SECOND SECTION
DECISION
Application no. 63001/12
Ülhani BACAKSIZ
against Turkey
The European Court of Human Rights (Second Section), sitting on 21 November 2017 as a Committee composed of:
Julia Laffranque, President,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 2 August 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Ülhani Bacaksız, is a Turkish national, who was born in 1963 and lives in Mersin. She was represented before the Court by Ms A. Doğan, a lawyer practising in Mersin.
The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 1 May 2011 the applicant’s husband Mustafa Bacaksız was detained on remand with the accusation of committing murder and was placed in Silifke Prison.
4. At around 5 a.m. on 29 June 2011 Mustafa Bacaksız was found death in the toilet of his prison cell by his cellmates. According to the statements of the cellmates of Mustafa Bacaksız, he was found hanging from a clothesline rope tied to the window bars of the toilet. Three inmates stated that they had cut the rope, put Mustafa Bacaksız’s body on the ground in the toilet and called the prison guards. Subsequently, prison guards arrived and called an ambulance. The applicant was already dead when the ambulance crew arrived.
5. On the same day, two prosecutors, a doctor, and a police officer working for the incident scene investigation unit came to the scene of the incident. A report pertaining to the examination of the incident scene and the post-mortem examination was drawn up (Olay Yeri İnceleme ve Ölü Muayene Tutanağı). According to the report, the scene of the incident in the prison was examined and several photos of the body and the scene of the incident were taken. The report stated that a note was found on the deceased, which reads as follows: “Whatever I did, I did it all by myself; my cell-mates are innocent.”
6. According to the observations of the prosecutor and the doctor in the report, the cause of death was asphyxiation by hanging. However it was concluded that a full autopsy had to be carried out for determination of the exact cause of death.
7. On the same day, the prosecutor took statements from the inmates staying in the same prison cell with the deceased and the prison guards that had gone into the cell after they had been called for help. Three inmates, S.B., O.K. and M.Ş., stated that, after they had realised that Mahmut Bacaksız was inside the toilet and had not answered to their callings, S.B. opened the door with the help of a spoon and that they found Mustafa Bacaksız hanging with a rope next to the window. All of the inmates stated that the applicant had been an introverted person, had problems sleeping at nights and had not had any problems with the other inmates.
8. On 29 June 2011 a full autopsy was carried out by two expert doctors in the presence of the prosecutor. The report pertaining to this examination was prepared by the Forensic Medicine Institute’s Adana Branch on 6 September 2011 and the report stated that according to the toxicological examinations there was no alcohol, drugs or other substances in the samples taken from the body. The Institute determined the cause of the death as mechanical asphyxiation by hanging.
9. On 1 July 2011 the prosecutor requested a detailed information from the prison authorities on the physical and mental health of the deceased and asked whether the authorities had taken all necessary precautions.
10. On 4 July 2011 Silifke Prison Administration informed the Silifke prosecutor about the deceased’s health condition before his death and the medication that he had been taking. According to that information, Mustafa Bacaksız had been diagnosed with gastritis and duodenitis on 3 May 2011; tinca pedis (a condition concerning foot), gastritis and duodenitis on 14 June 2011; and gastroesophageal reflux disease and anxiety disorder on 21 June 2011 by the prison doctor. He had been prescribed with medicines for those problems. The prison administration also stated that Mustafa Bacaksız had not made any request to be treated in hospital for his anxiety disorder. The administration lastly stated that they had taken all the necessary measures foreseen by the relevant laws and regulations for the safety of the inmates.
11. On 5 July 2011 the statements of the applicant Ülhani Bacaksız, the wife of the deceased, and Kamil Bacaksız, the son of the deceased, were taken by the prosecutor in the presence of their lawyer. In those statements the deceased’s relatives stated that they had not observed any psychological disorder or any other specific problem on the part of the deceased. They stated that the deceased had never mentioned that he had any problems with any of his cell-mates. Kamil Bacaksız stated that his father had only told him that he could not sleep sometimes. Ülhani Bacaksız stated that the prison administration was responsible for the death of her husband for failing to take care of him despite his mental problems.
