SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 41590/06
by Murat ACET
against Turkey
The European Court of Human Rights (Second Section), sitting on 29 June 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos,
Guido Raimondi, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 29 September 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Murat Acet, is a Turkish national who was born in 1980 and lives in Ankara. He was represented before the Court by Ms S. Tutgun, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The incident at the court house
On 21 October 2003 the applicant's wife, Ms B.D., instituted divorce proceedings before the Ankara Family Court on the grounds, inter alia, of domestic violence.
On 8 March 2005 following the decision of the Ankara Family Court to divorce the couple, fighting broke out between the two families in the corridor of the court house. In the course of the fight, Mr R.D., the father of Ms B.D., injured the applicant and a police officer, Mr O.C.U., with a knife. Other people were also injured during the incident, including Mr R.D., who sustained, inter alia, an oedema and a haematoma on his right eye, which rendered him unfit for work for five days.
The police intervened. Mr R.D. and a number of family members from both parties were arrested and taken into police custody where they gave statements about the incident.
On the same day the police found a bloody pocket knife on the premises. When the knife was passed through the metal detector at one of the doors of the court house, the police noticed that the sensors at this door did not give a detection signal. The knife was sent to a criminal laboratory for analysis.
On 24 March 2005 the experts' report on the knife was sent to the public prosecutor. In his cover letter, the police chief at the court house informed the prosecutor that the pocket knife in question did not fall within the category of forbidden knives within the meaning of section 4 of Law no. 6136.
On 2 May 2005, upon the request of the public prosecutor, a doctor at the Ankara Forensic Medical Institute examined the applicant's medical reports and noted that, in addition to some minor cuts, he had a suffered life-threatening injury and consequently had to have his spleen taken out. The doctor opined that this rendered him unfit for work for twenty-five days.
B. The criminal investigation against the accused police officers
On 27 July 2005 the applicant lodged an official complaint of negligence with the Ankara public prosecutor against the police officers who had been on duty at the entrance of the court house. In his submission, he noted that he had sustained a life-threatening knife injury on 8 March 2005 and criticised the fact that a person had been able to enter the court house with a knife, despite security checks.
On the same day the applicant gave evidence to the public prosecutor in which he repeated his allegations.
Between 4 and 7 October 2005, five police officers who had been on duty at the entrance of the court house gave written statements to the police. In particular, they submitted that the metal detectors at the entrance were not always sensitive or that they occasionally failed to operate, but that in such cases the police chief informed the relevant authorities and the technical personnel made the necessary repairs.
On 10 October 2005 the prosecutor received information and documents, including statements, from the police chief at the court house.
On 11 October 2005 the prosecutor heard evidence from two of the police officers who had intervened in the fight between the parties. According to the police officer Mr A.Ş., they had been on duty outside the hearing room of the Fourth Division of the Family Court, where a tense hearing had been taking place. At the end of the hearing, they had accompanied the members of one of the parties outside. However, upon their return, they saw that a woman, whom they had just escorted outside, was swearing and that, despite their intervention, when the other party responded verbally, both parties started physically attacking each other. Mr A.Ş. further submitted that, after the events, they had found a bloody knife at the Tenth Division of the Family Court and that, when they had passed it through one of the entrance doors, the metal detector had not given a signal. The other police officer, Mr O.C.U., gave a similar testimony. Both officers said that they had not seen who had the knife or how the applicant had been injured.
On 12 October 2005 the Ankara public prosecutor decided that there was no need to prosecute the police officers who had been on duty at the entrance of the court house, on the ground that no fault could be attributed to them. In his decision, the prosecutor noted that it had been established that the knife used in the crime had not been detected by the metal detector and that, subsequent to the events, the police had requested that the machine's sensitivity be adjusted accordingly.
On 21 December 2005 the applicant objected to the public prosecutor's decision.
On 20 March 2006 the Sincan Assize Court dismissed the applicant's objection. That decision was served on the applicant on 26 May 2006.
C. The criminal proceedings against Mr R.D.
Criminal proceedings were instigated against Mr R.D., inter alia, for causing physical injury under Article 456 of the Criminal Code.
On 13 December 2005 the Ankara Assize Court convicted Mr R.D. as charged and he was sentenced to prison. That decision was quashed by the Court of Cassation on 27 September 2006.
On 7 February 2007 the Ankara Assize Court convicted Mr R.D. as charged. He was sentenced to five years' imprisonment in respect of his act against the applicant, and two months and twenty-eight days' imprisonment in respect of his act against the police officer, Mr O.C.U. After having examined the evidence in the case file, including witness testimonies, the court established the facts as follows: both parties had displayed quarrelsome behaviour at past hearings so, at the end of the hearing, the applicant and his family had been taken out of the hearing room first so as to avoid any incident. However, it appeared that they had failed to leave the court house and, as a result, when the other party had been let out of the hearing room 15 to 20 minutes later, both parties had started swearing and fighting with each other. In the course of the incident, the applicant had punched his ex-father-in-law and the latter, in response, had injured him with a knife. The case is still pending before the Court of Cassation.
D. Subsequent events
According to an internal police memo dated 18 May 2009, the applicant had never applied to the police on the ground that his life had been under threat or requested any protection prior to the incident.
