Information Note on the Court’s case-law 38
January 2002
Epözdemir v. Turkey (dec.) - 57039/00
Decision 31.1.2002 [Section III]
Article 35
Article 35-1
Exhaustion of domestic remedies
Failure of applicant to appeal against decision of public prosecutor not to prosecute village guards responsible for death of her husband in south-east Turkey: inadmissible
In June 1998 the applicant’s husband failed to return home. In September 1998 the applicant filed a petition with the Siirt public prosecutor, informing him of her husband’s disappearance. She also told the prosecutor that her husband was suffering from serious psychological problems. In March 1999 the public prosecutor discontinued the investigation into his disappearance. He concluded that he had not disappeared in suspicious circumstances and that no evidence of a crime had been discovered. In April 1999 the uncle of the applicant’s husband obtained a copy of the family registry from the registry office for an unrelated matter. There was an entry in the records to the effect that the applicant’s husband had been killed in July 1998. Subsequently, the uncle went to see the Dargeçit public prosecutor to ask for clarification. The public prosecutor told him that no one knew where the applicant’s husband was buried and that there was no duty for the authorities to hand his body over to the family. He added that following the applicant’s husband’s death, his file had been sent to the Diyarbakır State Security Court so that the court would decide whether to prosecute him for membership of the PKK. The decision was taken not to prosecute him posthumously. The applicant later obtained a copy of the post mortem report of July 1998. According to the statement of a village guard which had been included in the report, the applicant’s husband had been shot dead during a clash between a PKK group, with whom he was, and village guards. In May 1999 the applicant asked for a copy of the investigation file from the Diyarbakır State Security Court. In June 1999 she asked the court that the village guards whose names appeared in the post mortem report be prosecuted for the murder of her husband. She also stated that her husband had never been involved in any way with the PKK and that he was suffering from psychological problems at the time. In September 1999 the State Security Court prosecutor decided not to prosecute the village guards. The applicant did not appeal against the prosecutor’s decision.
Inadmissible under Articles 2 and 13: The applicant argued that she was not required to pursue any further remedies since there was an administrative practice in south-east Turkey which made any remedies illusory. However, she did avail herself of a domestic remedy in requesting the office of the public prosecutor to conduct an investigation to establish the cause of her husband’s death and prosecute those responsible for it. Furthermore, she had not sufficiently substantiated that she had been subjected to intimidation or referred to any specific facts indicating that she would have risked reprisals or intimidation had she lodged an appeal. Moreover, in the event that there were no effective domestic remedies, she would have been required under Article 35 § 1 to lodge her application within six months from the date on which she became aware of her husband’s death. She failed to do so and it was assumed that the application to the public prosecutor was a relevant domestic remedy. In the Turkish legal system, in such circumstances an investigation will be carried out by the public prosecutor, who will take the decision whether to prosecute the alleged perpetrators. In the event that a decision not to prosecute is issued, as in the present case, Article 165 of the Code of Criminal Procedure affords the possibility of appealing to a court, leave to appeal being automatically granted in such cases and any interested party being informed about the possibility of lodging an appeal. Therefore, a decision not to prosecute is not final until the time-limit for an appeal has expired. To the extent that it could be argued that the public prosecutor’s decision was not being justified by the available evidence, it was open to the applicant to avail herself of this ordinary and accessible remedy and to appeal to an Assize Court, which could have directed that a prosecution or other investigation measures be carried out. Although the decision not to prosecute the village guards, whose names were known, suggested that the clear wording of Article 463 of the Penal Code was disregarded by the prosecutor, the applicant could have brought the issue to the attention of the appeal judge and thus increased substantially her prospects of success, as it was not established that such an appeal would have been devoid of success. Consequently, the applicant could not be considered as having complied with the requirement of exhaustion of domestic remedies: non-exhaustion.
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