FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27602/95

by Ülkü EKİNCİ

against Turkey

The European Court of Human Rights (First Section) sitting on 8 June 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr J. Casadevall,

Mr Gaukur Jörundsson,

Mr C. Bîrsan,

Mrs W. Thomassen,

Mr R. Maruste, Judges ,

Mr F. Gölcüklü, Judge ad hoc

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 4 May 1995 by Ülkü Ekinci against Turkey and registered on 13 June 1995 under file no. 27602/95;

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

Having regard to the observations submitted by the respondent Government on 14 May 1996 and 5 July 1996 and the observations in reply submitted by the applicant on 25 July 1996 as well as the additional observations submitted by the Government on 3 October 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national of Kurdish origin, born in 1946 and resident in Ankara. She is a lawyer and the widow of Yusuf Ekinci, an intellectual of Kurdish origin who was born in Lice in the Diyarbakır District. The applicant is represented by Mr Sedat Aslantaş, a lawyer practising in Ankara, and by Professor Kevin Boyle and Ms. Françoise 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 Yusuf Ekinci, was a practising lawyer and a member of the Ankara Bar. His professional practice was limited to compensation cases. During his studies, he was working for the Turkish Workers Party ( Türkiye İşçi Partisi ) and was a member of the Eastern Revolutionary Cultural Grouping ( Dogu Devrimci Kültür Ocaklari ). On this account, he was arrested in May 1971, spent six months in prison, but was finally acquitted.  He took no active part in politics since that time.

On 24 February 1994, at about 18.30 hours, the applicant’s husband left his office in the central part of Ankara in order to drive in his private car to his home located in a different part of town.  Before he left his office, he had spoken to several persons, including the applicant who had telephoned him at about 17.00 hours. He gave his office assistant a lift and dropped this assistant somewhere on the way as he had just enough petrol to get home.

When Yusuf Ekinci failed to return home, the applicant and Yusuf Ekinci's assistant inquired at local hospitals and police stations in the course of the evening, but they could not obtain any information about his whereabouts.  The applicant was concerned that her husband had met the same fate as Behçet Cantürk from Lice, who had disappeared a month previously, and whose body had been found soon after: he had been savagely murdered.  Therefore, at about midnight, she telephoned Mehmet Kahraman, the State Minister responsible for Human Rights, and a friend of the family, and asked him for help.  The first thing Mr Kahraman said was "This cannot be done to Yusuf ...".  These words frightened the applicant even more.

On 25 February 1994, at about 02.00 and 07.30 hours respectively, the applicant received two anonymous telephone calls. Nothing was said on the other side of the line. During the second call, the applicant could hear the sound of typewriters. At about 9.30 hours the telephone rang again.  When the applicant answered, a woman said, "I am the depths of Hell", and then put down the receiver.

Later that day, at about 13.30 hours, road workers found the dead body of Yusuf Ekinci along the E-90 TEM highway at the outskirts of Ankara, i.e. 1.5 km from the Doktorlar Sitesi neighbourhood and 1 km in the direction of Eskişehir and informed the police. Yusuf Ekinci had been shot and killed. His car was found at a distance of 1 to 2 km from the place where his body was found. The car’s petrol tank was found empty. In the police report dated 26 February 1994 on the finding of the body, it is recorded that no weapon and no empty cartridges were found near or in a diameter of 500 metres from the body. However, on a sketch map drafted by a police officer and dated 25 February 1994, it is recorded that eight bullets were found directly next to the head of Yusuf Ekinci.

When the body of Yusuf Ekinci was found, the buttons on his coat were done up. His identity documents, a small quantity of cash, and his spectacles were not found. The police returned his ring and a valuable Pierre Cardin watch to the applicant.

An autopsy on Yusuf Ekinci was carried out on 26 February 1994. It was concluded that he had died of bullet wounds. The autopsy report does not include an indication of the estimated time of death. In the autopsy report, 11 bullet entry wounds, 7 bullet exit wounds and one bullet graze wound were recorded. In the course of the autopsy two deformed bullets and two bullets which had not been deformed were removed from his body. These bullets were described as having blue painted tips and a diameter of probably 9mm. The bullets were given to the prosecutor in whose presence the autopsy was conducted.

