CEDH · CASELAW;REPORTS;ENG — 18 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 22880/93                               Gülten AYTEKIN                                  against                                   Turkey                          REPORT OF THE COMMISSION                       (adopted on 18 September 1997)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-22) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-17). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 18-22) . . . . . . . . . . . . . . . . . . . . . 3   II.    ESTABLISHMENT OF THE FACTS       (paras. 23-73). . . . . . . . . . . . . . . . . . . . . . . . 4         A.    The particular circumstances of the case            (paras. 23-30) . . . . . . . . . . . . . . . . . . . . . 4         B.    Evidence before the Commission            (paras. 31-58) . . . . . . . . . . . . . . . . . . . . . 5         C.    Relevant domestic law and practice            (paras. 59-73) . . . . . . . . . . . . . . . . . . . .   11   III.   OPINION OF THE COMMISSION       (paras. 74-118) . . . . . . . . . . . . . . . . . . . . . .   13         A.    Complaints declared admissible            (para. 74) . . . . . . . . . . . . . . . . . . . . . .   13         B.    Points at issue            (para. 75) . . . . . . . . . . . . . . . . . . . . . .   13         C.    Approach to the evidence            (para. 76) . . . . . . . . . . . . . . . . . . . . . .   13         D.    Evaluation of the evidence            (paras. 77-87) . . . . . . . . . . . . . . . . . . . .   13         E.    As regards Article 2 of the Convention            (paras. 88-110)   . . . . . . . . . . . . . . . . . . .   16              CONCLUSION            (para. 111). . . . . . . . . . . . . . . . . . . . . .   21         F.    As regards Article 13 of the Convention            (paras. 112-115) . . . . . . . . . . . . . . . . . . . .21              CONCLUSION            (para. 116). . . . . . . . . . . . . . . . . . . . . .   22         G.    Recapitulation            (paras. 117-118) . . . . . . . . . . . . . . . . . . .   22                              TABLE OF CONTENTS                                                                    Page   DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK . . . . . . . . . . . . . .23   APPENDIX I:       DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF APPLICATION 22880/93. . . . . .   25   APPENDIX II:      SKETCH MAP OF SCENE OF THE INCIDENT. . . . . . .   32   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a Turkish citizen, born in 1969, and resident in Istanbul. She was represented before the Commission by Mr K. Boyle and Ms F. Hampson, both university teachers at the University of Essex, England. The applicant states that she brings the application on behalf of Mr. Ali Riza Aytekin, her husband, now deceased.   3.     The application is directed against Turkey. The respondent Government were represented by their Agent, Mr. Bakir Çaglar.   4.     The applicant complains that her husband was killed by a gendarme at a road block on 24 April 1993 and of a lack of adequate investigation or effective remedy in respect of his death. She invokes Articles 2 and 13 of the Convention.   B.     The proceedings   5.     The application was introduced on 22 October 1993 and registered on 5 November 1993.   6.     On 27 June 1994, the Commission decided, pursuant to Rule 47 of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.     The Government's observations were submitted on 5 December 1994, after the expiry of the time-limit set for that purpose. The applicant's observations in reply were submitted on 13 February 1995.   8.     On 15 May 1995, the Commission declared the application admissible. It requested the Government to provide copies of statements from the gendarme Tuncay Deniz and other witnesses, as well as copies of the autopsy and ballistics reports.   9.     On 26 September 1995, the Government provided the statements of two gendarmes and the autopsy report.   On 2 October 1995, the Government forwarded its supplementary observations, inter alia, invoking Article 29 of the Convention.   10.    On 21 October 1995, the Commission decided to ask the Parties to inform the Commission whether oral evidence should be taken, to request from the Government the outstanding contents of the investigation files before the public prosecutor and military authorities and to put specific questions on the merits to the parties. By letter dated 26 October 1995, the parties were requested to submit their responses before 20 December 1995.   11.    On 20 December 1995, the applicant submitted observations on the questions. She did not request that any witnesses should be heard.   12.     By a letter dated 12 February 1996, the Secretariat reminded the respondent Government of the Commission's request of 21 October 1995 and requested provision of the outstanding documents and information by 26 February or an explanation of the failure to provide information.   