SECOND SECTION

DECISION

Application no. 66859/12 DiÄŸdem ARPALI and O thers against Turkey

The European Court of Human Rights (Second Section), sitting on 28 April 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 August 2012,

Having regard to the observations submitted by the parties,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants Diğdem Arpalı, Çağlar Arpalı and Necmiye Arpalı, born in 1973, 1974 and 1951 respectively, are Turkish nationals. They are represented before the Court by Mr Turgut Kazan, a lawyer practising in Istanbul.

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

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

4 . The father of the first two applicants and the husband of the third applicant, Mr Enver Arpalı, worked as the Deputy Secretary General of the Yüzüncü Yıl University in the city of Van.

5 . On 11 July 2005 Mr Arpalı was taken into pre-trial detention within the context of a criminal investigation lodged into alleged irregularities in tender procedures administered by the Yüzüncü Yıl University.

6 . On different dates, Mr Arpalı filed objections against his continued pre-trial detention and requested his release. In his submissions, he denied the accusations against him. He further stated that his health and mental condition had deteriorated due to the accusations, and that he had to take medication because of heart and blood pressure problems. He also mentioned that carrying the burden of the accusations against him had been hard and he felt ashamed. His detention was prolonged by the Van Assize Court.

7 . On 19 September 2005 Mr Arpalı filled in an order form and asked the prison administration to provide him cords to use as a clothes line in his cell.

8 . On 13 November 2005 he committed suicide in his cell by hanging himself from a metal water pipe by using the two cords supplied by the prison authorities.

9 . On the same day, judicial and medical officers carried out an on-site examination of the body and the incident scene. Subsequently, a report was drawn up where it was concluded that the cause of death was asphyxiation by hanging. The medical expert endorsed the finding but advised that a full autopsy to be performed for the determination of the exact cause of death.

10 . Within the context of the criminal investigation lodged by the Van Prosecution Office, autopsy and toxicology testing were performed on the body. These examinations confirmed the cause of death as suicide by hanging.

11 . In addition, the statements were taken from Mr O.S. Ä° and Mr Y.A., who were detained in the same cell.

Mr O.S.Ä° stated the following:

“... As far as I know, Enver Arpalı had serious sleeping problems since the day of his arrival in prison and he was taking sleeping pills. From time to time, he told me that he could not accept the accusations against him which, he added, were also causing grave concern to his family. For this reason he seemed to be in a state of depression. When we told him to go to the hospital, he said that he did not want to go to a hospital with handcuffs... If I am not mistaken, approximately one and a half month ago, he told me that one of his friends had a child who had committed suicide by hanging himself. We talked a lot about this; in fact he spoke to an official from the Directorate of Religious Affairs who comes to prison regularly, and asked him questions about suicide, destiny, and also some questions about religion ...”

Mr Y.A. provided the following:

“... During our detention Mr Enver had been constantly stating that charges brought against him had been unfair and that he had been humiliated; and he had always been scrutinising over this matter. However he had not given the tiniest clue or made requests with me or with other inmates that he had psychological problems; it was impossible to imagine that he would commit suicide because he had not demonstrated any significant disorder in his interactions neither with the prison administration, nor with other people...”

12 . The prosecutor ’ s office also heard from some family members of Enver Arpalı , including two of the applicants. They maintained that they had been aware that Mr Arpalı ’ s mental health had deteriorated but added that he had not given any indication that he would commit suicide and thus his suicide had been unexpected.

13 . On 16 January 2006 the Ministry of Justice informed the Van Prosecutor ’ s Office that during his detention Mr Arpalı had not requested medical care for his physical or psychological problems. He had solely paid a visit to the dental unit.

14 . On 3 March 2006 the Van Prosecution Office decided not to initiate a criminal investigation, holding that Mr Arpalı had committed suicide, and that the administration could not be held responsible as no one had incited or assisted his suicide.

15 . The applicants did not lodge an objection against this decision, which was allegedly, never notified to them.

16 . According to the information in the case file, the Ministry of Justice and the prison administration also launched separate administrative and disciplinary investigations into the death of the applicants ’ relative.

17 . The Ministry of Justice carried out an extensive investigation and looked into both direct culpability and negligent conduct of some staff members of the prison. Within this context, the authorities collected statements from thirty three individuals. They examined matters such as whether the sale of the clothes lines had been in line with the legislation, and the effectiveness of psychosocial services and monitoring systems in the prison. The investigation report of 20 November 2005 concluded that the administration had borne no responsibility in the suicide. In the context of this query, the report noted that the in-house psychologist had been absent from work during the entire period of Mr Arpalı ’ s detention. Nevertheless, Mr. Arpalı had been interviewed by a social worker, namely Ö.K., a few times during his detention. According to the statements of Ö.K he never had the impression that the applicants ’ relative had been suicidal.