In a ballistics report of the Central Criminal Police Laboratory ( Merkez Kriminal Polis Laboratuarı ) of Ankara dated 28 February 1994, it is recorded that six Parrabellum type bullets of 9 mm calibre as well as three outer layers of the same type and calibre bullets were submitted for a ballistics examination in relation to the killing of Yusuf Ekinci. As to the findings of the examination, the report states all bullets examined have been fired from the same weapon, that these bullets bear no resemblance with any other bullets examined previously by the Laboratory and that it cannot be excluded but equally not said with absolute certainty, given the lack of adequate comparison material, that these bullets had been fired from a Uzi weapon of Israeli make. The bullets, however, were found to be of Israeli make.

On 28 February 1994, the public prosecutor in charge of the investigation informed the National Turkish Bank Association that Yusuf Ekinci had been killed and that his bank accounts should be examined. The prosecutor requested the Bank Association to do the necessary in this respect without giving any further specification.

By letter of 3 March 1994, the police informed the prosecutor in charge of the investigation that Yusuf Ekinci had a safe deposit box at the Ä°ÅŸ Bank and requested the prosecutor to seek judicial permission to open this box and to verify its contents. On 4 March 1994, the prosecutor recorded that this request had been turned down.

By letter of 9 March 1994, the National Turkish Bank Association replied to the prosecutor informing the latter that, pursuant to Article 83 of the Act on Banking ( Bankalar Kanunu ), information about private bank accounts is secret and that therefore the prosecutor’s request of 28 February 1994 could not be met.

By letter of 16 May 1994, the public prosecutor at Gölbaşı requested the District Police Headquarters to be kept informed of any development in the investigation into the killing of the applicant’s husband.

The applicant wrote two letters to the President of Turkey requesting him for an adequate investigation into the killing of her husband and to bring the perpetrators to justice. In addition she appealed for help to the Prime Minister and to the Speaker of the Grand National Assembly. These requests remained unanswered.

By letter of 8 November 1994, the applicant requested the public prosecutor in charge of the investigation to be informed about the activities undertaken in the investigation. The public prosecutor replied on the same day that the perpetrators had not yet been identified and that the investigation was ongoing without stating any further information as to the details of this investigation. Since then the applicant has not received any information about the investigation.

By letters of 25 February 1995 and 25 October 1995 and with reference to the prosecutor’ letter of 16 May 1994, the Commissioner of the Gölbaşı local police station informed the District Police Headquarters that the enquiries in relation to the identification of the perpetrator(s) conducted so far had remained unsuccessful, that they were still actively searched for and that, in case they would be found, the victim’s family would be notified. These letters do not contain any details about the modalities of the police investigation.

At some unspecified point in time, the Member of Parliament Mr Fikri Sağlar put questions in relation to the killing of Yusuf Ekinci to the then Prime Minister Mr Mesut Yılmaz in the course of a Parliamentary Session. Mr Sağlar mentioned that it was common knowledge that Yusuf Ekinci had been killed by a Uzi type weapon and that a number of these weapon destined for use by the police had gone missing. He enquired whether these weapons had been acquired by Turkey on the basis of a public tender, how many weapons had gone missing, who was responsible for these weapons and whether the ballistics characteristics of these weapons had ever been recorded.

In an article published in the daily newspaper “Radikal”, the journalist İsmet Berkan stated that a number of persons, including Yusuf Ekinci, had been involved in drug trafficking linked with the PKK and that all these persons had died in the meantime.

B. Relevant domestic law 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 of 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 under Article 2 of the Convention that her husband has been killed. She submits that the circumstances in which her husband was killed indicate that the Turkish State has been in some way or another involved in this killing. She submits that, when he was found, her husband’s coat had been buttoned up, which he would only do as a mark of respect or when talking to the police. Moreover, he was killed by a Uzi weapon, which is generally used by the security forces. She further submits that, in an article published in the daily newspaper Özgür Gündem on 11 April 1994, it is stated that Ms Süheyla Aydin, whose husband Necati Aydin had been abducted and killed, had said that, when she and her husband had been detained in Diyarbakır before her husband’s death, a member of the security forces in Diyarbakır had told her “Even if your spouse Necati Aydin escapes trial, he cannot escape us. He too will be killed like Advocate Yusuf Ekinci form Lice and his body thrown onto the road.”.

