DISSENTING OPINION OF JUDGE SAJÓ

To my regret, I was unable to follow the majority in this case which is, in any event, inadmissible. The final judgment concerning the prosecutor ’ s decision not to bring a prosecution was communicated on 28 May 2009. The application was submitted on 3 June 2010, more than six months after the final domestic decision. The first applicant ’ s application to the Ministry of Justice is irrelevant. This is not a remedy to be exhausted. A further request, which was essentially the same as the original request, was made to the prosecutor, who did not take additional procedural steps. No new evidence was adduced (see Brecknell v. the United Kingdom , no. 32457/04, § 71 , 27 November 2007). Needless to say, the other applicants cannot even claim that the continued refusal to bring a prosecution made a difference in their regard.

In the context of the State ’ s obligation to protect the right to life, the State is under an obligation to carry out an effective investigation in the event of a suspicious death. This is not confined to cases where it is apparent that the killing was caused by a State agent. There is nothing in the case file indicating the involvement of a State agent in the present case, and therefore the suspicious nature of the death must be considered without the heightened duty of scrutiny that is applicable in cases involving State agents. The Court cites Kolevi v. Bulgaria , no. 1108/02, § 191, 5 November 2009, and other cases in which the death was suspicious because a bullet was found in the victim ’ s body. This case is different. The victim was lying on the floor with fractures to the head. The door was closed. A security guard was on duty. Three forensic reports were obtained, and an explanation was provided as to the origin of the hair, which did not correspond to the DNA analysis. There is nothing unusual or suspect in this finding [1] and “traditional” methods of hair identification indicated with a high degree of probability that the hair originated from the victim.

The failure to question additional potential witnesses and the lack of further forensic analysis would not be considered a violation of Article 6 (fairness) had this case been one in which a suspect was convicted after a domestic court had found these factors to be irrelevant. The investigation satisfied the conditions of Anguelova v. Bulgaria (no. 38361/97, § 140, ECHR 2002 ‑ IV) : in view of the fact that “the degree of public scrutiny required may well vary from case to case” and in the absence of specific suspicion of external interference (other than the applicants ’ speculations) and any appearance of collusion, there can be no violation of Article 2 in the present case.

PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGE KELLER

I voted with the majority of my colleagues on whether there had been a violation of Article 2 of the Convention in its procedural aspect in respect of the first applicant ’ s complaints that the domestic authorities had failed to conduct an effective investigation into her son ’ s death. However, for the reasons set out below, I am unable to agree with the majority that the application should be declared admissible as regards the remaining six applicants. As a result, I cannot agree, firstly, that there has been a violation of Article 2 in its procedural aspect in respect of the remaining six applicants ’ complaints that the domestic authorities failed to conduct an effective investigation into Mustafa Döleksoy ’ s death (I). Secondly, I believe that the Court should have mentioned the fact that an attempt was made to settle the case on the basis of a friendly settlement which ultimately did not yield any result (II).

I. Exhaustion of domestic remedies by Mustafa Döleksoy ’ s siblings

1. In the past, the Convention institutions have accepted applications from relatives of a deceased person where a violation of Article 2 was concerned. For example, the Court has acknowledged the victim status of a deceased ’ s wife (see Aytekin v. Turkey , 23 September 1998, Reports of Judgments and Decisions 1998 - VII), a deceased ’ s mother (see Çiçek v. Turkey , no. 25704/94, 27 February 2001), a deceased ’ s father (see Hugh Jordan v. the United Kingdom , no. 24746/94, ECHR 2001 - III (extracts)) , a deceased ’ s brother and sister (see Ergi v. Turkey , 28 July 1998, Reports 1998 - IV ; and Şemsi Önen v. Turkey , no. 22876/93, 14 May 2002). However, the issue here is not whether the deceased ’ s relatives had victim status as indirect victims, but whether they exhausted the available domestic remedies.

2. Article 35 § 1 of the Convention requires applicants to exhaust domestic remedies before taking their case to Strasbourg. This principle, which expresses the subsidiarity of the machinery of protection established by the Convention, affords States the opportunity to remedy violations through their domestic legal systems before having to answer to the Court (see Vučkovič and Others v. Serbia [GC], no. 17153/11 etc., § 68, 28 August 2012).

