SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52390/99 by Mehmet Mehdi Åž EKER against Turkey

The European Court of Human Rights (Second Section), sitting on 1 February 2005 as a Chamber composed of:

Mr J.-P. Costa , President , Mr I. Cabral Barreto , 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 4 November 1999 ,

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 Mehdi Şeker, is a Turkish national who was born in 1957 and lives in Bismil. He was represented originally before the Court by Mr P. Leach, succeeded by Ms A. Stock, Mr M. Muller, Mr T. Otty and Mr K. Yıldız , lawyer s attached to the Kurdish Human Rights Project (“KHRP”) in London and by Mr N . Yıldırım and Mr Ş. Ülek , lawyers practising in Diyarbakır and Şanlıurfa respectively.

A. The circumstances of the case

The application concerns the disappearance of the applicant ' s son, Mehmet Åžah Åžeker, who was 23 years old at the time of the events giving rise to the application. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The facts submitted by the applicant

On 9 October 1999 at around 6 p.m. the applicant ' s son, Mehmet Åžah Åžeker, left his workplace in Bismil to return home. The journey on foot usually t oo k about ten minutes. However, he never arrived home. The route taken by Mehmet Åžah Åžeker went through a central part of town. It would take him past the police headquarters, the Council building, the Governor ' s residence and other Government buildings.

On 11 October 1999 the applicant filed a petition with the public prosecutor ' s office in Bismil. He requested that the authorities carry out an investigation in to the whereabouts of his son.

On 12 October 1999 the applicant was informed by two pe ople that they had seen four persons forcibly taking someone to a white car on or about 9 October 1999 . He believed that th e latter was his son.

On 20 October 1999 the applicant lodged further petitions with the public prosecutor ' s office at the Diyarbakır State Security Court and the public prosecutor ' s office in Diyarbakır . He requested to be informed of his son ' s whereabouts. He further requested the Diyarbakır public prosecutor to refer his petition to the regional gendarme command.

On the same day , the applicant filed petitions with the governor ' s office of the state of emergency region and the regional gendarme command. In his petitions he stated that his son had been missing for twelve days and requested information.

On 24 and 27 October 1999 the applicant filed petitions about his son ' s disappearance with the Human Rights Commission of the Turkish Grand National Assembly. In his petition s the applicant stated that his son had been involved in a fight with a plain -clothed policeman one month prior to his disappearance and that he had since been followed and threatened by the police. He further maintained that he had applied to various authorities but received no response to his petitions. The applicant requested the Human Rights Commission to conduct an investigation into the circumstances of his son ' s disappearance.

On 2 November 1999 the head of the Organisation for Human Rights and Solidarity for Oppressed People ( Mazlum-Der ), Mr Yılmaz Ensaroğlu , petitioned the Ministry of the Interior informing the latter about the disappearance of Mehmet Şah Şeker and requesting that an investigation be conducted.

On 5 November 1999 the applicant lodged a further petition with the Ministry of the Interior and requested to be provided with information.

On 21 December 1999 the chair of the Human Rights Commission of the Turkish Grand National Assembly, Ms Sema Pişkinsüt , sent a letter to Mr Ensaroğlu stat ing that the Diyarbakır Security Directorate had prepared a form for disappeared persons as regards Mehmet Şah Şeker and sent copies of i t to the Bismil District Security Directorate.

In 2000 public prosecutor at the Diyarbakır State Security Court contacted the applicant and requested him to give a blood sample in order to compare his DNA with that of corps es found in houses of Hizbullah members. The applicant did so o n 21 February 2000 .

On 14 October 2004 the applicant filed a petition with the public prosecutor ' s office in Diyarbakır and requested information as regards the outcome of the DNA analysis.

On the same day, the Diyarbakır public prosecutor notified him that it could not be established whether or not one of the corps es was his son as there was insufficient DNA in the bones of the corpses and the existing DNA had de teriorated .

