AS TO THE ADMISSIBILITY OF
Application no. 46231/99
by Şükran AYDIN and Others
The European Court of Human Rights (Third Section), sitting on 26 May 2005 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr R. Türmen,
Mr C. Bîrsan,
Ms R. Jaeger,
Mr E. Myjer,
Mr David Thór Björgvinsson, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 3 November 1998,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Ms Şükran Aydın, Ms Ayşe Aydın and Mr Veysi Aydın, who were born in 1954, 1933 and 1965 respectively, are all Turkish nationals and they live in the district of Bismil in Diyarbakır. They were represented before the Court by Mr S. Aslantaş, a lawyer practising in Ankara.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Facts as presented by the applicants
On 5 July 1991 at about 11.45 p.m. Vedat Aydın, President of the Diyarbakır Branch of People's Labour Party (HEP), was taken away from his home allegedly by police officers from the Political Affairs Department of the Security Directorate. From the window of their house his wife, who is the first applicant, saw Vedat Aydın being put in the back seat of a dark-coloured Renault estate car and immediately rang their lawyer. The lawyer called the police headquarters; however, she was told that Vedat Aydın was not detained there.
On 6 July 1991 the first applicant and her lawyer contacted the police headquarters, the Governor of the emergency region, the Governor of Diyarbakır, the Chief Public Prosecutor of the State Security Court, the Chief Prosecutor of the province and the gendarmerie headquarters. All these authorities replied that they did not know anything about Vedat Aydın. Police officers took a statement from the first applicant on the same day.
On 7 July 1991 a body was found in Maden District attached to the province of Elazığ. An on-site body examination was carried out by the Maden public prosecutor and a doctor. The report noted the presence of a number of bullet entry holes on the back of the trunk of the body and exit holes on the front. The doctor stated that the cause of death was internal bleeding and brain destruction caused by trauma. As the cause of death was clearly established, it was not considered necessary to carry out a full post-mortem examination. The unidentified body was then buried in the Maden cemetery.
On 8 July 1991, the third applicant, Vedat Aydın's brother, heard about the body and went to Maden. The gendarmes showed him some clothes and he identified these clothes as those of Vedat Aydın. The body was exhumed and another post-mortem examination conducted, which confirmed the findings of the previous examination. The body was handed over to the family on 10 July 1991.
The first applicant was invited to the police station on 20 and 28 July 1991 respectively to give statements. On 28 July 1991, she gave a description of the people who had abducted Vedat Aydın and upon this description photo fit drawings of the abductors were produced.
On 23 February 1998 the applicants sent a letter to Ankara's Chief Public Prosecutor to be conveyed to the Elazığ State Security Court Public Prosecutor. In this letter, the applicants referred to the Susurluk report, which concluded that Vedat Aydın had been killed by agents of the State. They asked the prosecutor to investigate these allegations and to inform the family about the outcome of the investigation. They received no reply to this letter.
On 11 October 1998 the applicants repeated their submissions in a letter addressed to Ankara's Chief Public Prosecutor.
On 17 November 1998 the public prosecutor attached to Malatya State Security Court informed the applicants that the investigation into the killing of Vedat Aydın was still pending.
2. Facts as presented by the Government
On 6 July 1991 Vedat Aydın's lawyers lodged a petition with the Diyarbakır public prosecutor's office stating that their client had been taken from his house on 5 July 1991 by persons who had introduced themselves as police officers from the Political Affairs Department of the Security Directorate. The same day, Vedat Aydın's wife gave a statement at the police and maintained that her husband had been taken away from their house by two armed men.
On 7 July 1991 a body was found in the Maden District attached to the province of Elazığ. The Maden public prosecutor and a doctor carried out an on-site body examination and established the cause of death as brain destruction and internal bleeding. The body was subsequently buried in the Maden cemetery as its identity could not be established.
On 9 July 1991 the body was identified as that of Vedat Aydın and it was handed over to Vedat Aydın's family on 10 July 1991. A further body examination was carried out by the Diyarbakır public prosecutor's office which confirmed the previous findings.
The Diyarbakır public prosecutor's office commenced an investigation into the death of Vedat Aydın. On 20 and 28 July 1991 respectively the first applicant gave statements to the police and described the persons who had abducted Vedat Aydın. Statements were taken from Vedat Aydın's neighbours and from the officers who had found his body on 7 July 1991 in Maden.
On 7 August 1991 the Diyarbakır public prosecutor declared lack of jurisdiction and transferred the file to Maden public prosecutor. The first applicant intervened in the proceedings.
