5.  The applicants were born in 1984, 2002, 2005, 1935, 1948, 1973, 1983, 1973, 1969 and 1976 respectively and live in Tunceli. The first applicant is the wife, the second and third applicants are the children, the fourth and fifth applicants are the parents and the sixth to ninth applicants are siblings of Mr Bülent Karataş, who was killed on 27 September 2007. The tenth applicant was injured in the same incident.
6.  The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.
7.  On 27 September 2007 at 12.35 p.m. first lieutenant İ.Y., who was the commander of the gendarmerie station in Yenibaş village in south-east Turkey, was informed by radio that an armed clash had taken place at a location approximately six kilometres away from his station. The clash had been between members of “the terrorist organisation” and military units from the 51st Motorised Infantry Brigade, which is based in the nearby town of Hozat. The first lieutenant informed the Hozat public prosecutor and the Hozat gendarmerie command about the incident before setting off, on foot, to the scene of the incident together with a number of gendarmes under his command. While they were on their way the first lieutenant was informed by radio that “there were [a number of] injured persons” at the scene of the incident. They then encountered a villager on his tractor and asked him to take them to the scene of the incident. On their arrival at the scene at 3 p.m. they were asked to assist two injured persons, whom they loaded onto the trailer of the tractor and took to a place from which a helicopter picked them up and took them to the military hospital in Elazığ.
8.  The first lieutenant and his gendarmes, who were informed that the Hozat public prosecutor and crime-scene investigators from the Hozat gendarmerie would be coming to the scene of the incident, took the necessary security measures in the area. However, since it was getting dark and as a result of security concerns, the prosecutor did not visit the area that day and instead instructed the gendarmes to secure any objects found in the area. A search was then conducted during which the gendarmes found, amongst other things, a horse and its saddle, a motorbike and sidecar, a chainsaw, a grey jumper, a black T-shirt, a brown cardigan, a red hat, an old and torn sports shoe, a video camera and a rucksack. These were put on the trailer and taken to the Yenibaş gendarmerie station at 7.30 p.m. the same day. The gendarmes returned to the scene of the incident at 12.50 a.m. on 28 September 2007 and awaited the Hozat public prosecutor and the crime‑scene investigators, who arrived in a helicopter at 8.45 a.m.
9.  The Hozat public prosecutor prepared his report on his visit to the area on 28 September 2007. The gendarmes who were guarding the area showed the prosecutor the exact place where the soldiers from the 51st Motorised Infantry Brigade had taken cover the previous day and told the prosecutor what they had been told by the soldiers. According to the information given to the prosecutor, “two terrorists” had been walking along a nearby country lane and had been warned by the soldiers to stop. However, the terrorists had failed to obey the soldiers’ orders and had started running down the hill towards a river bed. The soldiers had fired warning shots in the air and immediately afterwards the soldiers had been fired at from the river bed. The soldiers had then returned fire.
10.  The prosecutor went to the exact spot ‒ in a country lane ‒ where the soldiers had been the previous day when they opened fire, where he found six spent bullet cases discharged from G-3-type automatic rifles and six spent bullet cases discharged from BKC-type automatic rifles. While walking down the hill which the “two terrorists” had run down the previous day towards the river bed, the prosecutor noticed that it was very steep and densely covered with trees; from a distance of 35 metres it was impossible to see the top of the hill where the soldiers had been standing the previous day. As the prosecutor walked down the hill, he noted bullet holes in the trees and 35 metres further on noted blood stains on the ground and ordered samples to be taken. After following the trail of blood stains for 172 metres he arrived at the place where the tenth applicant had been found by the soldiers the previous day. The prosecutor continued walking for a further 143 metres and arrived at the spot where the applicants’ relative Bülent Karataş had been found. There were more extensive blood stains in the two places where the men had been found.
11.  After crossing the river bed and walking for 35 metres the prosecutor found eight spent bullet cases discharged from Kalashnikov-type automatic rifles. The distance between the place where the bullet cases were found and the country lane where the soldiers had been standing was 120 metres. After another 54 metres the prosecutor noted two large pits in the ground in which there were supplies of food in plastic bags, batteries and power cables, which the prosecutor instructed the soldiers to destroy. On his way back up the hill the prosecutor noted more holes in the trees caused by bullets fired from the direction of the river bed. The findings described above were photographed and videoed during the course of the prosecutor’s visit.
