FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41964/98 by Cennet AYHAN and Mehmet Salih AYHAN against Turkey

The European Court of Human Rights ( First Section ), sitting on 29 February 2000 as a Chamber composed of

Mrs E. Palm, President , Mr J. Casadevall, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mrs W. Thomassen, Mr T. Panţîru, judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 26 April 1998 and registered on 30 June 1998,

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 Court’s partial decision of 6 July 1999,

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 first applicant, Mrs Cennet Ayhan , is the widow of the Mehmet Emin Ayhan , a medical doctor who was killed by persons unknown. She was born in 1962 in Eskişehir and is resident in Ankara, Turkey. The second applicant, born in 1961 in Nusaybin and resident in Akçatarla Village, Mardin , Turkey, is the deceased’s brother. Both applicants are Turkish citizens.

The applicants are represented before the Court by Mr Medeni Ayhan and Mr Metin Ayhan , both of whom are lawyers practising in Ankara.

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

A. Particular circumstances of the case

Mehmet Emin Ayhan , born in 1954 in Mardin , was a Turkish citizen of Kurdish origin. In 1991 he was appointed to the Silvan State Hospital where he worked as a senior physician. Mardin is located in one of the provinces subject to emergency rule at the relevant time and heavily populated by Turkish citizens of Kurdish origin. On various occasions he openly expressed his left wing political views and his support “for the recognition of the Kurdish identity and for the democratic rights and liberties of the Kurdish society”.

In early 1992 the Head of the Silvan Security Department telephoned Mehmet Emin Ayhan and asked him if a member of the special police unit could be accommodated at the hospital for some time. Mehmet Emin Ayhan replied that police officers were not members of the hospital staff and did not therefore qualify for accommodation at the hospital. The Head of the Security Department expressed his disappointment in strong language and told Mehmet Emin Ayhan that “his day would come”. He was subsequently harassed by persons unknown over the telephone. When he picked up the receiver no one answered. He was also informed that he was being secretly observed.

On 10 June 1992 around 9.30 p. m., as Mehmet Emin Ayhan and his wife were returning home, three men were sitting in a coffee house located on the ground floor of their apartment building near the hospital. One of the three men approached Mehmet Emin Ayhan while he was locking the doors of his car. The other two men suddenly took out rifles hidden under their raincoats and shot out the street lights. The third man, who was a few metres away, approached Mehmet Emin Ayhan , fired a handgun and shot him through the neck. He died on the spot. The three men then got into a white Renault Toros which was parked at the side of the street and drove away.

Members of the security forces arrived at the scene within five minutes. The deceased’s widow showed the officers the direction in which the car had left and requested that the streets and houses be searched at once. She also requested orally that the owner of the coffee house be questioned about the identity of the three men. The officers did not follow up these requests.

A report was drafted on 10 June 1992 at the scene of the incident by four officers from the Anti-Terror Department. This report described the place of the incident and identified the used cartridges found on the ground as having been fired from a handgun and from Kalashnikov rifles. No reference is made in the report to witness statements having been taken. In a second report also dated 10 June 1992 and signed by the same four officers and a fifth officer, it was stated that there were many people present at the scene of the killing when the police arrived. According to the report no one was able to testify as to what happened.

The deceased’s body was brought to the Silvan State Hospital where the Silvan Public Prosecutor conducted an autopsy with the participation of two doctors. One of these doctors, Z.T., had been a colleague and friend of Mehmet Emin Ayhan and was subsequently killed in a similar manner. The one-page autopsy report contained an identification of the physical features of the deceased. The cause of death was stated to be severe brain damage as a result of gunshot wounds. The doctors who signed the report stated that as the wounds were open, they did not find it necessary to conduct a “classic autopsy”.

In a statement taken by the Silvan police on 30 June 1992 the first applicant stated that she did not see the faces of the killers and that she had no suspicions as to their identities.

On 16 September 1992 the first applicant, for the purposes of claiming her pension rights, wrote to the Silvan public prosecutor stating that her husband had been killed by terrorists while returning from a visit to a patient.

On 23 November 1993 the Silvan Public Prosecutor’s Office completed its preliminary investigation. It decided, for reasons of jurisdiction, that the crime had to be investigated by the Public Prosecutor’s Office at the State Security Court and transferred the case file to the Office. It noted in writing that the decision could be challenged. The applicants state that did not challenge the decision because they were never notified of it.

