THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57039/00 by Muazzez EPÖZDEMİR against Turkey

The European Court of Human Rights (Third Section) , sitting on 31 January 2002 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs M. Tsatsa - Nikolovska , Mrs H.S. Greve , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged with the European Court of Human Rights on 21 February 2000 and registered on 5 May 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Muazzez Epözdemir, is a Turkish national, who was born in 1973 and living in Siirt, Turkey. She is represented before the Court by Mr Güzel, a lawyer practising in Diyarbakır.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

The applicant married Nihat Epözdemir in 1988 and the couple had three children. In 1998 the applicant’s husband suffered psychological problems as a result of his financial problems and he left their matrimonial home in June 1998. Since that date the applicant has never seen her husband.

On 1 September 1998 the applicant applied to the Siirt public prosecutor with a petition and informed the prosecutor that her husband was missing. She also informed the prosecutor that her husband was suffering serious psychological problems and asked the prosecutor for assistance to find her husband.

On 16 March 1999, more than six months after having been thus informed, the Siirt prosecutor took a decision to discontinue the investigation into the disappearance of the applicant’s husband. As to his reasoning for this decision, the prosecutor stated that the applicant’s husband had not disappeared in suspicious circumstances and that no evidence of a crime had been found in the investigation.

In April 1999 the uncle of the applicant’s husband went to the registry office to obtain a copy of the family’s registry records for an unconnected purpose. He discovered that there was an entry in the records stating that the applicant’s husband had been killed in July 1998.

On 18 April 1999 the uncle went to the office of the Dargeçit public prosecutor to ask for clarification as to how the applicant’s husband had met his death and why the family had never been informed about the death despite the fact that the applicant had informed the prosecutor of her husband’s disappearance. He also asked the prosecutor where the applicant’s husband was buried. The prosecutor said that no one knew where the applicant’s husband was buried and that the authorities had no obligation to hand the body over to the family. The prosecutor further stated that on 23 July 1998, following the applicant’s husband’s death, he had sent the file to the Diyarbakır State Security Court and asked them to make a decision as to whether they wanted to prosecute the applicant’s deceased husband for membership of the PKK but on 13 August 1998 the prosecutor of the Diyarbakır State Security Court had taken a decision not to prosecute the applicant’s husband as he was dead.

The applicant subsequently obtained a copy of the report of the autopsy which had been carried out on 20 July 1998. According to the statement of a village guard which was recorded in the autopsy report, the applicant’s husband had been in a group of PKK terrorists which had been involved in an armed clash with a group of village guards on 19 July 1998. He had been shot and killed and the other members of the PKK team had managed to escape. No other persons had been injured or killed in the clash. According to the autopsy report the applicant’s husband had been killed by five bullets, possibly fired from different weapons.

On 6 May 1999 the applicant asked the Diyarbakır State Security Court for a copy of the investigation file.

On 29 June 1999 the applicant, with the assistance of her lawyer, applied to the Diyarbakır State Security Court and asked for the village guards named in the autopsy report to be prosecuted for her husband’s murder. She also stated that her husband had never been a PKK member and that he had been suffering serious psychological problems. She further stated that it was cruel that the authorities had not informed her about the killing despite the fact that according to the autopsy report her husband had had his identity card on him.

On 6 September 1999 the Diyarbakır State Security Court prosecutor decided not to prosecute the village guards. The prosecutor stated that although it was established that the applicant’s husband was killed by the village guards, it was not possible to establish which one of the four village guards had shot him.

B. Relevant domestic law and practice

1. Obligation to inform the authorities of a criminal act having been committed

In Turkish law – for the purposes of preliminary investigations by prosecutors – criminal acts are divided into two categories; firstly those in respect of which a victim must inform the prosecutor so that an investigation can be started by the latter, and secondly, those in respect of which the victim is not required to make a complaint in order for an investigation to be started by the prosecutor (Article 151 of the Code of Criminal Procedure, hereinafter the CCP). Murder is classified as one of the crimes in the second category. However, this does not prevent relatives of victims from lodging criminal complaints with the authorities.

Pursuant to Article 152 of the CCP, if there is evidence to suggest that a deceased has not died of natural causes, the police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge.

2. Obligation to instigate ex officio investigation

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation in respect of that person. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient.

Insofar as a criminal complaint has been lodged, a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged, within fifteen days after notification of this decision to the complainant, with the president of the Court of Assize in whose jurisdiction the public prosecutor who had taken the decision not to prosecute works (Article 165 CCP). The president of the Assize Court may request the public prosecutor to send him or her the investigation file. The president, in order to reach his decision, may also ask for the investigation to be expanded by the local Magistrates’ Court judge (Article 166 of the CCP). If the president concludes that there are insufficient grounds to initiate a prosecution, he or she may reject the appeal (Article 167 of the CCP). If the president agrees with the grounds invoked by the appellant, he or she may decide to order a prosecution. The public prosecutor is obliged to enforce the president’s decision (Article 168 of the CCP).