13.    On 2 March 1996, the Commission examined the state of proceedings. It decided to remind the respondent Government of the request made on 21 October 1995 and to indicate that the absence of a response might be taken into account when the Commission proceeded to adopting its report on the merits. A letter dated 8 March 1996 was sent to this effect.   14.    On 6 January 1997, the Secretariat requested clarification from the applicant's representatives of material submitted to the Commission by the applicant's brother. A letter repeating the request was sent on 12 March 1997. By letter dated 24 April 1997, the applicant's representatives indicated that the documents and information should be included in the consideration of her application.   15.    On 11 June 1997, the Secretariat reminded the Government that information requested by the Commission had still not been provided and that the Commission would proceed to an examination of the merits in its session beginning on 8 September 1997.   16.    On 9 September 1997, the Commission decided that there was no basis on which to apply Article 29 of the Convention.   17.     After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   18.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA            Mrs.   M. HION            MM.    R. NICOLINI                  A. ARABADJIEV   19.    The text of this Report was adopted on 18 September 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   20.   The purpose of this Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose            a breach by the State concerned of its obligations under the            Convention.   21.   The Commission's decision on admissibility of the application is annexed hereto.   22.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   23.   The facts of the case, in particular those which relate to the events of 24 April 1993, are in dispute. In this context, it is with great regret that the Commission notes that the respondent Government have failed to comply with requests from the Commission for documentation and further information and for responses to certain specific questions asked. The Commission will therefore have to proceed on the basis of the evidence that has been submitted to it to date.   A.     The particular circumstances of the case   1.     Concerning events of 24 April 1993         a.    Facts submitted by the applicant   24.   The applicant's husband, Ali Riza Aytekin, was the assistant general manager and partner in a building firm with its office at Diyarbakir. On 24 April 1993, he, his brother, Feyzullah Aytekin (a building contractor), and his cousins, Salih and Resul Aytekin (both building workers), travelled in a private car to check the construction of two bridges near the district of Sason. Ali Riza Aytekin was under an official contract from the state authorities in connection with the construction work. He was the driver of the car.   25.   At about 13.30 hours, as the vehicle was passing the Yanikkaya Gendarme station, a gendarme on duty outside signalled to the vehicle to pull over and stop. The applicant was driving slowly since there were speed ramps. He pulled over to the side of the road at the order of the gendarme.   26.   The gendarme, Tuncay Deniz, shot in the direction of the vehicle. The bullet entered through the rear window of the vehicle and hit the driver, Ali Riza Aytekin, in the skull. He was killed instantly. The bullet exited through the windscreen.   27. There was nothing in the vehicle except the tools of their trade, a map and a calculator.         b.    Facts as presented by the respondent Government   28.     According to the respondent Government, the vehicle did not stop at the checkpoint as requested, but gave the impression of   attempting to break through the control post. The car had not stopped despite a "Stop -Gendarme" warning sign 65 metres in front of the checkpoint. The gendarme, Tuncay Deniz, had signalled to the vehicle to stop but was nearly hit by it as it passed. He attempted to stop the vehicle by opening fire, initially into the air and then at the wheels of the vehicle. The gendarme did not intend to kill but the bullet ricocheted off the road, entered the car and hit the driver's head, killing him.   2.     Proceedings before the domestic authorities   29.    The Public Prosecutor of the Kozluk county commenced an investigation concerning the incident (file no. 1993/112). However on 8 June 1993 he issued a decision of no jurisdiction and transferred the file to the military authorities to carry out the investigation. In their observations the respondent Government have stated that the investigation has not been concluded and that further information would be provided to the Commission. The Commission have not been informed of any developments in this regard.   30.    