THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56154/00 
by Selim YILDIRIM and Others 
against Turkey

The European Court of Human Rights (Third Section), sitting on 1 December 2005 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr R. Türmen
 Mr C. Bîrsan
 Mrs M. Tsatsa-Nikolovska
 Mrs R. Jaeger, 
 Mr E. Myjer, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 2 February 2000,

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 FACTS

The applicants, Mr Selim Yıldırım, Ms Hasibe Yıldırım, Ms Leyla Yıldırım, Mr Rıdvan Yıldırım, Ms Gülcan Yıldırım, Ms Berivan Yıldırım and Ms Şermin Yıldırım are Turkish nationals who were born in 1928, 1955, 1980, 1982, 1984, 1987 and 1994 respectively. The first applicant lives in Diyarbakır and the remainder of the applicants live in Istanbul. The applicants are represented before the Court by Mr S. Okçuoğlu, a lawyer practising in Istanbul.

A.  The circumstances of the case

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

On 3 June 1994 at about 4.30 a.m. while Adnan Yıldırım was leaving the casino at the Çınar Hotel in the Yeşilyurt area of Istanbul, together with his two friends Savaş Buldan and Hacı Karay, seven or eight people with firearms and bullet-proof vests approached them and introduced themselves as police officers. The three men were then forced into three cars.

The applicants were informed of the incident on that same day. They immediately contacted the Bakırköy public prosecutor and the Yeşilköy police headquarters to find out more about the kidnapping. They were informed that the three persons were not taken into custody. The same day, the brother of Savaş Buldan filed a complaint with the Bakırköy Public Prosecutor and complained that his brother and his two friends, Adnan Yıldırım and Hacı Karay, had been abducted by people who had identified themselves as police officers.

On 3 June 1994 at about 9 p.m. İsmail Taşcan contacted the Yığılca gendarmerie station within the district of Bolu. He informed the gendarmes that he had seen three bodies in an area near the river where he had gone to fish. The same day at about 9.15 p.m. the gendarmerie arrived at the scene. The positions of the bodies were recorded. No documents or other property were found on the bodies which might establish their identities. The corpses were taken to the Health Centre in Yığılca for further examination.

On 4 June 1994 a post mortem examination of Adnan Yıldırım’s body was carried out by two doctors in the presence of the Yığılca public prosecutor. In the body examination report, the doctors concluded that as the cause of death was clearly cerebral haemorrhage, there was no need to conduct a classical autopsy. The estimated time of death was given as ten hours before the autopsy was carried out.

The bullets recovered from the bodies were sent for a ballistic examination to the Central Police Forensic Laboratory, which prepared two forensic reports dated 6 and 14 June 1994 respectively. The report dated 14 June 1994 showed that five spent bullet cases found at the scene of the killing had been discharged by three different pistols. The report concluded that comparisons of the five spent bullet cases with other bullet cases recovered from the scenes of other unknown perpetrator killings since 1985 did not reveal any similarities.

The bullets were then sent to the Gendarmerie Forensic Laboratory which prepared its own report on 17 June 1994. The report stated that comparisons of five spent bullet cases found at the scene of the killing with other bullet cases recovered from the scenes of other unknown perpetrator killings did not reveal any similarities.

On 4 June 1994 the Yığılca public prosecutor conducted a search of the scene of the crime in the presence of İsmail Taşcan, who had found the bodies. During the examination, a person named Ms Ayşe Araç told the public prosecutor that she had heard a gun shot in the morning of 3 June 1994.

From 4 to 7 June 1994 the Yığılca gendarmerie took statements from twenty-six persons.

On 4 June 1994 the Bakırköy Public Prosecutor took a statement from Sebahattin Uz, the doorman at the Çınar Hotel. In his statement, he explained that when the three persons who had disappeared, all of whom he knew as they were regular customers at the hotel casino, emerged from the hotel door sometime between 4.30 and 5 a.m. on 3 June 1994, six or seven persons, who had arrived in two cars, had approached them and held them against the wall and conducted body searches. The three persons were then put into a dark-coloured Mercedes car with registration number 34 CK 420. The doorman stated that he had overheard one of the men saying that they were police officers and that they would release the three persons as soon as statements had been taken from them. The Mercedes then left followed by the second car which, according to the doorman, was a sports car. The doorman was unable to describe any of the men as it was dark and they had been standing some distance from him.

Also on 4 June 1994 the Bakırköy Public Prosecutor took the statement of Hüseyin Kılıç, a security guard at the Çınar Hotel. He stated that seven or eight men had approached the three disappeared persons as they walked out the door. The men all wore waistcoats and were carrying weapons. They forced the three disappeared persons into the waiting cars, after having conducted body searches. This witness stated that one of the cars was a sports car.

