SECOND SECTION

DECISION

Application no . 23856/07 Hüseyin İLHAN and others against Turkey

The European Court of Human Rights (Second Section), sitting on 27 August 2013 as a Chamber composed of:

Guido Raimondi, President, Danutė Jočienė , Peer Lorenzen , Dragoljub Popović , Işıl Karakaş , Nebojša Vučinić , Paulo Pinto de Albuquerque, judges , and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 21 May 2007,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicants, Mr Hüseyin İlhan , Mr Hasan İlhan , Mrs Fatma İlhan , Mr Mustafa İlhan , Mrs Fatma İlhan , Mr Mehmet Ali İlhan and Mr Memduh İlhan , are Turkish nationals who were born in 1978, 1988, 1949, 1950, 1949, 1968 and 1919 respectively and live in Ağrı . They were represented before the Court by Mr Abdullah Koç , a lawyer practising in Ankara.

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

3 . According to the official records submitted to the Court by the applicants, the first and second applicants, Mr Hüseyin İlhan and Mr Hasan İlhan , are the sons and the third applicant, Mrs Fatma İlhan , is the wife of Mr Mehmet İlhan . The fourth applicant, Mr Mustafa İlhan , is the brother of Mr Mehmet İlhan and father of Mr Faruk İlhan . The fifth applicant, Mrs Fatma İlhan , is the mother and the sixth applicant, Mr Mehmet Ali İlhan , is the brother of Mr Faruk İlhan . The seventh applicant, Mr Memduh İlhan , is the father of Mr Mehmet İlhan and grandfather of Mr Faruk İlhan . Mehmet İlhan and Faruk İlhan were killed on 7 April 2004.

4 . On 1 March 2012 the applicants ’ legal representative informed the Court of the death of the seventh applicant, Mr Memduh İlhan , on 25 April 2009, and asked the Court to allow Mr Memduh İlhan ’ s four other children, namely Ms Hazal İlhan , Ms Fatma İlhan , Ms Perişan Tanrıverdi ( İlhan ) and Ms Sultan Kahraman ( İlhan ), who are also the sisters of Mr Mehmet İlhan , to continue the application on their father ’ s behalf.

The circumstances of the case

1. The facts of the case, as submitted by the applicants in their application form, and as they appear from the documents submitted by them, may be summarised as follows.

5 . On the evening of 7 April 2004, Mehmet İlhan and Faruk İlhan were sitting in the pharmacy owned by the former in the town of Doğubayazıt , which is located within the administrative jurisdiction of the province of Ağrı . Mehmet İlhan ’ s son, Hüseyin İlhan , who is the first applicant, was also in the pharmacy together with Mr Erkan Eşiyok , who was an employee at the pharmacy.

6 . At around 9.30 p.m. a person walked in and opened fire with an automatic machine gun. Mehmet Ä°lhan and Faruk Ä°lhan were shot and killed. The remaining persons in the pharmacy were not injured.

7 . Police officers arrived at the scene within a very short time but the perpetrator had already fled. The fourth applicant, Mustafa İlhan , who is the brother of Mehmet İlhan and the father of Faruk İlhan , asked the police officers whether the roads around the area had already been sealed off by them to catch the perpetrator. The police officers told Mr İlhan that taking that step was not possible “at that time of the evening”.

8 . Crime scene officers, accompanied by the local prosecutor, recovered eight spent bullet cases and four deformed bullets from the pharmacy. The bodies were transferred to the local hospital.

9 . A post mortem examination of the two bodies was carried out the same evening. It was established that both men had been shot numerous times and the bullets had exited their bodies.

10 . On 16 April 2004 the fourth applicant, Mustafa İlhan , made a statement at the prosecutor ’ s office and asked for the perpetrator to be found. He told the prosecutor that the family had no enemies and that they had no idea why the attack had been carried out.

