Abdullah Yilmaz v. Turkey (21899/02)

Date	20080617
Article	2
Decision	violation

CHAMBER JUDGMENT ABDULLAH YILMAZ v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Abdullah Yilmaz v. Turkey (application no. 21899/02).

The Court held unanimously that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights regarding Maşallah Yılmaz, the applicant’s late son.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 3,000 euros (EUR) in respect of pecuniary damage, EUR 12,000 in respect of non-pecuniary damage and EUR 408 for costs and expenses. (The judgment is available only in French.)

1. Principal facts

The applicant, Abdullah Yılmaz, is a Turkish national who was born in 1953 and lives in Bursa (Turkey). He is the father of Maşallah Yılmaz, a 20-year-old who killed himself on 1 October 1999 while performing his compulsory military service.

On 1 October 1999 a unit of conscripts, to which Maşallah belonged, was placed under the orders of Expert Sergeant Murat Avcil (hereafter called “the sergeant”), a non-commissioned officer with a secondary-school certificate of education. He was 29 years old at the time and had already been put under arrest three times for acts of indiscipline. The unit had the job of clearing rubble from a trench in Yayla Tepe.

At about 7.30 a.m. the sergeant ordered Maşallah to make tea. Maşallah delayed in doing so and the sergeant reprimanded him. During the afternoon the sergeant again ordered him to make tea. This time he found he had made it too strong.

The following is an account of the events as attested to by numerous witnesses:

Sergeant Avcil started thumping and kicking Maşallah Yılmaz, in front of other conscripts and Expert Sergeant A.A., uttering insults as he did so until Maşallah Yılmaz lost consciousness. He then revived the young man by pouring water on his head before chasing him away and uttering curses at him. Later on he summoned him together with two other conscripts. He gave them some pieces of advice and then started insulting Maşallah again. About ten minutes after that incident Maşallah appeared holding the barrel of his gun against his stomach and walking around in a state of distress. Rebelling against the sergeant, he threatened to kill himself. Fearing that Maşallah was about to attack him, Sergeant Avcil took hold of an assault rifle that was within his reach, loaded it and pointed it at Maşallah, who killed himself immediately afterwards.

The forensic examinations of the corpse concluded that death had been caused by a single bullet, fired at point-blank range and that a classic autopsy was not necessary.

Administrative investigations were conducted by a military board of inquiry and by the commanding officer of the garrison to which Maşallah Yılmaz belonged. It emerged from these that Maşallah had had problems linked to his sister’s marital difficulties and that on the morning of 1 October he had informed Sergeant Avcil and a lieutenant of this. Both reports concluded that he had committed suicide while mentioning that this had been provoked by Sergeant Avcil’s actions.

Two sets of criminal proceedings were brought against Sergeant Avcil. In a judgment of 7 December 1999 he was found guilty of assault occasioning bodily harm and sentenced to five months’ imprisonment, suspended for good conduct.

The second set of proceedings, which had been brought to establish the circumstances of the death, were discontinued. The military prosecutor’s office considered that there was no causal link between the suicide and the sergeant’s actions. In his capacity as intervening party, the applicant objected to the decision to discontinue the proceedings. He referred to deficiencies in the investigation, particularly the failure to verify whether the gun that had fired the fatal shot had indeed been Maşallah’s gun, the failure to take fingerprints from the gun and the lack of a definitive finding as to the distance from which the shot had been fired. The applicant’s objection was dismissed on 10 January 2001.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 11 February 2002.

Judgment was given by a Chamber of seven judges, composed as follows:

Françoise Tulkens (Belgian), President,
Antonella Mularoni (San Marinese),
Vladimiro Zagrebelsky (Italian),
Danutė Jočienė (Lithuanian),
Dragoljub Popović (Serbian),
András Sajó (Hungarian),
Işıl Karakaş (Turkish), judges,

and also Sally Dollé, Section Registrar.

3. Summary of the judgment2

Complaints

The applicant complained of the circumstances of his son’s death. He relied on Articles 2 (right to life), 6 § 1 (right to a fair trial), 8 (right to respect for private and family life) and 13 (right to an effective remedy).

Article 2

Having regard to all the circumstances of the death, particularly the consistent witness statements gathered during the investigations, the Court did not discern any reason to call into question the conclusion favoured by the Turkish authorities, namely, that the applicant had committed suicide.

Its task was therefore to determine whether the military authorities had known or should have known that there was a real risk that Maşallah Yılmaz would kill himself and, if so, whether they had done everything that could reasonably have been expected of them to prevent that risk, having regard to their obligation to protect from himself an individual placed under their control.

There was good reason to believe that until that tragic day of 1 October 1999 Maşallah Yılmaz had behaved normally and had never mentioned any cause for alarm to his superiors.

However, the Court referred to the explanation given by Sergeant Avcil, who acknowledged that he had asked Maşallah Yılmaz to make tea that morning because he had wanted to spare him heavier tasks on account of his fragile mental state, which, moreover, he had taken pains to point out to his lieutenant. The Court concluded that on 1 October 1999, at 10 a.m. at the latest, Maşallah’s superiors, who had been apprised of the junior officer’s situation, should have understood that his problems had taken on proportions going beyond ordinary family concerns.

The Court observed that in the afternoon, far from attempting to appease matters, Sergeant Avcil had made them worse by becoming increasingly violent, both physically and verbally, towards the young man. Expert Sergeant A.A., the only other ranking officer on the premises, had merely been a spectator to the incident, confining himself to criticising his peer’s conduct.

The Court observed that, although it was not possible to analyse the seriousness or nature of the effect that those actions had had on Maşallah Yılmaz’s mental state, it was certain that that effect had become irreversible because of an ultimate irresponsible act committed by Sergeant Avcil.

In that connection it pointed out that it did not see any reason to call into question the reports drawn up by the military board of inquiry or the garrison commanding officer according to which, notwithstanding the lack of intentional element, the tragedy had been “provoked” by Sergeant Avcil, or the factual observation that he had acted in full knowledge of the situation.

In the Court’s view, all the circumstances of the case illustrated the clear inability of Sergeant Avcil to assume the responsibilities of an army professional whose job was to protect the physical and mental integrity of conscripts placed under his orders.

Accordingly, in the Court’s view the regulatory framework had proved deficient regarding Sergeant Avcil’s professional ability to officer the unit, and regarding his duties and responsibilities when faced with delicate situations such as the one that had arisen here. The authorities could not therefore be deemed to have done everything in their power to protect the victim from the improper conduct of his superiors. Consequently, the Court concluded, unanimously, that there had been a violation of Article 2 and found that it was not necessary to give a separate ruling on the applicant’s other complaints.

Judge Popović expressed a concurring opinion, which is annexed to the judgment.