On 20 May 2009 the police chief at the court house submitted information to the Altındağ Security Directorate, in response to the applicant's allegations before the Court, as regards the security measures at the court house. According to this information, there is 24-hour police protection in the area outside the court house, 30,000 to 40,000 people enter the court house daily and all of these people pass through metal detectors, before undergoing a body search, while their bags and other belongings are passed through an X-ray machine. Police officers are stationed outside each chamber and, if requested, additional measures are taken. The police chief also stated that it was possible for the metal detector not to detect the pocket knife in question if it was closed and wrapped in a material that was not sensitive to metal. He further submitted that the knife at issue had been passed through a metal detector and that the latter had not given any signal.
COMPLAINTS
The applicant complained under Article 2 of the Convention that the authorities had failed to protect his right to life.
The applicant further complained under Articles 6 and 17 of the Convention that the decision of the prosecutor and the domestic court was biased and unlawful.
THE LAW
The applicant complained that the authorities had failed to protect his right to life and, without any further elaboration, that the decision of the prosecutor and the domestic court was biased and unlawful.
The Court considers that the applicant's above complaints fall to be examined under Article 2 alone, the relevant part of which provides as follows:
“Everyone's right to life shall be protected by law.”
A. Parties' submissions
The Government asked the Court to dismiss the application as inadmissible for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention on the ground that the applicant had failed to raise the substance of his complaint before the domestic authorities.
As to the merits, the Government first gave general information about the security measures at the court house in question. Secondly, they maintained that it had not been established to whom the knife belonged or how it had been smuggled into the court house, and that in any event, it was possible for the metal detector not to give a signal if the pocket knife was closed. Thirdly, the Government, referring to the Court's case-law, emphasised the unpredictable nature of the act of the applicant's ex-father-in-law. Lastly, they submitted that the investigation into the applicant's allegations had been adequate.
The applicant maintained his allegations. In particular, he argued that the Government's submissions were just pretexts, that the knife in question had not given any signal at the metal detector, that the sensitivity of the detector was insufficient and that the State was responsible for the right to life of its citizens who entered the court house, on the basis of their belief that because they passed through a metal detector, they were safe.
B. The Court's assessment
The Court considers it unnecessary to determine whether the applicant has exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention, since his complaint is, in any event, inadmissible for the following reasons.
The Court notes at the outset that the Government did not challenge the applicability of Article 2 of the Convention.
The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III). This obligation extends, in appropriate circumstances, to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Opuz v. Turkey, no. 33401/02, § 128, ECHR 2009‑... and the cases cited therein). Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the Court is also careful, when considering positive obligations, not to interpret Article 2 in such a way as to impose an impossible or disproportionate burden on authorities (see Branko Tomašić and Others v. Croatia, no. 46598/06, § 50, ECHR 2009‑... (extracts)). Accordingly, not every claimed risk to life can entail, for the authorities, a Convention requirement to take operational measures to prevent that risk from materialising.
A positive obligation will arise where it has been established that the authorities knew, or ought to have known, at the time, of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman v. the United Kingdom, 28 October 1998, §§ 116, Reports 1998-VIII).
Applying that approach in the present case, the Court observes that there is no evidence in the file before it indicating that the authorities knew, or ought to have known, that the applicant's life was at risk from criminal acts by his father-in-law, Mr R.D. In this connection, the Court considers that in the absence of any previous death threats and acts of violence committed against the applicant, of which the authorities were aware, the fact that the applicant and his ex-wife went through a somewhat complicated divorce, with both parties displaying quarrelsome behaviour during the proceedings, is not sufficient to show the existence of a specific risk of danger to his life, in respect of which the authorities can be held responsible for failing to take preventive measures (see, for example, Rantsev v. Cyprus and Russia, no. 25965/04, § 222, 7 January 2010 and, by contrast, Opuz, cited above, §§ 133-136,).
As to the applicant's undeveloped complaint pertaining to the public prosecutor's decision, upheld by the Sincan Assize Court, not to prosecute the police officers who had been on duty at the entrance of the court house, the Court reiterates that an issue of State responsibility under Article 2 of the Convention may also arise in the event of the inability of the domestic legal system to secure accountability for negligent acts endangering, or resulting in the loss of human life (see, for example, Furdik v. Slovakia (dec.), no. 42994/05, 2 December 2008). After having examined the documents in the investigation file, the Court finds no crucial shortcomings that could have hampered the effectiveness of the investigation conducted by the public prosecutor into the applicant's allegations regarding the police officers' negligence. Nor does it find any indication that legitimate concerns might arise as regards his or the Assize Court's impartiality. In addition, the Court notes that the investigation was promptly initiated upon the applicant's complaint and was conducted with reasonable expedition, and the applicant was able to effectively participate, to the extent necessary to safeguard his legitimate interest.
Finally and if, in the opinion of the applicant, the failure of the metal detector to detect the knife fell within the ambit of the respondent State's positive obligation to protect the right to life, the Court observes that the applicant did not institute administrative proceedings against the relevant public authority. Had he done so, he could have had his complaints concerning the State's alleged obligation examined before the administrative courts which are indisputably empowered to assess the facts surrounding the incident and to apportion liability for the events in issue from the standpoint of the notion of fault in the performance of a public service. At this point the Court has no reason to assume that the State's alleged negligence is related to its obligations under Article 2 of the Convention.
In light of the foregoing the Court concludes that the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Françoise Elens-PassosFrançoise Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy