SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1504/06 Velide AVRAS and Others against Turkey

The European Court of Human Rights ( Second Section ), sitting on 10 January 2012 as a Chamber composed of:

Françoise Tulkens , President, Danutė Jočienė , Isabelle Berro-Lefèvre , András Sajó , Işıl Karakaş , Paulo Pinto de Albuquerque , Helen Keller , judges, and , Françoise Elens-Passos, Deputy Section Registrar ,

Having regard to the above application lodged on 16 December 2005,

Having regard to the information submitted by the Government on 12 May 2011,

Having deliberated, decides as follows:

THE FACTS

The applicants, M r Zübeyit Avras, Mr Mesut Avras, Ms Nazime Avras, Mr Hüseyin Avras and Ms Velide Avras are Turkish nationals who were born in 1940, 1956, 1975, 1976 and 1986 respectively and live in I stanbul . They we re represented before the Court by Mr Z eki Yüksel and Mr Dinçel Aslan , lawyer s practising in Van.

The circumstances of the case

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

The first applicant is the father and the remaining four applicants are the siblings of Mr Sabri Avras, who joined the PKK [1] in 1994. The applicants have not heard from their relative since 1994.

On 24 August 2004 a number of newspapers reported that a military operation had taken place in 1994 in an area within the administrative jurisdiction of Bitlis, in south-east Turkey . During the military operation a number of PKK members had been apprehended by members of the Turkish security forces, killed, their bodies mutilated and female PKK members raped by the soldiers. The bodies were subsequently buried in two mass graves. The area where the bodies were buried has been out of bounds for civilians since that date.

On 8 September 2004 the applicants, with the assistance of their lawyer, submitted a petition to the Bitlis prosecutor ’ s office and drew the prosecutor ’ s attention to the newspaper reports. They alleged that their relative Sabri Avras had also been killed in the operation and asked the prosecutor to exhume the remains, establish their relative ’ s identity by carrying out DNA tests and then return the remains to the family for burial.

On 15 October 2004 the Bitlis prosecutor visited the location in question and found a large number of bones and clothes scattered around a large area. The prosecutor was accompanied by, inter alios , a doctor, a photographer, a gendarmerie non-commissioned officer and a number of persons from nearby villages. Two local villagers told the prosecutor that a military operation had taken place in the area at the beginning of June 1995. The photographer took photos of the bones and the clothes and the doctor confirmed that they were human bones. The bones, clothes and several pieces of military equipment also found in the area were secured for forensic examinations.

On 20 October 2004 the Bitlis prosecutor sent the bones to the Forensic Medicine Directorate in Istanbul . He requested the Directorate to establish whether they were human bones and, if so, to establish how many persons had been killed and the deceased persons ’ sex and dates of death.

On 29 December 2004 the Bitlis prosecutor decided to close the investigation and not to prosecute any members of the security forces who had taken part in the operation in 1995 for the killings. It appears from this decision that, according to the information provided by the Bitlis Gendarmerie Headquarters to the prosecutor, on 2-3 June 1995 a military operation had taken place in the area in question. At the end of the operation the soldiers had recovered the bodies of 27 PKK members but as the area was not safe, no autopsies had been carried out and the bodies had been left there.

The prosecutor considered that the persons whose remains were recovered had died in an armed clash with the soldiers. There was insufficient evidence to prove that the persons had been apprehended and then executed, as alleged by the newspapers. In the prosecutor ’ s opinion, the fact that no autopsies had been carried out on the bodies did not mean that the soldiers had been trying to cover up any offence or that they had acted negligently; the area where the bodies were found had not been safe at the time of the incident, was too remote and was inaccessible by vehicle. The prosecutor also decided that the Van prosecutor would establish the identities of the deceased and return the remains to their families.

An objection lodged by the applicants against the prosecutor ’ s decision was rejected by the Muş Assize Court on 24 June 2005.

