Information Note on the Court’s case-law 74

April 2005

Kanlıbaş v. Turkey (dec.) - 32444/96

Decision 28.4.2005 [Section III]

Article 35

Article 35-1

Exhaustion of domestic remedies

Lack of objection against an order of non-prosecution irregularly notified to a wrong address, but which the applicant became aware of subsequently: preliminary objection allowed

The applicant’s brother was killed in 1996 together with other PKK militants in an armed clash with the security forces. A forensic examination by the authorities concluded that the death had been caused by bullet wounds, and revealed that the ears on one of the other bodies had been destroyed. The applicant ha d his brother’s remains returned to him five days after the death. He complained to a human-rights association that the body had been mutilated post mortem . A British forensic specialist stated, after seeing photographs taken by the applicant, that the ear s had been deliberately severed with a cutting instrument after the death; with regard to the absence of an eyeball, he indicated that the eye socket did not appear to be damaged and that there had been no bullet wounds to the head. The Turkish authorities promptly opened an investigation of their own motion into the military operation that had resulted in the deaths. Inquiries were made, in particular, into the specific allegation that the ears had been cut off. Three of the many officers serving in the di strict concerned were eventually questioned. They gave evidence about the conduct of the armed operation during which the deaths had occurred. They stated that they had not noticed the alleged mutilation. More than two years and three months after the even ts, the public prosecutor’s office ruled that there was no case to answer. It observed that the autopsy conducted after the death had not produced any evidence to corroborate the allegations that the ears had been mutilated, and concluded that the left eye had been destroyed by the impact of a bullet. That decision was subject to challenge by the applicant. It was mistakenly served on the address of the applicant’s place of birth and not on his actual home address.

Inadmissible as regards the complaints all eging a substantive violation of Articles 2 and 3: failure to exhaust domestic remedies. The applicant had not taken any steps at national level to complain about the circumstances surrounding his brother’s death. He had not even submitted the British spec ialist’s second opinion to the authorities. There was no verifiable evidence to support or corroborate his argument that his conduct had been due to fear of reprisals. The applicant had not contested the ruling that there was no case to answer, although th at remedy was an effective one within the meaning of Article 35 § 1. Admittedly, the decision had been served on the wrong address and the relevant authorities had not carried out the checks required by the law where the addressee was absent. However, the applicant and his lawyers had learned of the ruling in 2001 and the effective remedy in question had been available to him from that time.

Admissible as regards the complaints under Articles 2 and 3 in their procedural aspect.

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

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