12.  In the meantime, on the evening of 27 September 2007 a post mortem examination was carried out in Elazığ on the body of the applicants’ relative Bülent Karataş. He was formally identified by a relative who also told the authorities that he had gone to that place to collect wood.
13.  The doctors who conducted the examination noted that Bülent Karataş’s body had been stripped of its clothes except for his underpants. In a plastic bag placed next to the body the doctors found a single sports shoe and a pair of blood-stained jeans which had been cut off when they had been removed from the body. There was nothing in the pockets of the jeans. A prosecutor from Elazığ was present during the examination and placed the jeans and the shoe in a bag as evidence. The prosecutor also instructed a police chief to secure the clothing of the tenth applicant, who at that time was being treated in the intensive care unit.
14.   Examining Bülent Karataş’s injuries, the doctors noted that there was a bullet entry hole on the upper left arm and a corresponding exit hole on the other side of the arm. Another bullet had entered his body on the upper lateral of the left femur and exited the body. A third bullet had entered the body on the left scapula, travelled through an area near the vertebrae and exited the body. An abrasion measuring 6.5 x 1.5 centimetres on the anterior superior iliac spine had been caused by a fourth and final bullet. The doctors observed that all the bullets had entered the body through clothed areas but noted that there was no clothing such as a vest or a shirt in the bag which could be examined with a view to establishing the distance from which he had been shot. In their report the doctors also noted a number of “fresh and superficial” abrasions and a broken rib. The doctors established the cause of death as hypovolemic shock caused as a result of the laceration of the left great saphenous vein.
15.  According to a second medical report pertaining to the examination of the tenth applicant, he had been shot in the upper left chest by a bullet which had exited his body from behind the left arm.
16.  On 2 October 2007 the Hozat public prosecutor took a statement from the tractor driver who had assisted the gendarmes on 27 September 2007 (see paragraph 7 above). He told the prosecutor that he and the gendarmes had driven to a location “which was a dangerous area and was therefore avoided by the locals”. At that place the gendarmes had loaded onto his trailer “an injured person” whom he had then taken to another location, where he had been transferred to a helicopter.
17.  On 2 and 3 October 2007 the prosecutor questioned six military personnel from the 51st Motorised Infantry Brigade who had taken part in the operation. One of the six military personnel was first lieutenant A.S.Ç., who had been in charge of the five other soldiers questioned by the prosecutor the same day.
18.  First lieutenant A.S.Ç. told the prosecutor that on the day of the incident he and his soldiers had gone to the area for reconnaissance duties. The area in question was a place where members of the terrorist organisation had been carrying out intensive activities. The reason for their presence in that place on that day had been to look for members of the terrorist organisation who, according to the intelligence in their possession, had been transporting food supplies and other equipment to their hiding places before the onset of winter. At 3 a.m. they had seen an abandoned motorbike and sidecar and had taken cover in order to observe it. At midday they had heard a horse and a number of people but had been unable to see them. Two persons had then approached the motorbike and the soldiers had asked them to stop. However, they had failed to obey the warning and had started running down the hill. The soldiers had fired in the air and repeated their warnings and at that moment fire which sounded as though it was from a Kalashnikov-type rifle had been opened in the direction of the soldiers from the river bed. The soldiers had then returned fire in the direction of the river bed.
19.  After a short while the first lieutenant had asked his soldiers to stop firing and they had walked towards the river bed where they had found an injured person whom they later identified as the tenth applicant Rıza Çiçek. They had left behind some of the soldiers to guard the tenth applicant and to provide him with first aid and continued their search. After searching for one and a half to two hours they had found the second person, who was later identified as the first applicants’ relative Bülent Karataş. He was also injured and was hiding under a rock approximately 100-150 metres away from the tenth applicant. They had provided first aid to Bülent Karataş as well, requested that a helicopter be sent to the area and then transported the tenth applicant on a makeshift stretcher and Bülent Karataş on the trailer of the tractor to an area approximately one and a half to two kilometres away, from where the two men had been picked up by helicopter. They had then returned to the scene of the incident and conducted a search during which they had found two pits in the ground containing food supplies. At dawn the following day they had continued their search and found eight to ten spent cartridges discharged from Kalashnikov rifles. They had then secured the area and subsequently the prosecutor and the crime scene investigators had arrived at 8.30 a.m.
