THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60167/00 
by Mansur PAD and Others 
against Turkey

The European Court of Human Rights (Third Section), sitting on 28 June 2007 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr C. Bîrsan
 Mr R. Türmen
 Mrs E. Fura-Sandström
 Mrs A. Gyulumyan
 Mrs I. Ziemele, 
 Mrs I. Berro-Lefèvre, judges,

and Mr S. Quesada, Section Registrar,

Having regard to the above application lodged on 19 October 1999,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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

1.  The applicants, Mansur Pad,1 Salim Ibrahim Manesh, Morad Afrasi,2 Ali Afrasi, Adel Keshavarz, Said Pourmola Borazan and Veysi Eli Mikail,3 are all Iranian citizens, apart from Veysi Eli Mikail, who is an Iraqi citizen. They all reside in Iran except for Mansur Pad, who lives in Sweden. They were represented before the Court by Mr Mark Muller, Mr Kerim Yıldız and Ms Anke Stock, lawyers practising in London.

2.  The application concerns the alleged torture and killing of seven Iranian men from the village of Razgeh in the Margewar province of north-west Iran by Turkish soldiers on 7 May 1999. The victims of the alleged incident on 7 May 1999 were Vahab Pad, Kamfar Pad, Ghazi Afrazi, Changiz Afrazi, Jaader Ibrahim Manesh, Abdulhallkhleq Keshavarz and Vali Ali Hossain.

3.  The applicants are, variously, brothers or fathers of the deceased, save for Said Pourmola Borazan, who claims to be a witness to the events and a friend of the victims.

A.  The circumstances of the case

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

1.  The facts as presented by the applicants

5.  On Friday 7 May 1999, a holiday in Iran, the seven men referred to above and the applicant Said Pourmola Borazan, all from the village of Razgeh, went on horseback into the mountains near their village (towards the Nari valley) to collect wild vegetables and fruit, such as mushrooms and rhubarb.

6.  When they reached the top of Mount Baragawr, which was about 500 metres from the Turkish border, they heard the sound of helicopters. Two fighter helicopters circled overhead a few times and opened fire on the men. Said Pourmola Borazan's horse was killed by a rocket fired from the helicopters. The helicopters landed and the villagers were surrounded by at least forty Turkish soldiers. Seven of the villagers hid together under a rock, except Said Pourmola Borazan, who hid 500 metres away from the others and covered himself with vegetation and snow.

7.  The Turkish soldiers captured the seven men on the Iranian side of the border but did not find Said Pourmola Borazan. The alleged facts are accordingly based on the latter's eyewitness evidence.

8.  The seven men were handcuffed and taken by force across the border, about 300 metres into Turkish territory, in the region of the village of Halana. They were beaten and cut with knives. The soldiers then made them lie down on the ground and shot them dead with machine guns. According to Said Pourmola Borazan, the Turkish soldiers had forced the men to put on Kurdish costumes and placed guns beside them so that they could claim to have killed some terrorists.

9.  Said Pourmola Borazan stayed in his hiding place from about 12 noon or 1 p.m. until approximately 9 p.m., by which time it had turned dark. He emerged from the hiding place and looked around to see if anybody was alive. He then ran back to the village of Razgeh. He informed the relatives of the seven men about the incident. The relatives of the victims and Said Pourmola Borazan went into the mountains to recover the corpses. The Iranian authorities, who were informed of the deaths, granted permission for burial. The funerals took place on 9 May 1999.

10.  The applicant Sayyed Majid Pad stated that he had become anxious when the men had not returned by the evening of 7 May 1999. Later, they heard that the Turkish soldiers had captured some Iranians. It took people from the village three days to find the bodies and to bring them back to the village. He claimed that his son Kamfar Pad had forty-five bullet wounds and that his elder son Vahab Pad had received one hundred and ten. Further, Vahab's fingers had been cut. He also alleged that Vali Ali Hossein's hands and legs had been broken in several places and his legs cut to pieces.

11.  Two or three days after the burial of the bodies, Iranian government officials came to the village. The applicant Said Pourmola Borazan accompanied the officials to the place where the incident had taken place. He reported the incident to the officials.