On 4 April 1994 the first applicant asked the Public Prosecutor’s Office of the Diyarbakır State Security Court to inform her about the outcome of its investigation. In its reply of 4 April 1994, the Office notified the first applicant that her husband’s murderers were being traced.

On 25 November 1994 the Ministry of Health wrote to the Public Prosecutor’s Office of the Diyarbakır State Security Court requesting information about the preliminary investigations being conducted into the killings of Mehmet Emin Ayhan and Z.T. On 7 December 1994 the Public Prosecutor’s Office of the Diyarbakır State Security Court replied to the Ministry of Health stating that they had both been murdered by “the illegal separatist organisation” as part of its plan to intimidate civil servants. The Public Prosecutor added that the murderers were being sought.

On 19 November 1997 the applicants again wrote to the Public Prosecutor’s Office at the Diyarbakır State Security Court requesting information about the outcome of its investigation. On 26 November 1997 the Public Prosecutor’s Office of the Diyarbakır State Security Court wrote to the applicant stating that it had declared itself incompetent on 2 December 1993 and had sent the file to the Diyarbakır Public Prosecutor’s Office.

On 3 December 1997 the applicants wrote to the Public Prosecutor’s Office of the Diyarbakır State Security Court requesting further information about the investigation into her death of Mehmet Emin Ayhan . On 9 January 1998 the Public Prosecutor’s Office of the Diyarbakır State Security Court wrote to the first applicant informing her that it had re-examined its own investigation file.

B. Relevant domestic law

Criminal law provisions

According to Article 448 of the Penal Code any person who intentionally kills another shall be sentenced to a term of imprisonment of twenty-four to thirty years. According to Article 450, the death penalty may be imposed in cases of, inter alia , premeditated murder. Under Article 452, where death results from an act of violence but it was not the intention of the offender to kill his victim, a sentence of eight years’ imprisonment shall be imposed on the offender. Where death results from an act of carelessness, negligence or inexperience on the part of the offender in breach of a law, orders or regulations, Article 455 stipulates that the guilty party shall be sentenced to a term of imprisonment of two to five years and to a substantial fine.

For all such offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings (Article 165).

If the alleged author of a crime is a State official or civil servant, which includes members of the security forces, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly) which carry out a preliminary investigation (Article 4 § 1 of Decree no. 285). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind.

Civil and administrative liability arising out of criminal offences

Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.

Article 125 §§ 1 and 7 of the Constitution provides:

“All acts or decisions of the authorities are subject to judicial review...

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

That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.

Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 59 above), provides:

“No criminal, financial or legal liability may be asserted against … the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”

Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53).

However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations).

COMPLAINTS

The applicants complain that Mehmet Emin Ayhan’s right to life was violated by the State. They submit that the authorities had included the deceased’s name in an illegal list of opponents of State policies with regard to the rights of citizens of Kurdish origin. They contend that the deceased was killed by undercover security forces in pursuance of the State’s policy to eliminate its opponents. They invoke Article 2 of the Convention.

Furthermore, the applicants contend that there is no de facto access to the competent domestic courts as the murderers of Mehmet Emin Ayhan’s were State officials ( devlet görevlileri ) who killed him as a part of an official State policy ( devletin resmi politikası ). They invoke Article 13 of the Convention in this respect.

Finally the applicants state that Mehmet Emin Ayhan was of Kurdish origin and served as a civil servant in the Kurdish region of the respondent State. They contend that he held left wing political views and was an opponent of State policies with regard to the rights of citizens of Kurdish origin. According to the applicants, Mehmet Emin Ayhan was killed by the security forces because he had openly expressed his opposition to the policies of the State. They invoke Article 14 of the Convention.

PROCEDURE

The application was introduced on 26 April 1998 and registered on 30 June 1998.

On 6 July 1999 the Court decided to communicate the applicants’ complaints concerning Articles 2, 13 and 14 of the Convention to the respondent Government and to declare the remainder of the application inadmissible.

The Government’s written observations were submitted on 2 November 1999, after an extension of the time-limit fixed for that purpose. The applicants replied on 20 December 1999.

