SECOND SECTION

DECISION

Application no. 8152/13 Aşkın ÇANAKÇ I against Turkey

The European Court of Human Rights (Second Section), sitting on 15 January 2019 as a Chamber composed of:

Robert Spano , President, Işıl Karakaş , Julia Laffranque , Valeriu Griţco , Jon Fridrik Kjølbro , Ivana Jelić , Arnfinn Bårdsen , judges, and Hasan Bakırcı , Deputy Section Registrar ,

Having regard to the above application lodged on 4 December 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Aşkın Çanakçı , is a Turkish national, who was born in 1971 and lives in Istanbul. He was represented before the Court by Mr N. Ebrek , a lawyer practising in Istanbul.

2. The Turkish Government (“the Government”) were represented by their Agent.

The circumstances of the case

3. 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.

4. On 16 January 2006 the applicant ’ s brother, Ş.Ç., who was 45 years old at the time, had a dispute with another individual and both men drew their guns and threatened each other. The same day they were questioned by gendarmes and were released. Nothing has been heard from the applicant ’ s brother since that date.

5. In March 2006 the applicant contacted the Ankara prosecutor and informed the prosecutor that his brother had been missing since January 2006. He asked the prosecutor to investigate his brother ’ s whereabouts. The prosecutor took a statement from the applicant the same day and informed the missing persons ’ department of the police.

6. In the course of the ensuing investigation into the disappearance of the applicant ’ s brother Ş.Ç., the authorities checked Ş.Ç. ’ s telephone records, questioned a number of other persons named by the applicant, and established that after January 2006 no one had seen Ş.Ç. and that Ş.Ç. had not left the country. The investigation was closed on 25 March 2008. The decision closing the investigation could not be served on the applicant as he had moved from his address and his new address could not be found.

7. On 29 December 2011 the applicant filed a petition with the Kızılcahamam prosecutor and stated that his brother was still missing. He added that he had heard that his brother had been seen in the town of Kızılcahamam . An investigation was then conducted by the Kızılcahamam prosecutor during which additional witnesses, including those who had last seen Ş.Ç. on 16 January 2006, were also questioned. At the end of his investigation the prosecutor concluded on 13 March 2012 that there was no evidence to show that Ş.Ç. had been the victim of an offence in Kızılcahamam and closed the investigation. The applicant filed an objection against the closure of the investigation and his objection was rejected on 6 June 2012 by the Sincan Assize Court. That decision was communicated to the applicant on 1 July 2012.

8. A third investigation into the disappearance of the applicant ’ s brother was conducted by the Ankara and Kızılcahamam prosecutors ’ offices after another petition, submitted by the applicant to the offices of the President of Turkey, was forwarded to the prosecutor ’ s office in Ankara on 10 October 2012. During the course of that investigation the applicant, his family members and a number of other persons were questioned as witnesses. Family members confirmed that nothing had been heard from Ş.Ç. since January 2006 and informed the prosecutor that Ş.Ç. had not used his bank accounts since his disappearance. The prosecutor, by contacting a number of mobile telephone companies, also found out that Ş.Ç. had continued to use his mobile telephone until 1 March 2006. This investigation was closed on 11 July 2013 by the prosecutor, who concluded that all steps had been taken in order to find Ş.Ç. and that no evidence had been found to indicate that he had been abducted or that he had been the victim of any other criminal offence. The applicant did not file an objection against that decision and the decision became final on 15 August 2013.

9. On 31 October 2017 two police officers prepared a report pertaining to the disappearance of the applicant ’ s brother in which they set out a summary of the steps taken in the investigations – which are summarised above – and stated that the search for him was continuing. According to this report, one of the possibilities being investigated by the police in 2017 was that the applicant ’ s brother might have gone to Germany, where he had a son.

COMPLAINTS

10. The applicant alleged that his brother had probably been killed by the individual with whom he had had the dispute in 2006, and complained that no meaningful steps had been taken by the investigating authorities to find his brother in order to save his life, contrary to the positive obligation inherent under Article 2 of the Convention.

11. He also complained under Articles 2 and 13 of the Convention that no effective investigation had been conducted by the investigating authorities into the disappearance of his brother.

THE LAW

12. The applicant complained that his brother ’ s disappearance and the ensuing investigation had been in breach of Articles 2 and 13 of the Convention.

13. The Court reiterates that the scope of a case referred to it in the exercise of the right of individual application is determined by the applicant ’ s complaint. A complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, ECHR 2018).

14. In the light of the above, the Court deems it appropriate to examine the applicant ’ s complaints solely from the standpoint of Article 2 of the Convention, the rel evant part of which reads as follows:

“1. Everyone ’ s right to life shall be protected by law...

...”

15. The Government argued that the applicant had failed to exhaust domestic remedies by not providing any information to the public authorities showing that his brother ’ s life had been at risk and by not asking for protection for his brother. They also argued that the applicant had failed to seek compensation from the administrative authorities whom he considered to be responsible. Finally, they argued that the applicant had failed to lodge an individual application with the Constitutional Court.

16. The Government also argued that the applicant had failed to comply with the six-month rule because the applicant, who argued that the investigations had not been conducted adequately, should have become aware of the ineffectiveness of those investigations at a much earlier stage and lodged his case with the Court earlier.

17. Finally, the Government argued that effective investigations had been conducted by their authorities during which all leads had been followed and all reasonable steps had been taken.

18. The applicant did not specifically address the Government ’ s arguments set out above but maintained that he had applied to the President of the Republic and that his request had been forwarded to the prosecutors and that the investigations conducted by the prosecutors had been inadequate.