12.  Sayyed Majid Pad stated that the Iranian Deputy Minister of the Interior visited the village after the incident. The Iranian Government then contacted the Turkish Government for an explanation about the events. The Turkish Government admitted their responsibility in relation to the incident and expressed their apologies for it.

13.  Meanwhile, Özgür Politika, a pro-Kurdish newspaper published in Germany, and Orumiyeh Message, an Iranian regional newspaper, reported the incident in their editions of 10-13 May and 16 May 1999 respectively. According to Orumiyeh Message, the Ministry of Foreign Affairs of Iran summoned the Turkish Ambassador to make an official protest about the incident and the violation of border agreements between the two countries. The Ambassador was reportedly asked to inform the Turkish Government of the protest and to inform the Ministry of Foreign Affairs of the outcome.

14.  The families of the seven men filed complaints with the Iranian authorities. However, they were not informed of any action taken by the latter. A request by the families to obtain a copy of autopsy reports was refused by the Iranian authorities. The families took the matter up with their parliamentary representatives.

15.  On 19 May 1999 Mr Ghani Zaneh, an MP for the Orumiyeh province, and Mr Bahaddin Adab, an MP for the Sanandaj province, wrote to the President of Iran, Mr Khatami, requesting that the incident be investigated and followed up through appropriate international channels. They further requested the Ministry of Foreign Affairs and the Ministry of the Interior to investigate the incident and to send a delegation to the region.

16.  The applicant Said Pourmola Borazan claimed that since the incident, he had been seriously affected and had attempted to commit suicide on several occasions. As the applicants and the families of the deceased were not informed of any action taken by the Iranian authorities, the first applicant, Mansur Pad, contacted the Iranian Embassy in Sweden with a view to obtaining information about the outcome of the investigation by the Iranian authorities. However, no response was received.

17.  The applicants' legal representative also wrote to the Iranian Embassy in London on 25 January 2000. No response was received to that letter either.

18.  As no response was forthcoming from the Iranian authorities, on 9 June 2000 the applicants' legal representative wrote to various Turkish authorities requesting an investigation into the incident and the institution of criminal proceedings against the perpetrators of the crime. In particular, he brought the alleged events to the attention of the following authorities:

(i) the President;

(ii) the Prime Minister;

(iii) the Minister of Justice;

(iv) the Minister of the Interior;

(v) the Minister for Foreign Affairs;

(vi) the office of the Chief of Staff;

(vii) the Chief Public Prosecutor at the Van State Security Court;

(viii) the governor of Hakkari;

(ix) the Chief Public Prosecutor of Şemdinli;

(x) the Commander of the Gendarmerie; and

(xi) the governor of the state-of-emergency region.

19.  The applicants received no response to their petitions and alleged that the Turkish authorities had failed to carry out an effective and adequate investigation into their complaints.

20.  Subsequent to the impugned events, the Turkish Government made several attempts to offer compensation to the applicants through the Iranian authorities. The authorities of the Turkish Government placed the applicants under considerable pressure to accept the compensation, including threats of violence and daily visits from the Iranian authorities. The Iranian Government also imprisoned the eighth applicant on four separate occasions, in an attempt to silence him and prevent him from telling the truth about the incident. Mr Abdel Khalegh Pad, the brother of the deceased victims Vahab and Kamfar Pad, was harassed by the Iranian Government for taking steps to pursue the investigation into their deaths and was forced to flee the country and take refuge in Sweden.

2.  The facts as presented by the Government

21.  Prior to the alleged events in question, the authorities were informed that a terrorist group would be entering Turkey with arms and equipment. Accordingly, the authorities planned a series of operations in order to prevent the entry of this terrorist group into Turkish territory.

22.  On 5 May 1999 operations started in the area between Şemdinli-Tekeli and the Iranian-Turkish border.

23.  On 6 May 1999, at around 10 a.m., the security forces received information to the effect that an armed group, accompanied by animals and mules loaded with arms and equipment, had entered Turkey at a location 1.5 km away from border stone no. 496 in the Zona Stream area.

