SECOND SECTION

Application no. 34902/10 Sultan DÖLEK and others against Turkey lodged on 3 June 2010

STATEMENT OF FACTS

The applicants listed in the appendix below are the mother and siblings of Mustafa Döleksoy (hereinafter M.D.). They were repr esen ted before the Court by Mr A.T. Kaçıra , a lawyer practising in Mersin .

The circumstances of the case

The facts of the case, as submitted by the applicants and as they appear from the documents submitted by the applicants, may be summarised as follows.

On 25 August 2007 M.D. ’ s neighbours noticed a smell coming from M.D. ’ s house, and subsequently they discovered his body on the floor in his kitchen. The neighbours informed the gendarmerie and the gendarmerie arrived at the scene at around 10.30 a.m.

A doctor who accompanied the gendarmes prepared a report and concluded that M.D. had died of a cerebral haemorrhage and circulatory failure which had been caused by head trauma as a result of falling from the worktop in the kitchen. The doctor estimated that the death had occurred four to five days previously.

According to a crime scene examination report drawn up by the gendarmerie, there were no signs of a struggle in the house. In their statements to the gendarmerie, the applicants Mahmut and Ahmet Cengiz Dölek said that they did not know who might have been responsible for the death.

The Erdemli Public Prosecutor went to the house at around 11.40 a.m. and drew up an examination report with the assistance of the same doctor. In his report the prosecutor noted the presence of a large amount of dried blood coming from the left side of the head, as well as on the floor. He observed that the corpse had swollen and the face had completely blackened. The doctor reported two fractures on both the left and right of the occipital bone region of the head and two traces of cuts above the fractures. No indications of firearm or stab wounds were noted on the body. A handful of hair found in the left hand of M.D. was put in an evidence bag. Samples were also taken from M.D. ’ s own hair.

At the end of the examination, the doctor did not find it necessary to conduct a full post-mortem examination because, in his opinion, the cause of death had already been established . The Erdemli Public Prosecutor, however, decided to send the body to the Adana Branch of the Forensic Medicine Institute for a full post-mortem examination to determine the exact cause of death.

On 12 November 2007 the Adana Branch of the Forensic Medicine Institute prepared its report. It was noted in the report that, contrary to what had been stated in the report of the Public Prosecutor, the skull was intact and that there were no fractures. A toxicological examination was carried out but no toxic substances were found. According to a report which The Adana Branch obtained from the Biology Specialization Department of the Istanbul Branch of the Forensic Medicine Institute, the hair samples found in the hand of M.D. were not suitable for a DNA examination. However, the report indicated that the DNA features of the stain samples on the paper wrapped around the hair and those of the hairs from the head matched.

The Adana Branch of the Forensic Medicine Institute concluded that M.D. had not been poisoned and that there was not any medical evidence to show the involvement of an external factor in the death. They were, however, unable to establish the exact cause of death on account of the advanced decomposition of the body.

On 25 December 2007 the Public Prosecutor requested further examination of the hair samples found in M.D. ’ s left hand. A specialist department within the Istanbul Branch of the Forensic Medicine Institute prepared its report on 20 October 2008. It was stated in the report that the hair was human hair and that it may have been pulled from the scalp. A macroscopic examination revealed strong similarities to the samples taken from M.P. ’ s own hair.

On 21 January 2008 the applicant Sultan Dölek petitioned the Public Prosecutor, and requested that a number of witnesses be heard. Ms Dölek also asked for her deceased son ’ s telephone records to be examined. Ms Dölek informed the prosecutor that two persons had been told by her son that he had been threatened. On 11 February 2008 Ms Dölek presented another petition and claimed that she had raised suspicions about his then wife and sister-in-law. She noted that the latter ’ s husband had also been found dead in 2001.

On 4 December 2008 the Erdemli Public Prosecutor decided not to prosecute anyone in connection with the death. He considered that there was no evidence to show that M.D. had been the victim of intentional or unintentional homicide. The prosecutor had particular regard to the forensic reports and statements made by the applicants Mahmut and Ahmet Cengiz Dölek . He refused, however, to question the witnesses named by Ms Dölek .

On 25 December 2008 Ms Dölek filed an objection against the prosecutor ’ s decision, and argued that the investigation had been deficient. She also alleged that the prosecutor had failed to take into account her petitions. She further contended that the residents of a flat facing that of her son had not been heard and that the search for fingerprints and other evidence had not been carried out properly.

On 26 March 2009 the Tarsus Assize Court upheld the decision of non-prosecution.

On 17 September 2009 Ms Dölek requested a copy of the investigation file together with the hair samples because she wanted to have a private DNA examination of them carried out. She pointed out that, according to academics from several universities with whom she had had contacts, a DNA examination could satisfactorily be carried out on the hair samples.

On 13 October 2009 the Erdemli Public Prosecutor took another decision of non-prosecution. The prosecutor decided to give a copy of the documents from the investigation file, but declined his permission for the hair samples to be handed over. He considered that this part of the request was not in conformity with the law.

On 7 December 2009 the Tarsus Assize Court upheld the prosecutor ’ s decision.

COMPLAINTS

Relying on Article 2 of the Convention, the applicants complain that the State failed to protect the life of M.D and that the investigation into the death was not effective. They argue, in particular, that the cause of death was not established and that a DNA examination was not carried out on the hair found in M.D. ’ s hand.

The applicants also challenge the credibility of the forensic reports and maintain that the witnesses proposed by them were not questioned in the course of the prosecutor ’ s investigations.

Relying on Articles 13 and 14 of the Convention the applicants submit that the criminal investigation was not conducted in a satisfactory manner.

QUESTIONS TO THE PARTIES

Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000 ‑ VII ), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

In this connection;

i . What was the reason for the investigating authorities ’ failure to question the neighbours and to look for any potential eyewitnesses?

ii. Was the Forensic Institute ’ s conclusion that the hair found in the deceased person ’ s hand could not be subjected to DNA analysis based on an adequate examination? The Government are requested to obtain and to submit to the Court an explanation from their forensic authorities on this

Appendix

Application no. 34902/10