CEDH · CASELAW;CLIN;ENG — 24 mars 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 117 March 2009 Beker v. Turkey - 27866/03 Judgment 24.3.2009 [Section II] Article 2 Article 2-1 Life Obligation of the State to provide plausible explanation for death of corporal on military premises: violation   Facts : The applicants are close family members – mother, sister and brothers – of Mr Beker, an army corporal. On the morning of 8 March 2001 Mr Beker was found shot in the head in the dormitory of the military barracks where he was stationed. He was still alive when found, but died before reaching the hospital. The same day a military investigator carried out an inspection of the dormitory. A pistol, belonging to another officer, was found some distance away from where Mr Beker had fallen, but the exact distance was unspecified. It was established that the pistol had been cocked and had fired two rounds, but had failed to fire a third shot. A subsequent medical report established that the shooting had occurred at point-blank range and that the bullet entry hole had been about two centimetres above Mr   Beker’s left eyebrow. A forensic examination found gunpowder residue on the outside of his right hand. From the statements given by several officers present in the locker area where the impugned event took place, the investigator concluded that Mr Beker had taken the pistol from another officer’s locker and shot himself. Only one of the officers present originally stated that he had seen Mr Beker shoot himself, but he later said that he had not actually seen the shooting because he had covered his face with his hands. The officers further confirmed that Mr Beker had been unhappy because his mother had allegedly disapproved of him marrying his girlfriend. Two days after the incident, the military investigator concluded his investigation by finding that Mr Beker had “committed suicide as a result of a sudden bout of depression”. Several days later, one of the applicants asked the military prosecutor’s office for copies of the documents from the investigation because the family had had “suspicions surrounding his death”. Following several requests by the applicants and almost a year later, they received a copy of the post-mortem report. In November 2002 the military prosecutor closed the investigation, concluding that Mr   Beker had shot himself in the right temple and at a close range. The applicants unsuccessfully objected to this decision, pointing out that the bullet entry hole had been on the left side of the deceased’s head and that some of the witness statements had been contradictory. In March 2003 the applicants requested that the investigation be re-opened, but they never received a reply. Law : At the outset the Court recalled that States bore the burden of providing plausible explanations for injuries and deaths occurring not only in custody, but also in areas within the exclusive control of the authorities. In the applicants’ case, the impugned event had taken place in army barracks, the investigation had been conducted by military authorities and all the witnesses were members of the armed forces. The State had therefore been under the obligation to provide a plausible explanation for Mr Beker’s death and the Court was thus called upon to examine the investigation that had been carried out and its conclusions. The Court noted serious misgivings about the investigation. First of all, the investigating authorities never appeared to have explained the fact that the gun had been fired twice and that a third attempt had been made to fire it. Even assuming that Mr Beker had missed with the first shot, he must have been successful with the second one and shot himself in the head. However, it was improbable that after that he could have pulled the trigger for the third time, when the pistol jammed. Another inexplicable aspect of the investigation was the military prosecutor’s conclusion that Mr Beker had shot himself in the right side of the head, whereas it was evident from the post-mortem report – and the Government agreed – that he in fact had been shot in the left side of the head. According to the Government, this had merely been an error of fact on the part of the prosecutor. However, the Court was not convinced that this was the case, in particular because the court which had examined the applicants’ objection against the decision to terminate the investigation had also not dealt with that “factual error”. Moreover, neither the pistol which was found close to Mr Beker’s body, nor the locker from which he had allegedly taken it had ever been forensically examined for fingerprints. The Court further found it unconvincing that four trained military officers present in the same room where two shots were fired from a pistol did not see the incident or that they had covered their faces in shock. Finally, the Court attached importance to the fact that the authorities had not divulged any information, apart from the post-mortem report, to Mr Beker’s family, and had not allowed them access to the investigation or replied to their request for the re-opening of the investigation. The authorities had thus not only deprived the applicants of the opportunity to safeguard their legitimate interests, but had also prevented any scrutiny of the investigation by the public. Concluding that the investigation carried out by the domestic authorities had clearly been inadequate as it defied logic and left many obvious questions unanswered, the Court considered that the Government had failed to account for Mr Beker’s death and that consequently the State had to bear the responsibility for it. Conclusion : violation (unanimously). Article 41 – EUR 16,500 to the first applicant in respect of pecuniary damage and EUR 20,000 in respect of non-pecuniary damage; EUR 5,000 to the other applicants in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes