FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26972/95

by Zübeyir DÜNDAR

against Turkey

The European Court of Human Rights ( First Section) sitting on 24 August 1999 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 R. Maruste , Judges ,

with Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 3 March 1995 by Zübeyir Dündar against Turkey and registered on 4 April 1995 under file no. 26972/95;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 13 May 1996 and the observations in reply submitted by the applicant on 8 July 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1940 and resident in Cizre . He is represented before the Court by Professor Kevin Boyle and Ms. Françoise Hampson , lecturers at the University of Essex, England.

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

A. PARTICULAR CIRCUMSTANCES OF THE CASE

The applicant's son, Mesut Dündar , was born in 1972. He suffered from meningitis in his childhood and remained mentally handicapped.

On 1 December 1989 criminal proceedings were instituted against Mesut together with T.M. in the Midyat Assize Court for raping a nine-year-old child. They were charged under Article 414 of the Turkish Criminal Code. The same day Mesut was placed in detention on remand. On 15 October 1990 he was released pending trial.

In its report dated 25 October 1991, the Forensic Institute stated that Mesut’s intelligence was at “imbecility” stage and that this condition was the cause of his act against a nine-year-old child. It was further explained in the report that Mesut was afflicted with a mental disease, resulting in  complete loss of consciousness and of freedom of action at the time of the crime.

On 17 December 1991 the Midyat Assize Court held that, as Mesut was mentally handicapped, he did not have legal liability for his acts pursuant to Article 46 of the Turkish Criminal Code.  Consequently the court ordered Mesut to be kept under medical control at a mental institution for at least one-year until his recovery. On 27 May 1992 the Court of Cassation upheld this decision.

In July 1992, police officers from Cizre Security Headquarters raided the applicant's home saying they would take Mesut to Elazığ Mental Hospital for treatment.  They took the applicant and Mesut to the Security Headquarters and alleged that Mesut had been swearing at the police and the special teams.  The police said to the applicant "Your son is mad, we shall take him to the Elazığ Mental Hospital." According to the applicant, Mesut escaped from the hospital a few days later. At this point the Government submit that the circumstances of Mesut’s escape from the hospital are not clear.

Thereupon the police officers took the applicant around Cizre town centre and neighbouring villages for three days trying to find Mesut .  The applicant was released at the end of the third day, but only when he promised that if he saw Mesut he would bring him in himself.

Mesut did not return home.  He stayed with friends and telephoned the applicant's house once in order to speak to his mother.  The police often came to the house to ask about Mesut's whereabouts.

After some time Mesut no longer telephoned and the police no longer came to the applicant's house.  The applicant therefore began to suspect that the police had caught Mesut .  The applicant went to the police who replied that they had not taken Mesut into custody.

On 7 September 1992 the village Mayor of Sulak found the dead body of Mesut on the road and informed the police. Immediately afterwards the public prosecutor and the gendarme units arrived at the scene of the crime. The body of Mesut was dragged for 100 metres behind an armoured vehicle by the soldiers. According to the Government, this was a precaution taken by the public prosecutor who suspected a possible booby-trap. When it was understood that there were no explosives on the body, an on-the-spot autopsy was carried out immediately  which established that the deceased had been strangled to death.

When the applicant's family went to the hospital, a plainclothes police officer directed them to the Prosecutor.  The Prosecutor showed them Mesut's identity card and photograph.  He asked them to sign a report in order to identify Mesut and then handed the body over at the hospital.  While washing the body the applicant saw that the whole of Mesut's rib cage, the ribs, the throat and neck were covered in bruises, his face and eyes were dirty with mud and there were red spots and bruises in 34 places on his neck.

On 8 September 1992 the Cizre Gendarme Headquarter submitted an incident report to the public prosecutor, in which he stated that a dead body, later identified as Mesut Dündar , was found on the road in the surroundings of Sulak village. He explained that the cause of death was strangulation and the perpetrators of the crime were unknown.

The public prosecutor commenced a preliminary investigation into the death of applicant’s son.             

Following interrogation by the police about the death of his son, the applicant went to see the prosecutor to find out what had happened. According to the applicant, the public prosecutor told him that his son had been strangled. However, the prosecutor did not take the applicant's statement or ask him if he wished to take legal proceedings. In their observations, the Government reject this allegation and maintain that on 7 October 1992 the Cizre Public Prosecutor took the applicant’s statement in which the applicant maintained that his son had been mentally handicapped and that he had no allegations against anyone.