On 5 June 1994 Serdar Özdemir, a taxi driver waiting at the taxi rank outside the Çınar Hotel, gave his statement to the Bakırköy Public Prosecutor. He stated that while waiting for customers, he had noticed three persons coming out of the casino. At that very moment, seven or eight men walked towards them, made the three persons face the wall and then searched them. Afterwards, the three were put into the waiting cars. One of the cars was a black-coloured Mercedes 300 SEL. The second car was a cherry-red Hyundai. The witness also recalled that he had seen a third car, a sports car, which had been driven away by one of the men wearing a waistcoat. The witness had been unable to see the licence plates of the cars or the faces of the seven or eight men.

Again on 5 June 1994 the Bakırköy Public Prosecutor took a statement from another taxi driver, Hüseyin Durmazer. He stated that as he approached the taxi rank outside the hotel, he was able to see some people putting three other persons into a black car.

On 18 June 1994 the first applicant, Selim Yıldırım, gave a statement to the police. He stated that his son, Adnan Yıldırım, had been abducted from the Çınar Hotel. He explained that the Bolu Gendarmerie had informed him that three dead bodies had been found and he had identified his son’s body in the Bolu State Hospital. He stated that he wanted the authorities to find the perpetrators of this crime.

The preliminary enquiries led the Bakırköy Public Prosecutor to issue a continuous search warrant on 23 June 1994, which was valid for ten years. The investigation file was forwarded to the Yığılca Public Prosecutor on 17 March 1995 since the bodies were found within his area of jurisdiction.

On 31 August 1995 the Yığılca public prosecutor concluded in a continuous search warrant that it had not been possible to establish the identities of the perpetrators. The prosecutor further stated in this report that no evidence had been found during the investigation. It was decided, therefore, to issue a continuous search warrant for the perpetrators of the killings, which remained valid for twenty years, the statutory time limit under Article 102 of the Criminal Code. Copies of this search warrant were distributed to the Yığılca gendarmerie and the Yığılca police as well as to the Bakırköy public prosecutor in Istanbul so that they could inform the Yığılca public prosecutor if they found the perpetrators. The prosecutor also instructed these authorities to continue to carry out meticulous searches for the perpetrators.

After the Susurluk incident, Hanefi Avcı, who was the Head of Intelligence Branch of Istanbul Police Headquarters at the time, gave a statement to the public prosecutor in connection with the Susurluk incident. In his statement, he referred to the killings of Savaş Buldan, Adnan Yıldırım and Hacı Karay as the work of an illegal group. On 24 March 1997 Hanefi Avcı was interrogated once again in Ankara at the request of the Yığılca public prosecutor. In his statement, he stated that he did not know how and by whom the killings were carried out.

On 11 March 1997 the police officers Ercan Ersoy, Oğuz Yorumaz and Ayhan Çarkın, who were in detention as a result of the investigation into the Susurluk incident, were shown to the eyewitnesses to the abduction, Hüsnü Durmazel and Sabahhattin Uz. However, the eyewitnesses stated that they had not seen these persons before.

The photo-fit drawings of the three abductors made on the basis of the statements of the witnesses were compared with the photographs of Ercan Ersoy, Oğuz Yorulmaz and Ayhan Çarkın at the Criminal Police Laboratory. In the laboratory report, dated 19 March 1997, it was stated that the photo-fits did not have the necessary facial characteristics to make a positive comparison.

The photo-fits were also compared with the photograph of Yaşar Öz, another suspect detained in connection with the Susurluk investigation. The report of the criminal laboratory dated 27 March 1998 concluded that one of the photo-fits bore resemblances to the photograph and that the person in the photo-fit could be Yaşar Öz. Accordingly, on 20 April 1998 the Yığılca Magistrates’ Court issued an arrest warrant for Yaşar Öz. On 7 May 1998 Yaşar Öz gave a statement to the public prosecutor. He stated that he had not been in Istanbul between 1 April 1994 and October 1994 and that he did not know who had carried out the kidnapping on 3 June 1994. He further stated that he did not fit the description of any of the abductors as he had had a beard at the time of the kidnapping. He explained that this fact could be easily verified because he had given an interview to a local television channel in Milas at around the time of the kidnapping.