On 8 May 2006 the Forensic Medicine Directorate prepared its report in response to the prosecutor ’ s above-mentioned request of 20 October 2004. According to the report, although the macroscopic examination of the bones showed that they belonged to 11 persons, only the bones belonging to six of the deceased were suitable for DNA comparisons. It was established that none of the six deceased was Sabri Avras.

On 7 April 2009 the fourth applicant, Hüseyin Avras, asked the Istanbul University Medical Faculty ’ s Forensic Medicine Department to prepare an independent opinion on the above-mentioned findings of the Forensic Medicine Directorate. According to a report prepared by a professor of forensic medicine, being able to identify only six of the deceased through DNA analysis suggested that the Forensic Medicine Directorate ’ s findings were not compatible with the rates of success obtained internationally. It was probable that the Directorate had used the organic DNA extraction method rather than silica-based DNA separation. The organic extraction method produced only a 45 per cent success rate, whereas the success rate of the silica method was much higher.

Following the introduction of the application, the Government were requested by the Court, under Rule 54 § 2 (a) of the Rules of Court, to confirm whether the forensic examinations carried out by the Directorate had been compatible with the methods referred to in the independent expert ’ s report. Should their answer be in the negative, the Government were also requested, pursuant to Rule 44A of the Rules of Court, to ensure that further forensic examinations compliant with the applicable international standards were carried out by their authorities with a view to establishing whether the applicants ’ relative was among the dead.

On 12 May 2011 the Government informed the Court that new and more advanced forensic examinations had been carried out on the remains at the request of the Court. According to the report pertaining to the new forensic examinations, it was established that the remains belonged to 1 6 persons and that Sabri Avras was not one of those 16 deceased persons.

On 13 June 2011 a copy of this report was forwarded to the applicants and they were informed by the Registry that they had the opportunity to submit any written comments they may wish to make on the information supplied by the Government by 11 July 2011. No response was received from the applicants.

COMPLAINTS

The applicants complain ed under Article 2 of the Convention that their relative had been arrested during the military operation in question and subsequently killed. The killing was not justified under the second paragraph of that Article. Under the same Article the applicants also complained about the prosecutor ’ s failure to ensure a post mortem examination on the body and to visit the place after the operation.

Relying on Article 3 of the Convention, the applicants complained that the body of their deceased relative had been mutilated post mortem.

Under Article 13 of the Convention the applicants complained that no effective investigation had been carried out by the national authorities.

Furthermore, invoking Article 14 of the Convention, the applicants complained that the lack of an effective investigation was due to the fact that the PKK guerrillas were Kurdish and adversaries of the State.

Lastly, the applicants complained that the national authorities ’ failures were in breach of Articles 5, 6, 15 and 17 of the Convention.

THE LAW

The applicants complained that their relative had been killed by the soldiers in violation of the provisions referred to above.

The Court recalls that individuals who are the next-of-kin of persons who have died in circumstances giving rise to issues under Article 2 of the Convention may apply as applicants in their own right; this is a particular situation governed by the nature of the violation alleged and considerations of the effective implementation of one of the most fundamental provisions in the Convention system (see Biç and Others v. Turkey , no. 55955/00, § 22 , 2 February 2006 ) . However, having regard to the information obtained with the assistance of the respondent Government, according to which the applicants ’ relative Sabri Avras was not among the deceased, the Court finds that the applicants cannot claim that their relative was a victim of a violation of Article 2 of the Convention. Indeed, as set out above, the applicants, to whom the Forensic Medicine Directorate ’ s findings were forwarded in June 2011, did not challenge those findings.

Furthermore, to the extent it may be argued that the applicants had an arguable claim that their relative Sabri Avras was one of the persons whose remains were found in the mass grave, it is clear that, as detailed above, the national authorities have conducted effective investigations in order to identify the remains and established that Sabri Avras ’ body was not in the mass grave.

It follows that the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elen s-Passos Françoise Tulkens Deputy Registrar President

[1] 1 Kurdistan Workers’ Party, an illegal organisation.