20.  The other five military personnel gave similar statements to the prosecutor.
21.  On 9 October 2007 the Hozat public prosecutor took a statement from M.Ç., a military officer who worked at the Yenibaş gendarmerie station (see paragraph 7 above). M.Ç. told the prosecutor how he, together with thirty-nine other soldiers and their commander, first lieutenant İ.Y., had gone to the area where the two persons had been injured. He added that when they were taking the motorbike back to their station on the trailer (see paragraph 8 above) they had encountered four persons on the road who asked them to stop. The tractor driver had told him that one of the four was the brother of Bülent Karataş. M.Ç. had told the driver not to stop because he considered that it was not safe to do so. He added that he knew that Bülent Karataş’s brother was a farmer in the area and did not think that he and the three others had been waiting on the road specifically for them; in his opinion the brother had asked them to stop because he had recognised Bülent Karataş’s motorbike on the trailer.
22.  On 10 October 2007 the prosecutor questioned B.A., a villager who had been working in the fields on the day of the incident together with his fellow villager, the driver of the tractor. B.A. confirmed that a number of gendarmes had arrived in the field and asked his friend to assist them with his tractor. After his friend and the gendarmes had left he, his wife and another villager had stayed behind. At around 4 p.m. the same day, while they were waiting for the tractor to return, Bülent Karataş’s brother had arrived on his motorbike and asked them whether they had seen his brother Bülent or the tenth applicant who, he said, had not returned to their homes the previous evening. When they had told him that they had not seen the two men, he had left on his motorbike in the direction of his village.
23.  On 15 October 2007 the Hozat public prosecutor took a formal decision to secure as evidence the objects found by the gendarmes during their search at the scene of the incident. The prosecutor’s decision was endorsed by the Hozat Magistrates’ Court the same day.
24.  On 6 November 2007 the tenth applicant was questioned by the Tunceli prosecutor as a “suspect”. He told the prosecutor that he used to live in Istanbul but after losing his job he had moved back to his home town of Hozat. His deceased cousin Bülent Karataş, who had been a bee-keeper, had told him that he had seen a bee colony in a field and asked him to accompany him there to collect it. On the morning of 27 September 2007 they had left on the motorbike and the horse and had put a chainsaw in the sidecar of the motorbike. After their arrival they had left the road, collected the bee colony from a tree and taken it on horseback to the motorbike at around 11 a.m. At that moment a group of eight or nine soldiers had appeared and asked them what they were doing. They had shown the soldiers their identity cards and told them that they were in the area looking for bees. The soldiers had told them to leave, as they were in a “terrorist area”. Bülent had told the soldiers that they would finish their job and then leave. The soldiers had then left and gone into the forest but approximately twenty minutes later they had returned and asked to see their identity cards again, before asking them to take off their jumpers. He and Bülent had then walked away approximately ten metres and taken their jumpers off. On the orders of the soldiers they had then lain on the ground. The officer in charge of the soldiers had walked towards them and told them to get up and run away. Immediately after he had stood up and started running he had heard a rifle being cocked. Two rounds of shots had then been fired in his direction, followed by a few more rounds of fire. Bülent had at that time been running in another direction. The tenth applicant added that he had rolled down the hill which was next to the road. He had been shot in his chest and arm. Within minutes the soldiers had encircled him and he had started begging the soldiers not to kill him. One of the soldiers had then radioed his commander and said that he did not want to kill him. The commander had then replied, over the radio, “give him first aid and take him to hospital”. He had then been taken to the hospital in Elazığ.
25.  The tenth applicant added that although he had not seen it personally, he had heard on the soldiers’ radio that Bülent had been shot in the foot. Bülent had not been taken to hospital with him and it was only after he was put in prison that he found out that Bülent had died. He maintained that their reason for going to the area was to collect bee colonies. As he was a nature-lover, he had taken his camera with him. He denied that they had gone to the area to help terrorists; he had never had anything to do with terrorism.