11 . On 21 April 2004 the first applicant, Hüseyin İlhan , made a statement before the prosecutor and gave the prosecutor his eyewitness account of the attack. He also described the attacker and the weapon used by the attacker.

12 . In October 2004 the fourth applicant submitted petitions to the Prime Minister and a number of Ministries. He complained that the perpetrator had not been found. By way of reply, he received a letter from the Governor of Ağrı , stating that all necessary steps had been and were being taken in the investigation.

13 . On 16 November 2005 the applicants ’ legal representative sent a letter to the Prime Minister and the Ministries of the Interior and Justice. In his letter the legal representative stated, inter alia , that it was not possible to have access to all the investigation documents because the investigation file had been classified as confidential by the authorities.

14 . In its reply addressed to the applicants ’ legal representative the Ministry of Justice stated that the decision to classify the file as confidential had been taken by the Doğubayazıt Magistrates ’ Court on 5 May 2004 at the request of the prosecutor and that the investigation was still continuing.

15 . In his letters of 14 September 2006, 9 May 2007, 13 August 2008 and 21 April 2010 the applicants ’ legal representative repeated his requests for information and documents. According to the information given to the legal representative by the Doğubayazıt Prosecutor on 30 April 2010, the investigation was still continuing.

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

16 . The Government submitted to the Court a copy of the documents from the case files of the investigating authorities, and summarised the investigation in their observations.

17 . In their observations the Government highlighted, in particular, that the security forces and a prosecutor had arrived at the scene of the incident immediately after the killing and taken the necessary steps to search for evidence. Post-mortem examinations had been carried out and all eyewitnesses, including two of the applicants, had been questioned.

18 . Some thirty persons who lived or worked locally had also been questioned. Based on the information provided by those persons, facial composites of the perpetrator had been constructed and distributed to various law enforcement agencies to carry out searches. Several identity parades had been conducted and the first applicant, who had been an eyewitness to the killings, had been shown the photographs of a number of possible suspects.

19 . The spent bullet cases and four deformed bullets recovered from the pharmacy had been sent for forensic examinations. Neighbouring shop owners and a number of taxi drivers working in the area had been questioned and all persons who might have a personal enmity towards the applicants ’ family had been investigated. A search had been conducted to find a car seen by a number of eyewitnesses in the area at the time of the events. Alibis of a number of local persons with criminal histories had been checked and verified. The local Bar Association had also prepared a report in which a number of village guards had been cited as possible suspects. In response, the investigating authorities had prepared a report and informed the Bar Association that the persons mentioned in their report had already been investigated.

20 . In October 2004 the fourth applicant had requested information from the authorities about the investigation and in November 2004 he had been provided with detailed information by the Ağrı Governor. A separate investigation had been conducted into the allegations made by the applicants in their letter of 16 November 2005 (see paragraph 13 above) and the applicants had been informed of the outcome in June 2006. In response to the applicants ’ legal representative ’ s letter of 14 September 2006 (see paragraph 15 above), the prosecutor had provided the legal representative with the copies of the post-mortem reports, incident reports, crime scene sketches and witness statements.

21 . Enquiries had been made with several telecommunication companies for information about the telephone calls made in the vicinity at the time of the killings.

22 . The authorities had investigated every lead and information in their search for the perpetrator. On account of the intelligence received from the security services, a whole village had been searched by the authorities ten hours after the killings and a large number of weapons belonging to the persons living in that village had been sent for forensic examinations.

23 . Based on the information received from four different sources, seven persons had been suspected of involvement in the killing, and they had been questioned by the authorities. Two of those persons had been arrested but subsequently released when the first applicant testified that neither of them was the perpetrator.

24 . During the investigations the applicants had been provided with documents from the investigation file and the allegations brought by them to the attention of the authorities had been duly investigated.

25 . Despite the extensive investigations, it had not yet been possible to find the perpetrator.