12. On 10 January 2012 Adana Criminal Police Laboratory issued an expert report stating that the note that had been found on the deceased had been written by the deceased himself.
13. On 25 January 2012 the Silifke Prosecutor took a decision of non‑prosecution. Having regard to the report on the incident scene and post mortem examination, the autopsy report, statements of the witnesses, and the note that had been found on the deceased, the prosecutor held that Mustafa Bacaksız had committed suicide. The prosecutor also stated in the decision that there was no evidence showing that the deceased might have been killed.
14. On 7 February 2012 the lawyer of the Mustafa Bacaksız’s heirs objected to that decision, alleging that the investigation into the death was not detailed enough and that some of the evidence had not been taken into account by the authorities. Firstly, the lawyer stated on the photographs there was an ecchymosed scratch on the side of the right hip of the deceased but that it had not been mentioned in the investigation file, including the autopsy report. She further alleged that there was a length of metal pipe sticking out of the wall under the window bars to which the clothesline rope was attached, and that it should have caused marks on the body if Mustafa Bacaksız had indeed hung himself there. The lawyer also alleged that the marks observed on the neck of the deceased were not supporting the suicide theory. Additionally, she complained that no fingerprints had been taken from the scene of the incident and that the clotheslines rope had not been taken from the scene of the incident and secured as evidence. Lastly she alleged that the statements of the inmates that had first found the deceased were conflicting.
15. On 2 March 2012 the Mersin Assize Court rejected the objection on the grounds that if the applicant had been killed by somebody else by clothesline rope, there would have been far more serious signs than a simple ecchymosed scratch which was observed on the body of the deceased, as he would have resisted. The Assize Court also noted that, in such a case, cellmates of the deceased would have heard noises.
COMPLAINTS
16. The applicant complained under Articles 2, 6 and 13 of the Convention that the national authorities had failed to carry out an effective investigation into her husband’s death and that the authorities had not taken necessary steps to protect him.
THE LAW
17. The applicant complained that the investigation conducted into the death of her husband had not been effective within the meaning of the Court’s case-law under Articles 2, 6 and 13 of the Convention and that the necessary steps to protect him had not been taken. The Court deems it appropriate to examine the applicant’s complaints solely under Article 2 of the Convention.
18. The Court observes that the applicant’s first complaint above relates to the effectiveness of the investigation carried out by the national authorities into the death of their relative and, as such, should be examined from the standpoint of the procedural obligation to carry out effective investigations.
19. To that end, the Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324, and Kaya v. Turkey, 19 February 1998, § 86, Reports of Judgments and Decisions 1998‑I).
20. In that connection, the Court points out that this obligation is not confined to cases where it is apparent that the killing was caused by an agent of the State (see Salman v. Turkey [GC], no. 21986/93, § 105, ECHR 2000‑VII). Neither is it confined to cases where it is apparent that the victim has been killed; authorities faced with a suspicious death will also be under an obligation to carry out an effective investigation (see Sultan Dölek and Others v. Turkey, no. 34902/10, § 66, 28 April 2015, and the cases cited therein).
21. The general principles concerning effective investigation are well established in the Court’s case law and have been recently summarised in the judgment of the Grand Chamber in the case of Mustafa Tunç and Fecire Tunç (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §§ 169‑182, 14 April 2015).
22. Having examined the applicant’s allegations in light of the principles set out in the above mentioned judgment and having regard to the documents submitted to it, the Court observes at the outset that a detailed investigation was carried out by the national authorities to investigate the death of the applicant’s husband. The Court notes that in the course of the investigation the prosecutor took statements from witnesses immediately after the incident and forensic doctors carried out an autopsy on the body, in the presence of the public prosecutor, in order to establish the exact cause of the death. An expert report was drawn up by the criminal police laboratory to establish whether the handwriting on the note that had been found on the deceased belonged to him. The applicant and her family members were also given the opportunity to participate in the investigation during which they were able to give the prosecutor their own accounts of the events and voice their complaints.