A preliminary investigation was carried out by the Gendarme Major Cengiz Eryilmaz, commander of Kozluk district gendarme headquarters, which concluded that the gendarme had not fired with intent to kill and the outcome was the result of the driver's incorrect conduct. The report is undated but was provided by the Government as annex to observations received on 13 December 1994.   B.     Evidence before the Commission   31.    The parties submitted various documents to the Commission. These included documents drawn up in the course of the investigation on the domestic level into the death of the applicant's husband and statements from the applicant's brother-in-law, Feyzullah Aytekin, concerning his version of events in the case.   32.    The Commission had particular regard to the following documents:   1.     Incident report   33.    A report on the incident was produced by gendarme major Cengiz Eryilmaz, commander of Kozluk District Gendarme Headquarters. This report details the "Witness" as "Tuncay Deniz" a gendarme attached to Batman Province Gendarme Headquarters, Kozluk District Gendarme Headquarters. The "Nature of the incident/offence" is detailed as "death caused when officer opened fire on a vehicle which failed to observe a 'stop' signal". Under a heading "Evidence", witnesses are identified as Sergeant Murat Hekim, Expert Sergeant Kutlu Alkurt and Sergeant Bekir Çakir. Documents are listed as map of the scene, record of the scene, statements by witnesses, autopsy report, personal file. Under a heading "Type of Object Lost or Damaged", the Report details "two 7.62mm cartridges".   34.    Under the heading "Details of Events" it is stated (translation):         "On 24 April 1993, a vehicle (make: Kartal; registration       no. 34 Z 9189), which was travelling from Batman in the direction       of Sason, failed to stop despite the 'stop' signal given by       Gendarme Private Tuncay Deniz at the gendarme checkpoint, and the       driver, A. Riza Aytekin, was killed in the ensuing gunfire."         The report concludes (translation):         "The incident occurred when Gendarme Private Tuncay Deniz was       carrying out his duty as instructed, the purpose being to stop       passing cars at the checkpoint. He did not fire with intent to       kill. The outcome was involuntary on the part of the private; it       was the result of the driver's incorrect conduct, which aroused       suspicion."   2.     Sketch map of the scene of the incident   35.    The sketch map (see Annex II) while dating the incident as 13.35 hours 24 April 1993 was drawn up by hand by Murat Hekim, commanding officer of Yanikkaya Gendarme Station and is signed by him but undated. The diagram, described as a "Simplified Map Showing the Location of the Incident" depicts in plan form the Gendarme station and surrounding area to include the road before and after the checkpoint itself. Material details depicted are a "Stop sign" located "65 metres" from the checkpoint; the distance between the place where the private gave warning and fired and the checkpoint is drawn as 15 metres; traces of blood are indicated on the road after the roadblock at a distance of 55 metres from the place where the private gave a warning; a line diverging onto the right hand side of the road depicts the car as having veered off the road to the right for a distance of 11 metres, coming to rest three metres before a building (house and shop). The overall distance between the resting place of the vehicle and the place where the private gave warning sign and fired is indicated as 70 metres.   3.     Post mortem and autopsy report dated 24 April 1993   36.    The report commences with an explanation that the public prosecutor and medical personnel drove to the scene following a report by telephone at about 14.00 hours from the Kozluk district gendarmerie headquarters to the Chief Public Prosecutor's office that a person had been killed when soldiers opened fire on a vehicle which had failed to observe a stop signal in the vicinity of Yanikkaya gendarme station.   37.    The report states that the car involved was about 70 metres along the road from the gendarme station. The rear window of the car had shattered but part of the bullet entry hole was still visible. It was established that a bullet had hit the driver in the back of the head on the right hand side, exiting from the left forehead shattering the skull and had continued without losing speed through the left hand side of the windscreen shattering the glass. The bullet was not found.   38.    Beyond the bullet injury to the head, no other traces of injury were found. The conclusion of the medical examiner was that death occurred when the brain was destroyed and there was no need to perform a classical autopsy. The time of death was stated as about 13.30 hours.   4.     Statement of Private Tuncay Deniz dated 24 April 1993   39.    