FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28516/95 by Beyaz MACÄ°R against Turkey

The European Court of Human Rights ( First Section ), sitting on 28 March 2000 as a Chamber composed of

Mrs E. Palm, President , Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, Mr B. Zupančič, Mr T. Panţîru, Mr R. Maruste, judges , Mr F. Gölcüklü, ad hoc judge,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 30 June 1995 and registered on 12 September 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 is a Turkish citizen of Kurdish origin who resides in Adana , Turkey. She is represented before the Court by Professor Kevin Boyle and Ms. Francoise Hampson , both University teachers at the University of Essex, England.

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

A. Particular circumstances of the case

The applicant’s husband, Hacı Sait Macir , was a former HEP ( Halkın Emek Partisi -People’s Labour Party) and DEP ( Demokrasi Partisi -Democracy Party) delegate. At the material time he was a member of the provincial committee of HADEP ( Halkın Demokrasi Partisi -People’s Democracy Party) and was the president of the Mutlu neighbourhood commission. He was also the owner of the Güneydoğu cafe in Yüreğir district of Adana .

On 3 October 1994 the president of the provincial committee of HADEP, Rebih Çabuk and a member of the same committee, Sefer Cerf were shot dead in front of the Güneydoğu cafe. The applicant’s husband witnessed these killings.

On the same day the applicant’s husband was taken to the police station to give a statement. He stated that on 3 October 1994, at 9:00 a.m. he saw Sefer Cerf collapsed after he was shot and that he did not see the identity of the two gunmen who ran away immediately. The applicant alleges that his husband was taken to the police station under the impression to give a statement. However, he was threatened by the police officers and was asked about his association and friendship with Rebih Çabuk and Sefer Cerf . The applicant also alleges that her husband was continuously subjected to harassment after this event and that the police closed the Güneydoğu cafe for three days without giving any grounds for the closure.

On 5 October 1994, Ahmet Dizman , who was at the Güneydoğu Cafe at the time Rebih Çabuk and Sefer Cerf were killed and took Rebih Çabuk to the hospital in his car, was abducted from the Erzurumlular cafe by plain-clothes policemen. He was taken to a deserted field and was beaten as a result of which he sustained a broken jaw. During this incident the police asked him if he knew Sait Macir . His abductors told Ahmet Dizman that they would kill Sait Macir ( Ahmet Dizmen has already introduced an application with the Commission No. 27309/95).

In a record of investigation into the killing of Rebih Çabuk and Sefer Cerf dated 10 October 1994, the applicant’s husband appears among the witnesses who had given statements to the police.

On 30 December 1994 the applicant’s husband was shot before the Güneydoğu cafe. He was taken to hospital where he died on 1 January 1995.

In a police report dated 30 December 1994 it is recorded that one empty cartridge of 38 calibre was found where the applicant’s husband was shot. A sketch map of the crime scene was also attached to this document.

On 30 December 1994 two eyewitnesses Ahmet Sarıkaya and Bilal Ünver gave statements to the police. They stated that they drove the applicant’s husband to the hospital and that they did not see the identity of the gunmen.

On 2 January 1995 the applicant was invited to the hospital in order to identify her husband’s body. In the hospital the applicant gave a statement to the Adana public prosecutor Vahit Civelek . She stated that her husband had no enemies and that she did not know who could have killed him.

A preliminary autopsy on Sait Macir was carried out on 2 January 1995. It was concluded that he died as a result of gunshot wounds. Blood and organ samples were taken from the body for toxicological examination.

On the same day Mr Civelek requested the Adana Forensic Medicine Institution the final autopsy examination be conducted on Sait Macir .

By a letter dated 9 January 1995, with reference to the findings of the ballistic examination of 10 January 1995 [1] , the Adana Police Headquarters informed the office of the Adana public prosecutor that the perpetrators into the killing of Sait Macir were unidentified.

In a ballistic report of Criminal Police Laboratory of Adana dated 10 January 1995, it is recorded that one cartridge was submitted for ballistic examination in relation to the killing of Sait Macir . As to the findings of the examination, the report states that the examined cartridge was a Makarov type of 9 mm and 38 calibre. The cartridge bore no resemblance with any other cartridges from other incidents of unknown perpetrator killings examined previously by the laboratory.

