JOINT CONCURRING OPINION OF JUDGES SAJÓ, TSOTSORIA AND KARAKAŞ

We voted with the majority in declaring admissible the complaint under Article 2 of the Convention relating to the effectiveness of the investigation conducted after July 2002 into the killing. However, we consider that all the complaints under Article 2 should also have been declared admissible.

In fact, the Court is of the opinion that the application that was submitted on 13 June 2003 regarding killings that occurred in March 1994 is admissible because new information that casts new light on the circumstances of the killing came into the public domain at a later stage (see paragraph 60 of the judgment). In this case the Court finds that the information submitted to the authorities by the applicants in July 2002 led to significant new developments. The Court therefore limits itself to a review of the investigations carried out after July 2002 and finds a violation of Article 2 of the Convention under its procedural limb. We agree with that position: the investigations carried out after July 2002 did not satisfy the requirements of Article 2 of the Convention.

It seems to us that in 1994 the applicants were already aware of the crucial facts that were sufficient to substantiate their claims that the killings had occurred and that they provided enough information for an intense and thorough investigation such as is required in a case where four people were killed by Kalashnikov-type gunshots. Between 1994 and 2002 the gendarmerie were unable to find the perpetrators and attributed the killings “in all likelihood” to the PKK (see paragraph 28).

The Government submitted that the applicants, who claimed that the investigation was ineffective, should have lodged their application within a reasonable time after the bodies of their relatives had been found in April 1994. However, they had waited nine years. The Court noted that it had held in the case of Bayram and Yıldırım v. Turkey ((dec.), no. 38587/97, ECHR 2002-III), referred to by the Government, and in a number of other similar cases that, if no domestic remedies were available or if they were judged to be ineffective, the six-month time-limit in principle ran from the date of the act complained of. However, in the decision cited the Court found that the applicants had failed to satisfy an additional requirement too: they had “ failed to substantiate the existence of specific circumstances which might have prevented them from observing the time-limit laid down in Article 35 § 1 ” (emphasis added).

The Court ’ s decision in Bayram and Yıldırım does not exempt it from considering the extent to which an applicant was hindered from submitting an application.

In a number of its judgments the Court has had regard to the situation which existed in south-east Turkey during the time of emergency rule, which was characterised by violent confrontations between members of the PKK and the security forces, and considered that “in such a situation it must be recognised that there may be obstacles to the proper functioning of the system of the administration of justice. In particular, the difficulties in securing probative evidence for the purposes of domestic legal proceedings, inherent in such a troubled situation, may make the pursuit of judicial remedies futile” (see, inter alia , Akdivar and Others v. Turkey , 16 September 1996, § 70, Reports of Judgments and Decisions 1996 ‑ IV). Nevertheless, the considerations entertained by the Court in such cases concerned the effectiveness of judicial remedies in south-east Turkey at that time and related only to the Court ’ s examination of the applicants ’ compliance with the rule of exhaustion of domestic remedies. Thus, in a number of cases the Court concluded that there existed special circumstances, dispensing the applicants from the obligation to use certain domestic remedies (ibid., § 75).

Although the existence of such specific circumstances absolved the applicants from having recourse to domestic remedies, the Court has not yet exempted applicants from complying with the six-month rule.

Even assuming that the applicants were aware of the ineffectiveness of the investigation, the specific circumstances arising from the emergency rule might conceivably have prevented them from making use of a national or international remedy. It is not only in regard to the exhaustion rule that admissibility criteria have to be applied with “due allowance for the fact that [they are] being applied in the context of machinery for the protection of human rights, [and therefore] with some degree of flexibility and without excessive formalism” (see Akdivar and Others , cited above, § 69).

The applicants claimed that after reporting the killings they had been threatened by members of the security forces not to make any complaints and that they had made complaints as soon as life in the region had begun to return to normal. The circumstances of the killings and the existence of the state of emergency substantiate their claim. The Court has previously placed reliance on “the vulnerable position of the applicant villagers and the reality that in South ‑ East Turkey complaints against the authorities might well give rise to a legitimate fear of reprisals” (ibid., § 105) . In comparable cases such fears have been voiced a number of times by applicants and the Court has found that during emergency rule people were actually killed for not being willing to join the village guards (see, for example, Acar and Others v. Turkey (nos. 36088/97 and 38417/97, 24 May 2005). The Government failed to provide information to rebut the presumption that these fears were substantiated and not imaginary.

It follows that the application should have been found to have been submitted within the six–month time-limit and therefore admissible as to the killings that occurred in March 1994. The investigations and related trials are still going on and their length (15 years) constitutes per se a violation of Article 2 under its procedural limb.

[1] The Kurdistan Workers’ Party, an illegal organisation .

[2] A term used to describe an ex-member of an illegal organisation who provides the authorities with information about that organisation.