The statement was taken by Major Eryilmaz and is introduced by the invitation to recount his actions and state what happened in an incident which occurred at about 13.35 hours on 24 April 1993 when he was guarding the barracks and the vehicle (Kartal 34Z9189) failed to stop despite all his warnings.   40.    Private Deniz stated that he was guard at the checkpoint outside the barracks, where road checks and searches were carried out. He searched all the vehicles which passed through that point. There was a stop sign about 70 metres from where he stood. At about 13.35, a Kartal taxi approached from the Batman direction. When it was about 100-150 metres away, he stepped out into the road and signalled it to stop. The driver saw him but accelerated towards him. He jumped aside and blew his whistle to summon the sergeant on duty and his commanding officers and to slow the vehicle down. The vehicle did not stop, continuing another 20-25 metres. He fired a warning shot in the air. When it still did not stop, he fired a second shot aiming at the tyres but since the car was moving the bullet hit the driver. His sole intention was to stop the car. At that moment the car was about 80 metres from where he was standing and travelling away from him. The car stopped at a ramp outside a shop on the right hand side of the road.   5.     Statements of Sergeant Bekir Çakir         i. Statement dated 24 April 1993   41.    The statement was taken by Major Eryilmaz and is introduced by the invitation to state what he knew or saw of the incident when Private Tuncay Deniz opened fire on a vehicle   which failed to observe his signal to stop.   42.    The witness stated that he was on duty that day. At 13.20, he changed the guards. Some time later he was outside the canteen, opposite the checkpoint. He saw the guard Tuncay Deniz signal to a vehicle to stop. A moment later, the car went straight for Tuncay Deniz who jumped aside and took out his whistle to give a warning. The witness rushed over. At that moment, Tuncay fired a warning shot into the air. He immediately fired another shot without taking aim. The car came to a halt 75-80 metres down the road in front of a shop, on a ramp.         ii.   Statement dated 5 May 1993   43.    The statement was taken by Major Eryilmaz and is introduced by the invitation to state what he knew or saw of the incident when Private Tuncay Deniz opened fire on a vehicle   which failed to observe his signal to stop.   44.    The witness stated that he was the sergeant on duty that day. He replaced the barracks guard Kaplan with Tuncay at 13.20 hours. Tuncay was to stay on duty from 13.20 to 16.20 hours. The witness then went   to the canteen. After 15 minutes, when he was leaning on the wall of the canteen sunning himself, he saw Tuncay walk out into the road and signal to a vehicle coming from Batman. A moment later, Tuncay rushed to the side of the road, blowing his whistle as the car passed. The car did not stop. The witness began to run towards the checkpoint. Tuncay fired a shot into the air. The car did not stop. Tuncay aimed at the tyres of the car and fired another shot, which went through the rear window of the car. The car stopped about 80 metres down the road in front of a shop, crashing into a part that jutted out.   6.     Statement of Expert Sergeant Kutlu Alkurt dated 5 May 1993   45.    The statement was taken by Major Eryilmaz and is introduced by the invitation to state what he knew or saw of the incident when Private Tuncay Deniz opened fire on a vehicle   which failed to observe his signal to stop.   46.    On the day of the incident, the witness was sitting with Murat Hekim, the commanding officer, in his office. They heard the sound of a whistle from checkpoint no. 1 and then gunfire. Both of them left the office and asked Tuncay Deniz at checkpoint no. 1 what had happened. Deniz said that he had warned the vehicle, but that it had not stopped and had tried to drive through the checkpoint. He said that he had therefore fired a warning shot in the air, then aimed a shot at the wheel of the car and the   vehicle had come to a halt 75-80 metres further on.   7.     Statement of Sergeant Murat Hekim dated 5 May 1993   47.    The statement was taken by Major Eryilmaz and is introduced by the invitation to state what he knew or saw of the incident when Private Tuncay Deniz opened fire on a vehicle   which failed to stop despite his "stop" warning.   48.    The witness stated that the non-commissioned officer, sergeant and checkpoint private were on duty at the scene of the incident for the purpose of ensuring general security and public order, and to carry out road checks, since there is widespread smuggling in the area of weapons, ammunition, firewood and tobacco. The guards on duty signalled to cars to stop, the non-commissioned officer and the sergeant blew their whistles as warnings and the road check was carried out.   49.    