18 . On 20 December 2005 a separate report was drawn up by the prison administration and it concluded that no disciplinary investigation was necessary against prison staff members.

19 . On 15 March 2006 the applicants filed an administrative action and claimed damages stemming from the administrative authorities ’ alleged responsibility in Mr Arpalı ’ s death. They maintained in their petition that Mr Arpalı had explicitly expressed having psychological problems but the prison administration had not taken any action to monitor their relative ’ s health or to prevent the suicide. The applicants further maintained that the criminal proceedings against Mr Arpalı had been pending for an excessive length of time, and that his arrest and the decisions regarding his continued detention had eventually resulted in his deteriorated mental state.

20 . On 29 June 2007 the Van Administrative Court rejected the case on the ground that Mr Arpalı ’ s death had been unexpected and unforeseeable. In reaching its conclusion, the Van Administrative Court assessed whether the authorities had been under an obligation to take preventative measures to protect the life of the applicants ’ relative. The court further took into consideration the autopsy report, and the statements collected within the context of the administrative investigations. The administrative court appears to have attached most weight to the views of Mr Arpalı ’ s cell mates and the prison staff which had been consistent on the fact that Mr Arpalı had not been suicidal. Consequently, the administrative court found that both the suicide and its preparation had taken place in secrecy, and thus, the authorities could not be held responsible for not having taken any precautions to prevent the suicide.

21 . One of the judges dissented to that decision and pointed out to certain psychological symptoms suffered by the applicants ’ relative such as sleeping problems, depressed mood and anxiety. In this connection, the dissenting judge noted that the psychologist working at the prison had never examined Mr Arpalı because he had been absent from work. The dissenting judge further pointed out that no permanent doctor or health care specialist had been present in the prison and considered that the selling of clotheslines had been arbitrary as such an item had posed risks for detainees.

22 . On 26 January 2010 the Supreme Administrative Court rejected the appeal lodged by the applicants and upheld the decision of the Van Administrative Court. That court noted in its judgement that, the applicants could file an objection against the decision of non-prosecution dated 3 March 2006 and based on the outcome of those proceedings, initiate a fresh claim for compensation if they considered necessary.

23 . On 30 November 2011 the Supreme Administrative Court dismissed the applicants ’ rectification request and this decision was served on the applicants on 8 March 2012.

COMPLAINTS

24 . The applicants complained under Articles 2, 3 and 13 of the Convention that the authorities had failed to take the necessary measures to protect Mr Arpalı ’ s life. They maintained that, throughout his detention, Mr Arpalı ’ s psychological problems had been apparent to the authorities but he had not been provided with the necessary health care. They complained that the existence of metal pipes in the cells from which inmates can suspend themselves and the availability of clotheslines had eased the suicide. The applicants further maintained that the ensuing investigations had not been effective.

THE LAW

25 . The applicants complained under Articles 2, 3 and 13 of the Convention that the authorities had failed to protect the right to life of their relative and about the ineffectiveness of the investigation.

26 . The Court considers that the applicants ’ complaints should be examined solely from the standpoint of Article 2, bearing in mind that, since it is master of the characterisation to be given in law to the facts of the case, it is not bound by the characterisation given by an applicant or a government (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, ECHR 2018).

27 . Article 2 of the Convention, in so far as relevant to the present case, reads as follows:

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

28 . The Government submitted that the applicants had failed to comply with the exhaustion of domestic remedies rule laid down in Article 35 § 1 of the Convention as they had failed to appeal against the decision not to prosecute. They further argued that, even assuming that the applicants had never been notified of the decision of the Van Prosecutor ’ s Office, they must have become aware of the non-prosecution decision from the decision of the Supreme Administrative Court ’ s decision which had referred to that decision.

29 . The applicants contested the claims. They maintained that the non ‑ prosecution decision delivered by the Van Public Prosecutor had not been notified on them. They argued that they had had recourse to the civil law remedy, which in their mind was the effective remedy in the present case.

30 . 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 redre ss for the breaches alleged. It is also established that a mere doubt as to the prospect of success is not sufficient to exempt an applicant from submitting a complaint to the competent court (see the Whiteside v. the United Kingdom decision of 7 March 1994, application no. 20357/92 , DR 76, p. 80).

31 . The Court also recalls that, if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation to set up an “effective judicial system” does not necessarily require criminal proceedings to be brought in every case (see, for example, Calvelli and Ciglio v. Italy [GC ], no . 32967/96 , § 51, ECHR 2002 ‑ I ; and Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VII). However, although the Convention does not guarantee as such a right to have criminal proceedings instituted against third parties, even in cases of non-intentional interferences with the right to life or physical integrity, there may be exceptional circumstances where an effective criminal investigation is necessary to satisfy the procedural obligation imposed by Article 2 (see, Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, §160, 25 June 2019).