24.  Given that the location in question was usually used by terrorists making their entry into Turkey in violation of border regulations, the security forces, which were carrying out a search operation in the Alan area at the relevant time, arrived at the scene by helicopter. Thereupon, the members of the suspicious group began to run away in various directions and did not stop despite warning shots from the helicopters. Considering that the land could have been mined and that the terrain was rough, the helicopters did not land but opened fire in order to prevent suspects from fleeing.

25.  Next day, after taking the necessary security measures, the security forces carried out a search at the scene of the incident. They found thirty-two dead mules, one G-3 rifle with one cartridge clip and one hundred and thirty cartridges, three binoculars, one laser meter, one sleeping bag, a large quantity of sugar and flour, cassettes and 2,200 sheep and goats. Although no corpses were found at the scene of the incident, the security forces noticed that there were traces of blood leading in the direction of the Iranian border. Therefore, they concluded that some of the terrorists had either been wounded or their corpses had been carried away by others.

26.  On 12 May 1999 the Turkish Ambassador to Iran was summoned to the Iranian Ministry of Foreign Affairs to provide information on the killing of seven Iranian men on 7 May 1999 while they were engaged in cross-border trade. From this the Turkish authorities understood that the seven persons of Iranian origin had been killed during the operation in question. However, there was no allegation by the Iranian authorities that the Turkish security forces had violated Iranian borders. Contrary to the applicants' allegations, no cross-border operation had taken place and the security forces had not arrested or detained anybody in the course of the events.

27.  Subsequent to the events of 7 May 1999, the Turkish and Iranian authorities held a number of meetings. In order to maintain good relations between the two States, the Turkish Government agreed to pay the amount of compensation claimed by the Iranian authorities, but stated that such payment should not be treated as an admission of the ill-treatment allegations.

28.  On 9 June 2000 the applicant's representative in the United Kingdom, Mr Philip Leach, filed a petition with the Şemdinli Chief Public Prosecutor's office asking for information about the state of the investigation into the killing by the Turkish army forces of the applicants' relatives.

29.  In a letter of 7 November 2000, addressed to Mr Philip Leach, the Şemdinli public prosecutor, Mr İsmail Sevinç, stated that the Şemdinli District Governor's office had declined to grant leave to bring a prosecution under Law no. 4438. He gave the information that this decision not to prosecute could be challenged before the Van Regional Administrative Court and that the Chief Public Prosecutor's office could proceed with prosecution should the administrative court set aside the District Governor's decision.

30.  This letter was served on the applicants, save for Said Pourmola Borazan, by the Turkish Consulate General in Orumiyeh in Iran. The applicants affixed their fingerprints to a document stating that they had received the letter of 7 November 2000 pertaining to the public prosecutor's decision not to prosecute.

31.  On 30 May 2002 the Turkish Government transferred 175,000 United States dollars (USD) to the Ambassador of the Islamic Republic of Iran to be paid to the relatives of the deceased. This amount was received by the Iranian authorities acting as the representatives of the applicants at the latter's request. The parties signed a protocol which stated:

“The parties were unable to carry out a joint investigation to identify the perpetrators of the killing of seven citizens of Iranian Islamic Republic on 6 May 1999 nearby border stone no. 499 at the Turkish-Iranian border. In order to alleviate the grief of the families of the Iranian citizens who lost their lives at the common border, the Republic of Turkey agreed to pay in final settlement USD 25,000 to each family of the deceased, and in total USD 175,000. The Islamic Republic of Iran received the amounts to be paid for delivery to the said families and considered the issue settled in all respects.

This agreement will not serve as a precedent for any other border incident.

On 30 May 2002, USD 175,000 was delivered to Ambassador Mohammad Hossein Lavasani at a meeting in Ankara...”

32.  Meanwhile, the Iranian authorities exchanged a number of letters with the families of the deceased regarding the payment of compensation by the Turkish Government. In a letter from the Department of the Interior to Mr Mirlohi, who was in charge of judicial and parliamentary affairs, it was noted that the Turkish authorities had paid compensation for the killing of seven Iranian citizens. However, it was pointed out that the deceased had been regarded as criminals under the laws of the Islamic Republic of Iran given that they had been involved in trafficking.