On the day of the incident, the witness was in his office with the non-commissioned officer on duty, Kutlu Altkurt. At about 13.35 hours, they heard a whistle and gunfire. When they went outside, people were shouting and weeping. There was a car, with a smashed rear window, 70-75 metres down the road, which had swerved off the road to the left. He asked Private Tuncay Deniz what had happened. Deniz stated that he had signalled the car to stop, that it had approached at high speed and he had blown his whistle as a warning and then fired a warning shot into the air. The vehicle still did not stop, and he had then fired at the wheel of the vehicle but the bullet had gone through the rear window.   8.     Statements of Feyzullah Aytekin         i. Statement dated 30 April 1993   50.    On 24 March 1993, Feyzullah Aytekin, together with his cousin Salih Aytekin, his cousin Resul Aytekin, and his brother Ali Riza Aytekin, set off at about 13.00 hours in a car to drop two of them off at a bridge site in Sason. He was sitting in the back on the right and his brother was driving. At about 13.30 hours they passed Yanikkaya gendarme station, driving very slowly. The speed bumps made it impossible to drive quickly. There was no warning sign at the entrance to the station. A signal to stop was made by a soldier, and his brother pulled over to the right to stop and they stopped. At that moment, the soldier fired at them. His brother was hit in the skull and died instantly.   51.    They had been doing nothing wrong or suspicious, carrying nothing in the car save the tool of their trade, a map and a calculator. They had not been trying to escape from the scene but had drawn into the right and stopped. Anyway there should have been a warning shot but they were aimed and fired at without any warning shot.         ii.   Statement dated 7 April 1993 taken by the Diyarbakir Human            Rights Association (HRA)   52.    This report, which has been misdated, refers to Feyzullah Aytekin making an application to the HRA on that date. Feyzullah Aytekin stated that they set off in a private car to go to construction sites in Sason district and arrived in front of Yanikkaya gendarme station, slowing down because of the barrier. The soldiers asked them to stop. They drew into the right and stopped but at that moment they were fired on   and his brother was killed. In an examination of the vehicle, it is stated that the bullet appeared to have entered through the rear window and exited through the windscreen.         iii. Statement dated 14 October 1993 taken by the HRA   53.    Feyzullah Aytekin made, inter alia, the following declarations:         -     The firing had occurred after the vehicle had stopped.            There was no warning. They stopped because they became            aware that the road ahead was going to a precipice. The            firing at the car was a single shot from behind.       -     As the three other men got out of the car, the gendarme            raised his weapon as if to fire at them, but when other            gendarmes, about thirty in all, came out of the station and            surrounded the vehicle he changed his mind and came towards            the    vehicle. The survivors, deeply shocked, began to shout            and curse.       -     The three survivors were taken to the vicinity of the            station and held there for several hours, though without            being accused or arrested.       -     An hour or two after the incident a lieutenant colonel            arrived at the scene from Batman. A State prosecutor also            arrived and the applicants made statements in which they            stated that the soldier had shot from behind without            warning and that the soldier was guilty.       -     The applicant and Feyzullah Aytekin made a petition to the            state prosecution, the Kozluk district governor and the            Batman provincial governor.         iv.   Statement dated 22 August 1995   54.    On 24 April 1993 at about 11.30 hours, they started out in a private car to the Batman Sason II bridge construction, which belonged to the General Directorate of Road Works. On leaving Batman, they were stopped by Special Teams, who questioned them. They said they were going to their building site and had construction material in the car. Their number plate was noted. When passing in front of Yanikkaya station, they were subjected to sudden indiscriminate firing. His brother was murdered and he himself was seriously wounded. The incident was carried out knowingly and intentionally, because there was a white vehicle ahead of them. It was midday about 12.00 hours.   9.     Statement of the applicant dated 30 April 1993 taken by the HRA   55.    