26.  On 9 November 2007 the tenth applicant was brought before the Hozat Magistrates’ Court, which ordered his detention on remand in prison pending institution of criminal proceedings against him for terrorism-related offences. It is apparent from this order that a decision was taken two days after the incident to classify the file relating to the investigation into the actions of the soldiers as confidential in order to prevent the applicants from having access to it.
27.  During the hearing the tenth applicant told the Hozat Magistrates’ Court that he stood by what he had already told the prosecutor. His lawyer told the court that no weapons had been found in the area and that it was not possible to link the spent bullet cases found in the area to his client; it was possible that those spent bullets had been left there from another incident. The lawyer also stated that according to the doctors who conducted the post mortem (see paragraph 14 above), forensic examinations of the men’s clothing would be needed in order to establish the distance from which his client and Bülent Karataş had been shot; however, as noted by the prosecutor, the clothing was missing.
28.  On 4 December 2007 the eight bullet cases found in the area (see paragraph 11 above) were subjected to ballistic examination and it was established that they had been discharged from the same rifle.
29.  The single sports shoe and the pair of blood-stained jeans found in the bag during Bülent Karataş’s post mortem examination, as well as a pair of shoes and a track-suit bottom which apparently belonged to the tenth applicant, were analysed at the Forensic Medicine institute on 31 January 2008. It was established that the blood samples taken from near the river bed by the prosecutor on 28 September 2007 (see paragraph 10 above) belonged to the tenth applicant, Bülent Karataş and a third person.
30.  On 31 March 2008 the Malatya public prosecutor filed an indictment with the Malatya Assize Court, charging the tenth applicant with the offence of aiding and abetting a terrorist organisation. The prosecutor alleged that the tenth applicant and the applicants’ deceased relative Bülent Karataş had been supplying food and other materials to a terrorist organisation on 27 September 2007 when they had come across a group of soldiers with whom they had had an armed clash. In the indictment the prosecutor also alleged that statements taken from two of the applicants, namely Güler Karataş and Bıra Karataş, as well as statements taken from two other persons, namely Özgür Bozkaya (the son of the applicant’s’ deceased relative Bülent Karataş) and Zeynep Çiçek (the tenth applicant’s mother), indicated that the tenth applicant had committed the offence in question. The prosecutor also listed in his indictment as evidence the food supplies and the other materials found in the two pits (see paragraph 11 above).
31.  The Malatya Assize Court declined to institute criminal proceedings against the tenth applicant and returned the indictment to the Malatya public prosecutor on 11 April 2008. The Assize Court noted that the statements taken from Güler Karataş, Bıra Karataş, Özgür Bozkaya and Zeynep Çiçek were in fact statements of complaint against the soldiers and therefore not statements in support of the prosecutor’s allegations. The Assize Court also held that the prosecutor, who alleged that the tenth applicant had been supplying food and other materials to a terrorist organisation, had not specified in his indictment what kind of food and materials they were.
32.  On 15 April 2008 the Malatya public prosecutor objected to the Assize Court’s decision not to entertain the indictment. The prosecutor argued, in particular, that he had mentioned the statements taken from the four persons because in accordance with the applicable legislation he was duty-bound to include in his file not only evidence against a suspect but also any evidence which was favourable to the suspect. The prosecutor also stated that a list of the items which the tenth applicant had been supplying to the terrorist organisation had been included in the indictment.
33.   The Malatya Assize Court rejected the prosecutor’s objection that same day. It referred to the report drawn up by the Hozat public prosecutor on 28 September 2007 in which it was stated that the food supplies and other materials referred to in the Malatya public prosecutor’s indictment had indeed been found in the two pits, but noted that there was no evidence in the prosecutor’s indictment showing that the tenth applicant had had anything to do with those items. On 7 May 2008 the Malatya Assize Court ordered the tenth applicant’s release from the prison.
34.  On 15 May 2008 the Hozat public prosecutor took statements from four of the six military personnel who had already been questioned between 2 and 3 October 2007 (see paragraph 17 above). The remaining two military personnel were also questioned, on 26 May and 10 June 2008. In the statements the six personnel were referred to as “suspects”.
