CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 octobre 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s5D0298BB { margin-top:0pt; margin-bottom:36pt; text-align:justify } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s9C156EF7 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } SECOND SECTION Application no. 58298/10 Tahir PEKTAŞ and others against Turkey lodged on 4 August 2010 STATEMENT OF FACTS   The applicants, Tahir Pektaş, born in 1962, Keziban Pektaş, born in 1971, Nejla Dinçer, born in 1981, Remzi Pektaş, born in 1983, Esra Pektaş, born in 1989, Mesut Pektaş, born in 1993 and Rıdvan Pektaş, born in 1991 are Turkish nationals who live in Mersin. They are represented by Mr.   E.   Öner, a lawyer practising in Ankara. The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants’ son and brother, Semih Pektaş (hereinafter referred to as “S.P.”) was serving his compulsory military service in the mechanized infantry brigade in Mamak, a district of Ankara, at the material time. On 18 September 2009 approximately five minutes after he had entered the armoury, where he was going to be on guard duty from 8 p.m. until midnight, three gunshots were heard. Other soldiers who ran to the armoury found him shot in the head, lying flat on the floor covered in blood. The rifle, which had been loaded, was near him, on the floor. S.P. was taken to the Gülhane Military School of Medicine (“GATA”) Hospital but he died due to cardiopulmonary arrest. On 19 September 2009 an autopsy was performed in the GATA under the supervision of a military public prosecutor. In the external examination of the deceased’s body, the radius of the first entrance wound was measured as 7.5 x 7 cm and the exit wound as 0.7 cm, the second entrance wound on the upper lip as 1 x 1 cm and the exit wound as 1 x 0.8 cm. Additionally, a number of injection marks were detected on the deceased’s body. Toxicology and histopathological examinations were carried out. The following conclusions were drawn on the basis of the post-mortem examination as well as the forensic evidence collected. No alcohol, anaesthetic drug or narcotic was found in the blood and urine of the deceased. One of the two wounds was caused by a contact shot and it was fatal. The other shot was fired at close range (close to a contact shot) but was not capable of causing death. No bullet was removed from the body of the deceased. The cause of death was skull fracture and brain damage due to a gunshot wound. On 18 December 2009 the military public prosecutor held that S.P. had committed a suicide and gave a decision of non-prosecution. He relied on the post-mortem examination report. He also referred to the ballistic examination and the report of the team appointed for the inspection of the scene of the incident, according to which the safety catch of the rifle had been off in triple shot mode; it had been loaded with 27 bullets out of 30, one being in the barrel. Three spent bullet cases fired from the deceased’s gun had been recovered on the scene. The fingerprints found on the cartridge had been identified as those of S.P. Lead had been found in the swabs taken from the left hand and right cheek of S.P. The military public prosecutor further noted that despite having been described by the witnesses as a cheerful person, S.P. had been talking often about the meaninglessness of life; that he had kept singing a song saying “I   shoot in the head”; that he had written down similar notes in his notebook; that while going to the place of duty he had told the other soldier in the car: “you are not going to sleep tonight”. He concluded that S.P. had shot himself in the right temple with the rifle that had been in triple shot mode without anyone else’s involvement. He considered that no fault could be attributed to anyone. The applicants filed an objection against the decision of non-prosecution. They alleged that the investigation had not cast light on the circumstances, including the psychology of the deceased, which might have led to suicide. They complained that they had not been able to participate in the investigation. They further contended that witness evidence obtained from those who had been performing their military service should have been taken afresh following their discharge from the army. They pointed to the allegedly contradictory findings of the investigation. In this regard, they asked, in particular, about the fingerprints on the trigger of the rifle and trajectory of the bullets. They also argued that in the event that a soldier had psychological problems while performing his service, measures were supposed to be taken, whereas this had not been the case with their son and brother. The military court dismissed the objection on 28 January 2010. According to the court, the evidence gathered indicated that S.P. had committed suicide, the investigation had been carried out meticulously and there was no issue that remained to be resolved. The applicants were notified on 8 February 2010. COMPLAINTS The applicants complain under Article 2 of the Convention that the authorities failed to detect their son and brother’s psychological problems, if any, in recruiting him for military service and thereafter and to protect his life. In this connection, they submit that it is incumbent on the military forces to monitor the psychology of a soldier, to ensure that he should receive adequate treatment if he encounters problems and to consider all measures depending on the circumstances, including a discharge from the military. They allege that if there was not any indication of disorder prior to the incident, then his death should have been qualified as a suspicious one. They further maintain that there have been quite a number of suspicious deaths in the army and that most of the victims were of Kurdish origin. According to the applicants, the remedy provided in domestic law cannot be considered effective since the investigation was carried out by the military authorities. They point out that they were not able to participate effectively in the investigation; that the decisions were taken on the basis of the case file; that no hearing was held and that accordingly the investigation was not subject to public scrutiny. They rely on Article 13 of the Convention in respect thereof.   QUESTIONS TO THE GOVERNMENT 1.     Having regard to the below listed questions, was the applicants’ son and brother S.P.’s right to life, guaranteed by Article 2 of the Convention, violated in the present case?   a)     Did S.P have any medical condition, emotional and/or behavioural disorder while serving his military service? Did he have any known problem with his superiors and/or other soldiers? b)     Did S.P go through a medical examination and/or psychological assessment in the recruitment process? If so, the Government are invited to submit information about the nature, manner and extent of the examinations carried out and to submit all the medical records kept in relation to S.P.   2.     Having regard to the procedural protection of the right to life, was the investigation carried out in the present case by the military authorities in breach of Article 2 of the Convention? In particular,   a)     Has the rifle been forensically examined for fingerprints on the trigger with a view to establishing whether or not it was handled by S.P.? b)     Could it be held that the family was able to participate effectively in, and to be informed of the progress of, the military prosecutor’s investigation?   The Government are invited to provide documentary evidence in support of their answers to the questions listed above and is further requested to submit a copy of the entire investigation file, in particular the witness statements and the sketch of the scene of the incident.