3. The relevant provision of the Penal Code

According to article 463 of the Penal Code, if a person is killed by two or more persons, and if it is not established at the trial which one of these persons caused the death, the prison sentence to be imposed on any of the perpetrators is not more than two-thirds and not less than half of the maximum prison sentence stipulated in the Penal Code for the offence of murder.

COMPLAINTS

The applicant complained of her husband having been unlawfully killed and of a lack of an effective remedy before a national authority in respect of her husband’s murder. She invokes Articles 2 and 13 of the Convention.

THE LAW

The applicant complained that her husband was killed without a lawful excuse and that she did not have an effective remedy before a national authority in respect of her husband’s murder. She invoked Articles 2 and 13 of the Convention which provide as follows:

Article 2

“ 1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 13

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court considers that it should first examine whether the applicant has complied with the obligation to exhaust domestic remedies given that she did not appeal against the public prosecutor’s decision of 6 September 1999 not to prosecute.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52, and the Akdıvar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions , 1996-IV, p. 1210, §§ 65-67). It is also established that a mere doubt as to the prospect of success is not sufficient to exempt an applicant from submitting a complaint to the competent court (see the Whiteside v. the United Kingdom decision of 7 March 1994, application no. 20357/92, DR 76, p. 80).

The Court notes that as regards her reasons for not appealing the decision of the prosecutor, the applicant submitted that there is an administrative practice of non-investigation of these types of incidents in south-east Turkey and that the State agents who carry out such incidents are protected by the authorities. She further argued that she did not want to put herself at any further risk by pursuing domestic remedies. She claims that she had already, after having found out about her husband’s killing one year after it had happened, requested the prosecutor to prosecute those responsible in order to prevent a cover-up of the killing as she believed at that time that, as the armed conflict had come to an end in that region of Turkey, the judicial authorities would carry out effective investigations into the actions of State agents. However, according to the applicant, the prosecutor had decided not to prosecute by taking into account solely the documents drawn up by those who had killed her husband.

As to the applicant’s argument that she was not required to pursue any further remedies since there is an administrative practice in south-east Turkey which makes any remedies illusory, inadequate and ineffective, the Court notes that the applicant did in fact pursue a remedy by requesting the office of the public prosecutor to conduct an investigation to establish the cause of her husband’s death and to prosecute those responsible. Further, the applicant has not given sufficient indication that she has been subjected to intimidation or referred to any specific facts indicating that she would have risked reprisals or intimidation if she had taken the step of appealing.

Moreover, if there were no effective remedies, the applicant would have been required under Article 35 of the Convention to lodge her application within six months from the date on which she learnt of her husband’s death. She did not do this, and the Court will therefore proceed from the assumption that the application to the public prosecutor was a relevant domestic remedy (see Eur . Comm. HR., application no. 22680/93, decision of 3 April 1995, unreported; also see Eur . Comm HR., application no. 31992/96, decision of 14 April 1998, unreported).

The Court notes that the Turkish legal system provides for an investigation to be carried out by the public prosecutor who takes the decision whether or not to initiate a prosecution against the alleged perpetrators. In the event, as in this case, a decision not to prosecute is issued, there is the possibility under Article 165 of the Code of Criminal Procedure of appealing to a court. A decision not to prosecute grants an automatic leave to appeal, thereby informing any interested party about the possibility of an appeal. In other words, a decision not to prosecute is not final until the time limit for a possible appeal expires.

The Court concludes, therefore, that to the extent that the public prosecutor’s decision could be argued as not being justified by the available evidence, it was open to the applicant to avail herself of this ordinary and accessible domestic remedy and to appeal to the nearest Assize Court which could, on examination of the provisions of the domestic law, evidence, including witness statements and medical reports, have directed that a prosecution or other investigatory measures be carried out.

Although the decision not to prosecute the four named village guards in the instant case suggests that the clear wording of Article 463 of the Penal Code (see above) had been disregarded by the prosecutor, the applicant could have brought this issue to the attention of the appeal judge and thus have substantially increased her prospects of success.

The Court notes in this context that in at least two applications which came before it, the applicants had successfully appealed against public prosecutors’ decisions not to prosecute (see Keçeci v. Turkey (dec.), no. 38588/97, 17.10.2000, Fidan v. Turkey (dec.), no. 24209/94, 29.2.2000, both unreported).

In the present case the Court does not find it established, therefore, that such an appeal by the applicant in the present case would have been devoid of any chance of success.

Consequently, the Court finds that in the circumstances of this case the applicant cannot be considered as having complied with the exhaustion of domestic remedies rule laid down in Article 35 of the Convention. The application must therefore be rejected for non-exhaustion of domestic remedies under Article 35 § 1 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President