Last Updated on November 1, 2019 by LawEuro
SECOND SECTION
DECISION
Application no.66681/12
Murat DEMİROĞLU
against Turkey
The European Court of Human Rights (Second Section), sitting on 15 January 2019 as a Chamber composed of:
Robert Spano, President,
Paul Lemmens,
Işıl Karakaş,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Ivana Jelić,
Darian Pavli, judges,
and Hasan Bakırcı, DeputySection Registrar,
Having regard to the above application lodged on 20 September 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Murat Demiroğlu, is a Turkish national, who was born in 1967 and lives in Çanakkale. On 22 June 2018 the President of the Section granted the applicant leave, under Rule 36 § 2 in fine of the Rules of the Court, to present his own case in the proceedings before the Court.
2. The Turkish Government (“the Government”) were represented by their Agent.
The circumstances of the case
3. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.
4. On 23 December 2010 the applicant’s father, Ş.D., who was 70 years old at the time, went missing after he left his work at a shopping precinct in the town of Polatlı.
5. The following day the applicant’s mother went to the local police station and asked for their help to find her husband. The same day the police station informed different branches of the police department and also the local prosecutor. The prosecutor started an investigation the same day and the applicant’s father’s name was entered into the national police database for missing persons. In the following days police officers questioned a number of persons who had last seen the applicant’s father, and visited a number of places where he might have gone.
6. On 27 December 2010 the applicant went to the prosecutor’s office and urged the prosecutor to investigate his father’s disappearance.
7. On 4 January 2011 the prosecutor decided to close his investigation, holding that there was no evidence to show that a crime had been committed against the applicant’s father. The objection lodged by the applicant’s mother against the prosecutor’s decision was rejected by the Sincan Assize Court. Despite the closure of the prosecutorial investigation, the search conducted by police officers for the applicant’s father continued. In the course of that search a number of persons were questioned and various locations were visited and searched.
8. On 18 January 2011 the applicant’s father’s body was found in a water-filled hole near a railway bridge. Within half an hour after having been informed about the discovery of the body, the prosecutor and a forensic expert went to the scene and supervised the examination conducted by crime scene investigators. An official investigation was thus opened by the prosecutor into the killing. The body was formally identified by a relative who also informed the prosecutor that the victim had suffered from epilepsy. The body was taken to the local hospital where it was examined by a doctor and the prosecutor. The doctor noted that the body had been in the water for a long period of time and adipocerated. She considered that it was at risk of disintegrating and recommended that it be transferred to the Forensic Medicine Institute for a full post mortem examination.
9. The following day a post mortem examination was conducted at the Ankara branch of the Forensic Medicine Institute. The pathologists established that there were no signs of physical trauma on the bones and no toxic substances in the body which could have caused the death. They were unable to establish the exact cause of death and recommended that the opinion of the Specialist Board of the Forensic Medicine Institute’s headquarters in Istanbul be sought on the matter.
10. The investigation into the death continued in the weeks and months following the discovery of the body and a number of other persons were questioned. The investigators wanted to examine any CCTV cameras which might have been located in the vicinity, but found out that there were no cameras in that area of the town.
11. In its report published on 28 December 2011 the Specialist Board of the Forensic Medicine Institute concluded that the cause of death could not be established and that no examination could be made on the soft tissue as to the existence or otherwise of any physical trauma due to the severe decomposition of the body.
12. On 3 May 2012 the prosecutor closed the investigation on account of lack of evidence to suggest that the applicant’s father had been assaulted or killed.
13. The applicant lodged an objection against the decision and argued that the investigation had been closed without having established who had dug the hole in which his father was found. His objection was upheld by the Sincan Assize Court and a new investigation was started by the prosecutor on 18 December 2012.
14. During the new investigation the prosecutor took a number of steps to find out who had dug the hole and who, therefore, could have been responsible for the death due to their negligence. Persons working for a number of contractors who were carrying out building work and building a new railway in the area, as well as the employees of the local town council responsible for sewage works and a number of farmers living and working in the area were also questioned. On 11 July 2014 the prosecutor closed the investigation, holding that the cause of death was uncertain and that there was no evidence to justify the bringing of a prosecution against anyone in connection with the death. The objection lodged by the applicant against the prosecutor’s decision was rejected on 17 September 2014.
