SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13752/06 by H ı d ı r BOZTAŞ and Others against Turkey

The European Court of Human Rights (Second Section), sitting on 5 January 2010 as a Chamber composed of:

Françoise Tulkens, President , Ireneu Cabral Barreto, Vladimiro Zagrebelsky, Danutė Jočienė, Dragoljub Popović, Nona Tsotsoria , Işıl Karakaş, judges , and Sally Dollé, Section Registrar ,

Having regard to the above application lodged on 6 March 2006,

Having deliberated, decides as follows:

THE FACTS

The applicants, whose names appear in the appendix, are Turkish nationals . They are rep resented before the Court by Mr H. Aygün, a lawyer practising in Tunceli.

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

On 8 March 2004, at around 10.30 p.m., Imam Boztaş was gunned down by two persons in front of his house in Alanyazı village at Mazgirt district of Tunceli. His mother and to some extent one of his daughters were witnesses to the killing.

On the same night, at around midnight, gendarmes at the Bulgurcular Gendarmerie Command, including its commander Mr A.K., arrived at the scene.

On the same night, at around 1 a.m., four gendarmes working as technical personnel at the Tunceli Provincial Gendarmerie Command arrived at the scene with the Mazgirt public prosecutor, gendarmes from the Mazgirt District gendarmerie and a doctor. The technical personnel made a sketch of the scene of the incident, took photographs and secured forensic evidence around the scene. The technical personnel considered that the empty cartridges found at the scene belonged to a 7.62 mm Kalashnikov. The doctor carried out a post-mortem examination on Imam Boztaş ’ s body and concluded that an autopsy had to be carried out to determine the cause of death.

On the same night, the Mazgirt public prosecutor heard evidence from Imam Boztaş ’ s parents ( Hıdır and Fidan Boztaş ), his wife ( Derman Boztaş ) and a fellow villager. They submitted, inter alia , that they did not know who had committed the murder, that the deceased had previously been convicted of membership of an illegal organ isa tion, namely TIKKO ( Turkish Workers and Peasants ’ Liberation Army ) and that he had returned to the village only recently.

On 9 March 2004 an autopsy was carried out on Imam Boztaş ’ s body. The cause of his death was stated as internal bleeding and cerebral haemorrhage due to gunshot wounds.

On 9 March 2004 the Mazgirt public prosecutor heard evidence from Imam Boztaş ’ s parents ( Hıdır and Fidan Boztaş ) and daughters (Ender and Eylem Boztaş ) who all affirmed that the deceased had been threatened by the Bulgurcular Gendarmerie Commander. Fidan Boztaş and Eylem Boztaş maintained that the perpetrators were wearing masks and military-type clothes. On the same day Imam Boztaş ’ s parents made an official complaint to the Mazgirt public prosecutor ’ s office.

On 15 March 2004 the Mazgirt public prosecutor heard evidence from Imam Boztaş ’ s father ( Hıdır Boztaş ), brother ( Hasan Boztaş ), his wife ( Derman Boztaş ) and sister ( Nimet Çiçek ). They all repeated that the deceased had been threatened by the Bulgurcular Gendarmerie Commander and had been away from the village for three months prior to his death.

On the same day eleven of the applicants (“the complainants”) made an official complaint to the Mazgirt public prosecutor ’ s office. In this they repeated that that, a few months prior to his death, Imam Boztaş had been threatened by the Bulgurcular Gendarmerie Commander and that, as a result, Imam Boztaş had left the village for three months. In this connection, they claimed that this commander was known by the villagers for illegal and harassing activities. Moreover, they noted that it took the security forces from the Bulgurcular gendarmerie command two hours after the incident to reach the village, which was only one and a half kilometres away.

On the same day the Mazgirt public prosecutor heard evidence from the head of the village ( muhtar ). The head of the village submitted that neither the deceased nor his family had, prior to the killing, voiced or submitted any representation regarding the alleged threats received by Imam BoztaÅŸ. He further submitted that after the shooting one of the villagers called the gendarmerie around 11 or 11.30 p.m., and that the gendarmes arrived in the village around midnight or 12.30 a.m.

On 15 March 2004 the Mazgirt public prosecutor postponed the on-site inspection requested by the applicants until other evidence had been gathered. He further decided that a copy of the documents contained in the case file should be handed over to the complainants ’ legal representative.

On 16 March 2004 the Mazgirt public prosecutor heard evidence from a gendarme on duty at the Bulgurcular Gendarmerie Command at the time of the events. The gendarme confirmed that they had received a telephone call at 11 p.m., that they had left the station at around 11.30 p.m. and that, due to incidents of terrorism, they had walked through fields rather than using the main road to reach the village.

