SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4451/02 by G ü listan KAYA and Others against Turkey

The European Court of Human Rights (Second Section), sitting on    4 October 2005 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr R. Türmen , Mr K. Jungwiert , Mr M. Ugrekhelidze , Mrs A. Mularoni , Mrs E. Fura-Sandström, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 27 July 2001 ,

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

The applicants, Gülistan Kaya, Efendi Kaya, Ayten Kaya, Mehmet Kaya, Mustafa Kaya, Hakkı Kaya, Çiçek Kaya, Vesile Kaya and Savaş Kaya , are Turkish nationals, who were born in 1950, 1966, 1972, 1981, 1982, 1984, 1986, 1990, and 1993 respectively and live in Diyarbakır . They are represented before the Court by Mr M.N. Yalçı, a lawyer practising in Diyarbakır .

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

The first applicant is the wife and the re mainder of the applicants are the children of Hakkı Kaya, who disappeared on 16 November 1996 in Diyarbakır .

On 16 November 1996 Hakkı Kaya was approached by a car with the registration number 06 EKN 22. Civilian dressed persons, who introduced themselves as police officers, asked Mr Kaya to go with them to the police station to give a statement. The scene was witnessed by two persons -   Mr Ahmet YaÅŸar and a person called Mehmet .

On 28 November 1996 the applicants filed a complaint with the Diyarbakır State Security Court Public Prosecutor ’ s office and requested the prosecutor to investigate Hakkı Kaya ’ s disappearance.

On 17 March 1997 the Diyarbakır State Security Court Public Prosecutor declared a lack of jurisdiction and transferred the case to the Diyarbakır Chief Public Prosecutor ’ s office.

On 27 March 1997 the Human Rights Investigation Committee attached to the Turkish Grand National Assembly informed the applicants that Hakkı Kaya was not in detention.

The applicants filed further complaints with the public prosecutor and the police on 7 September 1998 , 28 January 2000 and 22 March 2001 , respectively, and asked the authorities to investigate Hakkı Kaya ’ s disappearance.

On 11 March 2004 an interview with Abdulkadir Aygan, who was a former member of JITEM ( the Gendarme Intelligence Service) , was published in the Gündem newspaper. In this interview, Mr Aygan stated that Hakkı Kaya had been one of the persons who had been killed by JITEM. He explained that Mr Kaya ’ s body had been buried at the Diyarbakır – Silvan motorway, between the Karacali and Han villages. The applicants submitted a copy of this newspaper to the public prosecutor for further investigation.

COMPLAINTS

The applicants allege that the circumstances surrounding Hakkı Kaya ’ s abduction and disappearance give rise to a violation of Article 2 of the Convention. They further maintain that the authorities have failed to carry out an adequate and effective investigation into these matters.

The applicants complain under Article 5 of the Convention that Hakkı Kaya was arbitrarily deprived of his liberty, since his detention was not recorded.

The applicants maintain that they were denied an effective domestic remedy in respect of their complaints, in violation of Articles 6 and 13 of the Convention.

THE LAW

The applicants complain of violations of Articles 2 (right to life), 5 (right to liberty and security), 6 (right to a fair trial) and 13 (right to an effective remedy) of the Convention in connection with the disappearance of their relative, Mr Hakkı Kaya.

A. The Government ’ s preliminary objections

Non-exhaustion

The Government submit that the applicants have failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. Referring to administrative and civil remedies under domestic law, they state that the applicants could have brought civil or administrative proceedings before lodging their application with the Court. The Government point out that there was a pending investigation before the Diyarbakır public prosecutor ’ s office into the disappearance of Hakkı Kaya . According to the Government, the applicants lodged the application with the Court before awaiting the results of this investigation and therefore have failed to exhaust domestic remedies.

The applicants submit that the pending criminal investigation or the administrative and civil remedies referred to by the Government cannot be regarded as adequate and effective.

As regards a civil action for redress for damage sustained through the illegal acts or patently unlawful conduct on the part of State agents, the Court recalls that a plaintiff to such an action must, in addition to establishing a causal link between the tort and the damage sustained, identify the person believed to have committed the tort ( YaÅŸa v. Turkey , judgment of 2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI, § 73 ). In the instant case, however, it appears that it is still unknown who was responsible for the disappearance of Hakkı Kaya.

As to an action in administrative law under Article 125 of the Constitution based on the authorities ’ strict liability, the Court recalls that this remedy cannot be regarded as sufficient for a Contracting State ’ s obligations under Articles 2 and 13 of the Convention in cases like the present one, as this administrative remedy is aimed at awarding damages rather than seeking those guilty of fatal assault (see Yaşa , cited above, § 74).

Consequently, the Court is of the opinion that the applicants were not required to bring the civil and administrative proceedings suggested by the Government.

The question arises whether or not the criminal investigation at issue can be regarded as effective for the purposes of the Convention. The Court considers that this question cannot be answered at th e present stage of the proceedings, it being closely linked to the substance of the applicants ’ complaints.

Consequently, the Court dismisses the Government ’ s preliminary objection in so far as it relates to the civil and administrative remedies relied on. It joins the preliminary objection concerning remedies in criminal law to the merits.

Six months

The Government argue that the application has been introduced out of time as the incident occurred on 16 November 1996 whereas the application was introduced only on 27 July 2001 .

The Court reiterates that, where no domestic remedy is available, the six months ’ time-limit contained in Article 35 § 1 of the Convention runs in principle from the date of the act complained of.

However, special considerations could apply in exceptional cases where applicants first avail themselves of a domestic remedy and only at a later stage become aware, or should have become aware, of the circumstances which make that remedy ineffective. In such a situation, the six months period may be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances ( Ekinci v. Turkey (dec.), no. 27602/95, dated 8 June 1999).

In the present case, following the petition of the applicants, a criminal investigation was initiated into Hakkı Kaya ’ s disappearance in November 1996. The Government note in their written observations that this investigation is still pending. From the documents in the case file, the Court observes that the applicants filed petitions with the police and the public prosecutor on 7 September 1998 , 28 January 2000 and 22 March 2001 respectively. Furthermore , it does not appear from the case file that the investigation was actively pursued by the domestic authorities after that date. As a result, the Court considers that it was not unreasonable for the applicants to await the results of the criminal investigation by the competent domestic authorities and to file their application under the Convention only when they considered that this investigation had become ineffective.

In these circumstances, the Court considers that the application was introduced within the six-month time-limit provided in Article 35 § 1 of the Convention and rejects the Government ’ s preliminary objection in this respect.

B. Merits

The applicants maintain that their account of the events is accurate.

The Government have not made any comments on the merits of the case.

As regards the substance of the applicants ’ complaints, the Court considers, in the light of the parties ’ submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Joins to the merits the Government ’ s preliminary objection concerning non-exhaustion of domestic remedies in so far as it relates to the criminal investigation carried out into the applicants ’ complaints;

Declares the application admissible, without prejudging the merits .

S. Dollé J.-P. Costa Registrar President