FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27693/95

by Abdurrahman ÇELİKBİLEK

against Turkey

The European Court of Human Rights (First Section) sitting on 22 June 1999 as a Chamber composed of

Mrs E. Palm, President,

Mr J. Casadevall,

Mr Gaukur Jörundsson,

Mr R. Türmen,

Mr C. Bîrsan,

Mrs W. Thomassen,

Mr R. Maruste, Judges,

Mr L. Ferrari Bravo,

Mr B. Zupančič,

Mr T. Pantiru, Substitute Judges,

with Mr M. O’Boyle, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 May 1995 by Abdurrahman ÇELİKBİLEK  against Turkey and registered on 26 June 1995 under file no. 27693/95;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

 

THE FACTS

The applicant is a Turkish national of Kurdish origin, born in 1951, and resides in the village of Tepecik (Diyarbakır). He is represented by Professor Kevin Boyle and Ms. Françoise Hampson, both university teachers at the University of Essex (United Kingdom). The applicant brings this case on his own account and on behalf of his deceased brother Abdülkadir Çelikbilek

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

As the facts are disputed between the parties, the facts as submitted by each party are set out separately.

The applicant states that the following occurred.

On 9 June 1994, the applicant’s brother Abdülkadir Çelikbilek gave a statement to the public prosecutor nr. 23832 at the State Security Court in Diyarbakır in which he declared, inter alia, that he had heard that, in the course of the military operation conducted on 8 June 1994 at about 21.30 hours, Ms Ambara Yılmaz had fallen from the roof of a three story house. The applicant’s brother further stated that he had heard that Ms Yılmaz’ husband Fethi Yaşar was a PKK member and that Mr Yaşar was currently serving a thirty-six years’ prison sentence in the Antep prison. The applicant’s brother also said that he was not aware of any links between Ms Yılmaz and the PKK.

According to the applicant, his brother was followed on several occasions after having given this statement. About one month before 14 December 1994, the wife of Abdülkadir Çelikbilek, Aynur, was visited by two policemen who asked her questions about her husband’s whereabouts.

On 14 December 1994, at about 11.00 hours, the applicant's brother Abdülkadir went to the Esnaflar Cafe in the centre of Diyarbakır. About ten minutes after his arrival, a white Renault car with four plain-clothes policemen stopped in front of the café. It is common knowledge in South East Turkey that this kind of car is used by plain-clothes police. Two policemen stayed in the car while the two others entered the cafe. The latter two policemen were the same as the ones who had previously questioned Aynur about her husband’s whereabouts. It was obvious that the two persons were policemen, as they were armed. Only members of the security forces can enter a cafe in Diyarbakır carrying arms. When, at some point in time, the applicant’s brother was leaving the café, the two policemen also left the café. Outside the café the two policemen took Abdülkadir by the arms and forced him to get into the white Renault. This was seen by all persons present in the café. The car left in the direction of the Security Headquarters.

On 21 December 1994, the applicant’s brother was found dead. On the same day, the applicant gave a statement in the Mardin Kapı Police Station, in which he declared, inter alia:

“When I learned that my brother Abdülkadir had not returned home on 14 December 1994, I made my own investigation. On 15 December 1994, I went to the cafe in İnönü street where my brother and I usually hang out. I found out that, on 14 December 1994, while my brother was sitting in the cafe, four persons entered the café and left with my brother and that they got into an unmarked white Renault car that was waiting in front of the cafe. This is what I heard and I do not know to what extent this information is true.”      

On 15 December 1994, the applicant went to the Diyarbakır Branch of the Human Rights Association in order to inform them of the incident. He was advised to file a petition with the Office of the prosecutor at the State Security Court. The applicant went to the Office of the prosecutor at the State Security Court in order to file a petition. However, the police at the door of the Court building told him that his brother’s name was not on their list. The applicant returned to the State Security Court several times during the following days, but was unable to find out anything about his brother.