15. In the meantime, on 1 February 2011 the applicant had filed a criminal complaint against the police officers who had taken part in the investigation and accused them of neglecting their duty to carry out an effective investigation. Having examined the steps taken by the police officers in the course of the investigation, the prosecutor decided on 27 October 2011 not to prosecute them. The applicant unsuccessfully challenged the prosecutor’s decision on 3 May 2012.
COMPLAINTS
16. The applicant complained of a violation of Articles 2, 6 and 13 of the Convention and alleged, firstly, that no meaningful steps had been taken to find his father after he had gone missing and, secondly, that the investigations conducted after the discovery of his father’s body had not been not effective.
THE LAW
17. The applicant complained that the investigations conducted into his father’s disappearance and subsequently into his death had been in breach of Articles 2, 6 and 13 of the Convention.
18. The Court reiterates that the scope of a case referred to it in the exercise of the right of individual application is determined by the applicant’s complaint. A complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, ECHR 2018).
19. In the light of the above, the Court deems it appropriate to examine the applicant’s complaints solely from the standpoint of Article 2 of the Convention, the relevant parts of which read as follows:
“1. Everyone’s right to life shall be protected by law…
…”
A. The Government’s preliminary objection
20. The Government submitted that it could not be understood whether the applicant had appointed a representative to represent him in the proceedings before the Court, and invited the Court to strike the application out of the Court’s list of cases pursuant to Article 37 § 1 (a) of the Convention.
21. The Court notes that, as stated above (see paragraph 1), on 22 June 2018 the President of the Section granted the applicant leave to present his own case in the proceedings before the Court, under Rule 36 § 2 in fine of the Rules of the Court.
22. Noting that the Government were informed about that decision in the Court’s letter of 27 June 2018, the Court dismisses the Government’s preliminary objection.
B. The complaints under Article 2 of the Convention
23. The Government argued that the applicant had failed to comply with the requirement to exhaust domestic remedies for a number of reasons. Firstly, the Government argued that the applicant had applied to the Court before the investigation at the national level had come to an end. Secondly, they argued that the applicant could have lodged an individual application before the Constitutional Court after his objection against the prosecutor’s decision to close the investigation had been rejected on 17 September 2014 (see paragraph 14 above). Thirdly, the Government considered that the applicant had failed to lodge an objection against the prosecutor’s decision of 27 October 2011 in a timely manner (see paragraph 15 above). Fourthly, the Government argued that the death of the applicant’s father had not resulted from an intentional act and, as such, the applicant should have sought compensation from those he considered to be responsible for his father’s death.
24. The Government also argued that effective investigations had been conducted by their authorities during which all leads had been followed and all reasonable steps had been taken.
25. The applicant challenged the Government’s argument that effective investigations had been conducted into the disappearance and subsequent death of his father. In this connection he argued that, although the family members had informed the police immediately after the disappearance on 23 December 2010, no steps had been taken by the authorities until he submitted a petition to the prosecutor on 27 December 2010 (see paragraph 6 above). Moreover, even after he had submitted that petition, the authorities had not searched for his father adequately. For example, CCTV cameras had not been examined, specialist teams trained in finding missing persons had not been mobilised, no search and rescue teams or a helicopter had been called in to assist.
26. The applicant also alleged that the documents detailing the steps taken in the investigation had been drawn up by police officers without having actually carried out any investigative steps. Furthermore, in the opinion of the applicant, post mortem examinations had not been conducted adequately and the reports pertaining to those examinations had not been drawn up in a timely manner and had not clarified the cause of death. Finally, no steps had been taken by the authorities to find out who had dug the hole in which his father was found and the authorities had not examined how his father had ended up in that area of the town.
27. The Court considers it unnecessary to determine whether the applicant has exhausted domestic remedies, within the meaning of Article 35 § 1 of the Convention, since his complaints are in any event inadmissible for the following reasons.
28. The Court notes that the applicants’ arguments are twofold. Firstly, the applicant complained that the national authorities had failed to comply with their positive obligation because they had not conducted an adequate search to find his father after he went missing. Secondly, he complained that the authorities had failed to conduct an effective investigation into the death of his father.
