Legal summary

January 2023

Arslan v. Türkiye (dec.) - 79650/16

Decision 29.11.2022 [Section II]

Article 35

Article 35-1

Four-month period (former six-month)

Deficient application to the compensation board, not entailing an interruption of the six-month time-limit for complaints concerning the criminal investigation into a death in the course of an anti-terrorist operation: inadmissible

Facts – In December 1994 gendarmes took up position in a specific location after receiving information that a group of terrorists was heading there. They ordered a man to surrender immediately. The individual concerned attempted to flee while opening fire on the soldiers and, after an exchange of gunfire, he was fatally wounded.

In February 1995, noting that the deceased had been a member of an illegal armed organisation and that he had been killed by the security forces as a result of an exchange of gunfire during his arrest, the public prosecutor issued a discontinuance decision. On the basis of that decision, which the applicants (the deceased’s parents) did not contest, it was decided not to take any further action on the case.

In July 2005, relying on the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism, the applicants (the deceased’s parents), acting through their lawyer, lodged a claim with the County Damage Assessment and Compensation Commission (the compensation board) for compensation for damage sustained as a result of their son’s death. In their claim, they challenged the information contained in the investigation file compiled by the public prosecutor’s office and submitted that their son had not been killed in armed combat, that he had not been a member of a terrorist organisation and that he had been a taxi driver. The compensation board rejected the claim, finding that it did not fall within the scope of the above Law. It held that the deceased had been a member of the PKK, an illegal armed organisation, and that he had died during an armed altercation with the security forces.

Following appeals by the applicants to the first-instance and cassation courts seeking to have that refusal decision set aside, those courts dismissed their case. The Constitutional Court subsequently found that the applicants’ complaints concerned, in substance, the proceedings for damages before the compensation board and the administrative courts and noted that they had not raised any procedural arguments during the criminal investigation.

Before the Court, the applicants alleged, inter alia , that the investigation carried out to determine the circumstances of their son’s death had not complied with the requirements of Article 2 of the Convention.

Law – Article 35 § 1:

In cases concerning a breach of the right to life, if no remedy was available or if they were judged to be ineffective, the six-month period laid down in Article 35 § 1 of the Convention began to run in principle from the date of the act complained of. However, special considerations could apply in exceptional cases where applicants availed themself of or relied on an apparently existing remedy and only subsequently became aware of circumstances which rendered the remedy ineffective. In this case, it was appropriate to take as the start of the six-month period the date when the applicant(s) had first become aware or ought to have become aware of those circumstances (see Hazar and Others v. Turkey (dec.)).

The Court had rejected as out of time applications where there had been excessive or unexplained delay on the part of applicants once they had, or should have, become aware that no investigation has been instigated or that the investigation had lapsed into inaction or become ineffective and, in any of those eventualities, where there was at the relevant time no realistic prospect of an effective investigation being provided in the future.

The applicant (the deceased’s mother) had applied to the compensation board more than ten years after the prosecutor’s office had decided to discontinue the proceedings.

The remedy used, which concerned only compensation for persons who had sustained losses as a result of terrorist acts or anti-terrorist measures taken by the authorities, had certainly not been adequate in the criminal case at issue. In this connection, under Article 2 of the Convention, a criminal investigation was generally necessary where death had been caused intentionally, since a State’s obligation to take appropriate steps to safeguard the lives of those within its jurisdiction required by implication that there should be some form of effective official investigation when individuals had been killed as a result of the use of force; it followed that the procedural obligations under Article 2 could not be satisfied merely by awarding damages.

Thus, this applicant, who submitted that the criminal investigation conducted in the present case had not been effective, ought to have applied to the Court within six months of the date on which the decision to discontinue the case was issued. In the circumstances of the case, the application to the Compensation Board was not such as to interrupt the six-month time-limit in respect of the complaints relating to the criminal investigation, and the applicant had not put forward any grounds to justify the delay in lodging her application with the Court, or any specific circumstances capable of interrupting the six-month time-limit, although she had been represented by a lawyer. It followed that this part of the application had been submitted out of time.

Conclusion : inadmissible (six-month time-limit).

(See also Hazar and Others v. Turkey (dec.), 62566/00 et al., 10 January 2022, Legal summary )

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

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