FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 70835/01 by Cihan SÄ°NCAR against Turkey

The European Court of Human Rights (First Section) , sitting on 10 October 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mr R. Türmen , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged on 24 February 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Mrs Cihan Sincar, is a Turkish national, who was born in 1957 and lives in Mardin. She is represented before the Court by Mrs Bedia Buran, a lawyer practising in Ankara.

A. The circumstances of the case

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

The applicant’s husband, Mehmet Sincar , was a member of parliament (MP) for the Democracy Party (hereinafter referred to as the DEP) at the time of the event.

On 2 September 1993 unknown persons shot the brothers of the DEP’s vice president, both MPs for the same party, in Batman. One of them died and the other was injured.

On 4 September 1993 the applicant’s husband, Mehmet Sincar , and a member of the DEP’s Executive Committee in Batman, who had been sent to the region to investigate these murders, were also shot dead. The Batman Public Prosecutor initiated criminal proceedings against twelve suspects under Article 146 of the Turkish Criminal Code. He subsequently declined jurisdiction in the matter and transferred the investigation file to the prosecutor of the Diyarbakır State Security Court, who brought criminal proceedings against the suspects under Article 146 of the Turkish Criminal Code, charging them with an “attempt to undermine the constitutional order of the State” in relation to the death of the applicant’s husband.

The Diyarbakır State Security Court acquitted ten of the suspects on 29 November 1994 and the remaining two on 26 November 1996.

On 2 October 1998, Mrs Sincar applied for and obtained a copy of the court’s decision to acquit the alleged perpetrators.

On an unspecified date, the former Minister of the Interior Mehmet Ağar claimed this murder to have been carried out by a terrorist organisation, namely the Hizbullah . At the beginning of 1998, the so-called Susurluk report was produced at the request of the Prime Minister, by Mr Kutlu Savaş , the Vice-President of the Board of Inspectors of the Prime Minister’s Office. It was stated on page 31 of this report that “the murder of Mehmet Sincar had been plotted and carried out in accomplice by A.K., M.M., İ. Y., and A. D. and that following this event A.K. had signed a letter in relation to the murder”. This report was not deemed sufficient evidence by the public prosecutors to initiate criminal proceedings against the identified perpetrators.

B. Relevant domestic laws and practices

1. Obligation to inform the authorities of a criminal act having been committed .

In Turkish law – for the purposes of preliminary investigations by prosecutors – criminal acts are divided into two categories; firstly those in respect of which a victim must inform the prosecutor so that an investigation can be started by the latter, and secondly, those in respect of which the victim is not required to make a complaint in order for an investigation to be started by the prosecutor (Article 151 of the Code of Criminal Procedure, hereinafter the CCP). Threat is classified as one of the crimes in the first category. Murder is classified as one of the crimes in the second category; however, this does not prevent relatives of victims from lodging criminal complaints with the authorities.

2. Obligation to start criminal investigation.

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation in respect of that person. However, the public prosecutor may decide not to prosecute if the evidence is clearly insufficient.

3.  Right to intervene in the public prosecution.

Pursuant to Article 365 of the CCP, any person who is injured by the offence may, at any phase of the investigation, intervene in the public prosecution. Those so intervening in public prosecution proceedings may also submit their personal claims for adjudication.

COMPLAINTS

The applicant complains under Article 2 of the Convention that the security forces acted negligently and failed to protect the life of her husband.

The applicant complains under Articles 6 and 13 of the Convention that since the killing was politically motivated and the prosecution carried out by the State Security Court, the national authorities failed to conduct an effective, independent and impartial investigation into the death of her husband even after the names of suspects had been cited in the Susurluk Report. She further submits that although the vice-president of DEP, Mr Kemal Bilget , had been with her husband and witnessed the killing, the authorities never asked for his statement. In this respect, she submits that there are no effective remedies in domestic law.

The applicant submits that due to the constant threats she and her children were subjected to, her children had to flee to Europe after the murder of her husband. She further submits that because of a ban on her from leaving the country she can not communicate with her children. She invokes Article 3 of the Convention.

The applicant complains under Article 14 of the Convention, in conjunction with the above-mentioned Articles, that she is a victim to an administrative practice of violation of Article 14 on account of her ethnic origin.

The applicant contends that the restrictions on her rights and freedoms set forth in the Convention were applied for purposes which are not permitted under the Convention. She invokes Article 18 of the Convention.

THE LAW

1. The applicant complains that the security forces acted negligently and failed to protect her husband’s life. She further complains that the authorities failed to conduct an effective, independent and impartial investigation into the murder of her husband since the killing was politically motivated and the prosecution was carried out by the State Security Court. The applicant invokes Articles 2, 6, 13, 14 and 18 of the Convention.

The Court draws attention to the fact that the six-month period under Article 35 § 1 begins to run on the day after the date on which the final domestic decision was pronounced or communicated to the applicant or his lawyer or, where pursuant to domestic law and practice, the applicant is entitled to be served ex officio with a written copy of the judgment, from the date of the receipt (see the Worm v. Austria judgment of 29 August 1997 , Reports of Decisions and Judgments , 1997-V, p. 1547, § 33 and Züleyha Yılmaz   v. Turkey (dec.), no. 27532/95, 9 April 2002).

The Court notes that the twelve suspects were acquitted of the charges by the State Security Court’s judgments of 29 November 1994 and 29 November 1996 respectively. According to the Turkish Code of Criminal Procedure these judgments became final within one week as no appeal was lodged against them. The Court observes that the State Security Court was not required to serve the judgments on the applicant since she did not intervene in the criminal proceedings against the alleged perpetrators of the murder. However, the texts of the judgments were available to the applicant in the State Security Court’s registry.

The Court further notes that the applicant does not claim to have been hindered in following up the proceedings against the suspects. If, as she alleges, the applicant did not become aware of the final acquittal decision until 2 October 1998, the Court is of the opinion that that was due to her own negligence, and that she should have been aware of the situation and lodged her application with the Court earlier. The Court finds that the applicant has failed to substantiate the existence of any special circumstances which might have excused her from observing the time-limit laid down in Article 35 § 1 of the Convention (see, Bayram and Yıldırım v. Turkey (dec.) no. 38587/97, to be published and Haralambidis and Others v. Greece (dec.) no. 36706/97, 29 March 2001).

As a result, the Court considers that for the purpose of Article 35 § 1, the date of the final decision in respect of the applicant’s grievances should be taken to be the date on which the final judgment acquitting the last two suspects was delivered, namely 29 November 1996.

The applicant introduced the application on 24 February 1999, which is more than six months after the domestic judgment .

This part of the application has therefore been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

2. The applicant also complains under Article 3 of the Convention that, because of her dissenting political ideas and activities, she and her children were subjected to constant threats,  due to which her children had to flee the country for their safety. Moreover, she is prohibited from leaving Turkey and cannot communicate with her children.

However, the Court is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation of Article 3 of the Convention, as Article 35 of the Convention provides that the Court "may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, ....".

The Court notes that the applicant did not file a complaint or any other petition concerning her allegations before the national authorities prior to lodging her application with the Court.  She has therefore failed to comply with the exhaustion of domestic remedies rule under Article 35 § 1 of the Convention.

It follows that this part of the application must be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Christos Rozakis Registrar President