Her husband was a partner in and assistant general manager in two businesses (Aytekin Contractors and Trade Limited Company and Architectural Industry Limited Company) at Diyarbakir. The applicant lived in Istanbul, where she was on the day of the incident. The day before, her husband had told her on the telephone that he, Feyzullah and two workmates were going to check the construction of two bridges in Sason district. Five or six hours after the incident, Feyzullah telephoned her to say that her husband had been killed by a soldier a few metres from Yanikkaya gendarme station, even though he should have been protected by the State as he was on official work.   10.    Statement of Dr. Christopher Milroy submitted by the applicant   56.    The applicant has submitted as evidence an opinion dated 7 February 1995 by Dr. Christopher Milroy, a registered medical practitioner, Senior Lecturer in Forensic Pathology at the University of Sheffield in the United Kingdom and Consultant Pathologist to the Home Office. He was asked to comment upon the facts as provided by the respondent Government and the sketch map.   57.    Dr. Milroy commented on the official account that the car allegedly struck 55 metres from where the bullet was fired. and that the car was travelling 'at speed'. He noted that no details had been provided on the rifle used by the gendarme. However, he considered that a bullet fired from 55 metres would traverse the distance in fractions of a second, therefore a car would not have made any significant forward movement in that period. Where the bullet was aimed would be where the bullet hit. Therefore it could not be asserted that the bullet was correctly aimed at the tyre but because of the car's speed the bullet struck the road and resulted in a ricochet.   58.    Dr. Milroy suggested that the ricochet explanation was "implausible for a number of reasons":         (a)   A ricocheting bullet would not be expected to enter the            passenger compartment of the car. When a bullet ricochets,            it comes off the ricocheting surface at a shallower angle            that the angle it came into the surface.         (b)   If the bullet had ricocheted into the car, it is unlikely            to have hit the super structure and not have entered at an            angle to hit the driver but would have struck the under-            surface or boot of the car;         (c)   If the driver had been hit by a ricochet, no exit wound            would have been expected. When a bullet ricochets it would            be expected to fragment and it also loses its gyroscopic            stability and tumbles, all of which reduces the bullet's            speed and energy and makes it less likely to enter a body            and most unlikely to exit. It would also cause a different            entrance wound from one gyroscopically stable which            characteristically has a rectangular appearance.         He was of the opinion that the alternative explanation that a direct shot was aimed deliberately into the car is consistent with the facts provided.   C.     Relevant domestic law and practice   59.    In the absence of detailed submissions on domestic law and practice, the Commission has had regard to the relevant provisions and submissions made in the context of previous applications concerning which the Government and the applicant's representatives have also participated in the proceedings.   60.    Article 125 of the Turkish Constitution provides as follows:         (translation)         "All acts or decisions of the Administration are subject to       judicial review ...         The Administration shall be liable for damage caused by its       own acts and measures."   61.    This provision is not subject to any restrictions even in a state of emergency or war.   The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the Administration, whose liability is of an absolute, objective nature, based on a theory of "social risk". Thus the Administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.   62.    The Turkish Criminal Code, as regards unlawful killings, has provisions dealing with unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450). Pursuant to Section 23 of Decree No. 285 (the Act on the State of Emergency), security forces, special forces on duty and members of the armed forces are, under the circumstances stipulated in the relevant Acts, empowered to use their weapons while carrying out their duties. The security forces thus empowered are to open fire and to shoot at a person if a command to surrender is not accepted, disobeyed or met with counter-fire or if they have to act in self-defence. Pursuant to Article 4 para. 2 :         (translation)         "members of the security forces on duty are authorised to fire       directly at their targets without hesitation should the latter       fail to heed their orders, are reciprocated with fire or if it       is necessary to do in legitimate self-defence."   63.   The plea of self-defence is enacted in Section 49 of the Criminal Code which, insofar as relevant, provides:         (translation)         "No punishment shall be imposed if the perpetrator acted ...         