She further complains under Article 2 of the Convention that there has been no adequate investigation into the killing of her husband and of the lack of any effective system to ensure protection of the right to life in domestic law.

The applicant complains under Article 3 of the Convention that the killing of her husband and the continuing failure of the authorities to identify and prosecute the perpetrators caused her great emotional pain and distress.

The applicant complains under Article 6 of the Convention that as a result of the failure to initiate criminal proceedings against those responsible for the killing of Yusuf Ekinci she cannot bring civil proceedings.

The applicant complains under Article 13 of the Convention of the lack of any independent national authority before which complaints can be brought with any prospect of success.

The applicant finally complains under Article 14 of the Convention of discrimination on grounds of race or ethnic origin in the enjoyment of the rights guaranteed by Articles 2, 3 and 6 of the Convention and Article 1 of Protocol No. 1.

PROCEEDINGS BEFORE THE COURT

The application was introduced on 4 May 1995 and registered on 13 June 1995.

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

The Government’s written observations were submitted on 14 May 1996, after an extension of the time-limit fixed for that purpose. The applicant replied on 25 July 1996, also after an extension of the time-limit. On 3 October 1996, the Government submitted additional observations.

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 her husband. She invokes Article 2 (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 for Convention breaches) and Article 14 (prohibition on discrimination) of the Convention.

Article 34 of the Convention

Apart from her complaint under Article 2 of the Convention in her capacity as the widow of the victim of the killing at issue, the Government submit that the applicant cannot claim to be a victim with the meaning of Article 34 of the Convention as regards her complaints under Articles 3, 6, 13 and 14 of the Convention in that she lacks the required sufficient legal interest.

The applicant submits that, apart from the fact that she has brought the application also on behalf of her husband, she is a direct victim for the purposes of the Convention as regards her complaints under Articles 3, 6 and 13 of the Convention.

The Court accepts that the applicant, as the widow of Yusuf Ekinci, can legitimately claim to be a victim within the meaning of Article 34 of the Convention as regards the killing of her husband (cf. Eur. Court HR, Yaşa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions 1998, No. 88, § 66). It is further of the opinion that the applicant can also claim to be a victim as to the other alleged violations of the Convention.

Article 35 of the Convention

The Government submit that the applicant has not exhausted domestic remedies within the meaning of Article 35 of the Convention. She has not filed any criminal complaint with the prosecution authorities in relation to the killing of her husband. She had further not brought any of the ordinary civil or administrative proceedings that are available under Turkish law and which are effective. As the applicant is convinced that the State is responsible for the killing of her husband, she could have taken administrative proceedings. The Government submit various examples of cases in which administrative courts have awarded compensation to the families of the persons having died at the hands of the State officials. Moreover, in cases where the administration has exceeded its powers, it is possible to take civil proceedings seeking compensation. The Government submit that it is rather striking that the applicant, being a lawyer, has not availed herself of any of these possibilities.

The Government argue that a criminal investigation has in fact been opened ex offico , in the course of which various effective investigative measures have been taken in a diligent manner in order to identify the perpetrators. According to the Government all possible leads have been followed up. These criminal proceedings are still pending as, so far, no final judgment has been handed down.

In case it would be found that the above remedies cannot be regarded as effective, the Government submit that the application has been lodged out of time in that Yusuf Ekinci was murdered in February 1994 whereas the applicant only applied to the Court on 4 May 1995, which is more than six months later.