3. In the past, the Court has excused applicants from exhausting domestic remedies that promised no real chance of addressing an alleged violation; furthermore, it has established that the respondent State must prove the availability and sufficiency of domestic remedies (see Aydın v. Turkey , no. 25660/94, Commission decision of 12 January 1998). For example, in Süheyla Aydın v. Turkey , which concerned the death of the applicant ’ s husband and two other individuals, all of whom had last been seen in the custody of State agents, the Court took the circumstances into consideration. It noted that the authorities denied having had custody of the victims at the time of their death and that the ex officio domestic investigation had not yielded any results; it consequently held that the applicant was not required to exhaust further domestic remedies (see Süheyla Aydın , cited above).

4. When a death occurs under suspicious circumstances, the domestic authorities are under an obligation to conduct an effective official investigation even if the death is not imputable to State agents (see Rantsev v. Cyprus and Russia , no. 25965/04, § 232, ECHR 2010 (extracts) ; citing Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V). The authorities cannot leave it to the next-of-kin to take the initiative to commence an investigation or assume responsibility for its conduct (see Rantsev , cited above, § 232 ; citing İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII; see also Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, § 69 , ECHR 2002 - II ). These principles apply in the present case, as the majority noted in paragraphs 43 and 44 of its judgment. However, this obligation alone does not suffice to exempt the applicants from exhausting domestic remedies. Any other conclusion would erode the exhaustion criterion in many Article 2 cases and deprive States of the opportunity to examine applicants ’ claims via their own judiciary.

5. In the present case, the majority based its arguments on the case of Yüksel Erdoğan and Others v. Turkey (see paragraph 45 of the judgment). The facts of that case revolved, however, around a gun fight between the applicants ’ relatives and a group of police officers in an Istanbul café. In its judgment in that case, the Court noted that three of the applicants, who were the mother and siblings of one of the deceased, had not intervened in the criminal proceedings as a civil party, nor had they lodged a criminal complaint. Nevertheless, the Court held that it was not necessary for them to take these steps. The Court based its reasoning on the fact that the domestic authorities were obliged to investigate of their own motion killings resulting from the use of force by members of the security forces, as well as on the fact that the deceased ’ s father had “joined the proceedings in question and raised all the issues concerning his son ’ s killing” (see Yüksel Erdoğan and Others v. Turkey , no. 57049/00, § 75, 15 February 2007).

6. Yüksel ErdoÄŸan and Others must be distinguished from the present circumstances on the facts. In the former case, the applicants ’ relatives had been killed – execution-style, according to their submissions – by police officers who were all acquitted almost nine years later (see Yüksel ErdoÄŸan and Others , cited above, § 77). By contrast, there is no indication in the present case that Mustafa Döleksoy was killed by State actors. While the domestic investigation was ultimately deficient in this case, it is nonetheless to be distinguished from the special situation of State involvement in a death followed by passivity or even partiality on the part of the authorities or the utter ineffectiveness of the domestic remedies (compare Aytekin v. Turkey (preliminary objection), 23 September 1998, § 85, Reports 1998 ‑ VII ).

7. Though there were effective remedies available before the Turkish courts, Mustafa Döleksoy ’ s adult siblings did not participate personally in the proceedings at the domestic level, instead allowing their parents – and later their mother – to do so alone. While the requirement to exhaust domestic remedies under Article 35 § 1 must be applied with some flexibility, I consider the degree of flexibility employed by the majority in this judgment to be unwarranted and not in conformity with the underlying principle of subsidiarity whereby applicants must have acted at domestic level so as to afford the member States the opportunity to secure their Convention rights. By finding that it was not necessary for the deceased ’ s siblings to exhaust domestic remedies, the majority departed from the test of determining whether, under the circumstances, an applicant or applicants did everything that could be reasonably expected to exhaust domestic remedies (see Avşar , cited above, § 380, with further references). At the time of the domestic investigation, Mustafa Döleksoy ’ s siblings failed to show any interest in participating in the proceedings. While this may later have changed, no special circumstances warrant an exemption from the requirement to exhaust domestic remedies. Though a different result may have been possible in the exceptional circumstances of Yüksel Erdoğan and Others , the same cannot be said for the present case.

