SECOND SECTION

DECISION

Application no. 64778/12 Keramettin AKÇA and Others against Turkey

The European Court of Human Rights, sitting on 23 November 2021 as a Committee composed of:

Aleš Pejchal, President, Branko Lubarda, Pauliine Koskelo, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 64778/12) against Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 August 2012 by the applicants listed in the appended table (“the applicants”) who were represented by Mr S. Demirkan, a lawyer practising in Samsun;

the decision to give notice of the application to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The case concerns the killing of the applicants’ two relatives, namely H.A. and M.C. by a third person, H.C. outside a gendarmerie station on 1 October 2002. It appears that the reason those parties were at the gendarmerie station that day was because some members of the applicants’ family and some members of H.C.’s family had been involved in a fight the previous day and a member of the applicants’ family was being held in custody at the gendarmerie station.

2. H.C. was subsequently convicted for the murder of H.A. and M.C. and sentenced to twenty-four years of imprisonment. During the criminal proceedings it was established that H.C. had been armed on the day of the incident and had gone in and out of the gendarmerie station several times without being searched. On the basis of this information the applicants filed a criminal complaint with a public prosecutor on 17 February 2005 complaining of the failure of the gendarme officers on duty on the day of the incident to carry out security checks.

3. On 5 March 2007 the public prosecutor lodged criminal proceedings against the gendarme officers in question on charges of neglect of duty before the Vezirköprü Assize Court. The applicants joined these proceedings as civil parties not seeking compensation. The Vezirköprü Assize Court acquitted the defendants on 25 November 2008, judging that there had been no causal link between the killings and the negligent acts of the defendants. The court noted that the killings had taken place outside the limits of the gendarmerie station and that H.C. had not been brought or called there by State agents. On appeal the Court of Cassation discontinued the proceedings as the prosecution of the offence in question had become time-barred. The Court of Cassation’s decision was deposited with the Vezirköprü Assize Court on 11 April 2011 and notified to the applicants’ lawyer on 23 February 2012.

4. The applicants complained before the Court that the area where the killing took place should be considered to be within the premises of the gendarmerie station in so far as it had been used, in practice, as a waiting area and that the gendarme officers failed to protect the lives of their relatives by neglecting to carry out security searches at the entrance of the building. In their view, had they carried out security searches, they would have discovered H.C.’s unlicensed gun and taken it from him, thereby preventing him from shooting their relatives. They maintained that the ensuing criminal proceedings against the gendarme officers had been dismissed by the Court of Cassation due to the expiry of the statutory prosecution time-limit.

THE COURT’S ASSESSMENT

5. The applicants complained that the State authorities failed to comply with their positive and procedural obligations under Article 2 of the Convention to protect the lives of their relatives by failing to take necessary precautionary measures at the gendarmerie station.

6. The Government claimed that since the present case did not involve an intentional infringement of the right to life, a claim for compensation before the administrative courts would have been fully capable of establishing the facts and responsibility of any State authorities for the incident, and providing adequate redress. Since the applicants had not brought such proceedings, their complaints had to be declared inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies inasmuch as they concerned the alleged State responsibility for the incident. In any event, they considered that the application was not introduced before the Court within six-months following the deposition of the Court of Cassation’s decision with the Vezirköprü Assize Court.

7. The applicants argued that a criminal-law remedy was the most appropriate remedy in identifying and punishing the alleged negligent acts of State agents.

8. The general principles relevant to the present case were summarised in Nicolae Virgiliu Tănase v. Romania [GC] (no. 41720/13, §§ 157-60 and 163, 25 June 2019). It follows that the State’s duty to safeguard the right to life must include having in place an effective independent judicial system capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (or their next of kin). In particular, where a death has been caused intentionally or when life has intentionally been put at risk, a criminal investigation is generally necessary. In cases concerning unintentional infliction of death and/or lives being put at risk unintentionally, the requirement to have in place an effective judicial system will be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility to be established and any appropriate civil redress to be obtained. However, 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. Such circumstances can be present, for example, where a life was lost or put at risk following the conduct of a public authority which goes beyond an error of judgment or carelessness, or where a life was lost in suspicious circumstances or because of the alleged voluntary and reckless disregard by a private individual of his or her legal duties under the relevant legislation (see, for instance, Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004‑XII; Mehmet Şentürk and Bekir Şentürk v. Turkey , no. 13423/09, §§ 104-106, ECHR 2013; Oruk v. Turkey , no. 33647/04, §§ 50 and 65, 4 February 2014; and Sinim v. Turkey , no. 9441/10, §§ 62-63, 6 June 2017).

9. The Court notes that the parties disagreed as to whether the outside area, where the applicants’ relatives were shot by H.C., could be considered to be within premises of the gendarmerie station. The Court does not attach importance to this fact as, even assuming that the area could be considered to be within the premises of the gendarmerie station and therefore under the authority of the gendarmerie, the allegedly negligent acts of the gendarme officers, in not carrying out security checks on H.C., did not go beyond an error of judgment or carelessness that would call for a criminal-law remedy. Furthermore, there is no element in the case file to suggest that the gendarme officers in question knew or ought to have known that H.C. posed a threat to the lives of the applicants’ relatives.

10. It therefore follows that the applicants’ complaints against the State agents concerned a non-intentional infringement of the right to life and in such cases Article 2 of the Convention does not necessarily call for a criminal-law remedy and the State may meet its positive obligation by affording victims a civil-law remedy. The Court further notes that the Turkish legal system afforded the applicants the possibility of bringing an action for compensation before administrative courts in connection with their substantive complaints concerning the negligence on the part of the State authorities for the death of their relatives. The civil-law remedy before administrative courts would have served to establish the facts and the responsibility of the authorities and to provide redress, as appropriate (see for a similar conclusion, Başkaya v. Turkey (dec.), no. 53829/10, §§ 32-38, 11 January 2018). That being so, as the applicants did not pursue a civil-law remedy before the administrative courts, and having regard to the fact that the criminal proceedings joined by the applicants did not permit them to obtain civil redress ( compare and contrast , Nicolae Virgiliu Tănase , cited above, § 19 and §§ 176-177), their application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 December 2021.

Hasan Bakırcı Aleš Pejchal Deputy Registrar President

Appendix

No.

Applicant’s Name

Year of birth/

registration

Nationality

Place of residence

1.Keramettin AKÇA

1954Turkish

Samsun

2.Ayşe AKÇA

1981Turkish

Samsun

3.Hasan AKÇA

1987Turkish

Samsun

4.Zekeriya AKÇA

1976Turkish

Samsun

5.Mehmet Ali CEBE

1957Turkish

Samsun

6.Satu CEBECÄ°

1933Turkish

Samsun

7.Kadriye KARAAĞAÇ

1962Turkish

Samsun

8.Fatma SEVİNÇ

1984Turkish

Samsun