In October 1992 the State of Emergency Area Governor's Office issued a press release as follows:

“The Village Mayor of Sulak reported on 7 September 1992 that a male body had been found on the road to Sulak , and the Chief  Public Prosecutor went to the scene of the incident accompanied by a doctor, security forces and a reporter.  It was not clear whether the body was that of Mesut …

It is understood, as explained in the Cizre Chief Public Prosecutor’s Preliminary Report No. 1992/466, that when the authorities arrived at the scene of the incident, a male body was found lying face down on the road to the village. In order to identify the person, it was necessary to turn the body over. As there was suspicion of a booby-trap, the body was tied to a vehicle belonging to the security forces and dragged for a hundred metres. When it was discovered that there was no explosive substance on the body, the autopsy was carried out establishing  that the person had not been killed with a firearm but by strangulation.”

On 13 September 1994, the applicant and his family lodged a petition with the Cizre State Prosecutor to find out whether the investigation was on-going and what stage it had reached. They were told that the file had been transferred to Diyarbakır .

On 16 September 1994 some friends of the applicant pursued the inquiry with the aim of verifying the answers given to the applicant and they were told definitively that the case was still pending at the inquiry stage.  They were also told that the files were in Cizre and not in Diyarbakır , as previously stated to the applicant.  The applicant has not been able to get a copy of any signed document from the authorities.

The Government submit that the preliminary investigation is still pending. The public prosecutor receives follow-up reports regularly; however, there exists no new evidence. The Government contend that pursuant to Article 102 of the Turkish Criminal Code a preliminary investigation can be carried out until the expiry of the statutory period, which in the instant case is 15 years.

B. RELEVANT DOMESTIC LAW AND PRACTICE

Criminal Law Procedures :

Under the Turkish Criminal Code all forms of homicide (Articles 448 and 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 and 153 of the Turkish Criminal Procedure Code. Offences may be reported to the authorities or members of the security forces as well as to the public prosecutor’s offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).

If there is evidence to suggest that the death is not due to natural causes, members of the security forces who have been informed of the fact are required to advise the public prosecutor or a criminal court judge (Article 152). By 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 course of his duty is 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 in order to decide whether or not there should be a prosecution.

Administrative liability

Article 125 of the Turkish Constitution provides:

< translation >

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

The Administration shall be liable for damage caused by its own acts and measures.”

The principle of administrative liability is reflected in the additional Article 1 of Law 2935 of 25 October 1983 on the State of Emergency, which provides:

< translation >

“... actions for compensation in relation to the exercise of the powers conferred by this law are to be brought against the Administration before the administrative courts.”

Civil action for damages :

Pursuant to Article 41 of the Turkish Civil Code, anyone who suffers damage as a result of an illegal act or tort 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, 13 and 14 of the Convention.

1) The applicant alleges under Article 2 of the Convention that his son was unlawfully killed by agents of the state  while in detention. He further submits under Article 2 that there has been no adequate investigation into the killing of his son and the lack of any effective system for ensuring protection of the right to life.

2) The applicant alleges under Article 3 of the Convention that the killing of his son and the inability to discover the circumstances in which his son was killed constitutes a violation of this Article.

3) He further complains of the treatment which his son’s dead body was subjected to. He invokes that this treatment amounts to inhuman and degrading treatment under Article 3 of the Convention.

4) The applicant submits under Article 6 that the inadequacy of the preliminary investigation carried out by the domestic authorities thwarted criminal proceedings, in which the facts of his son’s murder would have been established. He asserts that without such proceedings he is prevented from pursuing a civil claim for compensation.

5) Under Article 13, the applicant complains of the lack of any authority before which his complaints can be brought with any prospect of success.

6) The applicant also complains under Article 14 of discrimination in the enjoyment of his rights under Articles 2, 3, 6 and 13 of the Convention due to his Kurdish ethnic origin.

PROCEDURE

The application was introduced on 3 March 1995 and registered on 4 April 1995.

On 3 December 1995, the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 13 May 1996, after an extension of the time-limit fixed for that purpose. The applicant replied on 8 July 1996.

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 applicant complains of the killing of his son. He invokes Article 2 (the right to life), Article 3 (prohibition of inhuman and degrading treatment), Article 6 (the right of access to court), Article 13 (the right to an effective remedy) and Article 14 (prohibition on discrimination) of the Convention.