2. The facts submitted by the Government

On 11 October 1999 , after having received the applicant ' s petition, the Bismil public prosecutor requested the Bismil Security Directorate to examine the allegations. On the same day, two police officers took statements from the applicant, the employer and two colleagues of Mehmet Åžah Åžeker and his cousin. In his statement , the applicant maintained that he did not suspect anyone regarding his son ' s disappearance. Mehmet Åžah Åžeker ' s employer, colleagues and cousin had no information concerning his whereabouts.

On 15 October 1999 the Bismil Security Directorate reported to the Bismil public prosecutor that the investigation into the circumstances of Mehmet Åžah Åžeker ' s disappearance was continuing , but that he could not be found.

On 20 October 1999 the Diyarbakır public prosecutor initiated an investigation following the receipt of the applicant ' s petition. The public prosecutor took statements from the applicant concerning the disappearance of his son. In his statement, the applicant maintained that he was told by some persons that his son had been taken into custody by police officers and later transferred to the Diyarbakır Security Directorate. He further stated that his son might have been abducted by persons who had presented themselves as police officers. He finally requested that the custody records of the security directorate be examined. On the same day, the Diyarbakır public prosecutor sent a letter to the security directorate in Diyarbakır requesting an investigation.

On 10 November 1999 the Diyarbakır Security Directorate reported to the Diyarbakır public prosecutor that the applicant ' s son had not been taken into custody.

On 17 November 1999 the Bismil public prosecutor requested the Bismil Security Directorate to inform all security directorates in the country of Mehmet Åžah Åžeker ' s disappearance.

On 22 November 1999 the Bismil Security Director sent a letter to the Bismil public prosecutor stating that the Diyarbakır Security Directorate had been informed of Mehmet Şah Şeker ' s disappearance and that a form concerning disappeared person s had been prepared. He further stated that the search for the applicant ' s son was continuing.

On 24 December 1999 the Bismil public prosecutor took statements from the applicant , who maintained that his son was still missing and that he did not know his whereabouts.

On 7 July 2000 the Diyarbakır public prosecutor declined jurisdiction ratione loci , holding that the events in question occurred in Bismil . He therefore sent the case-file to the Bismil public prosecutor ' s office .

Until 2002 no serious attempts were made by the security forces to obtain evidence in respect of the alleged abduction. In particular, the authorities took no step s on their own initiative to identify possible witnesses. Nor did they obtain statements from the persons who were in police custody at the time of the disappearance of the applicant ' s son.

On 15 February 2002 the International Law and Foreign Relations Directorate of the Ministry of Justice sent a letter to the public prosecutor ' s office in Bismil , requesting the latter to conduct an effective investigation into the disappearance of Mehmet Åžah Åžeker. The Ministry particularly requested the public prosecutor to obtain statements from the persons who were in police custody at the time of the disappearance of the applicant ' s son and the persons who had allegedly witnessed his abduction. The Ministry further stated that the Hizbullah , an illegal organisation , was responsible for several abductions and disappearances in the region and requested that the investigation be carried out with particular regard to Hizbullah activities. It finally requested that the security forces be invited to give information concerning any developments in the investigation.

On 27 February 2002 the Diyarbakır public prosecutor requested the Anti-T error Branch of the Diyarbakır Security Directorate to provide the custody records of 9 , 10 and 11 October 1999 . On the same day, he took statements from the applicant who maintained his previous declarations . The applicant sai d that he did not want to give the names of the persons who had informed him about his son ' s abduction .

On 8 March 2002 the deputy director of the Anti- T error Branch of the Diyarbakır Security Directorate sent the copy of the above-mentioned custody records to the Diya r bakır public prosecutor , and informed the latter that a search warrant had been issued for Mehmet Şah Şeker as he was suspected of involv ement in Hizbullah activities.

Between March and November 200 3 the Diyarbakır public prosecutor took statements from fifteen persons who had been in custody in the Diyarbakır Security Directorate between 9 and 11 October 1999 and who all confirmed that Mehmet Şah Şeker had not been in custody in the Diyarbakır Security Directorate on the days in question.

30 October 2003 the Bismil public prosecutor took further statements from the applicant who maintained his previous declarations and requested that his son be found.