On the same day, the Mazgirt public prosecutor heard evidence from Mr A.K., the Bulgurcular Gendarmerie Commander, who denied the allegations against him. In particular, he submitted that the gendarmes had not been to the village since December 2003, that they did not have any vehicles and that they used G3 and MG3 guns. The accused maintained that the deceased had come to the gendarmerie around September/October to ask for their help in obtaining a green card [1] . He further maintained that the deceased might have been killed by the sons of a person killed in 1995 and for which killing certain people held the deceased responsible.

On 17 March 2004 the Van provincial criminal police laboratory carried out a ballistic examination of the cartridges found at the incident scene.

According to an examination of the deceased ’ s clothes conducted by three experts at the Van Regional Criminal Laboratory on 25 March 2004 the deceased had received sixteen shots at close range and the bullets had entered from the front and exited from his back.

On 7 April 2004 the Human Rights Association wrote a report regarding the killing of Imam BoztaÅŸ. In this report, they pointed to a number of issues which they considered needed to be elucidated in the present case.

On 25 August 2005 the Mazgirt public prosecutor, relying on the forensic and other evidence in the case file including numerous witness statements, decided not to prosecute Mr A.K., the Bulgurcular Gendarmerie Commander, on the ground that there was no cogent evidence to support the allegation that he had abused his office, threatened or killed the deceased . In his elaborate d decision the prosecutor examined in particular the issues raised by the applicants and referred to in the Human Rights Association ’ s report. T he prosecutor noted, inter alia , that there were certain inconsistencies in the eyewitness accounts of Fidan Boztaş and Eylem Boztaş as regards the number of assassins and the type of clothes they were wearing, so that even assuming that the alleged perpetrators were dressed in military clothing, this did not in itself prove that the assailants were soldiers , since such clothing was freely available in the shops and , citing some previous incidents, members of terrorist organ isa tions also wore such garments .

The prosecutor examined the applicants ’ allegations of negligence on account of the belated arrival of the gendarmes from the Bulgurcular Gendarmerie Command. In this connection, referring to witness statements and information received from the Turkcell Telephone Company, the prosecutor noted, inter alia , that the gendarmes were informed approximately one hour after the incident, that it took them around half an hour to cross-check the information and to prepare to leave the gendarmerie and that they arrived half an hour after walking approximately 4-5 km on foot through fields, for security reasons, under adverse weather conditions. He therefore concluded that there was no intentional belated arrival at the scene of the incident.

As regards the allegations that the deceased had been threatened by the Bulgurcular Gendarmerie Commander and that, as a result, the deceased had left the village for three months, the prosecutor, after noting serious inconsistencies and contradictions in the various witness statements and the absence of an official complaint to this effect, held that there was no cogent evidence to demonstrate that the deceased had been threatened by the commander. In this connection, the prosecutor also examined the allegations that the commander was threatening others and found them to be unsubstantiated on the same grounds.

Finally, the prosecutor noted , inter alia , that there w as strong evidence that Imam BoztaÅŸ had been killed by a branch of TIKKO, namely the MKP , on account of a document found on four members of the MKP ( Maoist Communist Party ) , who were killed by security forces during a clash on 26 October 2004 and which implicated the MKP in the killing of the deceased.

On 28 September 2005 the Erzincan Assize Court dismissed the complainants ’ objections.

COMPLAINTS

The applicants complain ed that Imam Boztaş had been killed by State agents, or with their connivance, and that no independent and effective investigation had been conducted into his death. In particular, they maintained that the deceased had been threatened by authorities at the Bulgurcular Gendarmerie Command. Moreover, they complained that the investigation had been undertaken by the Tunceli and Mazgirt Gendarmerie Commands, whereas those who were responsible for Imam Boztaş ’ s death were themselves gendarmes. In addition, the applicants submitted that even if Imam Boztaş had been killed by the MKP organ isa tion, the State was still responsible for his death, since it had failed to protect Imam Boztaş ’ s life. They relied on Articles 2, 6 and 13 of the Convention.

THE LAW

The applicants complained under Articles 2, 6 and 13 of the Convention about the killing of their relative and the alleged lack of an independent and effective investigation into the circumstances of his death.

The Court deems it appropriate to examine these complaints from the standpoint of Article 2 of the Convention alone.

The Court reiterates the basic principles laid down in its judgments concerning a State ’ s obligations under Article 2 of the Convention , in both its substantive and procedural limbs (see, in particular, McCann and Others v. the United Kingdom , 27 September 1995, § § 146-147 , Series A no. 324 ; Buldan v. Turkey , no. 28298/95, § § 73-75 , 20 April 2004 ; Ãœlkü Ekinci v. Turkey , no. 27602/95, § § 135-136 , 16 July 2002 ; Shanaghan v. the United Kingdom , no. 37715/97, § § 85-92 , 4 M ay 2001; Finucane v. the United Kingdom , no. 29178/95, § § 67-71 , ECHR 2003 ‑ VIII ; Ramsahai and Others v. the Netherlands , GC, no. 52391/99, § 321, ECHR 2007-... ; and Dölek v. Turkey , no. 39541/98, §§ 70 ‑ 75, 2 October 2007). It will examine the present case in the light of those principles and in the light of the documentary evidence adduced by the applicants.