33.  In a letter from the Deputy Minister and Head of Security to the Department of the Interior it was stated that full payment of the compensation in question to the families of the deceased would encourage law-breaking and lead border inhabitants to commit the offences of trespassing and trafficking. It was therefore decided to pay a maximum amount of 10,000 tomans (USD 10,953) to each family in order to prevent the recurrence of similar crimes in future. A representative of the Governorate of Orumiyeh visited the families of the victims to deliver those amounts. However, the families refused to take the money and told the representative that they had instructed a British lawyer, Mr Philip Leach, to take the matter to the European Court of Human Rights.

B.  Relevant domestic law and practice

34.  The Criminal Code in force at the material time made it a criminal offence

(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);

(b) to subject an individual to torture or ill-treatment (Articles 243 and 245); and

(c) to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) or murder (Article 450).

Under Article 102 of the Criminal Code, taken in conjunction with Articles 243 and 245, a prosecution for an offence of ill-treatment or torture by a public official must be brought within five years.

35.  If the suspected authors of these criminal acts were military personnel, they could also be prosecuted for the above-mentioned crimes. Proceedings in these circumstances could be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure or before the suspected persons' hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).

36.  Article 165 of the Code of Criminal Procedure provides that a complainant may appeal against the decision of a public prosecutor not to institute criminal proceedings. The appeal must be lodged, within fifteen days from the date of notification of the decision to the complainant, with the president of the assize court within whose territorial jurisdiction the public prosecutor's activities fall.

37.  Section 32 of the Notification Act (Law no. 7201) provides that notification which was not served in accordance with the law may be deemed valid if the person concerned learns of its existence. The date of notification is the date on which that person claims to have learned about it.

38.  By section 3 (a) of the Advocacy Act, only Turkish citizens are authorised to practise as lawyers in Turkey.

COMPLAINTS

39.  The applicants alleged a violation of Articles 2, 3, 5, 13, 14, 18 and 34 of the Convention.

40.  The applicants contended under Article 2 of the Convention that their relatives had been unlawfully and intentionally killed by agents of the State and that the authorities had failed to conduct an adequate and effective investigation into their deaths. They further maintained that domestic law did not provide adequate and effective protection of the right to life.

41.  The applicants submitted under Article 3 of the Convention that their relatives had been subjected to torture at the hands of the soldiers and that the Turkish authorities had failed to conduct an adequate and effective investigation. They alleged a further violation of Article 3 on account of the anguish and distress they had suffered as a result of the authorities' complacency in relation to the deaths of their relatives. The applicant Said Pourmola Borazan alleged a violation of his rights under Article 3 as a result of having witnessed the torture and murder of his friends.

42.  The applicants submitted under Article 5 of the Convention that the detention of their relatives had been unlawful. They maintained that none of the guarantees listed under Article 5 §§ 2, 3, 4 and 5 had been observed.

43.  The applicants also alleged a violation of Article 6 of the Convention on account of their lack of access to a court for the determination of their civil rights.

44.  The applicants contended under Article 13 of the Convention that there was no independent authority before which the aforementioned complaints could be brought with any prospect of success.

45.  The applicants complained under Article 14 of the Convention of an administrative practice of discrimination against persons of Kurdish origin.

46.  They maintained under Article 18 of the Convention that the restrictions to the aforementioned rights and freedoms had been applied for purposes not permitted under the Convention.

47.  Finally, the applicants submitted that the Government's attempts to offer compensation through the Iranian authorities and the coordinated duress and pressure exerted on them had hindered the effective exercise of their right to individual petition under Article 34 of the Convention.

THE LAW

A.  Whether the victims came within the jurisdiction of Turkey

1.  Arguments submitted to the Court

(a)  The applicants

48.  Relying on the Court's established case-law relating to the exceptional circumstances capable of extending jurisdiction extraterritorially, the applicants asserted that the Turkish Government should be held accountable for violations of the Convention rights and freedoms of their relatives who were found to have been under the authority and control of the Turkish army forces operating within the territory of Iran (they cited, among other authorities, Issa and Others v. Turkey, no. 31821/96, § 71, 16 November 2004).

