Information Note on the Court’s case-law 40

March 2002

Sabuktekin v. Turkey - 27243/95

Judgment 19.3.2002 [Section IV]

Article 2

Article 2-1

Life

Murder allegedly carried out by State agents or with their connivance, and effectiveness of the investigation: no violation

Facts : The applicant is a Turkish citizen. In September 1994 her husband, Salih Sabuktekin, a member of the HADEP (the pro-Kurdish P eople’s Democracy Political Party) and delegate of the local branch of Yüregir/Adana, was killed in front of his house. According to the applicant, her brother-in-law tried to run after the killers, but was held back by plain-clothes police officers who th en arrested him and took him into police custody, from which he was released shortly afterwards. The police carried out an investigation at the scene of the murder and took statements from a number of witnesses. The Adana public prosecutor began a prelimin ary investigation. In July 1995 the Adana anti-terrorist branch arrested and detained a suspect belonging to the illegal organisation, the Hizbullah. An investigation was begun in connection with his and his co-accuseds’ suspected involvement in, among oth er things, the murder of the applicant’s husband. They were acquitted by the National Security Court for lack of sufficient evidence. The public prosecutor then requested the head of the anti-terrorist branch to pursue its investigations into, inter alia , the murder of Salih Sabuktekin.

Law : Government’s preliminary objections (non-exhaustion): in order to lodge a civil claim for damages, which was a remedy referred to by the Government, the presumed perpetrator had to be identified, whereas in the instant case the perpetrators remained unknown; accordingly, the applicant was not required to use it. With regard to an application in administrative law, also referred to by the Government, it was reiterated that the duty on the Contracting States under Articles 2 and 3 of the Convention to carry out investigations in order to identify and punish those guilty of fatal assault could be rendered illusory if, for complaints based on those provisions, an applicant was required to use a remedy, such as that one, resul ting merely in an award of damages: both grounds of the objection dismissed. Lastly, with regard to the criminal remedies referred to by the Government, a criminal investigation in connection with the murder of the applicant’s husband was underway and that part of the objection required the same examination as the one in respect of the nature of the investigations undertaken. Having regard to its conclusion as to the merits of the complaint under Article 2 above, it was not necessary to examine separately t he criminal-proceedings aspect of the objection.

Article 2 - With regard to the allegation that Salih Sabuktekin had been killed by the security forces or at their instigation, the statement of the applicant’s brother-in-law was not corroborated by any ot her witness and conflicted with the statements made by other eyewitnesses. The applicant’s allegations were based on hypothesis and speculation rather than reliable evidence. The evidence before the Court did not provide it with any material in support of those allegations. It could not therefore be concluded that the applicant’s husband had been killed by the security forces or with their connivance.

Conclusion : no violation (unanimously).

With regard to the allegation that the investigation had been inade quate, although it had not resulted in the identification of the perpetrator or perpetrators of the murder, it had not been entirely ineffective. It could not be maintained that the relevant authorities had remained passive in respect of the circumstances in which the applicant’s husband had been killed. In the present case the investigations carried out into the circumstances of his death could be considered to have satisfied the requirements of Article 2 of the Convention.

Conclusion : no violation (six votes to one).

Article 6 § 1 - This complaint was inextricably linked to the applicant’s more general complaint concerning the manner in which the investigating authorities had treated her husband’s death. It was therefore appropriate to exa mine it in relation to the more general obligation prescribed by Article 13.

Conclusion : separate examination of the complaint unnecessary (unanimously).

Article 13 - The Court’s conclusion under Article 2 did not necessarily prevent the complaint based on Article 13 from being an arguable one. That conclusion did not dispense with the requirement to carry out an effective investigation into the substance of the complaint. In the present case, in the light of the various measures taken, it could not be main tained that the relevant authorities had remained passive in respect of the circumstances in which the applicant’s husband was killed. The respondent State could be deemed to have conducted an effective criminal investigation as required by Article 13.

Conclusion : noviolation (six votes to one).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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