 On 21 December 1994, at around 07.30 hours, three police officers came to the applicant's home and told him that his brother was wounded and had been admitted to hospital.  When the police officers took the applicant to their car, he was told that his brother’s body had been found next to the Mardin Kapı cemetery in Diyarbakır. The applicant went with the police officers to the place where his brother’s body had been found. There, the police searched him. They took his petition to the prosecutor at the State Security Court from the pocket of his jacket. Despite his request, the police officers refused to give it back to him. The applicant is of the opinion that the police refused to return his petition in order to weaken any case he might bring against the Turkish authorities. 

The body of the applicant's brother was lying on top of the rubbish heap near the Mardin Kapı cemetery. Marks of torture could be seen all over the body. It looked as if the skin on the soles of his feet had been pulled off with pincers. His arms, legs and head looked as if they had been skewered on a thick skewer. His whole body was black and blue and there were marks on his throat.

After the police had shown the applicant the body of his brother, they took him in their car to his brother's house, where the police conducted a house search. During this search, the applicant heard on the police radio that the prosecutor was about to go and see the body of his brother. The police interrupted their search in order to join the prosecutor. They took the applicant with them. The prosecutor did not put any questions to the applicant. The police recorded the location of the body and subsequently took the body to the State Hospital morgue. Also the applicant was taken to the morgue in a police car. On the way to the morgue a police officer in the car told the applicant that all villagers of Tepecik would die on the streets in the same manner.

In the morgue, some other police officers told the applicant that village guards had burned the village of Tepecik and that these village guards had probably killed his brother. The applicant replied that he did not believe that village guards had killed his brother and added that, if village guards had killed his brother, they must have been helped by the police. The police officers replied that Leyla, the daughter of applicant’s brother, was of the opinion that the police had killed his father. When the applicant was asked whether he shared Leyla’s opinion, he said that he did.

 

 In the morgue, an autopsy of the body of the applicant’s brother was conducted. The applicant asked the doctor about the marks around his brother’s throat. The doctor told him that something must have been passed around his brother’s neck after his death and that his body must have been dragged along by it. After the autopsy, the body was released for burial.

While the applicant was at the morgue, another group of police officers had returned to the house of the applicant's brother in order to finish the house search. These policemen told Leyla that her father had told the police that he had a package, which was likely to contain a firearm, and they asked her to give this package to them. According to the applicant this question indicates that the security forces had in fact apprehended his brother and that they had interrogated, tortured and killed him.

To date and despite his requests, the applicant has not been provided with a copy of the autopsy report or any other document in relation to the investigation into his brother’s death.

The applicant submits that he is convinced that his brother has been tortured in custody. He explains that, some time before the events at issue, his oldest son Fesih had joined the PKK. The applicant had managed to keep this a secret. However, ten days after the death of his brother, a person, who introduced himself as Cevat from the organisation "Struggle with Terrorism", came to the applicant's home. Cevat told the applicant that his son had joined the PKK and asked the applicant to inform the security forces when his son would come home. The applicant is convinced that his brother must have told the security forces about Fesih while he was under torture.

The Government state as follows.

On 21 December 1994, at around 07.30 hours, the Mardin Kapı Police Station was informed by passers-by that a person was lying near the Mardin Kapı cemetery on Benüsen road. Acting on that information, police officers found a dead body, the hands of which had been tied behind the back, lying on the top of rubbish heap near the cemetery. The police found an identity card on the body in the name of Abdülkadir Çelikbilek.

After having been informed by the police, the public prosecutor in charge, Mr Mehmet Tiftikçi, and a medical doctor, Mr Lokman Yavuz, arrived at the scene. Footprints were found, which could not be analysed as these prints were indistinguishable. There were no traces of any fight. Wheel traces were found and analysed. However, these were found to have been made after the discovery of the body. After an incident report had been written and a sketch map had been drawn of the location of the body, it was brought to the morgue.

On the basis of the identity card found on the body, the victim’s family was contacted. His brother, Abdurrahman Çelikbilek, was brought to the morgue where he identified the body as that of his brother Abdülkadir and where subsequently an autopsy was carried out.