On 9 August 1991 the Regional Criminal Police Laboratory reported that the bullets found in Vedat Aydın's body had not been used in any previous incidents.
On 25 December 1992 the Maden public prosecutor delivered a decision of non-jurisdiction and sent the file to the public prosecutor attached to the Kayseri State Security Court on the ground that Vedat Aydın's killing could be politically motivated.
On 1 December 1992 the Kayseri Public Prosecutor's office requested the Maden Public Prosecutor's office that progress reports at regular intervals be submitted concerning the attempts to identify the perpetrators.
On 21 July 1993 the case-file was transferred to the public prosecutor attached to the Erzincan State Security Court, who subsequently sent the file to the public prosecutor attached to Malatya State Security Court. Upon receipt of the file, the prosecutor requested regular progress reports from the Maden public prosecutor.
The perpetrators of the killing of Vedat Aydın still remain unknown and the investigation is pending before the Malatya State Security Court public prosecutor's office.
B. Relevant domestic law
A full description of the relevant domestic law may be found in the Bayram and Yıldırım v. Turkey decision (no. 38587/97, ECHR 2002-III).
The applicants allege in particular that Vedat Aydın was ill-treated and killed following his abduction by undercover agents of the State and that the authorities had failed to carry out an effective and adequate investigation into his death. They further complain that Vedat Aydın was killed because of his Kurdish origin and his political beliefs. In this respect, they invoke Articles 2, 3, 5, 6, 8, 9, 11 and 14 of the Convention.
The Government submit in the first place that the applicants have failed to exhaust the domestic remedies within the meaning of Article 35 of the Convention. They maintain that there was an ongoing investigation into the killing of Vedat Aydın and that the applicants had lodged their application with the Court without waiting the outcome of the pending investigation.
The Government further argue under Article 35 of the Convention that the present application was not lodged within the period of six months. In this connection, they point out that Vedat Aydın had been found dead in July 1991, whereas the application was introduced with the Court in November 1998, i.e. more than seven years later.
The applicants argue that they did not need to exhaust the domestic remedies as there were no effective domestic remedies in the Turkish legal system. In this respect, they emphasize the fact that the domestic investigation into the killing of Vedat Aydın has been ongoing for more than thirteen years without any significant progress.
As regards the objection of the Government concerning non-compliance with the six-month time-limit, the applicants allege that they had become aware of the ineffectiveness of the domestic investigation in November 1998, only after the reply of Malatya State Security Court Public Prosecutor indicating that the investigation was still pending.
The Court observes that it is not required to decide whether or not the applicants have exhausted domestic remedies as the application is inadmissible in any case for the reasons stated below.
The Court recalls in the first place that the purpose of the six-month rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002, and Bayram and Yıldırım, cited above).
The Court further recalls that if no remedies are available or if they are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and others v. Turkey (dec.), no. 62566/00, 10 January 2002).
However, special considerations could apply in exceptional cases where an applicant avails himself or relies on an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it is appropriate to take as the start of the six-month period the date when he first became aware or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001; Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002).
The Court observes in the first place that since the first applicant is the wife, the second applicant is the mother and the third applicant is the brother of the deceased, they may be excepted to display due diligence and to take the requisite initiative in informing themselves about the progress made in the investigation. In this connection, the Court notes that the applicants remained totally passive following the death of Vedat Aydın.
In the present case Vedat Aydın was allegedly abducted from his house on 5 July 1991 and his body was found on 7 July 1991, whereas the applicants petitioned the Ankara Public Prosecutor on 23 February 1998, which is almost six and a half years after the alleged incident. The applicants argue that they became aware of the ineffectiveness of the domestic remedies following the unsatisfactory reply of the Public Prosecutor in 1998.
Even assuming that there were no effective remedies in the present case, the Court finds that the applicants must be considered to have been aware of the lack of any effective criminal investigation long before they petitioned the public prosecutor on 23 February 1998. If, as the applicants alleged, they had not become aware of this situation until 1998, the Court considers that this was due to their own negligence. Furthermore, the applicants have failed to substantiate the existence of specific circumstances which might have prevented them from observing the time-limit laid down in Article 35 § 1 of the Convention.
The Court finds, therefore, that the application has been introduced out of time and is inadmissible under Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent Berger Boštjan M. Zupančič
AYDIN AND OTHERS v. TURKEY DECISION
AYDIN AND OTHERS v. TURKEY DECISION