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The European Court of Human Rights (ECtHR) has finalized the application regarding 19-year-old Murat Yılmaz, who was shot to death by the fire opened from the gendarmerie station in Van's Başkale, and Bişar Ayhan, who was injured in the incident.
Turkey has been convicted by the ECtHR on the grounds that the right to life of one person was violated, the family was prevented from accessing the file, a fair trial was not held and the excessive use of force led to the death of one person and the injury of another.
The ECtHR has ruled that Turkey shall pay 130 thousand Euro (approximately 1,30 million Turkish Lira) in damages.
Military prosecutor's office closed the file
Fire was opened from the gendarmerie station on the ones who went from the Xerkava (Koçdağı) village in Van's Başkale in eastern Turkey to Iran for border trade on September 11, 2009. While Murat Yılmaz lost his life in the shooting, Bişar Ayhan was wounded.
The Başkale Chief Public Prosecutor's Office gave a decision of lack of jurisdiction and sent the file to the military prosecutor's office.
On August 10, 2010, the military prosecutor's office gave a decision of non-prosecution for all soldiers on the grounds of "the legal regulations as to the use of firearms by the military and the allegations that the [terrorist] organization members would cross the border and strike."
As a result of the objections, the Ağrı Military Court ruled that the prosecutor's office should carry out a more comprehensive investigation. Following the re-investigation, the Van Military Prosecutor's Office once again concluded that there was "no ground for prosecution."
The Ağrı Military Court upheld this decision on January 27, 2011 and closed the file. The lawyers of the families applied to the ECtHR.
'They knew we were smuggling diesel fuel'
Aziz Ayhan, one of the people targeted in the shooting on the border, said that the gendarmerie saw them and even though they knew that they were doing border trade, they still opened artillery fire on them:
"Before it got dark, we - as a group of 30 people - went towards the border. The [gendarmerie] stations would see us. They knew that we were [doing smuggling] of diesel fuel. But in spite of this, artillery fire began. Everyone started running with the outbreak of the artillery fire.
"Three cannons hit where I was. Hit by the pieces next to me, Murat Yılmaz lost his life. After the artillery fire, this time, they raked through us with guns. The raking continued for a long time even though one person died and there were wounded people. After the shooting stopped, we put the dead body on horses and brought it to the village."
'State must guarantee the right to life'
As reported by Adnan Bilen from the Mezopotamya Agency (MA), the ECtHR has emphasized that the necessary investigation was not conducted and the use of force was unnecessary and disproportionate.
The ECtHR has stressed that "the state has a primary responsibility for guaranteeing people's right to life", explaining that "in cases when state officials or bodies are involved, it needs to be ensured that they are brought to account for the deaths that occured in their responsibility"
The ECtHR ruling has noted that "these investigations should be independent, they should be open to the access of the victim's family and they should continue at a reasonable pace and be effective."
'Risk of destruction, disregard of evidence'
The ECtHR ruling has also defined it as unacceptable that the statements of the soldiers involved in the incident were taken by a senior soldier on duty at the same station. It has recalled that "in order for an investigation to be effective, the ones carrying out the investigation should be independent from the ones who were involved in the related incident."
At this point, the high court has drawn attention to the fact that "in the current case, the members of the army who were involved in the incidents played an active role in the first and critical stages of the investigation."
The ECtHR has recalled that "the statements of the soldiers from the Koçdağı Gendarmerie Station were taken by Lieutenant F.D., who was their superior in the hierarchical order, he personally took part in planning and controlling the operation and ordered the soldiers to shoot."
The court has underlined that "allowing the soldiers from the same unit to play such an active role in the investigation runs the risk of destroying or disregarding important evidence concerning soldiers."
'No concrete evidence about alleged attack'
Referring to Turkey's defense, the ECtHR has also not found it credible that soldiers "received a tip off that the members of the organization from the camps near Iran would cross the border to launch an attack and, thus, there might be members of the organization among the group."
The court has further noted that "there is no indication suggesting that the group crossing the border illegally used firearms."
In reference to the ensuing investigation, the ECtHR has concluded that "there is no ground suggesting that the soldiers or commanders had taken any concrete steps to determine whether there were really terrorists or persons possessing weapons among the group."
That being the case, the court has concluded that "there is no evidence or information associating the group with 'terrorist activities'."
Use of force is not 'proportionate'
The ECtHR ruling has underlined that even though it is assumed that there are members of the organization among the group, the military's use of force must be proportionate. The court has "not been convinced that the use of force, especially that of artillery fire, was 'absolutely and definitely proportionate' under the unique conditions of the case."
Recalling that "the soldier responsible for firing the artillery from the Koçdağı Gendarmerie Station alleged that he calculated the coordinates of the targets", the ECtHR has noted that "an artillery fired from a station near the group exploded, injuring one applicant and killing Yılmaz."
All in all, the court has concluded that the use of force was not "absolutely necessary and definitely proportionate". (AS/SD)
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