Legal summary

December 2022

Şaşkın and Others v. Türkiye (dec.) - 3934/17

Decision 15.11.2022 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Four-month period (former six-month)

Use of a purely compensatory remedy (Law no. 5233) which delayed an application to the Court concerning alleged shortcomings in the investigation into a disappearance: ineffective remedy; application out of time

Facts – In February 2007, at the applicants’ request, the Regional Court delivered a judgment declaring that one of their family members was to be presumed dead since there had been no news of him since 1992. The applicants sought unsuccessfully to obtain compensation from the authorities by means of the special remedy under Law no. 5233 on compensation for losses sustained as a result of terrorism or the fight against terrorism. That Law was found not to apply owing to a lack of evidence that the disappearance in question was linked to terrorism. As to possible shortcomings in the investigation carried out, the administrative courts pointed out that the applicants could bring an action based on the general principles of the administrative authorities’ liability. The applicants appealed to the Constitutional Court against the dismissal of their compensation claims. In 2016 the Constitutional Court dismissed their appeal, reaffirming, among other findings, that the special remedy used by them was not applicable.

Law – Article 35 § 1: The applicants had applied to the European Court in 2016, 24 years after the disappearance, although the Regional Court had delivered a judgment in February 2007 declaring that their relative was to be presumed dead.

Referring to the principles governing the application of the six-month time-limit to cases concerning disappearances, the Court considered that the applicants should have become aware, by the last‑mentioned date at the latest, that the investigation was ineffective or that it could reasonably be concluded that any subsequent steps taken by the competent national authorities were unlikely to shed light on the circumstances in which their relative had disappeared. Accordingly, the Court took the view that the six-month period should start to run on that date.

The compensatory remedy used by the applicants (based on Law no. 5233) did not constitute in the present case an effective remedy to be exhausted capable of postponing the starting-point of the six-month period. The Court reiterated in that regard that the procedural obligations under Article 2 of the Convention could not be satisfied merely by an award of damages.

Furthermore, the applicants had not demonstrated the existence of any specific circumstances that could justify the delay in applying to the Court. It followed that the application had been lodged out of time.

Conclusion : inadmissible (six-month period).

(See also Varnava and Others v. Turkey [GC], 16064/90 et al., 18 September 2009, Legal summary , and Al-Skeini and Others v. the United Kingdom [GC], 55721/07, 7 July 2011, Legal summary )

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

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