AYTEKIN v. TURKEY - 22880/93 [1998] ECHR 87 (23 September 1998)

judgment [4] . FINAL SUBMISSIONS TO THE COURT 67. The applicant requested the Court to find that the facts of the case disclosed violations of Articles 2 and 13 of the Convention and to award her just satisfaction under Article 50. The Government contended as their primary submission that the applicant had not exhausted domestic remedies and for that reason her application should have been declared inadmissible. In the alternative they maintained that there had been no breach of the Articles invoked by the applicant. AS TO THE LAW THE GOVERNMENT’S PRELIMINARY OBJECTION A. Arguments of those appearing before the Court 1. The Government 68. The Government argued that the Commission should have declared the applicant’s complaints inadmissible on account of her failure to exhaust domestic remedies, as required by Article 26 of the Convention which provides: “The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.” They stressed in this respect that an official investigation into the killing of her husband had been opened on the very day the incident occurred and that that investigation had culminated in the trial and subsequent conviction of Private Tuncay Deniz by the Batman Criminal Court on 2 October 1997. Furthermore, even on the date of the hearing the applicant was still availing herself of domestic remedies to secure redress in respect of her husband’s death since she had lodged an appeal against the judgment of the Batman Criminal Court and that appeal was now pending before the Court of Cassation (see paragraph 36 above). 69. The Government contended that the Commission declared the applicant’s complaints admissible on 15 May 1995 in disregard of the ongoing judicial investigation, which had been brought to its attention in the Government’s observations submitted on 5 December 1994. In addition, the Commission had regrettably misplaced their detailed description of the investigation and judicial proceedings which their authorities had forwarded on 14 October 1996 (see paragraph 39 above). This resulted in the adoption by the Commission of its Article 31 report on 18 September 1997 finding a violation of Article 2 of the Convention in ignorance of the fact that Private Tuncay Deniz was standing trial at the time on a charge of intentional homicide committed in excess of his duties and was about to be convicted and sentenced. 70. In their further submissions, the Government also highlighted the fact that the applicant when applying to join the criminal proceedings against the accused could have claimed pecuniary and non-pecuniary damages in application of the provisions of Article 365 of the Code of Criminal Procedure (see paragraphs 30, 33 and 59 above). However, she failed to do so. They also maintained that she did not attempt to institute administrative-law proceedings on the basis of the principle of the strict liability of the authorities (see paragraphs 47–49 above). As regards the latter remedy, she had had one year from the date of the death of her husband in which to exercise it and 120 days thereafter in which to appeal to the administrative court against any decision taken on her claim (see paragraph 58 above). 71. For the above reasons the Government requested the Court to uphold their objection to the admissibility of the applicant’s complaints. 2. The applicant 72. The applicant submitted before the Court that the Government must be considered estopped from relying on the proceedings before the Batman Criminal Court since they had never informed the Commission that such proceedings had been instituted prior to her complaints being declared admissible. They had simply confined themselves to stating that the military authorities were continuing with their investigation into her husband’s killing. Furthermore, the Government had an additional opportunity to inform the Commission of the state of the proceedings when they requested the Commission on 2 October 1995 to declare the case inadmissible in application of Article 29 of the Convention. The authorities in fact only supplied complete information to the Commission on the criminal case against Private Tuncay Deniz on 14 October 1996, ten months after the deadline fixed for submission of pleadings on the merits and long after the commencement of the trial before the Batman Criminal Court. 73. In any event, the investigation conducted into her husband’s death and the subsequent trial and conviction of Private Tuncay Deniz could not be considered an effective remedy for the purposes of Article 26 of the Convention. She stressed that it had taken four and a half years to secure a conviction even though it was known from the day of the incident that Private Tuncay Deniz was responsible for firing the fatal shot. She contended that he should properly have been convicted of murder but this option was excluded since the pre-trial investigation was not only seriously deficient in many respects, it was also biased since the investigating authorities favoured the account given by Private Tuncay Deniz and completely disregarded the merits of the testimony of the three passengers who were in the car with her husband when he was shot dead. 74. In the applicant’s opinion, the Government’s preliminary objection, if not rejected on grounds of estoppel, should be joined to the merits of her complaints under Articles 2 and 13 of the Convention. 3. The Commission 75. The Delegate of the Commission explained to the Court at the hearing that the Commission declared the applicant’s complaints admissible on 15 May 1995 having received only summary observations from the Government contending that she had failed to exhaust domestic remedies. The Commission did not find that the Government’s arguments were sufficient to reject the application on that account, being limited to the fact that the Kozluk public prosecutor had initiated an investigation into the shooting incident but had had to refer the case file to the military authorities on 8 June 1993 for lack of jurisdiction and that it was the preliminary opinion of the latter authorities that Private Tuncay Deniz had not been culpable of any deliberate or unruly action. No further information was submitted about any measures having been subsequently taken against the soldier. In the Commission’s view, given that more than two years had elapsed since the killing of the applicant’s husband and that all relevant evidence appeared to be easily accessible to the investigating authorities, the inquiry could not be considered to constitute an effective remedy for the purposes of Article 26 of the Convention. 