Events
Ş.A. the operation was carried out with the approval of the Governor of Mardin by the Gendarmerie Special Operations Team after the confirmation of the needy information about the arrival of two members of a terrorist organization at the house of the named person in his village in the evening. At 20.20-21.00, in front of the applicant Mehmet Eren’s house, Y.A.as a result of the fire opened by some soldiers in the JÖH Team, the applicant Fatma Akin’s wife was killed because the hilt in her hand was considered a weapon and was fired at them after a stop warning.A. Mehmet Eren was injured with a. Y.A. he died in the hospital where he was taken.
At the end of the investigation conducted by the Prosecutor General’s Office of Nusaybin, the killer in the image taken from the thermal camera was arrested due to gunshot wounds.A.on the grounds that they were responsible for the death and injury of the applicant Mehmet Eren, he sent the fezleke he had prepared to the Mardin Chief Public Prosecutor’s Office for the filing of a public lawsuit against some soldiers for causing death and injury by taxi.
The Mardin Public Prosecutor’s Office has opened a public case against the suspects before the criminal court based on the prepared fezleke. Mardin 1. The High Criminal Court (Criminal Court) has decided that there is no place for the defendants to be sentenced. The applicants’ application for appeal was submitted to the Gaziantep Regional Court of Justice 16. It was flatly rejected by the Criminal Department (Criminal Department).
Y.A.after the death and injury of the applicant Mehmet Eren, an administrative investigation was initiated by the Mardin Gendarmerie Commando Battalion Command. In the report prepared by the Administrative Investigation Commission, it was stated that there were no administrative defects and negligence of any personnel in the realization of the incident by making determinations.
Claims
The applicants alleged that the right to life was violated due to the death and injury caused by the use of armed force by the security forces, as well as the ineffectiveness of the criminal trial conducted on this incident.
Evaluation of the Court
1. In Terms of the Material Dimension of the Right to Life
Although the applicants complained that the security forces were firing on purpose, they did not support their claims with convincing evidence. For this reason, it has been evaluated that the mentioned claim cannot be respected.
It is difficult to say that the mentioned soldiers did not use armed force in an absolute mandatory state to protect themselves from attack and in a proportional manner in accordance with the goal that was relatively achieved by the force they were facing. However, the mentioned soldiers made a mistake in the person of the person who fired at them, Y.A.with the death of the applicant, Mehmet Eren was injured. The Criminal Court concluded that the defendants could not be held responsible for the incident because they had made an inevitable mistake, but in the report organized by the Criminal Police Laboratory (Lab), Y.A.october according to the distribution of shot residues around the tiny holes found in the coat belonging to the fact that these holes were stated to have occurred as a result of a shot fired from close range, and although the issue described in the report contradicts the applicant Mehmet Eren’s statements about the distance between them and the soldiers, he did not receive an additional report from the Laboratory or a different expert report to decipher this contradiction; he did not revive the incident by conducting reconnaissance at the scene. However, event animation is a necessity for determining the conditions of occurrence of the event. For this reason, the Constitutional Court is not convinced that the error that the defendants fell into is inevitable according to the findings of the criminal trial subject to the application.
In the operation order related to the operation subject to the application, it was stated that the ambush or handmade explosives that the terrorists could install will be paid attention to, the attention of the village residents will not be drawn, the maximum degree of thermal cameras will be resigned, if the terrorist is detected, an audible warning will be given to surrender, if the warning is not observed, respectively, first in the air, then in the feet, if the fire is exposed, the shot will be responded to without stopping and pausing. In accordance with this plan, thermal binoculars were attached to the rifles belonging to the three soldiers, and the team commander carried thermal hand binoculars. However, when planning the operation, it was not taken into account that the notification contained information that needed confirmation, that is, it was not certain, the operation would be carried out in the village residential area, and villagers could be found on the street as of the time of the operation. As a matter of fact, witness M.He.the statement of the department that the operation was started urgently on the day of the incident indicates that insufficient consideration was given to the measures necessary to protect the lives of third parties prior to the operation.
The Constitutional Court has decided that the material dimension of the right to life has been violated on the grounds described.
2. In Terms of the Procedural Dimension of the Right to Life
Despite the actions taken after the incident in the concrete case, significant shortcomings that affect the effectiveness of the criminal trial are noticeable.
Firstly, in the report organized by the Laboratory, Y.A. to the distribution of shot residues around the tiny holes in the Y.A’s coat, it is stated that these holes were caused by a shot from close range, and although the issue described in the report contradicts the applicant Mehmet Eren’s statements about the distance between them and the soldiers, no action was taken to revive the incident by reconnaissance at the scene to eliminate this contradiction, october additional report from the laboratory or a report from a different expert; the applicants’ requests for discovery at the scene were not met, citing the stage at which the file arrived and the security situation. However, the conduct of the mentioned actions will allow the Criminal Court to determine the circumstances of the incident in a healthier way.
Considering that the Criminal Chamber rejected the applicants’ application for appeal, the criminal trial could be completed in 5 years, 3 months and 3 days. However, no element of the trial justifies such a lengthening of the trial. For this reason, it was concluded that the criminal trial subject to the application was not conducted with reasonable care and speed in a way that could cause damage to the important role played in preventing similar violations of the right to life that may occur later.
The Constitutional Court has decided that the procedural dimension of the right to life has been violated on the grounds described.