On 31 January 2000 the Court granted the applicants legal aid.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicants complain that Mehmet Emin Ayhan was killed in circumstances which engage the responsibility of the respondent State under Article 2 of the Convention and that the same State has breached their rights under Articles 13 and 14 of the Convention.

The Government’s preliminary objections

The Government state that the death of Mehmet Emin Ayhan is still being investigated by the authorities and that the culprits have not yet been apprehended. The applicants at no stage alleged to the authorities that agents of the State were behind the killing and their complaints to the Court are completely at variance with the first applicant’s statement to the police on 30 June 1992 and her letter to the public prosecutor of 16 September 1992.

The Government submit in addition that the first applicant never made a claim for compensation in respect of her husband’s death.

Accordingly the application should be dismissed for failure to exhaust domestic remedies, as required by Article 35 § 1 of the Convention.

In an alternative submission, the Government point out that there is a five-year gap between the death of Mehmet Emin Ayhan and the date of introduction of the application. On that account, the application should be rejected for failure to comply with the six-month rule prescribed under Article 35 § 1 of the Convention.

The applicants assert with reference to the Court’s case-law that domestic remedies in south-east Turkey are ineffective in respect of a complaint of unlawful killing imputed to the authorities. They submit that had they charged the authorities with the allegations set out in their application their lives would have been placed at risk. They observe in this connection that the wife of Z.T. had been subjected to pressure when she accused the authorities of involvement in her husband’s death.

Furthermore, they had not claimed compensation in respect of Mehmet Emin Ayhan’s death since his killers had not been identified.

The applicants also maintain that the final decision on their complaint was taken on 9 January 1998, the date on which the public prosecutor informed them of the latest developments in the investigation. For that reason, they had brought their application within the six-month rule. In any event, they are victims of a continuing violation of Article 2 on account of the absence of any effective investigation into the death of Mehmet Emin Ayhan . Accordingly, the six-month rule cannot be applied to them so as to defeat their application.

Non-exhaustion

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first 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 § 1 also requires that the complaints intended to be brought subsequently before the Court 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 Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52).

The Court notes that Turkish law provides civil, administrative and criminal remedies against illegal and criminal acts attributable to the State or its agents. It is the applicants’ contention in the instant case that agents of the State were responsible for the death of Mehmet Emin Ayhan . The Government deny this.

As regards a civil action for redress for damage sustained through illegal acts or patently unlawful conduct on the part of State agents the Court notes that a plaintiff in such an action must, in addition to establishing a causal link between the tort and the damage he or she has sustained, identify the person believed to have committed the tort. In the instant case, however, it is still unknown who was responsible for the acts of which the applicant complained.

With respect to an action in administrative law under Article 125 of the Constitution based on the authorities’ strict liability, the Court recalls that the authorities emphatically deny that the killing of Mehmet Emin Ayhan can in any way be imputed to agents of the State or that they failed to afford protection to the deceased. In these circumstances the Court considers that any attempt to sue the authorities would have been doomed to failure. In any event, the Court recalls that a Contracting State’s obligation under Article 2 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assault might be rendered illusory if in respect of complaints under that Article an applicant were to be required to exhaust an administrative-law remedy leading only to an award of damages (see the Tanrıkulu v. Turkey judgment of 8 July 1999, § 78, to be published in Reports 1999).

Consequently, the applicant was not required to bring a compensation claim under either civil or administrative law and the preliminary objection to that effect is rejected.

With regard to the criminal-law remedies, the Court notes the Government rely on the fact that the investigation into the death of Mehmet Emin Ayhan is still continuing. Even if the Government are correct in their submission that the applicants at no stage placed the blame on the authorities for the death of her husband, it is nevertheless the case that the mere fact that the authorities of a Contracting State are informed of the murder of an individual gives rises ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death (see the above-mentioned the Tanrıkulu v. Turkey judgment, § 103). The applicants contest the adequacy of the investigation carried out into the death of Mehmet Emin Ayhan .

The Court considers that this latter limb of the Government’s preliminary objection raises issues that are closely linked to those raised in the applicants’ complaint under Articles 2 and 13 of the Convention. For that reason it joins this part of the preliminary objection to the merits.