Between 1999 and 2004 there were communications between the International Law and Foreign Relations Directorate of the Ministry of Justice, the Bismil and Diyarbakır public prosecutors and the security forces. The Ministry of Justice requested information from the public prosecutors as to the outcome of the investigation . T he public prosecutors in turn requested the security directorates and gendarmerie commands to provide information as to the outcome of the search for Mehmet Şah Şeker. In reply to these requests, the police and gendarmerie notified the public prosecutors that the missing person could not be found and that the investigation was continuing. The Ministry of Justice was also informed by the public prosecutors of the responses given by the security forces.

B. Relevant domestic law

A description of the relevant domestic law at the material time can be found in Tekdağ v. Turkey ( no. 27699/ 95 , § 40-51, 15 May 2004 ) .

COMPLAINTS

The applicant allege d that the circumstances surrounding his son ' s abduction and disappearance gave rise to a violation of Articles 2 and 3 of the Convention. With reference to these provisions, h e contend ed that the authorities failed to carry out an adequate and effective investigation into the abduction and disappearance of Mehmet Åžah Åžeker . He also allege d that the suffering that he has endured on account of his son ' s disappearance constituted a violation of Article 3 of the Convention.

The applicant allege d under Article 5 of the Convention that his son had been arbitrarily deprived of his liberty since his detention was not recorded and there was no prompt or effective investigation into the applicant ' s allegations.

The applicant maintain ed under Article 6 of the Convention that his son was denied access to a lawyer in police custody.

He contended that the denial of the right of access of Mehmet Åžah Åžeker to members of his family in police custody violated his right to respect for family life under Article 8 of the Convention.

The applicant allege d that he was denied an effective domestic remedy in respect of his complaints under Articles 2 and 3, in violation of Article 13 of the Convention.

The applicant finally complain ed under Article 14 of the Convention, in conjunction with the above- me ntioned Articles, that his son had been discriminated against on account of his ethnic origin.

CONTENTIOUS PROCEDURE BEFORE THE COURT

In September 2002 the applicant ' s former representative P. Leach withdrew from the case.

On 4 September 2002 , 1 April and 20 September 2004 the Court requested the Kurdish Human Rights Project to submit a new power of attorney. The Court ' s letter of 20 September 2004 was also sent to the applicant for information and the deadline for the submission of the new power of attorney was set for 1 October 2004 .

On 14 October 2004 the applicant wrote to the Court directly, claiming that he had only received the Court ' s letter on 8 October 2004 and stating that he wished to pursue his application.

On 28 October 2004 the KHRP submitted a new power of attorney.

By a letter dated 23 December 2004, the Government requested that the application be struck out of the list of cases in accordance with Article 37 § 1 (a) of the Convention since the applicant ' s failure to comply with the deadline set by the Court ' s letter of 20 September 2004 demonstrated that he did not wish to pursue his application.

THE LAW

The Government requested that the application be struck out of the list of cases in accordance with Article 37 § 1 (a) of the Convention, arguing that the applicant ' s failure to comply with the deadline set by the Court ' s letter of 20 September 2004 demonstrated that he did not wish to pursue his application.

The Court observes that the applicant had signed a power of attorney and appointed three lawyers, namely Mr P. Leach, Mr N. Yıldırım and Mr Ş. Ülek , at the time of lodging of his application with the Court. A lthough the Court ' s correspondence w as merely sent to the applicant for information, the applicant made direct contact with the Court shortly after receiving the Court ' s letter of 20 September 2004 . In his response, he stated that he wished to pursue his application and that he would continue to be represented by the lawyers attached to the KHRP . In such circumstances, the Court find s that , thereby, the applicant clearly showed his i nten tion to pursue the application. Accordingly, it dismisses the Government ' s request to strike the application out of the Court ' s list of cases.