8. In the light of the above, I cannot agree with the majority on the exemption of the deceased ’ s siblings from the requirement to exhaust domestic remedies. The majority ’ s approach makes the degree of flexibility employed in Yüksel Erdoğan and Others possible in many or all cases under Article 2 of the Convention, a result I consider contrary to the requirements of the exhaustion rule. Accordingly, I also voted against point no. 6 in the operative part of the judgment, as I believe that the siblings should not be granted any award under Article 41.

II. The failed friendly settlement

1. In paragraph 5 of its judgment, the majority mention that the Government proposed that the case be struck out on the basis of a unilateral declaration that was eventually rejected by the Court. I fully agree that this case merits examination in the form of a judgment. However, I believe that the fact that a friendly settlement was attempted but not reached should be mentioned in the judgment, as the Court has done on many occasions:

Rosenzweig and Bonded Warehouses Ltd. v. Poland : “Friendly-settlement negotiations between the parties failed to yield a result” ( Rosenzweig and Bonded Warehouses Ltd. v. Poland (just satisfaction), no. 51728/99, § 6, 5 June 2012).

Megadat.com SRL v. Moldova : “On 19 August 2010, after failing to reach a friendly-settlement agreement with the applicant company, the Government informed the Court that they proposed issuing a unilateral declaration with a view to resolving the issue of just satisfaction” ( Megadat.com SRL v. Moldova , no. 21151/04, § 7, judgment of 17 May 2011).

Racu v. Moldova : “The applicant and the Government did not reach a friendly settlement” ( Racu v. Moldova , no. 13136/07, § 6, judgment of 20 April 2010).

Toğcu v. Turkey : “The parties further considered the possibility of a friendly settlement, but no settlement was reached” ( Toğcu v. Turkey , no. 27601/95, § 7, judgment of 31 May 2005).

2. I am fully aware that friendly-settlement negotiations are confidential and without prejudice to the parties ’ arguments in the contentious proceedings. Pursuant to Rule 62 of the Rules of Court, no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings (see Tahsin Acar v. Turkey [GC], no. 26307/95, § 74, Reports 2003-VI, for the difference between the confidential negotiation of a friendly settlement and a unilateral declaration, and, more specifically for our purposes, R.R. v. Poland, no. 27617/04, § 96, 26 May 2011). However, the simple fact that an attempt was made to solve the case on the basis of a friendly settlement is not confidential.

3. Friendly settlements are now more popular than at any time in the Court ’ s history (see, most prominently, the recent Grand Chamber judgment in S.J. v. Belgium (striking out) [GC] ( no. 70055/10 , 19 March 2015 ) and compare and contrast with the judgments in W.H. v. Sweden (striking out) [GC] ( no. 49341/10 , 8 April 2015 ) and M.E. v. Sweden (striking out) [GC] ( no. 71398/12 , 8 April 2015) [2] . The fact that an attempt to strike the case out of the list – in particular a case concerning Article 2 of the Convention – did not yield any result is worthwhile for the world outside the Court to note, and must not be concealed.

STATEMENT OF JUDGE SPANO

For the reasons provided by Judge Keller in her partly dissenting and partly concurring opinion, I disagree with the majority that the six applicants other than the first applicant exhausted domestic remedies for the purposes of their Article 2 complaints .

APPENDIX

[1] Even with advanced technology “ telogen hairs result in an overall success rate of 77.5% compared with 65% for hairs with no roots. ” Roberts KA, Calloway C., “Mitochondrial DNA amplification success rate as a function of hair morphology”. Journal of Forensic Science, 2007 Jan; 52(1):40-7.

[2] For a more comprehensive description of the development of the Court’s case-law see Helen Keller / Magdalena Forowicz / Lorenz Engi, “ F riendly Settlements Before the European Court of Human Rights – Theory and Practice”, Oxford 2010.