Events
S.A. Upon learning in the evening hours of the information that needed confirmation that two terrorist organization members had come to the house of the person named person in his village, an operation was carried out by the Gendarmerie Special Operations (JÖH) Team with the approval of the Mardin Governor. At around 20.20-21.00 hrs, in front of the applicant Mehmet Eren’s house, Y.A.’s wife Y.A., the applicant Fatma Akın’s wife, was fired upon by some soldiers from the JÖH Team, as the hilt in Y.A.’s hand was mistaken for a weapon and they were shot at after a stop warning. and Mehmet Eren were injured. Y.A. He died in the hospital he was admitted to.
At the end of the investigation, the Nusaybin Chief Public Prosecutor’s Office sent the file it prepared to the Mardin Chief Public Prosecutor’s Office to initiate a civil lawsuit against some of the soldiers on the grounds that they were responsible for the death of Y.A. and the injury of the applicant Mehmet Eren, as they mistook the image taken from the thermal camera as a weapon.
Mardin Chief Public Prosecutor’s Office opened a public case against the suspects before the criminal court based on the report prepared. The Mardin 1st High Criminal Court (Criminal Court) decided that there was no room for sentencing the defendants. The applicants’ appeal application was definitively rejected by the 16th Penal Chamber (Criminal Chamber) of the Gaziantep Regional Court of Justice.
After the death of Y.A. and the 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, determinations were made and it was stated that there was no administrative fault or negligence of any personnel in the realization of the incident.
allegations
The applicants claimed that their right to life was violated due to the death and injury caused by the use of armed force by the security forces and the ineffectiveness of the criminal proceedings regarding this incident.
Court’s Evaluation
- In Terms of the Material Dimension of the Right to Life
Although the applicants were close to the fact that the security forces fired on target, they did not support their allegations with convincing evidence. For this reason, it has been considered that the aforementioned claim cannot be trusted.
It is difficult to say that the aforementioned soldiers did not use armed force in an absolutely necessary situation in order to protect themselves from the attack and in a proportionate manner in line with the aim desired to be achieved, relative to the strength faced. However, the aforementioned soldiers erred in the person of the person who fired at them, causing Y.A.’s death and the applicant Mehmet Eren’s injury. The Criminal Court concluded that the defendants could not be held responsible for the incident because they made an inevitable mistake, but in the report prepared by the Criminal Police Laboratory (Laboratory), it was stated that according to the distribution of the shot residues around the tiny holes in the jacket of the YA, it was stated that the holes in question were the result of shooting from close shooting distances. Although the matter explained contradicted the statements of the applicant Mehmet Eren regarding the distance between the soldiers and the soldiers, he did not receive an additional report from the Laboratory or a report from a different expert to resolve this contradiction; He did not revive the event by reconnaissance at the crime scene. However, event re-enactment is a must for the determination of the realization conditions of the event. For this reason, the Constitutional Court was not convinced that, according to the findings of the criminal proceedings, which were the subject of the application, the mistake committed by the accused was inevitable.
In the operation order for the operation subject to the application, attention will be paid to the ambush or hand-made explosives that may be set up by terrorists, the attention of the villagers will not be drawn, the thermal cameras will be resigned at the maximum level, if a terrorist is detected, a sound warning will be made to surrender, in case the warning is not obeyed, first into the air, then into the air, respectively. It has been stated that shots will be fired towards the feet, and in case of exposure to fire, the shot will be answered without stopping and without hesitation. In accordance with this plan, thermal binoculars were attached to the rifles of three soldiers, and the team commander carried thermal binoculars. However, while the operation was being planned, it was not taken into account that the notification contained information that needed confirmation, that is, it was not certain, that the operation would be carried out in the village settlement area, and that villagers could be found on the street at the time of the operation. As a matter of fact, the statement of the witness M.Ö. that an emergency operation was launched on the day of the incident shows that the necessary precautions to protect the lives of third parties were not adequately considered before the operation.
The Constitutional Court decided that the material aspect of the right to life had been violated for the reasons explained.
- Regarding the Procedural Dimension of the Right to Life
Despite the actions taken after the incident in the concrete case, important deficiencies that affect the effectiveness of the criminal proceedings stand out.
First of all, in the report prepared by the Laboratory, the distribution of shot residues around the tiny holes in the coat belonging to Y.A.
According to the statement, although it was stated that the holes in question occurred as a result of a shot made from a close shooting distance and the issue explained in the report contradicted the statements of the applicant Mehmet Eren regarding the distance between them and the soldiers, in order to eliminate this contradiction, the incident was revived by making an exploration at the scene, an additional report from the laboratory or a report from a different expert was required. no action has been taken against it; The applicants’ requests for discovery at the crime scene were not met on the grounds of the stage of the file and the security situation. However, the execution of the aforementioned procedures will enable the Criminal Court to determine the conditions of the event in a more reliable way.
Considering that the Criminal Chamber rejected the applicants’ appeal, the criminal proceedings could be completed in 5 years, 3 months and 3 days. However, nothing in the trial justifies the prolongation of the trial. For this reason, it has been concluded that the criminal proceedings, which are the subject of the application, were not carried out with reasonable care and speed in a way that could damage the important role played in the prevention of similar violations of the right to life that may arise later.
The Constitutional Court decided that the procedural aspect of the right to life had been violated for the reasons explained.
