Özkan et al. v. Turkey (ECtHR)
The facts of this case were disputed. According to the applicants, on 20 February 1993, Turkish security forces attacked the village of Ormaniçi in the Güçlükonak district of the Şırnak province in south-east Turkey ‘with rifles and heavy weaponry’. The applicants further alleged that the security forces set fire to houses in Ormaniçi and took most of the male villagers into detention where they were subjected to ill-treatment. According to the applicants, the operation caused serious injuries, permanent disability and the death of one villager. The applicants further alleged that the security forces returned to Ormaniçi later in 1993 and in 1994, killing four villagers, burning houses, killing livestock, and destroying harvested crops. The villagers were finally forced to leave Ormaniçi. (§8)
According to the Government, during the operation of 20 February 1993, the roofs of some houses in the village caught fire as a result of being hit by tracer bullets. The Government stated that nobody was injured or killed in Ormaniçi on 20 February and denied the allegations of ill-treatment. (§§27-31)
The Court recalled that since 1985, ‘serious disturbances’ had occurred in the south-east of Turkey, ‘involving armed conflict between the security forces and members of the PKK’. (§85) It accepted that the security forces’ decision to open ‘intensive fire’ on Ormaniçi on 20 February in response to shots fired at them from the village was absolutely necessary for the purpose of protecting life and was not disproportionate. (§306) According to the Court, the ‘intensive firing’ by the security forces included ‘the use of RPG-7 missiles and various grenades’. (§298)
However, the Court considered that ‘the callous disregard displayed by the security forces’ after the operation as to the possible presence of civilian casualties amounted to a breach of the obligation to protect life under Article 2 (right to life) of the European Convention on Human Rights in respect of a girl, Abide Ekin, who was injured by an explosive grenade (see below). (§308) The Court also found a violation of Article 2 in respect of the inadequate investigation carried out into her death. (§320)
The Court did not find a violation of Article 3 (prohibition of torture) in respect of the use of force, but it found a violation of Article 8 (right to respect for private and family life) in respect of the destruction by fire of villagers’ homes, resulting from acts of the security forces on 20 February 1993, irrespective of whether the houses were set on fire deliberately, or ‘had caught fire as a result of the security forces’ intensive firing on the village’. (§406)
Shortly after the initial intensive firing had started, security forces approaching Ormaniçi believed that shots had been fired at them from a house. They fired a rifle- or other grenade at the window of the house, causing an explosion which severely injured six-year-old Abide Ekin, who died three days later without having received medical attention. (§117)
Given the nature of Abide's injury, the Court found it difficult to accept that none of the soldiers present noticed that the child was wounded. (§118) The Court established that the soldiers failed to verify whether there were any casualties among the villagers, ‘which was a realistic possibility having regard to the amount and nature of ammunition used by the security forces’. (§138)
A few days after 20 February, another child, Ali Yıldırım, was killed as a result of the explosion of a hand grenade which he had found and with which he was playing. (§§15, 20, 159) The explosion of the hand grenade also slightly injured his sister Emine Yıldırım. (§303)
The Court could not determine, on the basis of evidence brought before it whether the live hand-grenade had been accidentally left behind by the security forces after the operation on 20 February 1993 or whether it had a different origin. (§§303, 321) As the security forces had in fact searched for weapons and ammunition in Ormaniçi on 20, 21, and 25 February 1993, the Court did not find that, on this point, the Turkish authorities fell short of their positive obligation to protect life under Article 2 of the Convention. (§321)
The Government argued that tracer bullets could have set the roofs of some houses alight, but the Court could not establish whether the security forces had used any tracer bullets during their approach of Ormaniçi on 20 February 1993. (§404)
Irrespective of whether the houses were deliberately set on fire by the security forces or whether they had caught fire as a result of the security forces' intensive firing on the village, the Court concluded that the houses were destroyed by fire resulting from acts of the security forces on 20 February 1993, amounting to a violation of Article 8 of the Convention.
It is interesting to note that the Court recognised the particular danger to life posed by the use of extremely large quantities of explosive weapons and firearms for a raid on a village. (§138)
According to an internal report, the ammunition used by the security forces on 20 February
consisted of 3,000 rounds of 7.62 mm bullets fired from an automatic weapon (mayonlu fişek), 2,100 rounds of 7.62 mm NATO standard bullets (normal fişek), 1,600 rounds of 5.56 mm HK-23 bullets (fişek), 6 rounds of 60 mm mortar destruction bombs, 9 rounds of RPG-7 ammunition, 25 rounds of 40 mm grenades, 12 rounds of Macar rifle grenades, 8 rounds of DM-22 rifle grenades and 10 hand grenades. In addition 250 litres of unspecified fuel had been used. It is not specified whether the bullets used included tracer bullets (izli fişek).Appendix II: Documentary materials before the Court, §161.
The Court also recognised the possible incendiary effects of ‘intensive firing’ with weapons whose primary damage mechanism is not heat or fire.
Nevertheless, the Court did not find that the use of such weapons in these quantities was disproportionate to a legitimate law enforcement aim in that particular situation (an operation against the backdrop of an armed conflict, where security forces used force after they came under fire).
Last updated on: 04 March 2015