32 . The Court, observes that the applicants ’ relative had died in detention and considering the applicants ’ allegations, if proven, his suicide may have constituted exceptional circumstances which would require criminal proceedings be instigated. Furthermore, it is clear that the administrative courts gave weigh to the outcome of the criminal proceedings in their own examinations. The Supreme Administrative Court stated in its decision that once they filed an appeal against the non-prosecution decision of the Van Public Prosecutor, the applicants could initiate a fresh set of compensation proceedings before the administrative courts if they so wished.

33 . According to the established case-law of the Court, an appeal against the decision of a public prosecutor to not to prosecute constitutes, in principle, an effective and accessible domestic remedy within the meaning of Article 35 § 1 of the Convention (see Epözdemir v. Turkey (dec.), no. 57039/00 , 31 January 2002; Saraç v. Turkey (dec.), no. 35841/97 , 2 September 2004; Hıdır Durmaz v. Turkey , no. 55913/00 , §§ 29-30, 5 December 2006; Pad and others v. Turkey (dec.), no. 60167/00 , § 67, 28 June 2007).

34 . In the circumstances of the present case, the Court considers that, an appeal against the decision of non-prosecution could, in fact, have been the appropriate forum to raise the applicants ’ concerns. The applicants however did not file an objection, even after the Supreme Administrative Court ’ s express reference for them to do so.

35 . The Court nevertheless does not deem it necessary to rule on the Government ’ s preliminary objection, as the application is in any event inadmissible for being manifestly ill-founded for the following reasons.

36 . According to the Court ’ s case-law, Article 2 may imply, in certain circumstances, a positive obligation on the authorities to take preventive operational measures to protect an individual even from himself (see Renolde v. France , no. 5608/05, §81, ECHR 2008 (extracts), and Haas v. Switzerland , no. 31322/07 , § 54, ECHR 2011). For a positive obligation to arise regarding a prisoner with suicidal tendencies, however, it must be established that the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual and, if so, that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to prevent that risk from materialising (see Keenan v. the United Kingdom , no. 27229/95, §§ 89 and 92, ECHR 2001-III).

37 . Concerning suicide risks in particular, the Grand Chamber has recently identified some common factors which could aid in establishing whether the authorities ’ positive obligation to protect was triggered (s ee Fernandes de Oliveira v. Portugal [GC], no. 78103/14, § 115, 31 January 2019 and the references therein).

38 . The Court should therefore consider whether the circumstances surrounding the suicide of the applicants ’ relative had required the authorities to take preventative measures and thus triggered the respondent state ’ s positive obligations under Article 2 of the Convention.

39 . In that connection, the Court deems it appropriate to recall that the detainees, prison staff and family members of Mr Arpalı had all been caught by surprise by the suicide (see paras 10 and 11 above) . Although Mr Arpalı had demonstrated certain symptoms such as lower mood, anxiety and difficulties in sleeping and had feelings of shame and distress due to being in detention, none of these elements signalled a mental-health problem, so grave to be interpreted as suicidal tendency. Furthermore, Mr Arpalı had no history of self-harm. By this very reason, the Court considers that no fault could be attributed to the prison administration who had sold clothes lines to Mr Arpalı which he had subsequently used for his suicide.

40 . It is also of importance that, the applicants ’ relative had not sought help, not explicitly by seeking medical assistance or implicitly by abnormal forms of behaviour. In that connection, the Court noted that the applicants ’ complaint that the applicant suffered consequences of being deprived of medical services are unsubstantiated. There is nothing in the case file to conclude that Mr Arpalı had been denied any medical service.

41 . In so far as the applicants complained that the authorities could have realised that Mr Arpalı had been suicidal, the Court takes note of the fact that although the applicants ’ relative had never been interviewed by a psychologist, the administrative investigation report dated 20 November 2005 established that a sufficiently trained officer had monitored his situation. The social worker had stated within the context of the administrative investigation that he had not been under the impression that the applicants ’ relative had been suicidal.

42 . In light of the foregoing considerations, the Court finds that the authorities had not known, or ought to have known, of the existence of a real and immediate risk to the life of the applicants ’ relative.

43 . According to the Court, no separate issues arise as to the procedural obligation to carry out an effective investigation under Article 2 of the Convention; considering particularly that the applicants had failed to pursue the criminal investigation (see paras §§ 31- 34 above) but also that the authorities have carried out detailed criminal and administrative investigations into the death applicants ’ relative.

44 . In view of the foregoing considerations, the Court concludes that the application is manifestly ill-founded as a whole and must be rejected in accordance with Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Hasan Bakırcı Valeriu Griţco Deputy Registrar President

Appendix

No.

Applicant ’ s Name

Birth year

Nationality

Place of residence

1DiÄŸdem ARPALI

1973Turkish

Van

2Çağlar ARPALI

1974Turkish

Ankara

3Necmiye ARPALI

1951Turkish

Van