76. In the Delegate’s opinion, the subsequent conviction of Private Tuncay Deniz on 2 October 1997 by the Batman Criminal Court did not lead to the conclusion that the applicant had obtained sufficient redress at the domestic level in respect of her complaints. As to whether the applicant could at some stage have claimed compensation from the authorities, the Delegate also observed that the Commission has with reason taken the view that where an applicant is the victim of a crime, he or she is entitled to await the outcome of criminal proceedings and does not have to bring parallel administrative or civil proceedings in order to comply with the Convention requirement to exhaust domestic remedies. Accordingly the applicant’s failure to meet the time-limit for instituting administrative-law proceedings had to be viewed in this context. On the other hand, the Delegate conceded that the Government’s observations of 2 October 1996 might shed a different light on the nature of the investigation carried out by the authorities and that the Commission’s conclusion finding the respondent State in breach of its procedural obligation under Article 2 may need to be looked at with particular attention by the Court. B. The Court’s assessment 77. The Court reiterates that it takes cognisance of preliminary objections in so far as the State in question has already raised them, at least in substance and with sufficient clarity, before the Commission, in principle at the stage of the initial examination of admissibility (see, most recently, the Ergi v. Turkey judgment of 28 July 1998, Reports of Judgments and Decisions 1998-IV, p. 1769, § 59). 78. The Court notes that the Government in their submissions on the admissibility of the applicant’s complaints merely informed the Commission that the investigation into the death of her husband was proceeding. They provided no details of the progress which had been made in the case beyond the date of the decision of the public prosecutor to relinquish jurisdiction to the military authorities (see paragraph 26 above). On that basis alone they contended that the applicant had not exhausted domestic remedies. No explanation has been given as to why the Government did not keep the Commission informed prior to the adoption of its admissibility decision of the subsequent stages of the investigation. It is to be observed in this respect that by the date of the admissibility decision, the military prosecutor had decided to commit the accused for trial, the Diyarbakır Military Tribunal between 27 September 1993 and 10 May 1994 had heard evidence in the case before relinquishing jurisdiction in favour of the Batman Criminal Court, and the latter court had been seized of the case since July 1994. The Government reasserted their objection to the admissibility of the application in a second series of observations submitted to the Commission on 2 October 1995 in which they requested the Commission to apply Article 29 of the Convention and to reverse its earlier admissibility decision. In those observations they highlighted the failure of the applicant to seek compensation in respect of the death of her husband by instituting administrative-law proceedings against the authorities on the basis of the principle of strict liability (see paragraph 48 above). The Government’s request was rejected by the Commission on 9 September 1997. Finally, on 14 October 1996, and prior to the rejection by the Commission of the Government’s Article 29 request, the authorities submitted a complete picture of the investigation and proceedings against Private Tuncay Deniz up until that date. However, the documentation was never considered by the Commission since it was misplaced in the latter’s files. 79. In the Court’s view, even if the Government provided the Commission with few details at the admissibility stage of the proceedings on the progress being made in the investigation at the domestic level, it is nevertheless clear that they attached importance in their submissions to the outcome of that investigation as a means of securing the applicant redress in respect of the death of her husband including the possibility of obtaining compensation on the strength of its findings. The Government may accordingly be reasonably considered to have pleaded at that juncture the substance of their objection that the applicant had not exhausted domestic remedies. 80. It must also be observed that the applicant herself was fully aware of the state of the proceedings against Private Tuncay Deniz by the date of the Commission’s admissibility decision. It is to be noted that she had applied to the Diyarbakır Military Tribunal on 10 May 1994 to join the proceedings as a civil party and she had requested the tribunal on the same day to hear the evidence of Mehmet and Ramazan Bayram (see paragraph 30 above). Her brother-in-law, Feyzullah Aytekin, had for his part attended the proceedings before the tribunal on 22 March 1994 and had given a statement (see paragraph 28 above). The applicant was also authorised to join the proceedings before the Batman Criminal Court on 20 September 1994 and on 20 October 1994 she provided that court with a statement obtained pursuant to letters rogatory (see paragraph 33 above). It does not appear from the observations which she submitted to the Commission on the admissibility of her application, nor from any of her later observations on the merits, that she informed the Commission of the true extent of her involvement in the domestic proceedings against Private Tuncay Deniz. Having regard to the fact that the plea of estoppel has been asserted by the applicant, her active participation in the domestic proceedings and her failure to inform the Commission of such must be seen as a factor which weighs against the acceptance of her plea. 81. Having regard to the above circumstances, the Court concludes that the Government cannot be considered estopped from raising their objection of non-exhaustion at this stage and from relying on the outcome of the criminal proceedings against the accused soldier. 