In the autopsy report it is stated that there were numerous different shaped red, purple and yellow coloured ecchymosis on the body. According to this report, the red ecchymosis occurred just before death, the purple ones 3 or 6 days before death and the yellow ones 12 days before death occurred or even earlier than that. The autopsy report concludes that Abdülkadir Çelikbilek, after having severely beaten, had been strangled by mechanical means and that he had died between 10 and 15 hours prior to the autopsy.

According to their statements taken on 21 December 1994, the applicant and the victim’s wife, Aynur Çelikbilek, did not know nor did they have any idea as to who might have killed Abdülkadir Çelikbilek. They stated that they had no enemies at all. The applicant further declared that, insofar as he knew, his brother had been detained for trafficking arms after the coup d’etat of 12 September 1980 and, in her statement, the victim’s widow also stated that she wished to file a complaint against the person(s) who had killed her husband. Her criminal complaint was formally registered on 28 December 1994.

The public prosecutor opened an investigation under the file no. 1994/9249, which is currently still pending. The public prosecutor has requested the police authorities to be kept informed on a regular basis about this investigation.

According to the Government there is no evidence that Abdülkadir Çelikbilek has been killed by the security forces. In fact, his criminal record discloses that several criminal investigations have been opened against him in the past for narcotics offences, for having been involved in the creation of a drug trafficking organisation and for counterfeit activities. On 5 November 1986, he was arrested and detained in relation to charges of involvement in the creation of a drug trafficking organisation and possession of heroin.

The Government further submit that, according to information supplied by the Ministry of the Interior, investigations have been opened against the applicant himself for membership of the PKK and that it had been established that his son Fetih was active in the armed branch of the PKK. The police had already been informed that Fetih was an active member of the PKK. Moreover, the applicant has been questioned and detained on remand in the course of an operation conducted against the PKK on 3 July 1996 and, on 24 July 1996, proceedings were brought against him for membership of the PKK. The State Security Court in Diyarbakır has ordered his detention in relation to these proceedings

B. Relevant domestic law and practice

Criminal law and procedures

   The Turkish Criminal Code (Türk Ceza Kanunu), as regards unlawful killings, has provisions dealing with unintentional homicide (Articles 452 and 459), murder (Articles 448) and aggravated murder (Article 450).

Pursuant to Articles 151 and 153 of the Turkish Code of Criminal Procedure (Türk Ceza Muhakemeleri Usulü Kanunu; hereinafter referred to as “CCP”), complaints in respect of these offences may be lodged with the public prosecutor. The complaint may be made in writing or orally. In the latter case, such a complaint must be recorded in writing (Article 151 CCP). The public prosecutor and the police have a duty to investigate crimes reported to them (Article 153 CCP). 

   If there is evidence to suggest that a deceased has not died of natural causes, the police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152 CCP).

  A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient.

COMPLAINTS

1. The applicant complains under Article 2 of the Convention that the Turkish authorities have failed to protect the right to life of his brother Abdülkadir Çelikbilek in that he was killed by State agents in a situation not falling within the exceptions contained in this provision of the Convention. He further complains under Article 2 that no adequate and effective investigation of the killing of his brother aimed at the identification of the perpetrator(s) has taken place.

2. The applicant complains under Article 3 of the Convention that the killing of his brother has caused him grief and torment amounting to inhuman treatment.

3. The applicant complains under Article 6 of the Convention that, as a result of the inadequate criminal investigation of the killing of Abdülkadir Çelikbilek, he has no access to court in that he cannot bring civil proceedings against the perpetrators, who have remained unidentified.

4. The applicant complains under Article 14 of the Convention that, being or Kurdish origin, he is discriminated against on grounds of race or ethnic origin in the enjoyment of his rights guaranteed by Articles 2, 3 and 6 of the Convention.

PROCEEDINGS BEFORE THE COURT

The application was introduced on 13 June 1995 and registered on 26 June 1995.

On 3 December 1995, the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 22 July 1996, after an extension of the time-limit fixed for that purpose. The applicant replied on 27 November 1996, also after an extension of the time-limit. On 14 November 1996, the Government submitted additional information.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains of the killing of his brother. He invokes Article 2 (right to life), Article 3 (prohibition of inhuman and degrading treatment), Article 6 (the right of access to court) and Article 14 (prohibition on discrimination) of the Convention.

Article 34 of the Convention

The Government submit that the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention. The Government point out that the victim’s widow, Ms Aynur Çelikbilek, declared in her statement on 21 December 1994 that she wished to file a complaint against the perpetrator(s) for the killing of her husband. By making this complaint, she made it clear that she considers herself to a victim of the killing of her husband and thus holding a legitimate interest, whereas the applicant did not lodge any complaints against the perpetrator(s) of the killing of his brother with the domestic authorities.

The applicant refutes the Government’s argument on this point. He submits that he is not only a direct relative of the victim and on that basis can claim to be a victim within the meaning of Article 34 of the Convention, but moreover that he has taken the initiative in the investigation of the killing of his brother by filing a petition with the State Security Court.

The Court is of the opinion that the applicant, in his capacity of a brother affected by the death of Abdülkadir Çelikbilek, may claim to be a victim within the meaning of Article 34 of the Convention as regards the killing of his brother (cf. Eur. Comm. HR, No. 21788/93, Dec. 31.8.94, D.R. 79, p. 54; and No. 9833/82, Dec. 7.3.85, D.R. 42, p. 53).

Article 35 of the Convention

Although the Government have not explicitly referred to the requirements under Article 35 of the Convention, they do argue that the application should be declared inadmissible given the fact that domestic proceedings have been initiated but that these remedies have not yet been exhausted in that the criminal investigation of the killing at issue is still ongoing.

The applicant submits that the criminal investigation cannot be regarded as adequate or effective. In his opinion the criminal investigation of the killing of his brother only constitutes a pro forma investigation which is not seriously pursued. Possibly relevant evidence has not been taken and possible leads have not been explored. In his opinion, it would be unrealistic to await with applying to the Court until the prosecution of the offence at issue becomes statute-barred, i.e. in 2014. As the investigation at issue cannot be regarded as actively pursued, the applicant argues that he should be exempted from pursuing further remedies for the purpose of Article 35 of the Convention.

The Court considers that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges applicants to use first the remedies referred that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (cf. Eur. Court HR, Yaşa v. Turkey judgment of 2 September 1998, to be published in Reports on Judgments and Decisions 1998, No. 88, § 71).

Insofar as the applicant has failed to file a criminal complaint, the Court notes that, under Turkish law, this is not a condition sine qua non for the opening of a criminal investigation of a suspected unlawful killing. It appears that, in the present case, the criminal investigation of the killing of the applicant’s husband was in fact opened on 21 December 1994. The Court is, therefore, of the opinion that the applicant was not required to make an explicit request to open a criminal investigation by filing a criminal complaint himself as this would not lead to any different result in this respect.

As regards the question whether this criminal investigation can be regarded as adequate and effective, the Court is of the opinion that this element is to be considered in its examination of the merits of the case.

As regards the merits

The Government submit that there is no support for the applicant’s contention that his brother has been taken away from the café by plain-clothes policemen or that he has been killed by State agents. Referring to the victim’s criminal records, the Government submit that it is not to be excluded that the killing of the applicant’s brother constituted a settling of accounts by common criminals. According to the Government, the prosecution authorities of Diyarbakır have conducted a meticulous preliminary criminal investigation and continue to do so. The police authorities regularly keep the public prosecutor informed about this investigation.

The applicant refutes the Government’s submissions and maintains his account of events and arguments as to the effectiveness of the investigation of the killing of his brother.

The Court considers, in the light of the parties’ submissions, that the cases raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

JOINS TO THE MERITS THE QUESTION CONCERNING THE EFFECTIVENESS OF THE CRIMINAL INVESTIGATION AT ISSUE,

and

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

Michael O’Boyle Elisabeth Palm 
 Registrar President

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