2. in immediate necessity to repel an unjust assault against his       own or another's person or chastity."     64.    For all such offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.   65.    If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons' hierarchical superior (Articles 93 and 95 of Law 353 on the Constitution and the Procedure of Military Courts).   66.    If the alleged author of a crime is a State official or civil servant, which includes members of the security forces permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly) which carry out a preliminary investigation (Article 4 (i) of Decree No. 285). The local council decisions may be appealed to the Council of State; a refusal to prosecute is subject to an automatic appeal of this kind.   67.    Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.   68.    Proceedings against the Administration may be brought before the administrative courts, whose proceedings are in writing.   69.    The applicant points to certain legal provisions which in themselves weaken the protection of the individual which might otherwise have been afforded by the above general scheme :   70.    Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards.   71.    Provisional Article 15 of the Constitution provides that there can be no allegation of unconstitutionality in respect of measures taken under laws or decrees having the force of law and enacted between 12 September 1980 and 25 October 1983. That includes Law 2935 on the State of Emergency of 25 October 1983, under which decrees have been issued which are immune from judicial challenge.   72.    Extensive powers have been granted to the Regional Governor of the State of Emergency by such decrees, especially Decree 285, as amended by Decrees 424 and 425, and Decree 430.   73.    Decree 285 modifies the application of Law 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils.   III. OPINION OF THE COMMISSION   A.     Complaints declared admissible   74.    The Commission has declared admissible the applicant's complaint that her husband was killed whilst driving through a checkpoint and that she has no effective remedy in respect of this.   B.     Points at issue   75.    The points at issue in the present case are as follows:         -     whether there has been a violation of Article 2 (Art. 2) of            the Convention in respect of the death of the applicant's            husband;         -     whether there has been a violation of Article 13 (Art. 13)            of the Convention in respect of the applicant's alleged            lack of an effective remedy before a national authority in            respect of her complaints.   C.     Approach to the evidence   76.    The Commission has examined the applicant's allegations as to the violations disclosed by these events on the basis of the written materials in the file, including the contents of the investigation files provided at its request by the Government and the response of the parties made in answer to the questions posed by the Commission. In the assessment of this material, the Commission has had regard to the manner in which the parties have contributed to its examination of the case (mutatis mutandis, Eur. Court HR, Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25 p. 65 para. 161).   D.     Evaluation of the evidence   77.     The Commission makes a number of preliminary observations in this respect:         i. With the exception of the incident report produced by the       gendarmes, no detailed investigation or judicial finding of facts       on the domestic level as regards the events which occurred at       Yanikkaya Gendarme Station on 24 April 1993 has been concluded.         ii. The Commission has requested, on repeated occasions, copies       of the documents in the investigation files relating to the       incident. It has been provided with the documents summarised in       Section II B of this Report. However, it has not been provided       with any ballistics report or with any statements taken by the       authorities from the other three passengers in the car, although       Feyzullah Aytekin has in a statement to the HRA described the       occupants of the car giving their statements to the public       prosecutor. Nor have any photographs of the scene of the incident       been provided. It has not been informed of the outcome of the       investigation of the military authorities which the Government       stated was pending in December 1994.   78.    The Commission notes that the statements taken from the gendarmes at Yanikkaya station contradict in basic details the version of events presented by the applicant and her husband's brother. The differing points include:   1.     -     the manner in which the car approached the checkpoint and            whether it responded to the order to stop; 2.     -     whether the gendarme gave any warning prior to f