35.  First lieutenant A.S.Ç. repeated his earlier statement (see paragraphs 18-19 above) and denied the allegation that he and his men had stopped the tenth applicant and the applicants’ deceased relative Bülent Karataş, checked their identity documents, asked them to take their jumpers off and then shot them. He added that the fact that they had then requisitioned a helicopter in order to have the two injured men taken to hospital proved that the allegations against them were baseless. Four of the remaining five military personnel made similar statements. The fifth person stated that he remembered that he had made a statement to the Hozat public prosecutor soon after the incident but added that he could not now remember the events in question.
36.  On 23 June 2008 the Hozat public prosecutor ruled that he did not have jurisdiction to carry out the investigation and forwarded the investigation file to the Elazığ military prosecutor’s office. The prosecutor concluded that the incident had taken place while the soldiers had been carrying out their duties as military personnel and that jurisdiction to conduct the investigation therefore lay with the military prosecutor. In the Hozat public prosecutor’s decision the six military personnel were referred to as “suspects” of the offences of “attempted murder” and “murder”. The first applicant Güler Karataş, the fourth applicant Bıra Karataş and the tenth applicant’s mother Ms Zeynep Çiçek were referred to as the “complainants”. It appears from this decision that the tenth applicant had also made an official complaint to the Hozat public prosecutor about the injury caused to him.
37.  On 4 July 2008 the applicants Rıza Çiçek, Güler Karataş, Bıra Karataş and the tenth applicant’s mother filed an objection against the prosecutor’s decision. In their objection they repeated their allegation that the soldiers had unlawfully opened fire with the intention of killing Bülent Karataş and the tenth applicant, and complained that the Hozat public prosecutor had not conducted a serious investigation into their allegations. In this connection they pointed out, in particular, that the prosecutor’s examination of the scene of the incident (see paragraphs 9-11 above) had not been conducted in an impartial manner because the prosecutor had been accompanied by a number of soldiers and that the family’s requests to visit and examine the place with the attendance of all the parties had been unreasonably rejected. They also stated that the food supplies and other materials allegedly found at the scene of the incident had been destroyed on the orders of the prosecutor, and yet the prosecutor had gone on to rely on those items as evidence against the two men. They argued that a prosecutor’s duty was to preserve evidence, not destroy it. They also noted that the tenth applicant had been questioned only as a “suspect” (see paragraph 24 above) and never as a “complainant”. Similarly, although they had asked for the tenth applicant to be given the opportunity to identify the suspected soldiers in person, that request had not been granted.
38.  The applicants also criticised the decision to classify the investigation file as confidential, arguing that it had had a negative effect on their rights and had also prevented the public from exercising its right to obtain information. They argued that the offence committed did not fall within the jurisdiction of the military prosecutor. The offence committed by the soldiers was murder and the jurisdiction to investigate it lay with the Hozat public prosecutor. They argued that if the file were to be forwarded to the office of the military prosecutor, the investigation would be closed altogether.
39.  On 18 August 2008 the Hozat public prosecutor forwarded to the military prosecutor’s office in Elazığ a statement taken from a certain M.D., who had been a member of an outlawed organisation but had given himself up on 17 July 2008. The Hozat public prosecutor considered that the information M.D. had provided to the authorities in his statement referred to the incidents which form the subject matter of the present application. The relevant parts of M.D.’s statement are as follows:
“I do not remember the exact date but I remember that when I first arrived in the Tunceli area, a member of the PKK with the code name “Savaş” met with a number of persons in an area not far from the Yenibaş gendarmerie station. Those people were providing [Savaş] with food but at that moment an armed clash ensued between them and soldiers who had been conducting security operations in the area. I heard that Savaş managed to run away. I have also heard that the persons in question were working both for the State and for the PKK and that one of them was a militiaman.”
40.  On 26 December 2008 the Elazığ military prosecutor decided to close the investigation and not to bring criminal proceedings against the soldiers for the killing of the applicants’ relative Bülent Karataş or for the injury caused to the tenth applicant.
41.  It was noted in the decision that the tenth applicant had been found injured approximately 150-200 metres away from the place where the soldiers had been standing and that the applicants’ deceased relative Bülent Karataş had been found approximately 100-150 metres away from the tenth applicant. Both injured men had been put into the helicopter at 3.25 p.m. and the helicopter had arrived at the hospital at 4 p.m.; Bülent Karataş had died on the way to the hospital. On their arrival at the hospital the tenth applicant had been wearing a track-suit bottom and Bülent Karataş a pair of jeans. Neither man had had any clothing covering the upper part of his body.
