THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 76933/01 by Mehmet Hü seyin ÇİÇ EK against Turkey

The European Court of Human Rights (Third Section), sitting on 30 March 2006 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr R. Türmen , Mrs M. Tsatsa-Nikolovska , Mr V. Zagrebelsky , Mr E. Myjer , Mr David Thór Björgvinsson, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 18 June 2001 ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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

The applicant, Mr Mehmet Hüseyin Çiç ek , is a Turkish national who was born in 1941 and lives in Diyarbakı r . He is represented before the Court by Ms A. Demirtaş, a lawyer practising in Diyarbakı r .

A. The circumstances of the case

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

On 19 September 1999 the applicant ’ s son Hasan Çiçek left his home to go to play football with his friends and has been missing since then.

On 20 September 1999 the applicant filed a petition with the Diyarbakır Public Prosecutor notifying his son ’ s disappearance and requesting to be informed whether his son had been detained by the police. The Diyarbakır Public Prosecutor initiated an investigation into the disappearance of the applicant ’ s son. He forwarded the applicant ’ s petition to all police departments in the area.

On the same day, the Prevention of Terrorism Department of the Diyarbakır Security Directorate informed the applicant that his son was being held in detention in police custody. Soon after, they maintained that the person in custody was not his son, but another person who had the same name.

On 24 September 1999 the applicant made a deposition before the Yenişehir Police Station where he repeated his earlier statements. The Yenişehir Police Station has also initiated an investigation into the disappearance of the applicant ’ s son and forwarded the Public Order Department of the Security Directorate a copy of the investigation file. On the same day the Diyarbakır Security Directorate informed the Prevention of Terrorism Department that the applicant ’ s son had a criminal file due to his affiliation with the Hezbollah organisation.

On 15 October 1999 the Public Prosecutor requested the Diyarbakır Security Directorate and all the police stations in the area to notify whether the applicant ’ s son was taken into police custody at any time; and if so, it requested to obtain all documents and medical reports in relation to his detention. Moreover he gave instructions to all police stations around the country to search for Hasan Çiçek.

On 22 October 1999 the Prevention of Terrorism Department has reported that the applicant had not been taken into custody. They however noted that there was another person with the same name who was currently detained on remand. Moreover, the following day, the Provincial Centre of the Gendarmerie Headquarters informed the Public Prosecutor that they had no custody records for the applicant ’ s son.

Upon the request of the Public Prosecutor, in order to avoid further confusion, on 4 November 1999 the director of the Diyarbakır Prison submitted the birth certificate of Hasan Çiçek, the person who had the same name as the applicant ’ s son and who was detained on remand.

In December 1999 the Human Rights Association issued a report concerning the disappearance of the applicant ’ s son. The report noted that the applicant ’ s older son was a member of the Hezbollah. It was also maintained that, on 20 October 1999 a local television channel broadcasted a programme on Hezbollah where Hasan Çiçek ’ s affiliation with the organisation was revealed. It was stated that when the police raided a flat which was used by Hezbollah militants in Diyarbakır , t hey captured, among other things, a hand note wherein the applicant ’ s son was referred to as a possible agent of the state:

“Hasan, the brother of Raif Çiçek, was taken into police custody and released within three days. It is obvious that he is an agent of the secret service and he provokes the youngsters. What shall we do with him? Shall we shoot him?”

On 6 October 2000 the applicant requested from the Public Prosecutor a copy of the case file.

On 10 January 2001 the Public Prosecutor reiterated its orders to the Security Directorate, dated 15 October 1999 . He also emphasized the fact that the complainant believes that his son could have been taken into custody by the police officers from the Prevention of Terrorism Department.

On 14 January 2001 a report drafted by the Diyarbakır Security Directorate revealed that the applicant ’ s son had been previously arrested three times on account of his affiliation with the Hezbollah organisation and currently there was a search warrant issued for him.

On 2 August 2001 the Public Prosecutor sent a letter to the Diyarbakır Security Directorate requesting to be informed on a regular basis regarding the investigation that was being conducted into the disappearance of the applicant ’ s son. Subsequently, on 4 September 2001 the Prevention of Terrorism Department has submitted a progress report where it was noted that all official records on Hasan Çiçek have been investigated and that statements of his family members have been taken. They also have reported that the investigation was still continuing.

On 23 August 2002 the Public Prosecutor took a decision of non-prosecution due to lack of evidence. He noted in his decision that the applicant ’ s son had not been taken into custody on the date of his disappearance and that there was no evidence as to Hasan Çiçek being kidnapped or being the victim of an unlawful act. The decision of non-prosecution was notified to the applicant on 22 October 2002 .

B. Relevant domestic law

A description of the relevant domestic law at the material time can be found in Tepe v. Turkey (no. 27244/95, §§ 115-122, 9 May 2003 ).

COMPLAINTS

The applicant complained under Article 2 of the Convention about the disappearance of his son. He claimed that his son was probably dead and that the respondent Government failed to protect the life of his son. He further complained under the same Article, in conjunction with Article 13 of the Convention, that the authorities have failed to conduct an effective investigation into the disappearance of his son.

Furthermore, he complained under Article 3 of the Convention of the suffering he endured due to the disappearance of his son.

Finally, invoking Article 5 § 1 of the Convention, he alleged that his son was unlawfully taken into custody.