Exhaustion of domestic remedies :

The Government maintain that the application is inadmissible as the applicant has failed to exhaust domestic remedies within the meaning of Article 35 of the Convention. In this regard they submit that the preliminary investigation, which was initiated by the public prosecutor after the death of the applicant’s son, is still pending. They further state that the applicant did not file a complaint with the public prosecutor. They also maintain that in so far as he is convinced that the state was responsible for the death of his son, the applicant should have initiated administrative proceedings that are available under Turkish law and which are effective. Moreover it is also possible to take civil proceedings seeking compensation.

The applicant responds that the pending criminal investigation cannot be regarded as adequate or effective. As regards the administrative and civil remedies suggested by the Government, the applicant submits that these remedies cannot be regarded as effective in his situation.

As regards the pending criminal investigation, the Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges applicants to first  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 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 and ineffective. (see Eur. Court HR, YaÅŸa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions 1998, No. 88, § 71).

In so far as the Government argue that the applicant failed to file a criminal complaint, the Court notes that under Turkish law, this is not a condition sine qua non for the opening of a criminal investigation of a suspected unlawful killing. It appears that, in the present case, the criminal investigation of the killing of the applicant’s son was in fact opened ex officio. The Court is, therefore, of the opinion that the applicant was not required to make a further explicit request to this effect by filing a criminal complaint as this would not lead to any different result in this respect (see, mutatis mutandis , the Oğur v. Turkey judgment of 20 May 199, cited above, §67).

The Court further notes that there was a pending inquiry into the events of the present case. In assessing the effectiveness of the inquiry, the Court accepts that regard must be had to the time element involved in the present case, which is a central part of the applicant’s complaint (see, mutatis mutandis , the Yaşa v. Turkey judgment of 2 September 1998, cited above, §115).

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

As regards the civil and administrative remedies referred to by the Government, the Court points out that in its judgment of 20 May 1999 in the case of OÄŸur v. Turkey, it held that the applicant was not required to bring the civil and administrative proceedings as those relied on by the Government in the instant case. It noted first of all, that a plaintiff in a civil action for redress concerning damage sustained through illegal acts or patently unlawful conduct on the part of State agents had, in addition to establishing a causal link between the tort and the damage he had sustained, to identify the person believed to have committed the tort. In the instant case, however, those responsible for acts complained of by the applicant remained unknown.

Secondly, as regards the administrative-law action provided in Article 125 of the Constitution, the Court noted that this was a remedy based on the strict liability of the State, in particular for the illegal acts of its agents, whose identification was not, by definition, a prerequisite to bringing such an action. However, the investigation, which the Contracting States were obliged by Articles 2 or 13 of the Convention to conduct in cases of fatal assault, had to be able to lead to the identification and punishment of those responsible. That obligation accordingly could not be satisfied merely by awarding damages. Otherwise, if an action based on the state’s strict liability were to be considered a legal action that had to be exhausted in respect of complaints under Articles 2 or 13, the State’s obligation to seek those guilty of fatal assault might thereby disappear (see the Oğur v. Turkey judgment cited above, § 66).

The Court sees no reason to depart from those conclusions in the instant case and consequently it concludes that the applicant was not required to bring the civil and administrative proceedings suggested by the Government.

The Court considers, in the light of the foregoing, that the Government’s submission that the applicant has failed to exhaust domestic remedies cannot be upheld.

Six-months rule :

The respondent Government submit that the application was not filed within the period of six months as required by Article 35 of the Convention. They point out that the applicant’s son was found dead on 7 September 1992, whereas the application was introduced on 3 March 1995.

The applicant responds that he waited for the result of the national investigation. He submits that as the pending investigation was neither effective nor adequate, he decided to lodge this application with the Court.

The Court recalls in the first place that a criminal investigation may constitute an effective remedy in respect of the allegations of killing by State agents (see the Aytekin v. Turkey judgment of 23 September 1998, Reports 1998-VII, No. 92, p. ... , § 83). However, this remedy may become ineffective under special circumstances, such as the excessive length of the investigation (see, mutatis mutandis , the Yaşa v. Turkey judgment, cited above, §115).

The Court considers that the six months period may be calculated from the time when the applicant’s allegations are definitively rejected by the national authorities or when it becomes clear that the remedies are ineffective because of the existence of special circumstances.             