Six-months

As to the Government’s objection to the admissibility of the application based on non-compliance with the six-month rule, the Court considers that the essence of the applicants’ complaints concerns the authorities’ failure to make any progress in the investigation, which in their view, confirms their belief that the State is somehow implicated in the murder of Mehmet Emin Ayhan . Their application was introduced on 26 April 1998, less than four months after the last notification from the authorities about the stage reached in the investigation. On that account the Court considers that the application cannot be considered time-barred. The Government’s objection is accordingly rejected.

Merits

The Government affirm that the evidence points to the fact that Mehmet Emin Ayhan was killed by Hizbullah members having regard to the deceased’s high profile as a PKK/Kurdish sympathiser and the rivalry between the PKK and Hizbullah . They refer in this connection to the fact that Ihsan Baran , Metın Avat and Bedrettin Oluk , members of Hizbullah who were charged with twenty-two murders, stated that they had ordered a certain Kazim Azarkan , also a Hizbullah member, to kill Mehmet Emin Ayhan . In the Government’s submission, the authorities cannot be held responsible for failing to take steps to prevent the killing of a person whose life was at risk at the hands of a rival terrorist organisation.

The Government reiterate that at no stage of the domestic investigation had the applicants sought to place the blame on the authorities for the death of Mehmet Emin Ayhan .

The first applicant contends that when she used the word “terrorists” in her letter of 16 September 1992 to the public prosecutor, she intended to implicate the State’s racist and criminal counter-guerrilla forces in her husband’s death. The Government are therefore incorrect in their argument that she had not accused the authorities of involvement in her husband’s death. Furthermore, her statement to the police on 30 June 1992 should be seen as an assertion that she did not suspect members of either the PKK or Hizbullah in his death. There was no reason for her to do so.

In support of their allegations against the authorities the applicants draw attention to their belief that agents of the State cut off the electricity supply to Silvan to allow the killers to make their escape. In addition, the inadequacy of the investigation carried out by the authorities further demonstrates that the intention was to protect Mehmet Emin Ayhan’s killers. They maintain that there is no evidence to link his murder to Hizbullah and the statements of Ihsan Baran , Metın Avat and Bedrettin Oluk relied on by the Government were in fact retracted by them at their trial. Significantly, these persons were never charged with incitement to murder Mehmet Emin Ayhan . In the applicants’ submission, their statements were given under torture. The applicants claim that Kazim Azarkan was in fact later arrested and denied that he had carried out the killing of Mehmet Emin Ayhan . In the applicants’ view, the Government have deliberately failed to produce the record of Kazim Azarkan’s statement to the Court.

The applicants also impugn the accuracy of certain elements in the investigation file. They note that the map of the scene of the killing omits any reference to the coffee shop, thus avoiding the need to seek out witnesses who might have been there at the time of the killing. They assert that the investigation should have commenced at the coffee shop in order to locate witnesses. However, no one in the vicinity was ever questioned about the incident. They dispute the authenticity of the second incident report supplied by the Government. It is their belief that this report was drawn up after their application had been communicated for observation. According to the applicants the report supplied by the Government states that there were many people at the scene of the killing when the police arrived, that they were questioned about the killing but none of them was able to testify as to what happened. The applicants observe that there is no statement to this effect from any of the persons allegedly questioned.

The applicants further point to the speed with which the incident report and the autopsy reports were prepared. They maintain that Z.T., one of the doctors who performed the autopsy, informed the first applicant that he had wanted to carry out a full autopsy but under the pressure of the security forces he was unable to do so and signed the autopsy report. In addition, no photographs were taken of the body and no examination was carried out of the bullets which killed Mehmet Emin Ayhan . These considerations lead the applicants to conclude that, like Z.T., Mehmet Emin Ayhan was a victim of a State-planned execution.

The Court considers, in the light of the parties’ submissions, that the applicants’ complaints under Articles 2, 13 and 14 raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of them. The Court concludes therefore that the said complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.

For these reasons, the Court, unanimously,

DECIDES TO JOIN TO THE MERITS the Government’s preliminary objection based on the effectiveness of the criminal investigation into the death of Mehmet Emin Ayhan ;

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

Michael O’Boyle Elisabeth Palm Registrar President