THE LAW

The applicant alleged that the circumstances surrounding his son ’ s disappearance gave rise to a violation of Article 2 of the Convention. He argued that his son could have been taken into custody or that Hezbollah could have killed him , which in both cases engages the domestic authorities ’ responsibility. He also contended under the same Article in conjunction with Article 13 of the Convention that they did not carry out an effective investigation into his disappearance. He complained under Article 3 of the Convention of the suffering that he endured due to his son ’ s disappearance. Moreover he claimed that his son was lawfully taken into police custody, in violation of Article 5 § 1 of the Convention.

A. The Government ’ s objections

The Government contended that t he applicant had failed to exhaust all domestic remedies as the investigation carried out by the Diyarbakır Public Prosecutor was still pending when the applicant lodged his application with the Court . They further submitted that if the applicant claimed that the domestic remedies were ineffective, he should have applied to the Court within six months fr om the date on which his son had disappeared or at least from 6 October 2001 , the date on which he obtained a copy of the investigation file.

The applicant submitted that he did not exhaust the domestic remedies because he considered them to be ineffective. He claimed that after twenty one months elapsed since he filed a petition with the Public Prosecutor, he realised that the domestic authorities were not capable of clarify ing the facts surrounding the disappearance of his son and to find those who were responsible .

The Court notes that it is not required to decide whether the applicant has exhausted all domestic remedies since, in any event, the application is inadmis sible for the reasons stated below.

B. Merits

a) The applicant complained under Article 2 of the Convention that the authorities were responsible for his son ’ s disappearance.

The Government contended that it could be construed from the written statements of a Hezbollah militant that Hasan Çiçek was involved in the activities of the illegal organisation. However he was suspected of working as a police agent. They therefore argued that Hezbollah could be responsible for his disappearance. Moreover the Government maintained that even if Hezbollah has threatened Hasan Çiçek, he never reported to the police and complained that his life was in danger.

The applicant claimed that, when they found the note written by a Hezbollah militant, the police should have been aware of the fact that his son was in danger and should have protected him.

The Court recalls that the first sentence of Article 2 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 , judgment of 9 June 1998, Reports of Judgments and Decisions 1998 ‑ III, p. 1403 , § 36). It brings a positive obligation to the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual ( Osman v. the United Kingdom , judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, p.3159 , § 115 ) .

The Court reiterates that not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising (see Akkoç v. Turkey , nos. 22947/93 and 22948/93, § ... , ECHR 2000 ‑ X ) .

The Court also 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 Arti cle 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 McCann and Others v. the United Kingdom , judgment of 27 September 1995, Series A no. 324, p. 49, § 161). The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Oğur v. Turkey [GC], no. 21954/93, § 88, ECHR 1999-III). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV).

In the present case, there is no dispute over the steps that were taken by the Diyarbakır Public P rosecutor and the police. The evide nce in the case file shows that an investigation was initiated by the Public Prosecutor as soon as he had knowledge of the disappearan ce of Hasan Çiçek. The Public Prosecutor communicated the applicant ’ s petition to all police departments in the area. The Diyarbakır Security Directorate, the Prevention of Terrorism Department, the Law and Order Department, the Gendarmerie Headquarters and all police stations in the area were informed of Hasan Çiçek ’ s disappearance.

The Public Prosecutor requested the Diyarbakır Security Directorate to notify whether the applicant ’ s son was taken into police custody at any time and, if so, requested all documents and medical reports in relation to his detention. Moreover he issued a search warrant for Hasan Çiçek and requested to be informed of the investigation on a regular basis.

The authorities have looked into all official records on Hasan Çiçek and interrogated his family members. The only fact that this investigation has revealed was that he had a connection with Hezbollah and that he had previously been taken into police custody three times.

The investigation ended when the Public Prosecutor gave a decision of non-prosecution, holding that there was neither a custody record for the applicant ’ s son at the time of his disappearance, nor any evidence of his being kidnapped or being the victim of an unlawful act.

The failure of the investigation to progress can mainly be explained by lack of evidence, a fact not shown to be attributable to any substantial flaws in the investigation. The applicant himself did not give any reason as to why and how his son could have disappeared. The circumstances surrounding his disappearance remain speculative. The applicant only supposes that his son could have been taken into custody or that Hezbollah could have killed him.

From this perspective, the Court considers that the whole case , apart from the disappearance of the applicant ’ s son , rests on assumptions and speculations. Consequently, the Court considers that the material in the case file does not enable it to conclude beyond all reasonable doubt that any State agent or person acting on behalf of the State authorities was responsible for the disappearance of the applicant ’ s son nor that the respondent Government failed to protect the life of the applicant ’ s son.

Moreover, having regard to the scope and duration of the investigation in this case, the Court finds that the authorities have carried out an investigation into the circumstances surrounding the disappearance of the applicant ’ s son, satisfying the requirements of Article 2 of the Convention.

Consequently the Court holds that the applicant ’ s complaints under Article 2 of the Convention must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention .

b) As regards the applicant ’ s complaints under A rticles 3, 5 § 1 and 13 of the Convention, the Court notes that they are closely related to his complaints under Article 2 and they do not raise any issues which are not already examined in the context of that Article. Since the facts of the case do not disclose a breach under Article 2 of the Convention, the Court concludes that this part of the application is also inadmissible and must be dismissed for being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančič Registrar President