Events
According to the applicants’ allegations, their relative N.T. was taken away on 28/4/1995 by soldiers conducting an operation in the vicinity of Yukarı Ölçek village in Yüksekova district of Hakkari and killed by A.O.A., the commander of a military unit in Köycük hamlet of Değerli village.
After the applicant Halit Tekçi filed a complaint alleging that the soldiers were responsible for N.T.’s disappearance, an investigation was launched. During the investigation, twelve relatives of N.T., including the applicants, applied to the European Court of Human Rights (ECtHR). In this application, it was claimed that N.T. had disappeared while being held by soldiers and that the European Convention on Human Rights (Convention) articles guaranteeing the rights to life, liberty and security of person, fair trial, effective remedy and prohibition of discrimination had been violated.
Some of the persons whose statements were taken as part of the investigation concerning N.T. stated that N.T. had been taken away by soldiers or that they had seen N.T. in custody. Witness Y.Ş. stated that first Lieutenant K.A. and then the soldiers shot at N.T. on the orders of A.O.A. Witness H.A. stated that according to what he heard from other soldiers, N.T. was shot by soldiers. Until 2011, several decisions of non-jurisdiction or lack of jurisdiction were issued several times by some public prosecutors’ offices within the judiciary and military prosecutors’ offices.
The Yüksekova Chief Public Prosecutor’s Office sent the proceedings it had prepared to the Hakkâri Chief Public Prosecutor’s Office for the opening of a public case against A.O.A. and K.A. for the offence of intentional killing with a monstrous feeling or by torture and torture, in accordance with Article 450 of the abrogated Turkish Penal Code No. 765. The Hakkâri Chief Public Prosecutor’s Office opened two separate cases at the Hakkâri Heavy Penal Court based on the said proceedings. These cases were consolidated by the Hakkari Heavy Penal Court. In the meantime, the case was transferred to Eskişehir Heavy Penal Court on 14/11/2011 on the grounds that it would be dangerous for public security to conduct the prosecution in the place where the competent court is located. During the trial conducted by Eskişehir 1st Assize Court, some of the witnesses whose testimonies were taken stated that they had information about the incident based on sightings or hearsay. A discovery was made at the place where N.T. was allegedly killed, but not all the witnesses who claimed that they had information about the incident were present at the discovery. Seven bone fragments, ten pieces of cloth of various sizes, a 17 cm long zip fastener and eighteen bullet casings, thirteen of which were marked M.K.E., were found. The examination revealed that the bones found in the discovery were animal bones.
On 10/12/2013, the ECtHR ruled that the material and procedural aspects of the right to life were violated in the application made by the relatives of N.T. (Tekçi and others v. Turkey, B. No: 13660/05, 10/12/2013). In the aforementioned judgement, it was stated, inter alia, that M.E.Y., who was mentioned in a decision of the Military Prosecutor’s Office, was not listened to and that the soldiers serving in this region at the time of the events were not identified. The applicant Halit Tekçi’s lawyer brought the ECtHR judgement to the attention of the Eskişehir 1st Assize Court. At the end of the trial, the defendants were acquitted and this decision was finalised after being reviewed by the Court of Cassation.
Allegations
The applicants alleged violations of the substantive and procedural aspects of the right to life.
The Court’s Assessment
Considering the ECtHR judgement, it has been determined that there is no legal benefit in re-examining the allegations regarding the violation of the substantive dimension of the right to life and the procedural dimension of the right to life in terms of the part of the judicial process subject to the application to the ECtHR judgement. Therefore, the application was examined in terms of the part of the judicial process subject to the application after the ECtHR judgment and only within the scope of the procedural dimension of the right to life regarding the obligation of effective investigation.
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