23. The applicant referred mainly two aspects of investigation which she considered flawed. Firstly, the applicant alleged that the autopsy report was not sufficiently detailed and reasoned. She complained, in particular, that there was no mention in the autopsy report of the ecchymosed scratch observed on the body of the deceased. She further alleged that there should have been a mark on the body of the deceased caused by the metal pipe on the wall, if he had indeed hung himself at the place indicated in the incident report and in the statements of the witnesses. She also considered it suspicious that the deceased’s hyoid bone on his neck had not been broken and that there was no knot on the rope in the photographs.
24. Secondly, the applicant complained that no fingerprints were collected from the scene of the incident and the clothesline rope was not collected and kept as evidence.
25. As the Court held on numerous occasions in similar cases, Article 2 does not impose a duty on the investigating authorities to satisfy every request for a particular investigative measure made by a relative in the course of the investigation (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 348, ECHR 2007‑II, and Velcea and Mazăre v. Romania, no. 64301/01, § 113, 1 December 2009). The Court notes that a full autopsy was carried out on the body of Mustafa Bacaksız immediately after his death and it considers that the autopsy report was capable of establishing the actual cause of death. Furthermore the public prosecutor, considering that all the evidence had been collected, established the cause of death to be suicide.
26. It should be noted that the Forensic Institute’s autopsy report determined the cause of the death as mechanical asphyxiation by hanging. Although the autopsy report did not mention of the ecchymosed scratch on the side of the right hip of the deceased, the Assize Court in its decision of 2 March 2012 held that it was a simple ecchymosed scratch and that it did not give rise to any suspicion. The Court does not have in its possession any elements to cast doubt on that conclusion.
27. In the light of the aforementioned findings and having examined the various measures that were taken in the instant case, the Court finds that the investigation into the death of the applicant satisfied the Convention’s standards.
28. Without substantiating her allegations, the applicant further complained under Article 2 that the State authorities had failed to protect the right to life of Mustafa Bacaksız by failing to take necessary measures in the prison.
29. The Court notes at the outset that neither the applicant nor her lawyer raised such a complaint before the Assize Court in their objections against the decision of non-prosecution of 25 January 2012.
30. Even assuming that this complaint could be examined under Article 2 of the Convention, the Court is not able to agree with the applicant that the State authorities’ negligence had contributed to her husband’s death. Having regard to the steps taken by the prosecutor in the investigation and to their nature, the Court finds that the prosecutor took all reasonable steps in a timely, independent and impartial manner and took steps to verify whether anyone’s negligence had contributed to the deaths (see paragraphs 9 and 10 above); (see also, mutatis mutandis, Olsoy v. Turkey (dec.), no. 75468/10, §§ 48-51, 26 May 2015). The applicant on the other hand, beyond alleging in a very general manner that the authorities did not take necessary measures in prison to protect her husband’s life, has not sought to refer any specific aspect which could indicate that the authorities failed to take necessary steps to protect the health and well-being of his husband.
31. Turning to the examination of the steps taken by the prosecutor in that regard, the Court notes that the prosecutor obtained the applicant’s husband’s medical file from the prison, requested information on whether the deceased had requested to be treated and whether the prison authorities had taken necessary precautions (see paragraphs 9 and 10 above). The applicant and her family members were also given the opportunity to participate in the investigation during which they were able to give the prosecutor their own accounts of the events and voice their complaints. According to their statements, they were not aware of any significant physical or mental health problem of the applicant (see paragraph 11 above).
32. The Court observes that the applicant’s husband was diagnosed with the anxiety disorder on 21 June 2011 by the prison doctor and was prescribed medication for that problem. However there is nothing in the case-file showing that there is a causal link between his anxiety disorder and the suicide, and that the authorities were negligent to take necessary measures in that regard.
33. In light of the foregoing the Court finds that the investigation was effective, in the sense that it was capable of establishing the true facts surrounding the applicant’s husband’s death. The same investigation also established that the authorities of the respondent State had not failed to take any preemptive steps to protect the right to life of the applicant’s husband.
34. Thus, the Court finds that the applicant’s complaints under Article 2 of the Convention are manifestly ill‑founded and must be rejected in accordance with Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 December 2017.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident
Full & Egal Universal Law Academy