SECOND SECTION
DECISION
Applications nos. 33898/11 and 35798/11
FINDIK against Turkey
and KARTAL against Turkey
The European Court of Human Rights (Second Section), sitting on 9 October 2012 as a Chamber composed of:
Ineta Ziemele, President,
Danutė Jočienė,
Dragoljub Popović,
Isabelle Berro-Lefèvre,
András Sajó,
Işıl Karakaş,
Guido Raimondi, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above applications lodged on 15 April 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, whose particulars are set out in the appendix, are Turkish nationals and close relatives of Mr Mehmet Fındık and Mr Ömer Kartal, who disappeared in 1995. The applicants were represented before the Court by Messrs Abdullah Fındık, Hüsnü Kaplan and Abdulaziz Tokay, lawyers practising in the town of Silopi, near Şırnak.
The circumstances of the case
2. The facts of the case, as submitted by the applicants and as they appear from the documents submitted by them, may be summarised as follows.
3. At around 5.30 p.m. on 31 December 1995 Mehmet Fındık and Ömer Kartal, accompanied by their relative Ömer Fındık, left Silopi Gendarmerie and Police Headquarters after having paid a visit there on the occasion of New Year’s Eve. Nothing has been heard from them since that date.
4. On 1 January 1996 the car in which the three men had travelled the previous day and which was owned by Mehmet Fındık, was found abandoned on vacant land in Silopi.
5. The same day the family asked the authorities to find the missing men. The brother of Ömer Kartal alleged that the men might have been abducted.
6. When the preliminary investigation to find the three men did not yield any results, on 19 September 1996 the Silopi prosecutor issued a continuous search order and asked the police to give him progress reports every three months.
7. In 2007 the applicants claimed compensation from the State, pursuant to Law no. 5233 on Compensation of the Losses resulting from Terrorism, for the disappearance of their relatives. On 23 May 2008 the Mardin Administrative Court rejected the case on account of the applicants’ failure to comply with a procedural rule. On 28 April 2010 the Supreme Administrative Court rejected the appeal lodged by the applicants. The Supreme Administrative Court’s decision was served on the applicants on 18 October 2010.
COMPLAINTS
8. Relying on Articles 2, 6 and 13 of the Convention the applicants complained about the disappearance of their relatives.
THE LAW
9. The Court considers that the applicants’ complaints should be examined from the standpoint of Article 2 of the Convention alone. It also 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 15 April 2011 although their relatives disappeared on 31 December 1995, i.e. over 15 years previously.
10. The Court reiterates that the purpose of the six-month 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 ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002, also Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002-III).
11. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. In cases concerning deprivation of life, 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. Special considerations may 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 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 (ibid.; see also Hazar and others v. Turkey (dec.), no. 62566/00, 10 January 2002).
12. In cases concerning disappearances, the Court has held that allowances must be made for the uncertainty and confusion which frequently mark the aftermath of a disappearance (Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, §§ 162-163, ECHR 2009). Furthermore, as the Court held recently, the nature of the investigations into disappearances is such that relatives of a disappeared person may be justified in waiting lengthy periods of time for the national authorities to conclude their investigations. Thus, in the case of Er and Others v. Turkey (no. 23016/04, §§ 55-58, 31 July 2012) the applicants, who had waited for a period of almost ten years after the disappearance of their relative before lodging their application, were held to have complied with the six-month rule because an investigation was being conducted at the national level into the disappearance (see also Yetişen v. Turkey (dec.), no. 21099/06, 10 July 2012).
13. In the present application the applicants’ relatives disappeared on 31 December 1995. A short-lived investigation was carried out and on 19 September 1996 the Silopi prosecutor issued a continuous search order. The only steps taken after September 1996 were the preparation of short notes by police officers with a view to informing the prosecutor at three‑monthly intervals of their inability to find the applicants’ relatives.
14. In a number of its judgments the Court has examined this particular method of investigation in Turkey, and considered that such notes prepared by law enforcement officers could not be taken as proof of any meaningful investigation (see Çelikbilek v. Turkey, no. 27693/95, § 93, 31 May 2005, and Süheyla Aydın v. Turkey, no. 25660/94, § 184, 24 May 2005). The Court notes that such information notes are prepared by law enforcement officials pursuant to continuous search orders issued by prosecutors, and are aimed at informing prosecutors about any developments in the search for the victim or the perpetrator of an offence. They are sent to the prosecutor at three-monthly intervals until expiry of the statute of limitations foreseen in domestic law for the offence in question.
15. In the light of the foregoing the Court considers that the absence of a meaningful investigation must have been apparent to the applicants long before they applied to the Court on 15 April 2011.
16. As to whether the compensation proceedings, instigated by the applicants in 2007 and concluded less than six months before they applied to the Court (see paragraph 7 above), have any bearing on the issue of the applicants’ compliance with the six-month rule, the Court points out that it has already examined the compensation procedure in question in a number of its judgments in cases which also concerned the issue of the right to life (see, mutatis mutandis, Gasyak and Others v. Turkey, no. 27872/03, §§ 66‑72, 13 October 2009, and Fadime and Turan Karabulut v. Turkey, no. 23872/04, § 38, 27 May 2010). It found in those judgments that the compensation procedure in question could not be regarded as an effective remedy for the purposes of Article 2 of the Convention as it did not afford adequate redress. It finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned cases, and concludes that the compensation proceedings did not stop the running of the six-month period.
17. In light of the foregoing the Court finds that the applicants, who waited for a period of over fifteen years during which no effective investigations were being carried out, failed to comply with the six-month rule. The Court thus concludes that the applications have been introduced out of time and are inadmissible under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Stanley NaismithIneta Ziemele
RegistrarPresident
APPENDIX
Application no 33898/11 Hanım Fındık, 1959, Silopi Çimen Fındık, 1975, Silopi Leyla Fındık, 1980, Silopi Şirin Fındık, 1987, Silopi Şefika Fındık, 1987, Silopi Suzan Fındık, 1990, Silopi Hividar Fındık, 1996, Silopi Zınar Fındık, 1981, Silopi Yusuf Fındık, 1984, SilopiSadun Fındık, 1991, Silopi
Application no 35798/11 Zeynep Kartal, 1930, Silopi Fatım Kartal, 1936, Silopi Gazal Kartal, 1975, Silopi Mehmet Tevfik Kartal, 1971, Silopi
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