Information Note on the Court’s case-law No. 79
October 2005
Sıddık Aslan and Others v. Turkey (preliminary objection) - 75307/01
Judgment 18.10.2005 [Section II]
Article 35
Article 35-1
Exhaustion of domestic remedies
Failure to exhaust domestic remedies in respect of Convention grievances: preliminary objection allowed
Facts: The applicants’ relatives were killed in a clash with gendarme soldiers on 12 September 2001. Thereafter, the applicants requested the authorities to investigate the incidents, find the perpetrators, carry out official identifications of the bodies and autopsies. According to the Government, extensive searches in the area, which was very mountainous, had been conducted after the clash. However, the bodies of the applicants’ relatives could not be found, and the Government had assumed that they had decomposed or been taken by terrorists. Several documents drawn up by the Gendarmerie in the context of the official investigation carried out by the Prosecutors’ offices describe the unsuccessful attempts to recover the bodies and ammunition. The applicants alleged their relatives had been unlawfully killed by security forces and that the authorities had failed to investigate the circumstances of the killings.
Law: Article 35(1) – The Government’s preliminary objection (non-exhaustion): Although the Court had initially considered that the Government’s objection was to be joined to the merits, in the light of new information brought to its attention, it considered it appropriate to address the question of whether the criminal investigation at issue could be regarded as effective already at this juncture. It appeared that six or seven days after the killing of their relatives, the applicants had gone to the place where their relatives had been killed and had buried the bodies. They had not imparted this information because of their fears. However, the Court was not convinced about the well-foundedness of the applicants’ fears, which allegedly prevented them from sharing this information with anyone. The Court finds that the national authorities took every step within their power to find the bodies, to the extent of the information they held. Their efforts were, however, seriously hampered by the actions of the applicants. In the light of the foregoing, the Court concludes that it cannot be said that the national authorities remained passive in the face of the allegations brought to their attention by the applicants. Thus the authorities cannot be reproached for the failure to find the bodies. As the information concerning the burial of the bodies has only recently been disclosed by the applicants, the national authorities had not yet had the opportunity to establish the identities of the bodies and to clarify the true facts concerning the deaths.
Conclusion: Government’s preliminary objection upheld (unanimously).
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This summary by the Registry does not bind the Court.
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