COMPLAINTS

26 . The applicants complained under Article 2 of the Convention that, despite the fact that 13,000 persons have been killed in Turkey in a similar fashion, no sufficient steps had been taken at the national level to protect the right to life. As a result, their two relatives had been killed in a well-planned attack and the perpetrator had not been found.

27 . Under Articles 6 and 13 of the Convention the applicants alleged that no steps, other than a number of rudimentary ones, had been taken in the investigation.

THE LAW

28 . The applicants complained that their two relatives had been killed in a well-planned attack and the perpetrator had not been found.

A. The Government ’ s submissions

29 . The Government submitted that, according to the documents in their possession, the sixth and the seventh applicants were not related to the victims and they did not, therefore, have the requisite standing under Article 34 of the Convention.

30 . The Government argued that there was no indication in the case file to show that the applicants ’ relatives had been killed by agents of the State. In this connection they also submitted that the applicants had not made any arguments to the contrary.

31 . As for the State ’ s positive obligation to take pre-emptive steps to protect the lives of the applicants ’ relatives, the Government referred to the Court ’ s case-law on the subject, and submitted that there was no indication that the victims had ever been threatened by anyone prior to their death and that they had no reason to believe that their lives had been at risk. Furthermore, the authorities had not received any information or warnings prior to the killings.

32 . The Government maintained that their authorities had not been aware of the existence of any real and immediate risk to the lives of the applicants ’ relatives. It could not be said, therefore, that their authorities had failed to take the necessary measures to prevent the killings.

33 . The Government further submitted that the voluminous documents submitted by them to the Court showed that a thorough investigation had been carried out by the authorities into the killings and that the applicants had been provided with information about the investigation.

B. The applicants ’ submissions

34 . In their observations the applicants submitted that they “rejected the Government ’ s arguments”, and wished to “repeat the arguments” they had already brought to the Court ’ s attention in their application form at the time of the introduction of their application.

35 . They argued that it was a known fact that a number of illegal organisations had operated within the State and had carried out similar killings. Their relatives had also been killed by such groups and the State had to bear responsible for their deaths. There were thousands of unsolved murders in Turkey and the fact that the perpetrator of the killings of their relatives had not been found was poignant.

C. The Court ’ s assessment

36 . The Court observes at the outset that, as set out above (see paragraph 3), the sixth applicant, Mr Mehmet Ali İlhan , is the brother of Faruk İlhan and the seventh applicant, Mr Memduh İlhan , who died after the application was introduced (see paragraph 4 above), was the father of Mr Mehmet İlhan and grandfather of Mr Faruk İlhan . Having regard to the proximity of the relationship of these two applicants to the two deceased persons, the Court rejects the Government ’ s objection, and holds that these two applicants had the requisite standing to bring the case on behalf of their deceased relatives.

37 . Concerning the demise of the seventh applicant, Mr Memduh İlhan , and the wishes of his four daughters to pursue the application on his behalf (see paragraph 4 above), t he Court notes that in cases where the direct victim has died after the application was lodged with the Court, it has allowed the next-of-kin or heir to pursue the application when he or she has a legitimate or sufficient interest in continuing the proceedings before it (see Yasin Ateş v. Turkey , no. 30949/96, § 2, 31 May 2005; Jama v. Slovenia , no. 48163/08 , § 28, 19 July 2012 and the cases cited therein) . Having further regard to the fact that Mr Memduh İlhan ’ s four daughters are also the sisters of Mr Mehmet İlhan and aunts of Mr Faruk İlhan , whose deaths are the subject matter of examination by the Court, it sees no reason to reach a different conclusion in the present case and therefore accepts that Mr Memduh İlhan ’ s daughters, Ms Hazal İlhan , Ms Fatma İlhan , Ms Perişan Tanrıverdi ( İlhan ) and Ms Sultan Kahraman ( İlhan ) , can pursue the application on his behalf.