42.  The military prosecutor’s decision recorded that another statement had apparently been taken from the tenth applicant in his capacity as a “suspect”, by the prosecutor on 9 November 2007 before he was brought before the Hozat Magistrates’ Court (see paragraphs 26-27 above) in which he had apparently told the prosecutor that he and Bülent Karataş had gone to the area on the evening of 26 September 2007 and not on the morning of 27 September 2007. He had also stated that when the soldiers opened fire, he and Bülent Karataş had been on the road and the soldiers had been below the road down by the river bed. After he had been shot he had rolled down the hill approximately 4‑5 metres and was only prevented from rolling down further by the trees and bushes.
43.  Two separate complaints, apparently handed in to the prosecutor by the applicants’ legal representative on 10 October and 18 December 2007, were also summarised in the military prosecutor’s decision. In the petitions the legal representative stated that, after checking their identity cards, the soldiers had allowed the tenth applicant and Bülent Karataş to go down to the river bed to collect their belongings and come back up again. After they had come back their identity cards had been checked once again and they had been ordered to take their clothes off. At that moment Bülent Karataş had been taken to a different location by the soldiers and the tenth applicant had been ordered to kneel down. When he refused to do so the soldiers had hit him with the butts of their rifles and he had therefore rolled down the hill. While doing so, the officer in charge of the soldiers had opened fire at him. The officer had then provided first aid to him and arranged for him to be taken to hospital by helicopter. The legal representative also stated that no weapons allegedly belonging to the tenth applicant or Bülent Karataş had been found, that the former had been shot at close range, and that clothing which would have shown the distance from which he had been shot was missing.
44.  It also appears from the military prosecutor’s decision that sergeant H.A., who is one of the six military personnel who were questioned on 2 October 2007 (see paragraph 17 above) and again on 15 May 2008 (see paragraph 34 above), was questioned for a third time in the course of the military prosecutor’s investigation. The sergeant had apparently told the military prosecutor that the day in question had been hot and the tenth applicant and Bülent Karataş had only had [sleeveless] vests on. The sergeant did not know what happened to the vests but thought that they might have been cut off the bodies to be used as tourniquets to stop their bleeding, or might have fallen off the stretchers while the two men were being transported to the helicopter, or might have been left behind in the trailer of the tractor or in the helicopter.
45.  It also appears that a forensic pathologist was asked by the military prosecutor to examine the post mortem report of 27 September 2007 (see paragraph 12 above) in order to assist the military prosecutor in his investigation. The forensic pathologist observed that the tenth applicant had been shot by a single bullet and he was of the opinion that, since he had not been wearing a top and there were no burn marks around the bullet entry hole, he had been shot from a distance. The bullet had entered on a downward trajectory.
46.  The forensic pathologist noted that Bülent Karataş had been shot with four bullets, two of which had entered the back of his body; it was not possible to establish the trajectory of the remaining two bullets. Given that there were no burn marks around the bullet entry holes, it appeared that he had also been shot from a distance.
47.  In his decision the military prosecutor noted that, although neither the tenth applicant nor Bülent Karataş had any previous convictions, there had been a number of criminal investigations against them for terrorism‑related offences. Moreover, a number of members of outlawed organisations had provided information to the authorities according to which Bülent Karataş had been implicated in aiding and abetting outlawed organisations. In the light of that information, together with the information provided by M.D., the former member of the outlawed organisation (see paragraph 39 above), the military prosecutor had “strong suspicions” that both the tenth applicant and Bülent Karataş had had dealings with terrorist organisations.
48.  The military prosecutor argued that the tenth applicant’s version of the events − namely that after he had been shot he had rolled downhill for four or five metres − was contradicted by the fact that stains of his blood had been found some 315 metres away from the place where he claimed to have been shot. His allegation that the soldiers had been positioned lower than him when they opened fire was also contradicted by the medical reports.
49.  In the light of the foregoing the military prosecutor was of the opinion that the version of the events put forward by the military personnel represented the truth. The two men, although unarmed at the time, had been in the area to assist the terrorists by supplying them with the food found in the two pits. Furthermore, the bullet entry points on the bodies of the two men showed that the soldiers had not opened fire on them with the intention of killing them and Bülent Karataş had died as a result of the blood-loss sustained whilst hiding. In the opinion of the prosecutor, the soldiers had opened fire in self-defence when they had come under fire.
