Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 35981/97

by Bülent TOLUK

against Turkey

The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 January 1997

by Bülent TOLUK against Turkey and registered on 7 May 1997 under file

No. 35981/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1955, is a Turkish citizen and resident

in izmir. He is represented before the Commission by Mrs Zeynep Sedef

Özdogan, Mr Suat Çetinkaya and Mr Akin Zeybek, lawyers practising in

izmir.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

The first incident:

On 16 March 1995 neighbours found the applicant's father lying

on the steps close to his house. He was injured. The neighbours

informed the police of the incident. Policemen from izmir Kadifekale

Police Station took the applicant's father to hospital.

The same day, he was treated at the hospital and thereafter taken

to the Kadifekale Police Station for an identity check. At the police

station he told the policemen that he had fallen down the steps and

injured himself and that no one else was to blame. Then he was

released.

The second incident:

The next day, on 17 March 1995, a train crashed into the

applicant's father while he was lying on the tracks of a railway line

in izmir. Thereafter, he was taken to hospital by policemen from

Basmane Police Station.

On 18 March 1995 the applicant's father died in hospital.

Criminal proceedings were subsequently brought against the driver

of the train.

On 24 May 1995 the izmir Criminal Court acquitted the driver

holding that he was not at fault as the applicant's father had been

lying on the railway line in a state of alcoholic intoxication.

Proceedings against the policemen:

The applicant filed criminal complaints against the policemen

both from the Kadifekale Police Station and from the Basmane Police

Station. He alleged that the former had taken his father into custody

and had beaten him. He also alleged that his father had died because

the policemen from the Basmane Police Station had been late in taking

his father to the hospital following the accident.

On 4 June 1996 the izmir Public Prosecutor decided not to commit

the policemen for trial. The Prosecutor first stated that the

applicant's father had not been taken into custody by the policemen

from the Kadifekale Police Station; he had only been brought to the

station for an identity check after his treatment in hospital. The

Prosecutor further stated that the policemen at the Basmane Police

Station had taken the applicant's father to the hospital immediately

after the accident and therefore the policemen could not be considered

to have acted negligently. In this regard he referred to the judgment

of 24 May 1995 which had acquitted the train driver.

The applicant filed an objection against the Prosecutor's

decision. On 19 July 1996 the Karsiyaka Assize Court dismissed this

objection.

COMPLAINTS

1. The applicant complains under Article 2 of the Convention that

his criminal complaints against the policemen from the Basmane Police

Station failed despite the fact that they had acted negligently as a

result of which his father had died.

2. The applicant complains under Articles 6 and 13, in conjunction

with Article 2, of the Convention that there were no effective remedies

as the Prosecutor decided not to commit the policemen for trial.

THE LAW

1. The applicant complains under Article 2 (Art. 2) of the

Convention that his criminal complaints against the policemen from the

Basmane Police Station failed despite the fact that they had acted

negligently as a result of which his father had died.

The Commission considers that the applicant, as a son affected

by the death of his father, may claim to be a victim within the meaning

of Article 25 (Art. 25) of the Convention.

The Commission further recalls that the first sentence of Article

2 (Art. 2) obliges the State not merely to refrain from "intentionally"

causing death, but also to take adequate measures to protect life (see

No. 7154/75, Dec. 12.7.78, D.R. 14, p. 31; and No. 9343/81, Dec.

28.2.83, D.R. 32, p. 190). In particular, in cases where death is

intentionally caused, the obligation to protect the right to life may

require that there should be an effective official investigation into

the circumstances of the death (No. 23452/94, Osman and Osman v. United

Kingdom, Dec. 1.7.1997, unpublished).

The precise scope of the positive obligation of the State in the

circumstances of the present case may be left open, since the

applicant's complaint must in any case be rejected for the following

reasons.

The Commission notes that the applicant disputes the conclusion

reached by the Turkish authorities. In this regard, the Commission

notes that the applicant's criminal complaints against the policemen

were examined by the izmir Public Prosecutor, who, after carrying out

an investigation, ruled that no prosecution should be brought. The

applicant's objection to this ruling was examined by the Karsiyaka

Assize Court which agreed with the decision of the Prosecutor.

The Commission notes that the Public Prosecutor found no

negligence on the part of the policemen who had taken the applicant's

father to hospital immediately after the train accident.

Given that no evidence putting in doubt the national authorities'

findings has been submitted to the Commission and that there is no

indication that these authorities assessed the evidence submitted to

them in an arbitrary manner, the Commission must base its assessment

on the facts found by them.

The mere fact that the policemen took the applicant's father to

hospital and that he subsequently died is not sufficient in itself and

on the particular facts of the case to found the conclusion that the

obligation to protect life within the meaning of Article 2 (Art. 2) of

the Convention has been breached.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains under Articles 6 and 13, in conjunction

with Article 2 (Art. 6+13+2), of the Convention that there were no

effective remedies as the Prosecutor decided not to commit the

policemen for trial.

The Commission first notes that the applicant chose to use only

the remedies provided by the criminal law against the policemen in

question. The resulting proceedings do not relate to the applicant's

civil rights and obligations, nor to the determination of a criminal

charge against him.

Consequently, Article 6 (Art. 6) of the Convention is not

applicable to the proceedings in question. The complaint under this

Article must therefore be rejected pursuant to Article 27 para. 2

(Art. 27-2) as being ratione materiae incompatible with the provisions

of the Convention.

As regards the applicant's complaint under Article 13 (Art. 13)

of the Convention that there were no effective remedies, even assuming

that the applicant had an arguable claim under Article 2 (Art. 2) of

the Convention, the Commission recalls that the word "remedy", within

the meaning of Article 13 (Art. 13) does not mean a remedy bound to

succeed, but simply an accessible remedy before an authority competent

to examine the merits of a complaint (cf. No. 11468/85, Dec. 15.10.86,

D.R. 50, p. 199).

In the present case, the Commission notes that the applicant had

an opportunity for his allegations to be examined by a national

authority. In particular the Public Prosecutor of izmir examined the

merits of his complaint and the applicant could and did use a further

remedy in a court. The Commission therefore considers that the

applicant had an effective remedy before the national authorities.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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TOLUK v. TURKEY

TOLUK v. TURKEY