38 . The Court observes at the outset that the applicants did not specifically argue that their relatives had been killed by an agent of the State, but alleged that the perpetrator had been a member of illegal organisations operating within the State. Nevertheless, they did not make any specific allegation against any particular organisation or person, and did not submit to the Court any evidence in support of their allegation.

39 . The Court observes that, both in their application form and in their observations the applicants mostly complained that the lives of their relatives had not been adequately protected at a time when thousands of people were being killed in Turkey and that their killings had not been adequately examined by the authorities. The Court will examine these two complaints in turn.

40 . The Court reiterates that the first sentence of Article 2 § 1 of the Convention 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 ).

41 . Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every alleged risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual and, if so, that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to prevent that risk from materialising (see Keenan v. the United Kingdom , no. 27229/95, §§ 89 and 92, ECHR 2001-III).

43 . Having regard to the principles established in the judgments referred to above, the Court finds that the national authorities did not fail to take any pre-emptive action to protect the lives of the applicants ’ two relatives.

44 . As for the applicants ’ submissions that the killings had not been investigated properly, the Court considers that this complaint should be examined from the standpoint of the obligation to carry out effective investigations.

45 . 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 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 McCann and Others v. the United Kingdom , 27 September 1995, § 161, Series A no. 324 ; and Kaya v. Turkey , 19 February 1998, § 105, Reports 1998 ‑ I). 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).

46 . Having examined the documents submitted to it by the Government, as well as the summary of the investigation provided by the Government in their observations, the Court observes that, contrary to what was submitted by the applicants, a detailed investigation was carried out by the national authorities to investigate the killings.

47 . The Government ’ s observations and the documents annexed to the observations were forwarded to the applicants and they were invited by the Court to submit their comments on them. Beyond submitting in their observations that they “rejected the Government ’ s arguments and wished to repeat their arguments which they had brought to the Court ’ s attention in their application form at the time of the introduction of their application”, (see paragraph 44 above), the applicants did not make any specific comments about the investigation. In particular, they did not contest the accuracy of the information provided in the investigation documents and they did not provide counter-arguments to those advanced by the Government. Furthermore, the applicants did not refer to any specific failure in the investigation which they considered to be in breach of the obligation to carry out effective investigations.

48 . The Court considers that an important tenet of an effective investigation is the possibility for the next of kin to participate in an investigation into the killing of their relative. The Court has held in a number of its judgments in cases raising similar issues that there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all instances, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Anık and Others v. Turkey , no. 63758/00, § 73, 5 June 2007). Indeed, this aspect is deemed by the Court to be so vital that a failure to comply with that requirement in itself is sufficient to conclude that the investigation is not effective within the meaning of Article 2 of the Convention ( ibid . §§77-78).

49 . At the time of the giving notice of the application to the respondent Government the arguments advanced by the applicants in their application form about the classification of the investigation file as confidential by the national authorities led the Court to request the Government to submit a copy of the documents in the investigation file.

50 . As pointed above, the Government complied with that request and provided the Court with a copy of the investigation file. The Court considers that any concerns it has harboured at earlier stages of its examination of the present application about the active participation of the applicants in the investigation have been dispelled by the information contained in the investigation documents. In this connection it would highlight, in particular, that it appears from the documents that the applicants have been kept informed by the authorities about the developments in the investigation.

51 . Furthermore, the applicants have been asked on a number of occasions to assist the authorities in the investigation. All leads and information they shared with the authorities, as well as all accusations they made against third parties, have been taken seriously by the authorities and investigated.

52 . Having regard to the entirety of the investigation in which the applicants were able to take an active part, coupled with the applicants ’ failure to refer to any specific aspects of the investigation which they considered flawed , the Court concludes that the national authorities did all that could be reasonably expected of them to find the perpetrator.

54 . In light of the foregoing the Court finds that the applicant ’ s complaints under Articles 2, 6 and 13 of the Convention 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.

Stanley Naismith Guido Raimondi Registrar President