SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 73065/01
by Siti BULUT and Hatice YAVUZ
against Turkey
The European Court of Human Rights (Second Section), sitting on 28 May 2002 as a Chamber composed of
MrJ.-P. Costa, President,
MrA.B. Baka,
MrGaukur Jörundsson,
MrL. Loucaides,
MrR. Türmen,
MrC. Bîrsan,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged with the European Court of Human Rights on 1 March 2001,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mrs Siti Bulut and Mrs Hatice Yavuz, are Turkish nationals and live in Nusaybin, Turkey. They are represented before the Court by Messrs Medeni Ayhan and Metin Ayhan, lawyers practising in Ankara.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
Celal Bulut, the first applicant’s husband and the second applicant’s father, was born in 1950 in Midyat and was working as a decorator in the district of Nusaybin within the province of Mardin in south-east Turkey. At 12.30 p.m. on 29 July 1994 he returned to his house from work to have his lunch. As he entered the garden of his house five persons, who had followed him, opened fire and shot him. He died instantly.
Security forces arrived at the scene within minutes but made no attempt to discover the direction in which the perpetrators had fled. Instead, they searched the house of the deceased, ransacking it in the process.
No photographs were taken at the scene of the crime and eye-witnesses were not questioned. Furthermore, no post-mortem examination was carried out on the body. Vital evidence, such as fingerprints or spent cartridges, was not collected.
The applicants unsuccessfully contacted the Nusaybin public prosecutor on many occasions following the incident and enquired whether the perpetrators had been identified or arrested.
On 26 October 2000 the applicants, through the assistance of their lawyers, wrote to the Nusaybin public prosecutor and to the prosecutor at the Diyarbakır State Security Court and asked them whether the perpetrators had been arrested yet.
The prosecutor at the Diyarbakır State Security Court did not reply to the applicants’ letter.
The Nusaybin public prosecutor, who received the applicants’ letter on 30 October 2000, sent the applicants a copy of the decision of non-jurisdiction taken on 5 June 1995 pursuant to which the investigation file had been sent to the Diyarbakır State Security Court. This decision had been taken in 1995 on the basis of the public prosecutor’s belief that Şeyhmuz Uğur, Adnan Aktaş, Mehmet Akay and Ömer Saruhan, all suspected members of Hizbollah, were involved in the killing of Celal Bulut. For this reason, the prosecutor declined jurisdiction in favour of the Diyarbakır State Security Court which had jurisdiction to investigate the matter.
B. Relevant domestic law and practice
According to Article 448 of the Turkish Criminal Code (Türk Ceza Kanunu) any person who intentionally kills another shall be sentenced to a term of imprisonment of 24 to 30 years. According to Article 450, the death penalty may be imposed in cases of, inter alia, premeditated murder. Under Article 452, where death results from an act of violence but it was not the intention of the offender to kill his victim, a sentence of eight years’ imprisonment shall be imposed on the offender. Where death results from an act of carelessness, negligence or inexperience on the part of the offender in breach of a law, orders or regulations, Article 455 stipulates that the guilty party shall be sentenced to a term of imprisonment of two to five years and to a substantial fine.
For all such offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure (Ceza Muhakemeleri Usulü Kanunu), with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings (Article 165).
According to Article 102 (1) of the Turkish Criminal Code, the statutory period during which a public prosecutor is obliged to investigate the crime of murder is 20 years.
COMPLAINTS
The applicants complain that Celal Bulut was killed because of his ethnic Kurdish origin by persons unknown acting with the connivance of the State. For this reason, the authorities did not investigate the killing. They further complain that the actions of the security forces who searched their house instead of following the perpetrators after the killing, constituted inhuman and degrading treatment and also interfered with their right to respect for family life and home. The applicants finally complain that they did not have an effective remedy for their complaints. They invoked Articles 2, 3, 6, 8, 13 and 14 of the Convention.
THE LAW
The applicants complain that Celal Bulut’s killing and the subsequent failure of the authorities to investigate the killing violated their rights under Articles 2, 3, 6, 8, 13 and 14 of the Convention.
The Court considers that it should first examine whether the applicants have complied with the six-month rule contained in Article 35 § 1 given that they did not lodge their application until 1 March 2001 although Celal Bulut had been killed on 29 July 1994, i.e. almost 7 years previously.
The applicants claim that the domestic authorities were still investigating the killing and the investigation would, pursuant to Article 102 of the Turkish Criminal Code, continue until 20 years had elapsed from the date of the killing. They submitted that the six-month time limit did not apply in this case as there had, as yet, been no domestic decision to discontinue the investigation.
The Court recalls that the purpose of the six-months’ rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it also serves to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see application no. 10626/83, Commission decision of 7 May 1985, DR 42, p. 205).
The Court further recalls that if no remedies are available or if they are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and others v. Turkey, (dec.) no. 62566/00, ECHR 2002; see also application no. 23413/94, Commission decision of 28 November 1995, Decisions and Reports DR 83, p. 31).
Special considerations could apply in exceptional cases where an applicant first avails himself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of the circumstances which make that remedy ineffective. In such a situation, the six-month period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (see application no. 23654/94, Commission decision of 15 May 1995, (DR) 81, p. 76).
The applicants in the present case claim that they applied on many occasions to the office of the Nusaybin public prosecutor after the killing in order to obtain information. On each occasion they were told that no one had yet been prosecuted for the killing of Celal Bulut. The Court notes in this connection that the applicants are unable to submit any evidence in support of their claim that they had applied to the office of the prosecutor. The applicants claim that they are illiterate and did not have any money before 26 October 2000 to afford the services of a lawyer to make these applications in writing. They further submit that they only became aware that domestic remedies would not be effective after they had been informed by the Nusaybin public prosecutor, in reply to their petition of 26 October 2000, that no one had as yet been prosecuted for the killing of Celal Bulut and that the investigation file had been sent to the office of the public prosecutor at the Diyarbakır State Security Court, pursuant to the Nusaybin public prosecutor’s decision of non-jurisdiction taken on 5 June 1995.
As to the applicants’ claim that the investigating authorities never informed them about the investigation, the Court notes that while an effective investigation within the meaning of Article 13 of the Convention entails an effective access for the relatives to the investigatory procedure (see the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2287, § 98 and the Aydın v. Turkey judgment of 25 September 1997, Reports 1997-VI, p. 1895, § 103), applicants whose close relative has been killed may be expected to display a certain amount of diligence and initiative in informing themselves about the progress made in the investigation.
As to the applicants’ claim that they were unable to find out earlier that the Nusaybin public prosecutor had taken a decision of non-jurisdiction and had sent the investigation file to the Diyarbakır State Security Court on 5 June 1995, the Court does not find this claim convincing. It is in contradiction with the applicants’ other claim that they did, and on many occasions, ask the office of the Nusaybin prosecutor to inform them about the state of the investigation.
Even assuming that there were no effective remedies in the present case, the Court finds that the applicants must be considered to have been aware of the lack of any effective criminal investigation long before they petitioned the public prosecutor on 26 October 2000. If, as the applicants allege, they did not become aware of this situation until October 2000, the Court considers that that was due to their own negligence (see Bayram and Yıldırım v. Turkey, (dec.) no. 38587/97, ECHR 2002).
The Court finds, therefore, that the application has been introduced out of time and is inadmissible under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy