FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41964/98

by Cennet AYHAN and Salih AYHAN

against Turkey

The European Court of Human Rights ( First Section) sitting on 6 July 1999 as a Chamber composed of

Mr J. Casadevall , President ,

Mr Gaukur Jörundsson ,

Mr R. Türmen ,

Mr C. Bîrsan ,

Mrs W. Thomassen ,

Mr T. Pantiru ,

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 26 April 1998 by Cennet AYHAN and Salih AYHAN  against Turkey and registered on 30 June 1998 under file no. 41964/98;

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

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 applicants, 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 appartment 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 at the scene of the incident by four members of 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 Kalashnikov rifles. No reference is made in the report to witness statements having been taken. 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”.

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 of the State Security Court and transferred the case file to the latter Office. It noted in writing that the decision could be challenged. It is not known whether the applicants challenged the decision.

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 wrote to the Public Prosecutor’s Office of 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. With reference to the case file, the Public Prosecutor stated that the murderers had been identified as members of the Hizbullah (an armed fundamentalist pro-Kurdish organisation) but could not yet be caught.

B. Relevant domestic law

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.

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.

The applicants also complain that the State violated Mehmet Emin Ayhan’s right to security of the person. Without giving further reasons, they invoke Article 5 of the Convention.

The applicants further complain that the case file on Mehmet Emin Ayhan’s murder was immediately sent to the Public Prosecutor’s Office at the State Security Court although it should have been sent to the Public Prosecutor’s Office at the Court of General Jurisdiction. They contend that this procedural mistake was intentional and was aimed at delaying the preliminary investigation. According to the applicants, the murderers were State officials acting under the control of the State and benefiting from State protection. The applicants state that over six years have elapsed since the killing and the preliminary investigation has not yet been completed since the murderers have still not been brought before the competent criminal court. They contend that the length of the preliminary investigation is unreasonable and invoke Article 6 of the Convention.

With reference to the case law of this Court, the applicants state that the State Security Courts are not independent and impartial. They contend that the Public Prosecutor’s Office at the State Security Court cannot be deemed independent and impartial. They invoke Article 6 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.

THE LAW

1. The applicants maintain that Mehmet Emin Ayhan was unlawfully killed by agents of the State and that the authorities have failed to conduct an effective investigation into the circumstances surrounding his death. They maintain in this connection that there are good reasons to explain why he had been targeted for assassination. In their submission the official investigation has not been conducted in a manner which is capable of establishing the identity of the killers and of bringing them to justice.

The applicants further maintain that Mehmet Emin Ayhan’s death was the result of a State policy to eliminate individuals holding pro-Kurdish and left-wing views. They point in this connection to the deceased’s opposition to State policies in south-east Turkey.

The applicants assert that they were denied an effective remedy in respect of the killing of Mehmet Emin Ayhan having regard to the ineffectiveness of the official investigation into his death.

The applicants invoke Articles 2 and 3 of the Convention in relation to the above complaints as well as Article 14 read in conjunction with Article 2.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of its Rules of Procedure, to give notice of them to the respondent Government.

2. The applicants further maintain that Mehmet Emin Ayhan was a civil servant and as such should have been protected by the State. Instead he was killed by State officials in violation of his right to security of the person guaranteed under Article 5 of the Convention.

The Court observes that the facts alleged by the applicants do not disclose any appearance of a violation of Article 5 of the Convention. Accordingly their complaint under this head is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. In addition the applicants contend, inter alia , that although Mehmet Emin Ayhan was killed in June 1992 his murders have still not been brought to justice. Furthermore, they impugn the independence and impartiality of the State Security Courts and the Office of the Public Prosecutor attached to the Diyarbakır State Security Court which was responsible for the investigation.

The Court notes that the applicants’ complaints go to the nature of the investigation conducted by the authorities into the circumstances surrounding the killing of Mehmet Emin Ayhan , an issue which relates to Articles 2 and 13 of the Convention. The facts as described do not disclose an appearance of a violation of Article 6 and on that account their complaint under that provision is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court

DECIDES TO ADJOURN the examination of the applicants’ complaints that Mehmet Emin Ayhan was unlawfully killed by officials of the State, that the official investigation into his death was inadequate, that the deceased was killed on account of his pro-Kurdish and left-wing views and that the applicants were denied an effective remedy;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Josep Casadevall Registrar President