82. The Court must determine whether the remedies indicated by the Government were available and sufficient to afford the applicant redress in respect of her Article 2 complaint. In this regard, it is incumbent on the Government to satisfy it that the remedies which they rely on were effective ones available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of her complaint and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedies advanced by the Government were in fact exhausted or were for some reason ineffective in the particular circumstances of the case or that there existed special circumstances absolving her from the requirement (see, mutatis mutandis , the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1211, § 68). 83. The Court notes that the investigation into the killing of the applicant’s husband resulted in the conviction by the Batman Criminal Court of Private Tuncay Deniz on a count of unintentional homicide. Despite the applicant’s criticism of the conduct of the official investigation and the trial of the gendarme, this has not deterred her from taking an active part in the proceedings since lodging her application with the Commission (see paragraph 80 above). The Court recalls that in the month following her application to the Commission and shortly after her lawyer had requested the public prosecutor to prosecute Private Tuncay Deniz for the murder of her husband (see paragraph 27 above), the soldier was being tried by the Diyarbakır Military Tribunal on a charge of intentional homicide committed in excess of his duties. In these circumstances it cannot be said that the official investigation conducted first by the public prosecutor and subsequently by the military authorities did not offer the applicant any reasonable prospects of success in her efforts to bring the person responsible for the death of her husband to justice. Indeed, the applicant has not shown that this remedy has in fact been exhausted. As the Government have pointed out, her appeal against the judgment of the Batman Criminal Court is currently pending before the Court of Cassation. It may also be noted that the public prosecutor has also appealed against the sentence handed down by the Batman Criminal Court and has pressed for a more severe sentence to be imposed on the soldier (see paragraph 37 above). 84. As to the possibility of instituting compensation proceedings in respect of the death of her husband, the Court recalls that an alleged violation of Article 2 of the Convention cannot be remedied exclusively through an award of damages to the relatives of the victim (see the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 329, § 105). However, having regard to the measures taken by the authorities to mount a prosecution case against Private Tuncay Deniz and to the fact that he was subsequently tried and convicted by an ordinary court on a charge of unintentional homicide, it must be concluded that the applicant has reasonable prospects of successfully suing the convicted soldier or his superiors in a tort action, including with respect to any alleged deficiency in the way the checkpoint was manned and operated. The Court would also note that, as an alternative to a civil action in damages, it was open to the applicant to lodge a claim for compensation against the accused soldier when she declared herself a civil party in the proceedings before the Batman Criminal Court. No explanation has been given as to why she failed to do so, it being observed that, as a civil party, she was represented by a lawyer in the proceedings (see paragraph 35 above). Nor has the applicant shown to the Court’s satisfaction why, in parallel to the criminal proceedings, she did not lodge a compensation claim with the Ministry of Defence relying on the principle of the strict liability of the authorities for the acts of their officials. Her failure to make such a claim within the prescribed time-limit (see paragraph 58 above) has not been explained either and may be considered to contrast sharply with the extent of her participation in the criminal proceedings against Private Tuncay Deniz. 85. Having regard to the combination of the above criminal, civil and administrative law remedies and in particular to the prospects which the criminal proceedings offered for obtaining redress in respect of the death of her husband (the prosecution and conviction of the person responsible and compensation), the Court notes also that the applicant’s situation and personal circumstances cannot be compared to those of other applicants who have successfully contended in cases against the respondent State that they were dispensed from the requirement to exhaust such remedies on account of the existence of special circumstances. In particular, and without pronouncing on the merits of the investigation carried out in the instant case, it cannot be maintained that the competent authorities remained totally passive with respect to the circumstances in which the applicant’s husband was killed or that the investigation which was undertaken was so ineffective as to make recourse to domestic remedies meaningless (see the above-mentioned Akdivar and Others judgment, pp. 1213–14, § 77; the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2277, § 57; the Menteş and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, pp. 2707–08, § 60; and the Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, pp. 1176–77, § 83). 86. Having regard to these considerations and to the particular circumstances of this case the Court concludes that the applicant must be considered to have failed to exhaust domestic remedies in respect of her Convention grievances. The Government’s preliminary objection is accordingly upheld. FOR THESE REASONS, THE COURT UNANIMOUSLY Holds that as domestic remedies have not been exhausted it cannot consider the merits of the case. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 23 September 1998. Signed : Rudolf BERNHARDT President Signed : Herbert PETZOLD Registrar [1] . This summary by the registry does not bind the Court. Notes by the Registrar 2. The case is numbered 102/1997/886/1098. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. [3] . Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently. [4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII