicant was first taken to the Sarıkamış Military Hospital in Kars, and was then transferred to the GATA Military Hospital in Istanbul for further medical treatment. 6. It appears that the commander of the gendarmerie station, S.Ö., lost consciousness after the incident due to anxiety and was also taken to the Sarıkamış Military Hospital, where he was given sedatives. 7. On 17 January 2007 the GATA Military Hospital issued a medical report, declaring the applicant unfit for military service on account of the injuries he had sustained. According to this report the third finger of his left hand, the fifth toe of his left foot and the fourth toe of his right foot had had to be amputated. The applicant had also sustained various fractures to his feet and suffered from some loss of vision in his left eye. This report was approved on 6 March 2007. 8. The Sarıkamış military prosecutor’s office initiated an investigation of its own motion into the circumstances of the incident. Accordingly, all the evidence at the site of the incident was photographed and recorded, and an incident report was prepared on 7 June 2006. The military prosecutor also took witness statements from fourteen soldiers serving at the Bozkuş gendarmerie station. The pertinent witness statements are summarised below: - Lt. H.A.S.: “... while S.Ö. was in the emergency room [at the hospital], the military prosecutor called me ... he asked to talk to S.Ö. S.Ö. told the [prosecutor] that he had found an old [mortar shell] two years ago, which he had placed on the roof of the station, and that he did not know how the [mortar shell] had ended up at the scene of the incident.” - Sgt. S.Ç.: “... I first saw the bomb in September 2005. When I asked the station commander what it was, he told me it was unexploded ordnance.” - Pte. S.Ç.: “... I was responsible for cleaning the generator room. I saw a shiny object in that room. Yet I did not know what it was.” - Pte. M.F.: “The mortar shell has been in the generator room since I first arrived at the station in November 2005. I did not know it was a bomb though, none of the privates at the station did. We had not been given any information about it.” 9. On 8 June 2006 the military prosecutor interrogated S.Ö. It appears that S.Ö. did not remember talking to the military prosecutor on the phone while in hospital, as he had been under the effect of sedatives. However, he did not deny that he may have made the statement alleged by Lt. H.A.S. 10. Later on the same date S.Ö. was taken before the military court in Sarıkamış (Kara Kuvvetleri Komutanlığı Dokuzuncu Motorlu Piyade Tugay Komutanlığı Askeri Mahkemesi). Before that court, he said the following: “I took up duty at the Bozkuş gendarmerie station in 2004. During the period of my duty, I never found any ordnance. Therefore, I did not put any such material on the roof. I have been a soldier for nineteen years, I know what action to take if I find [explosive] ordnance ... we have received orders on [handling and storage of ordnance]; we have also participated in a seminar. Yet, since I had not found any ordnance, I had not had to take [the ordered] precautions ... I lost consciousness [after the incident]. I remember talking to the military prosecutor on the phone, but I do not remember saying that I had found a [mortar shell] two years ago which I had placed on the roof ... There is a sergeant in charge of the generator room, A.E. Both he and I inspect the generator room on a daily basis. There was no ordnance in the generator room ...” The military court ordered S.Ö.’s arrest after taking his statement. 11. On 12 June 2006 the military prosecutor took the statement of the applicant’s friend K.Ö., who said the following: “... Upon receiving orders from S.Ö. to fix dog chains, I went to the generator room with [the applicant] ... We found a used mortar shell there. I do not know how long that object had been there. I had not noticed it before. [The applicant] told me that we could use that object, that it would not present any danger as it had already exploded. The mortar shell exploded when we started ... meddling with it ...” 12. On 28 June 2006 a military prosecutor took the applicant’s statement, recording the following: “... We went to the generator room to find other tools. There was normally a generator, [the soldiers’] suitcases and building supplies in the generator room. We found a hollow iron cylinder there. We did not initially realise that it was ordnance. We fixed two of the metal rods [with the help of that object]. S.Ö. in fact saw us [handling that object]. He told us that what we were holding was ordnance. He asked us if there was any TNT inside it. I told him there was nothing in it as I had already fixed two metal rods with it and nothing had happened, and the hollow part [of the object] looked empty and rusty ... As we were fixing the third metal rod, the object exploded ... The object that we used in the generator room had been there since I had started my military service”. The applicant later repeated this statement before the court on 20 February 2009. 13. The ballistic report dated 1 August 2006 confirmed that the explosion had been caused by a military-grade mortar shell. 14. On 26 October 2007 S.Ö. was indicted by the military prosecutor for causing bodily harm by negligence under Article 89 § 4 of the Turkish Criminal Code (Law no. 5237), by virtue of Article 146 of the Military Criminal Code (Law no. 1632), on account of his failure to obey the orders to store the mortal shell in question safely, despite having received specific instructions and having attended a seminar on the matter. The military prosecutor stressed in the indictment that despite his denials, there was witness evidence to confirm that S.