FOURTH SECTION
DECISION
Application no. 6800/10
Mohsen ALIZADEH FANAELOU
against Cyprus
The European Court of Human Rights (Fourth Section), sitting on 5 March 2013 as a Committee composed of:
Zdravka Kalaydjieva, President,
George Nicolaou,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 4 January 2010,
Having regard to the information submitted by the Government on 3 and 10 May 2011 in reply to the Court’s related request of 16 March 2011;
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mohsen Alizadeh Fanaelou, is an Iranian national, who was born in 1964 and lives in Larnaca.
The facts of the case, as submitted by the applicant, and supplemented by information provided by the Cypriot Government in reply to the Court’s related request dated 16 March 2011, may be summarised as follows.
The applicant is the father of a five-year old boy, Marios Alizadeh Fanaelou, who died on 31 March 2004 following the explosion of a new washing machine that had been installed some days before in the family house.
A post mortem was carried out on 1 April 2004. The report issued on the same day by a forensic surgeon established burns as the cause of the applicant’s son’s death. According to this report the applicant’s son had burns to 90% of his body.
A report was also prepared by the Department of the Electrical and Mechanical Services of the Ministry of Communications and Works following an inspection carried out on 2 April 2004 of the electrical installations of the house and of the washing machine. The report stated that the fire had been caused by the explosion of the washing machine’s electrical power filter.
An inquest was held before the Nicosia District Court (inquest no. 31/2004). On 17 April 2007 the Coroner, after having established the circumstances of the boy’s death, found that the applicant’s son had died from the burns to his body. On the basis of the evidence submitted, the fire had been caused by the explosion of the washing machine’s electrical power filter: a manufacturing defect in the filter had caused overheating and a short circuit. Further, the Coroner observed that from the proceedings before her no responsibility could be said to arise on the part of any person and, in particular, the vendors of the machine although, liability on the part of the manufacturers could not be excluded.
It appears that the police investigation was closed as it was established that no criminal act had been committed. The investigation file was destroyed on 20 September 2010 as the files in such cases are only kept for a period for five years.
By a letter dated 18 May 2009 the applicant lodged a complaint with the Attorney-General of the Republic (in his capacity as President of the Advocates’ Disciplinary Board) against his lawyer. No more details were given by the applicant in this respect. The applicant received a reply on 6 November 2009 from the Attorney-General that his complaint was being examined.
The applicant claimed that he repeatedly asked the authorities to fully investigate the case but to no avail.
COMPLAINTS
The applicant complained under Article 6 of the Convention about the unfairness of the domestic proceedings and the failure of the authorities to duly investigate his son’s death and to bring those responsible to justice.
He further complained under Article 13 of the Convention of lack of an effective remedy.
THE LAW
The Court observes that the applicant invoked Articles 6 and 13 of the Convention. However the substance of his complaints concerns an alleged failure on the part of the authorities to investigate his son’s death effectively and bring those responsible to account. These complaints in essence appear to raise allegations under the procedural aspect of Article 2 § 1 of the Convention which provides as follows:
“Everyone’s right to life shall be protected by law.”
The Court reiterates that Article 2 does not concern only deaths resulting from the use of force by agents of the State but also places a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (Makaratzis v. Greece [GC], no. 50385/99, § 57, ECHR 2004‑XI). In the present case, there is no allegation of direct State responsibility for the death of the applicant’s son but rather that the State failed in its positive obligation to carry out an effective investigation into the circumstances of his death. However, there is no need to decide whether such an obligation arose on the part of the State in this case, as the application must in any event be rejected for having been introduced out of time.
The Court recalls that the object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see, for example, Worm v. Austria, 29 August 1997, §§ 32-33, Reports of Judgments and Decisions 1997-V).
As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Nor can Article 35 § 1 be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4 June 2001).
In the present case, the matters under complaint relate to the circumstances of the applicant’s son’s death which occurred on 31 March 2004.
An inquest was held into his death which established the circumstances of the boy’s death and concluded that he had died from the burns he had sustained in the fire. The Coroner also observed that, although, on the basis of the evidence submitted in the proceedings no responsibility arose on the part of any person and, in particular, the vendors of the machine, liability on the part of the manufacturers could not be excluded.
It may therefore be considered that the applicant was aware as from the date of verdict on 17 April 2007 of the factual circumstances of his son’s death. Furthermore, in the Court’s view it was readily apparent from the verdict reached by the inquest that the authorities would not be carrying out any further investigation into the case.
In these circumstances, and bearing in mind that no civil action was brought by the applicant following the inquest, the Court considers that the six-month time-limit started to run in the present case from 17 April 2007, the date of the verdict. Consequently, as the applicant lodged his application before the Court on 4 January 2010 (that is, more than two years and eight months later), he failed to comply with the six-month rule. The applicant has not substantiated the existence of specific circumstances which might have prevented him from applying to the Court within this time-limit.
It follows that the application must be dismissed pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıZdravka Kalaydjieva
Deputy RegistrarPresident
Full & Egal Universal Law Academy