19. The Court considers it unnecessary to determine whether the applicant has exhausted domestic remedies or complied with the six ‑ month rule, within the meaning of Article 35 § 1 of the Convention, since his complaints are in any event inadmissible for the following reasons.

20. The Court notes that the applicants ’ arguments are twofold. Firstly, the applicant complained that the national authorities had failed to comply with their positive obligation because they had not searched for his brother in an effective fashion. Secondly, he complained that the authorities had failed to conduct an effective investigation into the disappearance of his brother.

21. As regards the first complaint the Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom , 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III). This obligation arises, for instance, when the authorities know or ought to know of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party (see Osman v. the United Kingdom , 28 October 1998,§ 116, Reports 1998 ‑ VIII). The Court has held that the disappearance of a person in life-threatening circumstances also requires the State, pursuant to the above-mentioned positive obligation, to take operational measures to protect the right to life of the disappeared person (see OsmanoÄŸlu v. Turkey , no. 48804/99, § 75, 24 January 2008 and the case cited therein).

22. At the time of giving notice of the present application the respondent Government ’ s attention was drawn to the above-mentioned Osmanoğlu judgment. The Government were requested to inform the Court about the date on which their national authorities had first become aware of the disappearance and, after they had become aware of it, what preventive operational measures they had taken to protect the applicant ’ s brother ’ s life.

23. In reply, the Government argued that the Osmanoğlu case differed from the present application because in Osmanoğlu the allegation was that the applicant ’ s son had disappeared after having been taken into custody by two police officers. In the present case the applicant ’ s brother had not been taken into custody and had not disappeared in circumstances engaging the obligation of the State. In this connection it is to be noted that it is not disputed that the applicant ’ s brother was released after his questioning by gendarmes on 16 January 2006 (see paragraph 4 above).

24. The Court disagrees with the Government ’ s submissions in the preceding paragraph because it notes that in its judgment in Osmanoğlu it concluded that there was insufficient evidence to find that agents of the State had been responsible for the disappearance of the applicant ’ s son in that case, but held that that did not necessarily exclude the responsibility of the Government under Article 2 of the Convention to search for him ( ibid ., § 71). The Court therefore considers that the fact that there is no allegation of any involvement of an agent of the State in the disappearance of the applicant ’ s brother in the present case does not mean that the authorities were under no obligation to search for him.

25. Concerning the second complaint, the Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State ’ s general duty under Article 1 of the Convention to ‘ secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention ’ , requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05 , § 169, 14 April 2015 and the case cited therein). In that connection, the Court points out that this obligation is not confined to cases where it is apparent that the killing was caused by an agent of the State (see Salman v. Turkey [GC], no. 21986/93, § 105, ECHR 2000- VII). It must also be stressed that the obligation to conduct an effective investigation applies equally to cases where a person has disappeared in circumstances which may be regarded as life ‑ threatening (see, amongst others, Er and Others v. Turkey , no. 23016/04, § 82, 31 July 2012).

26. Turning to the circumstances of the present application, the Court considers that the applicant ’ s two complaints which were summarised above (see paragraph 20) can be examined concurrently since the examination of both of those complaints requires an assessment to be made of the national authorities ’ response to the applicant ’ s calls for assistance and also of the steps taken in the investigations.

27. The Court observes from the documents submitted by the parties that the first time the applicant informed the authorities about the disappearance of his brother and asked those authorities to find his brother was in March 2006 (see paragraph 5 above), that is some two months after his brother went missing (see paragraph 4 above). The same day the prosecutor took a statement from the applicant and informed the missing persons ’ department of the police (see paragraph 5 above).

28. In fact, the Court notes that a total of three separate investigations were opened and conducted by various prosecutors. As summarised above (see paragraphs 6-8 above), a number of pertinent steps were taken in the course of those investigations and the applicant ’ s allegations were investigated adequately. In this connection the Court notes, in particular, that when the full investigation files were made available to the Court by the Government, they were forwarded to the applicant who was requested to submit his comments on them. It is to be noted, however, that the applicant did not seek to contest that the steps taken by the investigating authorities had been adequate and did not specifically refer to any specific aspects of those investigations which he considered flawed.

29. It is also equally important to note that the applicant did not argue that any of the sine qua non principles of an effective investigation within the meaning of the Court ’ s case-law – such as acting with due diligence and promptness; independence and impartiality of the investigators; or the family ’ s access to the investigation materials – had been breached by the authorities. In any event, having examined all the documents in its possession, the Court considers that the above-mentioned principles of an effective investigation were complied with by the investigating authorities in the present case.

30. The Court must reiterate that the obligation imposed by Article 2 of the Convention to carry out an effective investigation is not an obligation of result but of means; it does not require that every investigation come to a successful conclusion (see McKerr v. the United Kingdom , no. 28883/95, § 113, ECHR 2001 ‑ III). What it requires is that the authorities must take the reasonable steps available to them to secure the evidence concerning the incident ( Ramsahai and Others v . the Netherlands [GC], no. 52391/99, § 324, ECHR 2007 ‑ II).

31. In the light of the foregoing the Court finds that the national authorities, by carrying out effective investigations, did all that could be reasonably expected of them to find the applicant ’ s brother and that they cannot be reproached for failing to do so. In reaching its conclusion the Court has also taken note of the fact that the search for the applicant ’ s missing brother is still ongoing (see paragraph 9 above).

32. In the light of the foregoing the Court finds that the applicant ’ s complaints are manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 7 February 2019 .

Hasan Bakırcı Robert Spano Deputy Section Registrar President