The applicant submits that the criminal investigation cannot be regarded as adequate or effective. The killing of her husband concerns one of the many so-called “unknown perpetrator” killings. In general the victims of such killings have been prominent Kurdish persons. Despite that it is widely believed, that the Turkish State is responsible for such killings, it appears that the investigation of the killing of her husband has not explored this possibility but has only focused on his family, friends and professional contacts and his professional activities. Moreover, apart from a sketch map of the scene of the crime, an autopsy report and a ballistics examination report, there is no evidence provided of what actual steps, if any, have been taken in this investigation. The information provided by the Government appear to indicate only a pro forma investigation rather than an actively pursued criminal investigation.

As regards the administrative and civil remedies suggested by the Government, the applicant submits that also these remedies cannot be regarded as effective in her situation.

As to the Government’s argument that the application has been filed out of time, the applicant submits that, before applying to the European Commission of Human Rights in May 1995, she has first attempted to obtain information from the competent public prosecutor about the criminal investigation. She had further petitioned the President of Turkey, the Prime Minister and the Speaker of the Grand National Assembly in relation to the lack of an effective investigation of the killing of her husband. When it was clear to her that these efforts remained without effect, she decided to file an application with the European Commission of Human Rights.

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, to be published in Reports on Judgments and Decisions 1998, No. 88, § 71).

As regards a civil action for redress for damage sustained through illegal acts or patently unlawful conduct on part of State agents, the Court recalls that a plaintiff to such an action must, in addition to establishing a causal link between the tort and the damage he has sustained, identify the person believed to have committed the tort (cf. Eur. Court HR, Yaşa v. Turkey judgment, loc. cit. § 73). In the instant case, however, it appears that it is still unknown who was responsible for the killing of the applicant’s husband.

As to an action in administrative law under Article 125 of the Constitution based on the authorities’ strict liability, the Court recalls that this remedy cannot be regarded as sufficient for a Contracting State’s obligations under Articles 2 and 13 of the Convention in cases like the present one, in that this administrative remedy is aimed at awarding damages rather than seeking those guilty of fatal assault (cf. Eur. Court HR, Yaşa v. Turkey judgment, loc. cit., para. 74).

Consequently, the Court is of the opinion that the applicant was not required to bring the civil and administrative proceedings suggested by the Government.

As regards the fact that the applicant had 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 husband 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.

The question arises whether or not the criminal investigation at issue can be 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 with the substance of the applicant’s complaints.

Insofar as the Government argues that the application has been filed out of time in that it was introduced more than six months after the killing of the applicant’s husband, the Court reiterates that where no domestic remedy is available the six months’ time-limit contained in Article 35 § 1 of the Convention in principle runs from the date of the act complained of in the application (cf. Eur. Comm. HR, No. 23413/94, Dec. 28.11.95, D.R. 83, p. 31).

However, special considerations could apply in exceptional cases where applicants first avail themselves of a domestic remedy and only at a later stage become aware, or should have become aware, of the circumstances which make that remedy ineffective. In such a situation, the six months period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (cf. Eur. Comm. HR, No 23654/94, Dec. 15.5.95, D.R. 81, p. 76).

In the present case, it appears that immediately following the killing of the applicant’s husband, certain investigative steps were in fact taken, which including the drawing of a sketch map of the manner in which the applicant’s husband was found, the carrying out of an autopsy, the commissioning of a ballistics report and the taking of statements of various persons.

However, apart from these initial measures, it does not appear that the investigation was actively pursued after May 1994. In this connection, the Court observes that no further attempts appear to have been made to obtain an insight into the business activities and financial dealings of the applicant’s husband. It does not strike the Court as unreasonable for the applicant, in a first phase, to await the results of the criminal investigation by the competent domestic authorities.

It further appears that, only after having received an unsatisfactory answer from the public prosecutor responsible for the investigation on her question which steps had been taken in the investigation, that the applicant started to doubt the effectiveness of this investigation and decided to file an application under the Convention. In these circumstances, the Court accepts that the six months’ time-limit within the meaning of Article 35 § 1 of the Convention started to run as from 8 November 1994 at the earliest and, consequently, that the application has been brought within this time-limit.

As regards the substance of the applicant’s complaints, 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 the 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.

Michael O’Boyle Elisabeth Palm Registrar President