SECOND SECTION
DECISION
Application no. 27368/12
Adem CESUR and Nurdan CESUR
against Turkey
The European Court of Human Rights (Second Section), sitting on 19 September 2017 as a Committee composed of:
Nebojša Vučinić, President,
Valeriu Griţco,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 2 April 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Adem Cesur and Ms Nurdan Cesur, are Turkish nationals, who were born in 1952 and 1958, respectively, and live in Istanbul.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The applicants’ son Cüneyt Cesur worked as a police officer in Akçakale, a district of Şanlıurfa, and was married to Cahide Cesur who was also a police officer, at the material time.
4. On an unknown date Cüneyt Cesur instituted divorce proceedings against Cahide Cesur on the basis of breakdown of their relationship. Cahide Cesur decided to move to another house alone in the same district.
5. On 14 April 2009, at around 7:20 p.m., while Cahide Cesur was moving to another house in the same district, with the help of her father and a number of other people from the same town, Cüneyt Cesur came in. According to the statements of those present in the room who were subsequently questioned as witnesses, Cüneyt Cesur opened fire in the direction of the ceiling, then fired a shot on the back of his wife, before shooting himself on the head. Both Cüneyt Cesur and Cahide Cesur were taken to the hospital. Meanwhile, Ö.E., one of the people who was helping Cahide Cesur in the house, was also injured in the hand by a ricocheting bullet. At around 9:50 p.m. the same day Cüneyt Cesur lost his life at the hospital.
6. On 15 April 2009 at 1.10 a.m. an autopsy was carried out by two forensic doctors under the supervision of the public prosecutor at the hospital. According to the post-mortem report, there was a bullet entry wound at right temporoparietal, measuring 5 x 4 centimeters and an exit wound at left parieto-occipital, measuring 5.5 x 4 centimeters. It was noted in the report that the death had occurred due to the injuries caused by the bullet wound and that the shot had been a contact shot or a near-contact shot (bitişik ya da bitişiğe yakın).
7. On 15 April 2009 Şanlıurfa Security Directorate (Şanlıurfa Emniyet Müdürlüğü Olay Yeri İnceleme ve Kimlik Tespit Şube Müdürlüğü) issued an expert report stating that a fingerprint belonging to Cüneyt Cesur’s left index finger had been found on the gun, next to the safety pin.
8. On 28 April 2009 Diyarbakır Criminal Police Laboratory also issued its expert report. That report indicated that analysis of the samples taken from the deceased’s hands and the hands of Cahide Cesur and two other witnesses, Ö.Y. and Ö.E., using the so-called “atomic absorption spectrometry” technique, had revealed that only the deceased had gunpowder residue (“atış artığı”) on his hands, on the outside of his right hand and inside of his left hand.
9. On 4 June 2009 Diyarbakır Criminal Police Laboratory prepared a second report, indicating that the bullets found at the crime scene had been fired by the gun which belonged to Cüneyt Cesur.
10. On 19 November 2009 Akçakale prosecutor issued a decision of non-prosecution. The prosecutor, having regard to the statements of the witnesses, the crime scene report, the post-mortem reports and the Diyarbakır Criminal Police Laboratory’s reports, held that Cüneyt Cesur had committed suicide by using his own gun.
11. On 31 January 2011 the applicants lodged a criminal complaint with the Akçakale prosecutor, claiming that the death of their son was suspicious and that the investigation which had already been concluded could not be considered to be an effective investigation. The applicants requested that another autopsy be conducted, claiming that the existing autopsy report was not sufficient. According to the applicants, the scars which they had noted on the head of their son at the time of his burial, did not match the findings recorded in the autopsy report. The applicant Adem Cesur, who is a retired police officer, claimed that his son had been shot on the left side of his head. The applicants further alleged that the place where the gun had been found raised suspicions, and complained of the fact that the mobile phones that their son had used were not examined. Lastly, the applicants also alleged that, when they went to Akçakale eleven months after the incident, they had received more information from some of the witnesses, raising even more suspicions on the circumstances of their son’s death
12. On 10 March 2011 the Akçakale prosecutor issued another decision of non-prosecution, on the grounds that the post-mortem report of 15 April 2009, the statements of the witnesses and the other evidence gathered by the investigators did not leave any room for doubt that the applicants’ son had committed suicide. The public prosecutor also stated that a decision not to prosecute had already been taken in relation to the same incident and unless new evidence was discovered it was not possible to initiate a new criminal investigation under Article 172 § 2 of the Turkish Code of Criminal Procedure.