29. As regards the first complaint the Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III). This obligation arises, for instance, when the authorities know or ought to know of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party(see Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998‑VIII). The Court has held that the disappearance of a person in life-threatening circumstances also requires the State, pursuant to the above-mentioned positive obligation, to take operational measures to protect the right to life of the disappeared person (see Osmanoğlu v. Turkey, no. 48804/99, § 75, 24 January 2008 and the case cited therein).
30. Concerning the second complaint, the Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see Mustafa Tunç and Fecire Tunçv. Turkey [GC], no. 24014/05, § 169, 14 April 2015 and the case cited therein). In that connection, the Court points out that this obligation is not confined to cases where it is apparent that the killing was caused by an agent of the State (see Salman v. Turkey [GC], no. 21986/93, § 105, ECHR 2000-VII).
31. Turning to the circumstances of the present application, the Court considers that the applicant’s two complaints which were summarised in the preceding paragraphs can be examined concurrently since the examination of those complaints requires an assessment to be made of the national authorities’ response to the applicant’s calls for assistance and also of the steps taken in the investigations.
32. The Court observes from the documents submitted by the parties that, contrary to what was argued by the applicant (see paragraph 25 above), the investigating authorities started their search for the applicant’s missing father immediately after they were informed about it (see paragraph 5 above) and continued their search until the discovery of the body.
33. In fact, a total of three separate investigations were opened and conducted by the prosecutors into the disappearance and subsequent death of the applicant’s father. The Court has examined the steps taken in those investigations (which are summarised above in paragraphs 5-15), and considers that the applicant’s allegations were investigated adequately. In this connection the Court notes that when the full investigation files were made available to the Court by the Government, they were forwarded to the applicant who was requested to submit his comments on them. In response, the applicant alleged that the documents detailing the steps taken in the investigation had been drawn up by police officers without having actually taken any investigative steps. The Court is not convinced by that argument. Having examined the investigation files, the Court entertains no doubts that the authorities took their tasks seriously and carried out their investigations with due diligence in order to find the applicant’s father and subsequently in order to find out how he had died. For example, when the applicant challenged one of the decisions closing the investigation, the Assize Court agreed with him and quashed the decision, which resulted in the taking of further investigative steps (see paragraph 13 above). Incidentally, and contrary to what the applicant alleged (see paragraph 26 above), those further steps were taken between 16 December 2012 and 11 July 2014 (see paragraphs 13-14 above) with a view to finding the person or persons responsible for digging the hole and therefore establishing whether their acts or omissions had contributed to the death of the applicant’s father (see paragraph 14 above).
34. A post mortem examination was carried out on the body of the applicant’s father the day after its discovery. Moreover, a specialist board of the Forensic Medicine Institute also issued its opinion on the cause of death. There is no indication in the file to suggest that those examinations had not been adequate or that they had not been conducted with reasonable expedition.
35. Furthermore, it must be stressed that it is not for the Court to pass judgment on the appropriateness of the methods employed by the authorities during the searches, or on whether the decision not to summon search and rescue teams or a helicopter rendered the search ineffective. Due to their technical nature, such matters are for the national authorities to decide. What is relevant for the Court’s examination is that the authorities acted promptly and conducted their search diligently.
36. In this connection, the Court notes that the applicant did not argue that any of thesine qua non principles of an effective investigation within the meaning of the Court’s case-law – such as acting with due diligence and promptness; independence and impartiality of the investigators; or the family’s access to the investigation materials – had been breached by the authorities. In any event, having examined all the documents in its possession, the Court considers that the above-mentioned principles of an effective investigation were complied with by the investigating authorities in the present case.
37. The Court must reiterate that the obligation imposed by Article 2 of the Convention to carry out an effective investigation is not an obligation of result but of means; it does not require that every investigation come to a successful conclusion (see McKerr v. the United Kingdom, no. 28883/95, § 113, ECHR 2001‑III). What it requires is that the authorities must take the reasonable steps available to them to secure the evidence concerning the incident (Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007‑II).
38. In the light of the foregoing the Court finds that the national authorities, by carrying out effective investigations, did all that could be reasonably expected of them to find the applicant’s father and, subsequently, to establish the cause of his death and also identify those whose actions might have contributed to the death. It therefore follows that they cannot be reproached for failing to do so.
39. In light of the foregoing the Court finds that the applicant’s complaints are manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 7 February 2019.
Hasan Bakırcı Robert Spano
Deputy Registrar President
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