In the present case, following the killing of the applicant’s son, a criminal investigation was initiated. The Government note in their written observations that this investigation is still pending. In this connection, it was not unreasonable for the applicant to await the results of the criminal investigation by the competent domestic authorities and to file his application under the Convention only when he considered that this investigation had become ineffective.

In these circumstances, the Court considers that the application was introduced within the six-month time-limit as required by the Convention.

As regards the merits of the complaints:

1) The applicant alleges under Article 2 of the Convention that his son was unlawfully killed by the agents of the state while in detention. He further submits under Article 2 that there has been no adequate investigation into the killing of his son and the lack of any effective system for ensuring protection of the right to life.

The Government maintain that the applicant’s allegations were unsubstantiated and that the file produced by him did not contain anything capable of explaining how responsibility for the alleged events could be attributed to security forces. They submit that the applicant’s son was not taken into police custody, but to a mental hospital for medical treatment. In this respect they refer to the criminal proceedings instituted against the applicant’s son in the Midyat Assize Court for raping a nine-year-old child. During these proceedings it was established that Mesut was mentally handicapped and did not have legal liability for his acts. Accordingly, the court had ordered Mesut to be kept under medical control.

The Government further state that the Cizre Public Prosecutor commenced a preliminary investigation immediately after the body was found. They submit that the investigation is still pending, however, the perpetrators have not yet been apprehended. The Government state that following the communication of the application, the public prosecutor expanded the investigation in the light of the applicant’s allegations as regards the killing of his son by security forces. They further maintain that pursuant to Article 102 of the Turkish Criminal Code a preliminary investigation can be carried out until the expiry of the statutory period, which in the instant case is 15 years.

The applicant maintains his account of events.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of the application 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. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 of the Convention. No other grounds for declaring it inadmissible have been established.

2) The applicant alleges under Article 3 of the Convention that the killing of his son and the inability to discover the circumstances in which his son was killed constitutes a violation of this Article.

The Government deny that there is any substantiation of the applicant’s allegations.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of the application 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. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 of the Convention. No other grounds for declaring it inadmissible have been established.

3) The applicant further complains of the treatment, which his son’s dead body was subjected to. He alleges that he is a victim of a violation of Article 3 in that this treatment amounts to inhuman and degrading treatment.

However, the Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case (see, for example, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 39, § 100 and p. 49, §§ 108-09, the Ireland v. the United Kingdom judgment of 18 January 1978, series A, No. 25, p. 65, §162). The Court further recalls that in order for treatment to be “degrading”, the humiliation or debasement accompanying it must be of a particular intensity. The assessment of such intensity is necessarily relative: it depends on all the circumstances of the case, including the nature and the context of the treatment concerned (see, for example, Nos. 14116/88 and 14117/88 Sargın and Yağcı v. Turkey, dec. 17 January 1991,p.75, § 456).

The Court considers that the dragging of the dead body of the applicant’s son by an armoured vehicle was a precautionary step taken by the public prosecutor to avoid a possible booby-trap. There is no factual basis to support the assertion that the measure was a deliberate attempt to humiliate or degrade the applicant or to mistreat or show disrespect for the corpse of the victim.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 of the Convention.

4) The applicant submits under Article 6 of the Convention that the inadequacy of the investigation carried out by the domestic authorities prevented criminal proceedings from taking place, in which the facts of his son’s murder would have been established. He asserts that without such proceedings he is prevented from pursuing a civil claim for compensation. The applicant further complains of the lack of any authority before which his complaints can be brought with any prospect of success. In this regard, he invokes Article 13 of the Convention.

The Government contend that there are several effective domestic remedies at the applicant’s disposal. They argue that domestic criminal, civil and administrative laws provide the applicant with adequate means of redress in respect of his complaints.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of the application 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. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 of the Convention. No other grounds for declaring it inadmissible have been established.

6) The applicant further complains, under Article 14 of the Convention, of discrimination in the enjoyment of his rights under Articles 2, 3, 6 and 13 of the Convention due to his ethnic origin.

The Government have not addressed these allegations beyond denying the factual basis of the substantive complaints.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of the application 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. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES INADMISSIBLE , the applicant’s complaints as regards the treatment which his son’s dead body was subjected to;

DECLARES ADMISSIBLE, without prejudging the merits, the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President