CEDH · CASELAW;CLIN;ENG — 27 avril 2006

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Turkey - 46252/99 Judgment 27.4.2006 [Section III] Article 2 Article 2-1 Life Death of a conscript while performing military service and effectiveness of subsequent investigation: violation   Article 13 Effective remedy Lack of effective investigation into death of a conscript while performing military service: violation   Facts : In 1997 the applicant’s son, Mikail Ataman, 21, had been conscripted into military service in Kars. In September 1997 his family noticed that he was behaving strangely whenever he spoke to them on the telephone and they began to find it difficult to contact him. They also learnt that he was no longer authorised to carry a weapon or leave the barracks. A family friend who visited him considered that his psychological condition was alarming and required treatment. The applicant arranged for his son to come home on annual leave and sought to have him treated at Malatya, but he ran away and was arrested in a state of delirium by military police. On 4 November 1997 Mikail Ataman was given a neuroleptic injection at the military hospital in Malatya, before being taken to the psychiatric department of a military hospital in Ankara, where, according to a medical certificate dated 19 November 1997, he showed symptoms of anxiety. The certificate further stated that if the symptoms persisted he was to be treated at the military hospital in the province where his unit was stationed, and mentioned that it was necessary “for [the patient] to be registered and for his unit to be informed”. Mikail Ataman appeared to be in better health when he returned to the barracks. However, his psychological condition worsened again on the return of his commanding officer, Captain U. On 16 January 1998, at 2 a.m., the applicant was informed that his son had killed himself while on guard duty in the barracks garage. The military prosecutor arrived on the scene immediately and various investigative steps were taken. According to the autopsy report, death was caused by a wound from a bullet fired at the heart from point-blank range. On a complaint by the applicant the prosecutor opened preliminary enquiries. In that connection a number of statements were taken from servicemen but also from Mikail Ataman’s family. A commission of inquiry consisting of three expert officers, set up by the military prosecutor to investigate the administrative aspects of the case, considered that the military regulations had not been breached, that no negligence could be attributed to military personnel responsible for supervision and/or inspection, and that the suicide was the direct result of the conscript’s overreaction to his family problems. A further inquiry into the conduct of Captain U. cleared him of any responsibility. On 23 March 1998 the prosecutor decided that it was a case of suicide and that it was unnecessary to open a criminal investigation into the matter. On 4 May 1998 the appropriate military tribunal dismissed an appeal by the applicant on the ground that no shortcomings had been identified by the inquiry. Law : Article 2 – Positive obligations of the State: The parties’ views differed considerably as to the conclusions to be drawn from the facts. The Government stated that Mikail Ataman had killed himself, whilst the applicant claimed that his son had been intentionally killed by an officer. However, the evidence in the case-file suggested that it was a suicide. On the night of the incident Mikail Ataman had been on guard duty in the garage at the barracks with two other conscripts. They had been on the other side of the garage and, immediately after the shot was fired, had found him lying on the ground with his rifle resting on his body. Expert assessments carried out at the scene had confirmed the suicide theory. Accordingly, the applicant’s allegations that his son had been killed were in fact based on supposition and were not capable of casting doubt on the relevance of the evidence showing that Mikail Ataman’s death had been suicide. However, the issue for the Court to determine was whether the authorities had known or should have known that there was a real and immediate risk that Mikail Ataman would kill himself and, if so, whether they had done everything that could reasonably have been expected of them to avert that risk. The Court reiterated in that connection that States had an obligation to take preventive operational measures to protect all individuals whose lives were at risk, so that a State with compulsory military service – which entailed handling weapons – could be expected to display special diligence and to provide treatment appropriate to conditions in the armed forces for soldiers with psychological disorders. In the present case Turkey had not taken the practical measures that could reasonably have been expected of it, namely preventing the applicant’s son from having access to lethal weapons. Conclusion : violation (unanimously). Investigation into the circumstances of the death: Although enquiries had been initiated immediately by the authorities, it was noteworthy that the military prosecutor had not sought to ascertain the reasons for the lack of communication between the psychiatric department of the military hospital in Ankara and the deceased’s superiors. Such enquiries could have been decisive in apportioning responsibility among the various authorities. The relevant findings would have been different according to whether the medical staff had omitted to inform Mikail Ataman’s unit about his psychological problems, or whether his superiors had been negligent in not taking the young conscript’s weapon away from him despite having been informed of his condition. Accordingly, Turkey had failed in its obligation to conduct an adequate and effective investigation into the circumstances of the applicant’s son’s death. Conclusion : violation (unanimously). Article 8 – Having regard to the finding of an Article 2 violation, it was not considered necessary to examine separately the complaint under Article 8. Conclusion : not necessary to examine (unanimously). Article 13 – The criminal investigation had not provided an adequate framework for apportioning responsibility between the medical authorities and the victim’s superiors concerning the transmission or assessment of information about Mikail Ataman’s state of health – in other words, about the precise circumstances surrounding the death of the applicant’s son. That being so, it could not be said that an effective criminal investigation had been conducted in accordance with Article   13. Conclusion : violation (unanimously).   © 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