Ö. had been aware of the presence of the mortar shell in the station. 15. In a statement he made before the military court on an unspecified date, S.Ö. maintained that he did not remember talking to the military prosecutor while at the Sarıkamış Military Hospital. He further claimed that Lt. H.A.S. had come to the gendarmerie station two days before the incident for an inspection, that he had also inspected the generator room, and that neither of them had seen a mortar shell there. He added that all the arms and ammunition at the station were kept in a special storage room, and that keeping material outside of that room was against regulations. He lastly claimed that all soldiers under his command had been under strict orders to inform him if they found any explosives, and that he had received no such information. 16. On 19 September 2008 K.Ö. stated before the military court that he and the applicant had found a mortar shell outside the storage room. When they had asked S.Ö. whether the mortar shell was at risk of exploding, he had responded that it would not explode owing to its age. 17. Based on the witness statements and other evidence furnished by the prosecution, including an order dated 11 November 2005 from the Selim provincial gendarmerie command regarding the storage of firearms and munitions, and the training documents on a seminar given at the Bozkuş gendarmerie station in April 2006 regarding explosives, the military court in Sarıkamış convicted S.Ö. as charged on 13 November 2009 and sentenced him to five months’ imprisonment. The military court held that S.Ö.’s failure to store the mortar shell, which had apparently been in the station for over two years, with caution and to hand it over to the responsible authorities, despite strict orders regarding the safe storage and handling of munitions, had been clearly negligent. The pronouncement of the judgment was, however, conditionally suspended (hükmün açıklanmasının geri bırakılması) for a period of five years, in accordance with Article 231 of the Code of Criminal Procedure (Law no. 5271). 18. On 28 April 2009 the applicant submitted a request to the Ministry of Defence, asking to be compensated for the injuries he had sustained on account of the explosion. The applicant claimed that the Ministry of Defence had failed in its responsibility to properly store and dispose of the mortar shell, and had likewise failed to provide proper training on firearms and munitions and to issue warnings regarding the explosives found in the Bozkuş gendarmerie station. 19. On 11 May 2009 the Ministry of Defence dismissed the applicant’s request, on the grounds that the gendarmerie forces were under the responsibility of the Ministry of the Interior. 20. Accordingly, on 2 June 2009 the applicant submitted his compensation request to the Ministry of the Interior. Upon that Ministry’s failure to respond to his request, on 3 September 2009 the applicant filed an action for compensation against the Ministry of the Interior with the Supreme Military Administrative Court. 21. By a judgment of 2 June 2010 the Supreme Military Administrative Court rejected the applicant’s compensation claim for being out of time. The court held that if the applicant believed that he had suffered damage on account of a wrongful act of the authorities, then he should have lodged a compensation claim with the relevant authorities within one year of the notification of the impugned act or from the date on which he had otherwise learned of the impugned act and, in any event, within five years of the commission of that act, in accordance with section 43(1) of the Supreme Military Administrative Court Act (Law no. 1602). Bearing in mind that the relevant incident had occurred on 7 June 2006 and that the medical report issued by the GATA Military Hospital in relation to his injuries resulting from the mortar shell explosion had become final on 6 March 2007, the petition he had lodged with the Ministry of Defence on 28 April 2009 had been lodged out of time. 22. Section 43 of the Supreme Military Administrative Court Act (Law no. 1602 of 20 July 1972) reads as follows: “Anyone who considers himself or herself to have suffered damage on account of a wrongful act of the authorities must lodge an application for compensation with the relevant authority within a year of notification of the impugned act or from the date on which he or she learned of the impugned act and, in any event, within five years of the commission of that act. Should all or part of the claim be dismissed, or if no reply is received within sixty days, an application for judicial review may be lodged ...” 23. Article 146 of the Military Criminal Code (Law no. 1632 of 15 June 1930) provides: “Anyone who causes injury or death to someone due to negligence [in handling] his or her arms and munitions or non-compliance with rules and orders shall be punished in accordance with Articles 455 and 459 of the [now defunct] Turkish Criminal Code.” 24. Article 89 §§ 1 and 4 of the new Turkish Criminal Code (Law no. 5237 of 12 October 2004) provides as follows: “Negligent injury 1. Anyone who negligently inflicts physical pain on someone, or impairs someone’s health or cognitive capacity shall be sentenced to a term of imprisonment of between three months and one year, or to a fine. ... 4. Where the [negligent] act leads to the injury of more than one person, [the offender] shall be sentenced to a term of imprisonment of between six months and three years.” 25. The relevant domestic law and practice on the storage and handling of munitions and the training provided to soldiers on these matters are outlined in paragraph 30 below.