The Government further argue d that the applicant failed to exhaust the domestic remedies available to him within the meaning of Article 35 § 1 of the Convention. They maintain ed that the applicant had failed to provide to the investigating authorities the names of the persons who had allegedly witnessed his son ' s abduction. The Government further contend ed that the applicant did not inform the public prosecutors of the alleged threats that his son had been receiving. They argue that the applicant made these allegations solely before the Court and that he had abused the right o f petition. The Government pointed out that the investigation into the disappearance of the applicant ' s son was continuing.

The applicant contend ed in reply that he had filed numerous petitions with the authorities and requested that the circumstances surrounding the abduc tion of his son be investigated , but he had received no response from the authorities. He was unable to provide the names of the persons who witnessed his son ' s abduction as these persons had requested him not to divulge their identity since they feared for their safety. He submit ted that he ha d not abuse d his right of petition as he could not be expected to await the outcome of the investigation in circumstances where his son was ostensibly abducted by the police. The applicant contend ed that, in any event, he was under no obligation to exhaust domestic remedies since, in the circumstances of the case, any such remedies were illusory, ineffective and inadequate.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges applicants to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see the Yasa v. Turkey , judgment of 2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI, p. 2431, § 71).

In so far as the Government argue that the applicant did not exhaust the domestic remedies available to him, the Court considers that the issue concerning exhaustion of domestic remedies requires a determination to be made of the effectiveness of the investigation. As such, it is inextricably linked to the substance of the applicant ' s complaints. It follows that this issue should be joined to the merits of the case.

B. Merits

1. The parties ' observations

a) Article 2 of the Convention

The Government den ied the factual basis of the applicant ' s allegation under Article 2 of the Convention. They submit ted that Mehmet Åžah Åžeker was not taken into custody by the police as alleged. They maintain ed that it would be irrational to associate every disappearance with the security forces and that such allegations should be supported by cogent evidence.

The applicant maintain ed that the disappearance of his son in circumstances where he was told by eye- witnesses that his son had been taken away by plain-clothed police officers gave rise to a breach of Article 2 of the Convention. He further submit ted that the authorities failed to carry out an effective and adequate investigation i nto the abduction of Mehmet Åžah Åžeker .

b) Article 3 of the Convention

The Government did not respond to the allegations under Article 3 of the Convention . However, t he applicant maintain ed his complaint. He submit ted that the abduction and disappearance of his son by the security forces and the suffering that he has endured on account of his son ' s disappearance constituted a violation of Article 3 of the Convention. He further contend ed that the authorities failed to carry out an adequate and effective investigation into the abduction and disappearance of Mehmet Åžah Åžeker .

c) Article 5 of the Convention

T he Government submit ted that Mehmet Şah Şeker was not taken into custody by the police. They maintain ed that , following the examination of the custody records of the Diyarbakır and Bismil Security Directorates , it was cl ear that the applicant ' s son had not been arrested by the security forces. The Government noted that in the course of the investigation it was understood that the applicant ' s son had not committed any offence prior to his disappearance and there fore there was no reason to arrest him.

The applicant aver red that his son was arbitrarily deprived of his liberty as his detention was not recorded. He further submit ted that there was no prompt or effective investigation of his allegations.

d) Articles 6 and 8 of the Convention

The Government did not respond to the allegations under these provisions. However, the applicant contended that his son was denied the right to see a lawyer or his family during his time in police custody.

e) Article 13 of the Convention

The Government contend ed that the domestic authorities conducted an effective inves tigation into the disappearance of the applicant ' s son.

The applicant maintain ed that , although he took every reasonable step in order to ensure that his son ' s disappearance was properly and thoroughly investigated by the S tate, the investigation conducted by the authorities was in sufficient to me et the require me nts of Article 13 of the Convention.

f) Article 14 of the Convention

The Government did not address the applicant ' s allegations under Article 14 of the Convention. However, t he applicant maintain ed that the treatment which his son suffered at the hands of the authorities was motivated by his ethnic origin .

2. The Court ' s assessment

The Court considers, in the light of the parties ' submissions, that the applicant ' s complaint s raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that th e application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Dismisses the Government ' s request to strike the application out of its list of cases;

Decides to join to the merits the Government ' s objection concerning exhaustion of domestic remedies;

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President