As regards the killing of Imam Boztaş, the Court observes that the applicants made serious allegations that State agents were involved in his death . In particular, the applicants claimed that the Bulgurcular Gendarmerie Commander was responsible for the killing, on the ground that the latter had previously threatened the deceased. However, for the Court , the required evidentiary standard of proof for the purposes of the Convention is that of “ beyond reasonable doubt ”, and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among other authorities, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey , no. 41964/98, § 79 , 27 June 2006 ). In the instant case, apart from the applicants ’ above allegations, which were brought to the attention of the authorities only after Imam Boztaş had been killed, there is no material in the case file to enable the Court to conclude beyond all reasonable doubt that the applicants ’ relative was killed by any State agent or person acting on behalf of the State authorities.

Moreover , in so far as the applicants ’ undeveloped complaint about the State ’ s failure to protect Imam Boztaş ’ s life is concerned , the Court observes that there is no information in the case file which would indicate 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 Imam Boztaş from the criminal acts of the MKP organ isa tion or any other person or body, and that they failed to take measures within the scope of their powers, which , judged reasonably, might have been expected to avoid that risk .

As to the investigation into the circumstances surrounding Imam Boztaş ’ s death, the Court observes that an investigation was initiated promptly by the public prosecutor ’ s office. In this connection, it takes note that, on the night of the incident, gendarmes arrived at the scene from three different commands together with the Mazgirt public prosecutor and a doctor, and that the technical personnel at the Tunceli Provincial Gendarmerie Command made a sketch of the scene of the incident, took photographs and secured forensic evidence at the scene. A post-mortem examination and a classical autopsy were conducted on the deceased ’ s body in order to establish the cause of death. Further forensic examinations were conducted on the bullets found at the scene and on the deceased ’ s clothes. Moreover, in the course of the investigation, the public prosecutor heard evidence from a number of persons, including the applicants . The investigation regarding the applicants ’ allegations of State agent involvement in the killing of Imam Boztaş ended with the prosecutor ’ s decision not to prosecute Mr A.K., the Bulgurcular Gendarmerie Commander, on the ground that there was no cogent evidence to support the allegation that he had abused his office, threatened or killed the deceased . The applicant ’ s objection to this decision was dismissed by the Erzincan Assize Court .

Having examined the documents in the investigation file and those referred to in the elaborate decision of the public prosecutor, the Court finds no significant shortcomings in the manner in which the investigation was conducted by the national authorities such as to hamper its effectiveness. In this connection, although Mr A.K. was the first to be summoned to the scene, the investigation into the killing of Imam Boztaş was not carried out by his direct colleagues or hierarchical subordinates, particularly after the public prosecutor was told by the applicants of such possible involvement. Therefore the Court finds no indication that legitimate concerns might arise as regards the gendarmes ’ ability to carry out an independent investigation under the public prosecutor ’ s supervision. Finally, the Court attaches importance to the fact that the criminal investigation concerning the applicants ’ allegations was conducted with reasonable expedition and that the applicants were able to effectively participate in it to the extent necessary to safeguard their legitimate interest.

In the light of the aforementioned findings and having examined the various measures which were taken in the instant case, the Court finds that the investigation i nto the death of the applicants ’ relative may be regarded as satisfying Convention standards .

It follows that the applicants ’ complaints under Article 2 of the Convention should be rejected as being manifestly ill ‑ founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Sally Dollé Françoise Tulkens Registrar President

Appendix

List of applicants

1. Hıdır Boztaş, born in 1926, lives in Tunceli;

2. Fidan BoztaÅŸ, born in 1935, lives in Tunceli;

3. Mustafa BoztaÅŸ, born in 1944, lives in Malatya ;

4. Güven Boztaş, born in 1977, lives in Malatya ;

5. AliÅŸan BoztaÅŸ, born in 197? [2] , lives in Tunceli;

6. Hediye Genç, born in 1960, lives in Izmir ;

7. Elif Özer, born in 1960, lives in Istanbul ;

8. Nimet Çiçek, born in 1977, lives in Istanbul ;

9. Ali BoztaÅŸ, born in 1956, lives in Man isa ;

10. Derman BoztaÅŸ, born in 1961, lives in Tunceli;

11. Ender BoztaÅŸ, born in 1989, lives in Tunceli;

12. Eylem BoztaÅŸ, born in 1991, lives in Tunceli;

13. Ayça İ dil Boztaş, born in 2000, lives in Tunceli;

14. Hasan BoztaÅŸ, no birth date available, lives in Stuttgart , Germany .

[1] . The Ministry of Health provides a special card to people with a minimum level of income which gives free access to health care at the State and some university hospitals, and covers the cost of medicines for in - patients.

[2] . The last number is illegible.