50.  The tenth applicant, the applicants Güler Karataş and Bıra Karataş, and the tenth applicant’s mother lodged an objection against the military prosecutor’s decision. In their objection they repeated the allegation that the two men had been shot intentionally by the soldiers. They also criticised the fact that the investigation had been conducted by a military prosecutor rather than a civilian prosecutor, and argued that the former had failed to conduct a thorough investigation. In that connection they contended, in particular, that the military prosecutor had never sought to question the tenth applicant, who was both a victim and a witness to the events in question. They also complained that the military prosecutor had failed to conduct a visit to the scene with them in attendance, had not given the tenth applicant the opportunity to identify the soldiers in person, and their effective participation in the investigation had not been ensured as a result of the previous investigating prosecutor’s decision to have the file classified as confidential (see paragraph 26 above). They also repeated their argument that a prosecutor’s duty was to preserve the evidence and not to destroy it; and yet the investigating prosecutor had ordered the destruction of the food supplies found in the pit (see paragraph 11 above), only to rely on them later as evidence against the tenth applicant.
51.  They were also critical of the military prosecutor’s reliance on the contradictions contained in the tenth applicant’s statements when closing the investigation. In that connection they argued that the tenth applicant had survived a life-threatening injury and had been detained in prison immediately after his discharge from the hospital, facing very serious criminal charges. It was therefore normal that some of his statements might appear contradictory. The fact that both men had been shot from the front also discredited the soldiers’ allegation that they had been shot whilst running away.
52.  In their objection the four above-mentioned persons pointed out that a criminal court had refused to entertain the prosecutor’s allegations that the tenth applicant had been aiding and abetting an outlawed organisation (see paragraphs 30-33 above). In his decision, however, the military prosecutor still insisted that the tenth applicant had been in the area to deliver food supplies to terrorists. Furthermore, the allegations made by the former member of the terrorist organisation could not be accepted as representing the truth because what he had told the authorities was only hearsay and vague, and he had not actually witnessed anything in person. Moreover, the spent bullet cases found in the area had nothing to do with the two men in question.
53.  In their objection the four persons concerned also referred to Article 2 of the Convention and alleged that the use of lethal force against Bülent Karataş and the tenth applicant had been in breach of that provision. In particular, the soldiers had not opened fire on the two men in order to achieve one of the aims set out in Article 2 § 2 of the Convention because they had been unarmed and had not been running away. The soldiers could have tried to apprehend them without opening fire. All the evidence in the file showed that the two men had been shot in an execution-style killing.
54.  The objection was rejected by the Malatya Military Court on 23 March 2009. In the opinion of the military court, the decision to classify the investigation file as confidential two days after the incident was a justifiable action and in accordance with the applicable procedure because there had been ongoing military operations against terrorist organisations in the area at the time and allowing access to the investigation file could have facilitated the terrorists’ escape and led to destruction of the evidence.
55.  The military court stated in its decision that a jumper and a cardigan belonging to the tenth applicant and Bülent Karataş had been placed in the sidecar of the motorbike and at the time of the events they had been wearing only their vests, which despite all efforts had never been found. Furthermore, it had not been possible to conduct a forensic examination of the jeans worn by Bülent Karataş on that day. The allegation made by the complainants, namely that all the evidence in the file indicated that the two men had been shot at close range, could therefore not be accepted.
56.  The military court did not accept the complainants’ allegation that, despite the criminal court’s decision not to bring criminal proceedings against the tenth applicant (see paragraph 33 above) the military prosecutor had used the finding of food supplies as grounds for concluding that the two men had been aiding and abetting a terrorist organisation. It accepted the argument that the eight spent bullet cases had nothing to do with the two men but in any event those spent bullet cases had not been relied on by the military prosecutor when closing the investigation. The military prosecutor had not been concerned with the question of whether or not the two men had committed any offences; he had been investigating whether the use of force by the soldiers against them had been justified. The military court concluded that the soldiers had remained within the remit of their powers in resorting to the use of force because they had been following two men who had been trying to escape and had come under fire while doing so, even though there was no clear evidence that that fire originated from the two men.