On 17 January 1994 the Adana Forensic Medicine Institution concluded the toxicological examination. No alcohol or toxic material was found in the blood samples. 

On 18 January 1995 the Adana public prosecutor Vahit Civelek issued a decision of lack of jurisdiction ( görevsizlik kararı ). The prosecutor decided that, having regard to the evidence in the case file, Sait Macir had been killed by the terrorists. The matter, therefore, would fall within the jurisdiction of Konya State Security Court ( Konya Devlet Güvenlik Mahkemesi ) pursuant to Law no. 3713. The prosecutor decided that the case file be transferred to the office of the public prosecutor in the Konya State Security Court.

On 24 January 1995 the Adana Forensic Medicine Institute ( Adana Adli Tıp Kurumu ) concluded the final autopsy report on Sait Macir . In this report it is recorded that Sait Macir had died as a result of gunshot wounds.

On 27 January 1995 the Konya State Security Court prosecutor issued a decision of lack of jurisdiction ( görevsizlik kararı ). The prosecutor stated that there existed no evidence to substantiate that Sait Macir had been killed by a terrorist organisation or for any ideological purposes. Therefore, the prosecutor decided to transfer the case file to the office of the Adana public prosecutor, as the matter did not fall within the jurisdiction of his office.

By a letter of 22 February 1995 the Adana public prosecutor requested the Adana Police Headquarters to be kept informed of the developments in the investigation into the killing of the applicant’s husband in every three months.

In a letter dated 20 July 1995 the Adana Police Headquarters informed the office of Adana public prosecutor that the investigation as to the killing of the applicant’s husband was still ongoing and the perpetrators had not been identified.

On 15 February 1996 the Adana public prosecutor requested the Adana Police Headquarters to be kept informed of the developments in the investigation into the killing of the applicant’s husband in every three months until the end of the statutory prescription period, namely 20 December 2014.

By a letter of 19 June 1996 the Adana public prosecutor requested the Adana Police Headquarters the presence of the two eyewitnesses, Ahmet Sarıkaya and Bilal Ünver before his office in the investigation of killing of Sait Macir .

On the same date the Adana public prosecutor requested the Adana Police Headquarters the recent developments in the investigation into the killing of the applicant’s husband be submitted to his office and inquired whether the perpetrators had been identified.

B. Relevant domestic l aw and practice

i. Criminal law and procedures

The Turkish Criminal Code ( Türk Ceza Kanunu ), as regards unlawful killings, has provisions dealing with unintentional homicide (Articles 452 and 459), intentional homicide (Articles 448) and aggravated murder (Article 450).

Pursuant to Articles 151 and 153 of the Turkish Code of Criminal Procedure ( Türk Ceza Muhakemeleri Usulü Kanunu ; hereinafter referred to as “CCP”), complaints in respect of these offences may be lodged with the public prosecutor. The complaint may be made in writing or orally. In the latter case, such a complaint must be recorded in writing (Article 151 CCP). The public prosecutor and the police have a duty to investigate crimes reported to them (Article 153 CCP).

If there is evidence to suggest that a deceased has not died of natural causes, the police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152 CCP). Pursuant to Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the exercise of his duty shall be liable to imprisonment.

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. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient.

Insofar as a criminal complaint has been lodged, a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged within fifteen days after notification of this decision to the complainant (Article 165 CCP).

ii. Administrative liability

Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows:

“All acts and decisions of the administration are subject to judicial review …

…

The authorities shall be liable to make reparation for all damage caused by their acts or measures.”

This provision is not subject to any restriction even in a state of emergency or war. The second paragraph does not require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.

iii. Civil action for damages

Pursuant to Article 41 of the Civil Code, anyone who suffers damage as result of an illegal act or tort act may bring a civil action seeking reparation for pecuniary damage (Articles 41-46) and non-pecuniary damage. The civil courts are not bound by either the findings or the verdict of the criminal court of the issue of the defendant’s guilt (Article 53).

COMPLAINTS

The applicant complains of violations of Articles 2, 3, 6, 8, 10 and 14 of the Convention.

