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.
In the concrete case, although the other applicants did not have a request to participate in the trial, the applicant Halit Tekçi participated in the proceedings and his attorneys were present at the hearings except for the last hearing. In addition, the applicant Halit Tekçi was able to submit all his requests to the criminal court both in person and through his attorneys and to appeal the decision of the criminal court. Although the applicants made some allegations regarding the decision to transfer the case, the said decision falls outside the scope of this review. For this reason, no assessment has been made in relation to the aforementioned allegations and it has been concluded that the applicants had the opportunity to participate in the proceedings to a sufficient extent in order to protect their legitimate interests.
The applicants complained that the criminal court panel was not independent and impartial, citing only the rejection of some of their requests in relation to the proceedings, without mentioning any concrete facts that would require doubting the independence and/or impartiality of the criminal court panel. However, no grounds for doubting the independence and impartiality of the said panel could be identified.
Considering that some of the delays experienced during the proceedings subject to the application were due to the excuses of the applicant Halit Tekçi’s attorneys and/or defence counsels, and that the criminal court concluded the proceedings within 1 year, 8 months and 28 days after the ECtHR judgment was brought to its attention, it is assessed that the total duration of the proceedings of approximately 4 years, 3 months and 14 days can be considered reasonable in the two-tier trial system. In addition, it has been determined that the discovery, which the applicants claim to have been rejected on security grounds, was carried out before the proceedings subject to the application.
Although the applicants complained about the rejection of their request for cross-examination, neither the applicant nor his lawyers attended the hearing where the cross-examination was held, although the date and time of the hearing was notified to the applicant Halit Tekçi, whose statement was taken by reference. Moreover, the fact that the defendants could not be questioned was not considered to be a factor damaging the effectiveness of the proceedings under the circumstances of the concrete case. It should not be forgotten that in the investigations and prosecutions to be carried out in accordance with Article 17 of the Constitution, the investigation and prosecution authorities are not obliged to meet all kinds of claims and requests of the relatives of the deceased regarding the development of the incident and the obtaining of evidence, as long as it does not prevent the determination of the circumstances surrounding the death and the identification of those responsible, if any.
On the other hand, although it is one of the shortcomings stated in the ECtHR judgement, the statement of M.E.Y. was not taken, all military units on duty in the region on the date of the incident and the soldiers in charge of these units were not identified and the statement of Yun.B., who may have eyewitness information about the incident, was not consulted. Furthermore, it was not investigated whether there were records of the serial numbers of the weapons used by the soldiers serving in the vicinity of Aşağı Ölçek and Yukarı Ölçek in April-May 1995, and if so, whether these weapons were still in the inventory and whether the casings found during the discovery were fired from these weapons. T. and the witnesses, who were apparently informed about the incident, were not asked whether they could show the place where the incident took place and the place where N.T. was buried.
For the reasons explained above, the Constitutional Court held that the procedural aspect of the right to life was violated.
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