13. The applicants filed an objection against the decision of non-prosecution, claiming that their son might have been shot by somebody else. The Siverek Assize Court examined the merits of both the prosecutor’s decision and the applicants’ objection in its decision of on 25 June 2011 and dismissed the objection. According to the court, the criminal investigation was conducted meticulously and that there was no reason to question any additional witnesses proposed by the applicants.
COMPLAINT
14. The applicants complained under Article 2 of the Convention that the national authorities had failed to carry out an effective investigation into their son’s death.
THE LAW
15. The applicants complained that the investigation conducted into the death of their son had not been effective within the meaning of the Court’s case-law under Article 2 of the Convention.
16. The Court observes that the applicants’ complaint relates solely 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.
17. 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).
18. 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).
19. In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007‑II). That is, it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 172, 14 April 2015).
20. Turning to the specific circumstances of the present case, the Court notes that the applicants did not lodge an objection against the Akçakale public prosecutor’s non-prosecution decision of 19 November 2009. However the applicants claimed that they received more information from a number of witnesses after that decision had been adopted, giving rise to suspicions on the circumstances of their son’s death. Subsequently they had lodged a criminal complaint with the Akçakale public prosecutor. Subsequently the Akçakale public prosecutor and the Siverek Assize Court had examined the merits of their complaints.
21. The Court considers it unnecessary to determine whether the applicants have failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention on account of not lodging an objection against the Akçakale public prosecutor’s non-prosecution decision of 19 November 2009, since their complaints should in any event be declared inadmissible as being manifestly ill-founded for the reasons set out below.
22. Having examined the documents submitted to it, the Court observes that a detailed investigation was carried out by the national authorities to investigate the death of the applicants’ son. The Court notes that in the course of the investigation the prosecutor took statements from witnesses 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. The expert reports were drawn up by the criminal police laboratory to establish whether the applicants’ son was the one who fired the shot that killed him. The public prosecutor, considering that all the evidence had been gathered, established the cause of death to be suicide.
23. The Court observes that the applicants’ criminal complaint dated 31 January 2011 was introduced after they had had talks with some of the witnesses in Akçakale, and was based on their suspicions about the established facts of the death by the public prosecutor. It further notes that both the public prosecutor and the Assize Court examined the applicants’ claims on the merits and found that the investigation had been carried out meticulously and that there was no plausible or credible allegation of a new piece of evidence or item of information that would necessitate further investigative measures.
24. The applicants referred mainly to two aspects of investigation which they considered flawed. They alleged that the autopsy report was not sufficiently reasoned or accurate and that the national authorities should have taken additional statements from the witnesses. 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, cited above, § 348, and Velcea and Mazăre v. Romania, no. 64301/01, § 113, 1 December 2009 ). The Court notes that the autopsy report was capable of establishing the cause of death and that the findings of the Diyarbakır Criminal Police Laboratory’s expert reports were in conformity with the findings of the autopsy report. Furthermore, the Court observes that the public prosecutor had already taken statements from several witnesses after the incident and that those statements corroborated the other evidence. Although the applicants requested from the domestic authorities to conduct another autopsy and to take statements from additional witnesses, the Court considers that the circumstances surrounding Cüneyt Cesur’s death had already been clarified by the authorities (see, a contrario, Sultan Dölek and Others v. Turkey, cited above, § 81) Thus, the Court finds that the investigation was effective, in the sense that it was capable of establishing the true facts surrounding the death of the applicants’ son.
25. 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 applicants’ son satisfied the Convention standards (see, mutatis mutandis, İlhan and Others v. Turkey (dec.), no. 23856/07, 27 August 2013).
26. In the light of the foregoing, the Court concludes that the applicant’s complaint under Articles 2 should be rejected as being manifestly ill‑founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 October 2017.
Hasan BakırcıNebojša Vučinić
Deputy RegistrarPresident
Full & Egal Universal Law Academy