The applicant complains under Article 2 of the Convention that her husband was killed by undercover agents of the State. She points out that her husband had been detained and threatened by the police on previous occasions and that her husband was the forth HADEP member to be killed in Adana in a period of three months with some indications of State involvement. She alleges that her husband was deprived of an adequate protection of his right to life.

The applicant complains under Article 3 of the Convention that she was subjected to discrimination on grounds of language and ethnic origin.

The applicant complains under Article 6 of the Convention that she was denied effective access to a court. She refers to the failure to initiate proceedings before an independent and impartial tribunal against those responsible for the killing.

The applicant complains under Article 8 of the Convention that her family life was destroyed as a result of the killing of her spouse.

The applicant complains under Article 11 of the Convention that her spouse was killed because he was a member of the legal HADEP party. She alleges that there is a life threatening policy of intimidation directed at members of HADEP and other organisations viewed to be pro-Kurdish.

The applicant complains under Article 13 of the Convention that there existed no independent national authority before which she could bring her complaints with any prospect of success.

The applicant complains under Article 14 of the Convention in conjunction with Articles 2, 6 and 13 that there existed an administrative practice of discrimination based on race and ethnic origin.

The applicant complains under Article 14 of the Convention in conjunction with Article 2 on ground of discrimination based on political opinion.

THE LAW

The applicant complains of the killing of her husband. She invokes Article 2 (right to life), Article 3 (prohibition of inhuman and degrading treatment), Article 6 (the right to access to court), Article 8 (right to respect for private and family life), Article 11 (freedom of assembly and association), Article 13 (right to an effective remedy) and Article 14 (prohibition of discrimination) of the Convention.

Exhaustion of domestic remedies

The Government submit that the applicant has not exhausted domestic remedies within the meaning of Article 35 of the Co nvention. The Government argue that an investigation has been opened in the course of which various investigative measures have been taken in order to identify the perpetrators. This investigation is still ongoing. According to the Government the applicant lodged an application with the Commission before waiting the results of this investigation.

The applicant rejects the Government’s argument that her application should be dismissed for failure to exhaust domestic remedies. She maintains that the domestic remedies are not effective to properly investigate her husband’s death. The criminal investigation conducted by the domestic authorities into the killing of her husband only constitutes a pro forma one. Although there was strong evidence to suggest that her husband has been killed by the agents of the State the domestic authorities have failed to take the necessary steps to identify the perpetrators.

The applicant points out that it would be unrealistic to await the result of the investigation until the prosecution of the offence at issue becomes statute-barred, namely 20 December 2014. As the investigation at issue cannot be regarded as actively pursued, the applicant argues that she should be exempted from pursuing further remedies for the purpose of Article 35 of the Convention.

The Court considers that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges applicants to use first the remedies referred 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 (cf. Eur. Court HR, Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2431§ 71 ).

In the present case it appears that the criminal investigation into the killing of the applicant’s husband has, in fact, been opened ex officio on 2 January 1994. Insofar as the applicant has failed to file a criminal complaint, the Court notes that, under Turkish law, it is not a condition sine qua nom for the opening of a criminal investigation of a suspected unlawful killing. The Court, therefore, is of the opinion that the applicant was not required to make a request to open a criminal investigation by filing a criminal complaint herself as this would not lead to any different result in this respect.

As regards the question whether this criminal investigation can be regarded as adequate and effective, the Court is of the opinion that this element is to be considered in its examination of the merits of the case.

As regards to merits

The Government submit that there is no support for the applicant’s contention that her husband has been killed by the State agents. According to the Government, the prosecution authorities have conducted a meticulous preliminary criminal investigation and continue to do so. They submit that the present application is manifestly ill-founded within the meaning of Article 35 of the Convention.

The applicant refutes the Government’s submissions and maintains her account of events. She submits that there existed strong evidence to substantiate that her husband had been killed by the agents of the State.

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 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 QUESTION CONCERNING THE EFFECTIVENESS OF THE CRIMINAL INVESTIGATION AT ISSUE,

and

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

   Erik Fribergh Elisabeth Palm

     Registrar                                                                                             President

[1] The letter is dated 9 January 1995 although it refers to the ballistic examination of 10 January 1995.