CEDH · CASELAW;CLIN;ENG — 17 juin 2008

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Turkey - 21899/02 Judgment 17.6.2008 [Section II] Article 2 Positive obligations Article 2-1 Life Suicide of a conscript during military service following injuries and blows inflicted by a non-commissioned officer: violation   Facts : The applicant is the father of Maşallah Yılmaz, a 20-year-old conscript who killed himself during compulsory military service. On 1 October 1999 a unit of conscripts, including the applicant’s son, were placed under the orders of an expert sergeant, a non-commissioned officer under contract. At around 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 and started punching and kicking Maşallah in front of other conscripts and another sergeant, uttering insults as he did so, until the young man 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 later Maşallah appeared holding the barrel of his gun against his stomach, evidently in a state of distress. Rebelling against the sergeant, he threatened to kill himself. Fearing that Maşallah was about to attack him, the sergeant picked up an assault rifle that was within his reach, loaded it and pointed it at Maşallah, who killed himself immediately afterwards. Administrative investigations established that Maşallah had problems linked to his sister’s marital difficulties and that on the morning of 1 October he had informed the sergeant concerned and a lieutenant of this. Both reports concluded that he had committed suicide, while mentioning that he had been provoked by the sergeant’s actions. Two sets of criminal proceedings were brought against the sergeant concerned. In the initial judgment, in 1999, he was found guilty of assault causing 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, was discontinued. The military prosecutor’s office considered that there was no causal link between the suicide and the sergeant’s actions. An objection lodged by the applicant was dismissed Law : The positive obligation incumbent on States to take the requisite preventive measures to protect persons under their jurisdiction against the actions of others or, where necessary, from themselves, applied without any doubt to the realm of compulsory military service. It meant that the States were required to secure high professional standards among regular soldiers, whose acts and omissions – particularly vis-à-vis conscripts – could, in certain circumstances, engage their responsibility, inter alia under the substantive limb of 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. Everything pointed to the conclusion that until the tragic events of 1 October 1999 the applicant’s son had behaved normally and had never mentioned any problem to his superior officers that might have given cause for concern. However, the Court referred to the explanations supplied by the sergeant concerned, who acknowledged having asked Maşallah to make tea that morning because he wanted to spare him heavier duties 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. In the afternoon, however, far from attempting to appease matters, the sergeant had made them worse by becoming increasingly violent, both physically and verbally, towards the young man. The only other ranking officer on the premises had merely been a spectator to the incident, confining himself to criticising his peer’s conduct. Although it was not possible to analyse the seriousness or nature of the effect that those actions had had on the applicant’s son’s mental state, it was certain that that effect had become irreversible because of an ultimate irresponsible act committed by the sergeant concerned. The Court saw no 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 the sergeant, or the factual observation that he had acted in full knowledge of the situation. All the circumstances of the case illustrated the sergeant’s clear inability to assume the responsibilities of an army professional whose job was to protect the physical and mental integrity of conscripts placed under his orders. Having already been placed under arrest three times for acts of indiscipline, his ruthless treatment of a conscript he knew to be fragile was certainly not the type of error of judgment or negligence that could be tolerated in military service. The regulatory framework had proved deficient in respect of the sergeant’s supervision by his superiors and his aptitude for the job, as well as 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. The sergeant’s criminal conviction was by no means proof of the acknowledgement, explicit or in substance, of any liability for failure to safeguard the right to life: the criminal proceedings concerned had aimed only to establish whether he had been guilty of inflicting “bodily harm”, which did not in any way relate to the protection of the right to life within the meaning of Article 2. The same applied to the second set of proceedings against the sergeant. The judicial machinery as applied here did not meet the requirements of Article 2 aimed at   preventing violations of people’s physical and moral integrity, in disregard of the need to maintain public confidence in the law and to avoid any appearance of tolerance of such violations, committed in circumstances generally known only to the military authorities. Conclusion : violation (unanimously). Article 41   – EUR 3,000 in respect of pecuniary damage and EUR 12,000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes