SECOND SECTION

DECISION

Application no. 42235/19 Muzaffer ÖLMEZ and O thers against Turkey

The European Court of Human Rights (Second Section), sitting on 22 September 2020 as a Committee composed of:

Valeriu Griţco , President, Arnfinn Bårdsen , Peeter Roosma, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 23 July 2019,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants are the children of Galip Ölmez , who died on 10 April 1994. A list of the applicants is set out in the appendix.

2 . The Turkish Government (“the Government”) were represented by their Agent.

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

4 . On 4 April 1994 the applicants ’ father was arrested on suspicion of aiding and abetting the PKK, a terrorist organisation.

5 . On 10 April 1994 he died while in custody.

6 . The autopsy examination did not find any signs of battery, but did identify a ruptured spleen. On 15 June 1994 the initial toxicology examination detected organic sulphur and phosphor in Galip Ölmez ’ s body. Based on this examination, the Adana Chemical Analysis Specialty Unit concluded that the cause of death had been insecticide toxicity.

7 . Between July 1994 and May 1995, the Bitlis Public Prosecutor ordered further toxicological and histopathologic examinations.

8 . On 29 January 1996 the Istanbul Chemical Analysis Specialty Unit issued a report where it stated that its findings did not confirm the previous findings of fatal insecticide toxicity. On 26 February 1996 the fifth board of the same specialty unit concurred with these findings, further stating that Galip Ölmez ’ s sudden death due to toxicity was not medically viable as he had not shown any symptoms at the time of his arrest.

9 . In this connection, another histopathology examination was ordered to determine the cause of death of the applicants ’ father. However, it was not possible to perform this examination as the condition of the samples had deteriorated.

10 . On 19 April and 18 July 1994 as well as on 10 March 1997 the gendarmerie officer in charge of taking the statements of detainees, a certain S.Ç., gave statements before the prosecutor. He denied any responsibility, and said that he had found Galip Ölmez dead in the cell.

11 . On 12 February 1998 the Bitlis Provincial Administrative Board decided not to give authorisation for the prosecution of S.Ç. They stated that the applicants ’ father had died due to insecticide toxicity, through no fault of the officer.

12 . On 19 December 2000 the Supreme Administrative Court quashed that decision, replacing it with a decision not to prosecute. The Administrative Court held that the statutory time-limit for prosecuting the offence of manslaughter was five years which had already elapsed in the present case.

13 . In 2003, a non-governmental organisation filed criminal complaints for the investigation of several alleged homicides which had remained unsolved. This list included the death of the applicants ’ father.

14 . According to the documents in the case file, the intervention of that non-governmental organisation gave new impetus to the criminal proceedings into the applicants ’ father ’ s death.

15 . This new procedure was nevertheless concluded by the acquittal of all defendants based on the ground that the cause of death of the applicants ’ father could not be clearly determined and thus it was not possible to establish fault.

16 . On 25 December 2018 the Constitutional Court reviewed and dismissed the applicants ’ case for being manifestly ill-founded.

COMPLAINTS

17 . The applicants complained under Article 2 of the Convention that their father had been ill-treated and killed by the gendarmerie. They further maintained, under the same head, that the domestic authorities had failed to discharge their duties to effectively investigate their father ’ s death.

18 . Relying on Article 3 of the Convention, the applicants complained about the treatment they had been subjected to following their father ’ s death.

19 . Under Article 6 of the Convention, the applicants also complained about the fairness of the proceedings before the Constitutional Court.

THE LAW

20 . Relying on Articles 2, 3, and 5 of the Convention, the applicants complained about their father ’ s alleged ill-treatment and death in custody. In this connection, they further complained about the ineffectiveness of the ensuing criminal investigation. The applicants also maintained that they were forced to migrate and suffered long-term consequences due to the incident.

21 . The Court will first consider whether the applicants lodged their complaints in accordance with the six-month rule.

22 . The Court takes note of the fact that the applicants ’ father died on 10 April 1994, more than twenty-five years prior to the applicants ’ application with the Court lodged on 23 July 2019.

23 . The Court reiterates that the purpose of the six-month rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see Torlak and Others v. Turkey ( dec. ), nos. 48176/11, 13669/12, § 40, 29 May 2018; Bulut and Yavuz v. Turkey ( dec. ), no. 73065/01, 28 May 2002; and Bayram and Yıldırım v. Turkey ( dec. ), no. 38587/97, ECHR 2002-III).

24 . As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. In cases concerning deprivation of life, if no remedies are available or if they are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of. Special considerations may apply in exceptional cases where an applicant first avails himself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of circumstances which make that remedy ineffective. In such a situation, the six-month period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (see Han v. Turkey ( dec. ), no. 31248/09, 15 January 2013).

25 . In the applicants ’ case, an ex officio investigation was lodged into their father ’ s death by the Bitlis Prosecutor. According to the documents in the case file, the Bitlis Prosecutor made significant efforts to establish the cause of death. If successful, these efforts would elucidate the unknown circumstances around the death of the applicants ’ father in custody.

26 . The Court observes, however, that the Bitlis Prosecutor halted these efforts after 1996. At that stage, despite other scientific findings to the contrary, the death of the applicants ’ father was considered as insecticide toxicity. Thus, the investigation of the applicants ’ claim that their father had been ill-treated and killed by state officials was no longer taken into account by the domestic authorities.

27 . In conformity with the above, on 12 February 1998 the Bitlis Provincial Administrative Board decided not to authorise the prosecution of S.Ç. On 19 December 2000 the Supreme Administrative Court, in a final judgment, concluded that the case was time-barred.

28 . The applicants failed to take any action against that decision at domestic level, nor did they immediately bring it before the Court. Their case was taken up by a third party and new proceedings were lodged relating to their father ’ s death. These proceedings were tainted by the shortcomings of the investigation, and ultimately failed to identify and punish those, if any, responsible for their father ’ s death.

29 . In view of the above, the applicants ought to have been aware of the ineffectiveness of the investigation a long time ago. They should have lodged their application with the Court within six months from 19 December 2000, the date on which the proceedings at the domestic level had in practice been concluded.

30 . In view of the foregoing, the complaints in this part of the application must be rejected for being lodged outside the six-month time ‑ limit.

31 . The applicants invoked Article 6 of the Convention and complained about the Constitutional Court ’ s assessment of the facts of their individual application, thus contesting the outcome of their application.

32 . The Court recalls that it is not its task to deal with alleged errors of law or fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, for instance, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I; Oktar v. Turkey ( dec. ), no. 59040/08, 30 January 2018). Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review. The Court should not act as a court of fourth instance and will not therefore question under Article 6 § 1 of the Convention the judgment of the Constitutional Court, particular regard being had to its meticulous examination of the applicants ’ case and that its findings cannot be considered arbitrary or manifestly unreasonable (see Bochan v. Ukraine (n o 2) [GC], no. 22251/08 , § 61, ECHR 2015 ).

33 . In view of the foregoing, the Court holds that this part of the application must also be rejected as being manifestly ill ‑ founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 October 2020 .

Hasan Bakırcı Valeriu Griţco Deputy Registrar President

Appendix

No.

Applicant ’ s Name

Birth date

Nationality

Place of residence

1Muzaffer ÖLMEZ

10/01/1983

Turkish

Istanbul

2Åžirin BAYKAL

10/05/1979

Turkish

Istanbul

3Nurten BEDÄ° RHAN

21/05/1968

Turkish

Istanbul

4Ayten KARDOÄžAN

01/01/1969

Turkish

Bitlis

5Kamuran ÖLMEZ

01/01/1981

Turkish

Istanbul

6Mezher ÖLMEZ

15/07/1973

Turkish

Istanbul

7Ä°kram TOPCU

01/01/1970

Turkish

Istanbul