On 14 May 1998 the Yığılca Criminal Court rejected the appeal of Yaşar Öz against the decision ordering his arrest for the kidnapping and killing of the applicant’s brother and the other two persons. On 29 May 1998 an identity parade was held in the prison where Yaşar Öz was being detained on remand. Both Sebahattin Uz, the doorman at the Çınar Hotel, and Hüsnü Durmazer, the taxi driver who had witnessed the kidnapping on 3 June 1994, stated that Yaşar Öz, who was included in a line-up of ten persons, was not one of the men who had carried out the kidnapping. On 14 July 1998 Ali Osman Sivri was questioned by the public prosecutor. Mr Sivri was a watchman working at the Karadere Forest, which was on the road to the Yedigöller National Park. He referred to his previous statement which he had given on 7 June 1994 and stated that he had only seen a red car stop outside his office in the forest at around 10.30 a.m. on 3 June 1994. One person got out of the car and filled a container with water from a fountain and left. This witness was unable to recognise the red sports car with registration number 34 ZU 478. He was also shown pictures of Yaşar Öz. The witness stated that the person he had seen did not look like Yaşar Öz.

On 24 July 1998 the Yığılca public prosecutor took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor sent the investigation file to the Ankara State Security Court which, in the prosecutor’s opinion, was the competent court to prosecute Mr Öz.

On 7 October 1998 the public prosecutor attached to the Ankara State Security took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor concluded that there was insufficient evidence to suggest that the killings had been carried out by or on behalf of an illegal organisation. He therefore concluded that the State Security Court did not have jurisdiction in this matter. The file was sent to the Düzce public prosecutor, who later transferred the file to the Yığılca public prosecutor.

On 2 November 1998 the Yığılca public prosecutor, noting that Yaşar Öz had been arrested and put on trial for the killings, decided to continue the search for the other perpetrators. The prosecutor also asked the Düzce public prosecutor to charge Yaşar Öz, who, according to the evidence gathered by the Yığılca public prosecutor, was one of the perpetrators of the kidnappings and subsequent killings.

On 16 November 1998 the Düzce public prosecutor filed a bill of indictment with the Düzce Assize Court. The prosecutor alleged that the evidence justified the prosecution of Yaşar Öz for the murder of the applicant’s brother and his two friends.

During the proceedings before the Düzca Assize Court, the court took into consideration the indictment which had been submitted to the Istanbul State Security Court on 29 April 1997 and which dealt with Yaşar Öz’s role in the Susurluk affair. The Düzce Assize Court noted that, according to this indictment, Mr Öz was a notorious international drugs trafficker who held three official service passports, two of which were in the names of Tarık Ümit and Eşref Çuğdar.

The Düzce Assize Court finally noted that Yaşar Öz’s name had been implicated in the Susurluk Report which had concluded that the fight against terrorism had gained momentum in 1993 when Mehmet Ağar was appointed head of the General Police Headquarters in Ankara. According to this Report, there had been a number of unknown perpetrator murders in the area between Izmit, Adapazarı and Bolu after the then prime minister declared publicly that she had in her possession a list containing the names of those businessmen who were supporting the PKK. The Report further stated that the killings of Savaş Buldan, Behçet Cantürk, Vedat Aydın, Medet Serhat Yöş and Metin Can formed part of such activities.

Recalling that Savaş Buldan, Adnan Yıldırım and Hacı Karay had been kidnapped by seven persons and then killed in the area between Izmit, Adapazarı and Bolu, the Düzce Assize Court held that these killings resembled the above-mentioned killings in the same area. Considering that the defendant was already facing prosecution before another court for membership of an organisation which was allegedly responsible for killing persons who had much in common with the deceased persons in the present case and as there was no other evidence to suggest that these killings were carried out for personal reasons, the Düzce Assize Court concluded on 24 November 1998 that it was precluded from examining the merits of the case for reasons of jurisdiction.

The case file was transferred to the Ankara State Security Court which had jurisdiction to deal with cases involving organised crime. On 16 December 1998 the court concluded that it too did not have jurisdiction to deal with the case. It held that, according to the Düzce public prosecutor’s indictment of 16 November 1998, Yaşar Öz was charged with multiple murders. The indictment had made no reference to organised crime and the court did not have jurisdiction to examine this allegation ex officio. The case file was sent to the Court of Cassation in order to resolve the dispute over jurisdiction.

On 25 February 1999 the Fifth Criminal Chamber of the Court of Cassation, upholding the decision of the Ankara State Security Court, ruled that the Düzce Assize Court had jurisdiction to deal with the case.

Seven hearings were held before the Düzce Assize Court in the course of the criminal proceedings against Yaşar Öz. The applicants joined the proceedings as a civil party. Yaşar Öz told the court that there was no evidence to link him to the killings and that the only reason for putting him on trial was to prove to the European courts that the killings were being investigated. Nineteen eyewitnesses, who had either seen the three men being put into the cars outside the hotel in Istanbul or had seen the three cars near the spot where these persons were killed, stated during the hearings that they had never seen Yaşar Öz before.

On 18 November 1999 the Düzce Assize Court acquitted Yaşar Öz of the charge of multiple murders due to lack of evidence.

