Information Note on the Court’s case-law No. 99
July 2007
Pad and Others v. Turkey - 60167/00
Decision 28.6.2007 [Section III]
Article 35
Article 35-1
Exhaustion of domestic remedies
Failure of Iranian applicants to challenge a decision not to prosecute given in Turkey: inadmissible
In May 1999, seven Iranian men, the applicants’ relatives, were killed by Turkish security forces near the Iran-Turkish border. The applicants’ representative in the United Kingdom filed a petition with the chief public prosecutor’s office asking for information about the state of the investigation into this incident. In a letter of November 2000, the public prosecutor informed him that a decision not to prosecute had been taken and that it could be challenged before the regional administrative court. This letter was served on the applicants by the Turkish Consulate General in Iran. In 2002 the Turkish Government transferred 175,000 US dollars to the Ambassador of the Islamic Republic of Iran to be paid to the relatives of the deceased. This amount was received by the Iranian authorities acting as the representatives of the applicants at the latter’s request. The Iranian authorities decided to reduce the amount of compensation in order to prevent recurrences of trespassing and trafficking by the border inhabitants. The families of the deceased refused to take the money which had been offered (about 11,000 USD per family).
Inadmissible: It was not necessary to determine the exact location of the impugned events given that the Government had already admitted that the applicants’ relatives were suspected of being terrorists and had been killed by gun fire from the helicopters. Accordingly, the victims had been within the jurisdiction of Turkey at the time of the alleged events. The respondent Government could be deemed to have fulfilled its duty to make reparation for the alleged wrong by the payment of compensation to the Iranian Government acting on behalf of the applicants. In any case, and as far as the exhaustion of domestic remedies was concerned, an appeal against decisions of public prosecutors not to prosecute constituted, in principle, an effective and accessible remedy within the meaning of Article 35 § 1 of the Convention. Even if the decision not to prosecute had not been formally served on the applicants, they and/or their representative could, had they acted more diligently, have apprised themselves of it much sooner. Under the domestic law, they could have contested the decision within fifteen days after learning of it, but they had not done so. Given their ability to instruct a lawyer in the United Kingdom, they could not claim that the judicial mechanism of Turkey, a foreign country, was physically and financially inaccessible. Accordingly, the Court did not find any circumstances which would dispense them from the obligation to object to the public prosecutor’s decision not to prosecute. The Court further noted in this connection the applicants’ failure to display due diligence by appointing a local legal representative to follow up their case as required by Turkish law: non-exhaustion of domestic remedies.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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