B.  Relevant domestic law

For the relevant domestic law and background information on the Susurluk Report, the Court refers to the judgments of Ülkü Ekinci v. Turkey (no. 27602/95, §§ 111-18, 16 July 2002) and Tepe v. Turkey (no. 27244/95, §§ 115-22, 9 May 2003).

COMPLAINTS

1.  The applicants allege under Article 2 of the Convention that Adnan Yıldırım was killed following his abduction by undercover agents of the State or by persons acting under their express or implicit instructions. They also complain of the authorities’ failure to carry out an effective and adequate investigation into his killing.

2.  The applicants maintain under Article 3 of the Convention that Adnan Yıldırım was ill-treated before his death.

3.  Under Article 6 of the Convention, the applicants maintain in the first place that the extra-judicial killing of Adnan Yıldırım constitutes a breach of his right to a fair trial. In this respect, they contend that instead of being tried before the domestic courts, Adnan Yıldırım was executed by the agents of the State under the cover of fight against terrorism. The applicants further complain under Article 6 of the Convention that they were denied access to a court.

4.  The applicants also submit under Article 13 of the Convention that they had no effective domestic remedy on account of their complaints.

5.  The applicants submit that Adnan Yıldırım was killed as a result of his Kurdish origin. In this respect, they invoke Article 14 of the Convention.

THE LAW

The applicants complained of violations of Articles 2, 6, 13 and 14 of the Convention in connection with the death of Adnan Yıldırım.

A.  The Government’s objections

1.  Non-exhaustion of domestic remedies

The Government maintain that the applicants have not exhausted the domestic remedies as required by Article 35 of the Convention. In this respect, they state that the applicants have not raised their complaints before the domestic authorities.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges applicants to use the remedies 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 (see Yaşa v. Turkey, judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2431, § 71).

The Court considers that a complaint to the public prosecutor could in principle provide redress for the kind of violations alleged by the applicants. The Court notes that, under Turkish law, filing a criminal complaint with the public prosecutor is not a condition sine qua non for the opening of a criminal investigation. It appears that in the present case a criminal investigation was in fact opened ex officio by the Yığılca public prosecutor. The Court is therefore of the opinion that the applicants were not required to make a further explicit request to this effect by filing a criminal complaint as this would not have led to any different result.

The question arises whether or not the criminal investigation at issue can be regarded as effective for the purposes of the Convention. The Court considers that this question cannot be answered at this stage of the proceedings, it being closely linked to the substance of the applicants’ complaints and concludes that the Government’s objection based on non-exhaustion of domestic remedies should be joined to the merits.

2.  Six months rule

The Government argue that the application has been introduced out of time. In their view, the application should have been lodged with the Court either within six months from the date of the incident, or within six months from the date of the continuous search warrant delivered by the Yığılca public prosecutor on 2 November 1998.

The Court reiterates that where no domestic remedy is available, the six months’ time-limit contained in Article 35 § 1 of the Convention runs in principle from the date of the act complained of.

However, special considerations could apply in exceptional cases where applicants first avail themselves of a domestic remedy and only at a later stage become aware, or should have become aware, of the circumstances which make that remedy ineffective. In such a situation, the six months period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (Ekinci v. Turkey (dec.), no. 27602/95, 8 June 1999).

In the present case, a criminal investigation was initiated into the death of Adnan Yıldırım in June 1994. The Court observes that, in the course of the domestic proceedings, namely on 16 November 1998, the Düzce public prosecutor filed a bill of indictment with the Düzce Assize Court and initiated criminal proceedings against Yaşar Öz for the murder of the applicants’ brother and his two friends. The applicants joined the proceedings as a civil party. However on 18 November 1999 the domestic court acquitted Yaşar Öz of the charges against him. It should also be noted that the criminal investigation into the death of Adnan Yıldırım is still pending before the Yığılca public prosecutor. As a result, the Court considers that it was not unreasonable for the applicants to await the results of the criminal proceedings and to file their application under the Convention only when they considered that this investigation had become ineffective.

In these circumstances, the Court considers that the application was introduced within the six-month time-limit as required by the Convention and rejects the Government’s objection in this respect.

B.  Merits

The applicants maintain that their account of the events is accurate.

The Government denied the allegations.

As regards the substance of the applicants’ complaints, the Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the 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 Government’s objection based on non-exhaustion of domestic remedies;

Declares the application admissible, without prejudging the merits of the case.

Vincent Berger Boštjan M. Zupančič 
 
Registrar President

SELİM YILDIRIM AND OTHERS v. TURKEY DECISION


SELİM YILDIRIM AND OTHERS v. TURKEY DECISION