49.  The applicants also claimed that for the purposes of establishing jurisdiction it was not incumbent upon them to prove beyond reasonable doubt that the respondent Government's agents had been operating, whether lawfully or unlawfully, within the territory of Iran because the burden-of-proof test established in the Issa and Others judgment applied only to exceptional cases of extraterritorial jurisdiction where a Contracting State had effective control of an area situated outside its national territory, and not to the circumstances of the present case. Should the Court disagree with this argument, the burden of proof should be lowered, at the very least, to a balance of probabilities or, alternatively, the onus fell on the Government to rebut the applicants' assertions, given that the Government were in possession of information regarding the movement of their troops.

50.  In the applicants' opinion, the usual test and burden imposed by the Court would be tantamount to imposing upon them the duty to prove beyond reasonable doubt the merits of their case as a precondition to establishing jurisdiction. In reality, if they could show beyond reasonable doubt that Turkish troops had been present at the location where the detention and killings had occurred, which was arguable in the instant case given the wealth of eyewitness and other evidence, it would be highly unlikely that they would fail on the merits.

(b)  The Government

51.  The Government vigorously denied the applicants' allegations that the Turkish security forces had carried out a cross-border operation in the territory of the Islamic Republic of Iran on 7 May 1999 or that they had arrested and detained the victims. They claimed that the victims had illegally entered Turkish territory and had therefore come within the jurisdiction of Turkey. The Government further pointed out that the Iranian authorities had confirmed the acts of illegal trespassing by the victims.

2.  The Court's assessment

52.  The Court reiterates that according to Article 1 of the Convention Contracting States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”. The exercise of jurisdiction is a necessary condition for a Contracting State to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004-VII).

53.  Although the words “within their jurisdiction” in Article 1 of the Convention must be understood to mean that a State's jurisdictional competence is primarily territorial (see Bankovic and Others v. Belgium and 16 other Contracting States (dec.) [GC], application no. 52207/99, §§ 59-61, ECHR 2001-XII, and Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001-IV), in exceptional circumstances the acts of Contracting States which are performed outside their territory or which produce effects there (“extraterritorial act”) may amount to the exercise by them of jurisdiction within the meaning of Article 1 (see Issa and Others, cited above, § 68). Accordingly, a State may be held accountable for violations of the Convention rights and freedoms of persons who are in the territory of another State which does not necessarily fall within the legal space of the Contracting States, but who are found to be under the former State's authority and control through its agents operating – whether lawfully or unlawfully – in the latter State (see Issa and Others, cited above, § 71; Öcalan v. Turkey [GC], no. 46221/99, § 91, ECHR 2005-IV; Sánchez Ramirez v. France, application no. 28780/95, Commission decision of 24 June 1996, Decisions and Reports (DR) 86, p. 155; Reinette v. France, no. 14009/88, Commission decision of 2 October 1989, DR 63, p. 189; and Freda v. Italy, no. 8916/80, Commission decision of 7 October 1980, DR 21, p. 250).

54.  However, in the instant case, it was not disputed by the parties that the victims of the alleged events came within the jurisdiction of Turkey. While the applicants attached great importance to the prior establishment of the exercise by Turkey of extraterritorial jurisdiction with a view to proving their allegations on the merits, the Court considers that it is not required to determine the exact location of the impugned events, given that the Government had already admitted that the fire discharged from the helicopters had caused the killing of the applicants' relatives, who had been suspected of being terrorists (see, a contrario, Issa and Others, cited above).

55.  Accordingly, the Court finds that the victims of the impugned events were within the jurisdiction of Turkey at the material time.

B.  Alleged failure to exhaust domestic remedies

1.  The parties' submissions

(a)  The Government

56.  The Government submitted that the applicants had failed to comply with the exhaustion of domestic remedies rule laid down in Article 35 § 1 of the Convention. In this connection, they averred that the applicants should have raised their allegations before the domestic authorities, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law. In the present case, the applicants had not done so. The applicants' then representative, Mr Philip Leach, had submitted a petition dated 9 June 2000 to the local authorities nearly one year after the incident. Although foreigners were not authorised under Turkish law to represent clients before the Turkish courts, the judicial authorities had found the allegations serious and had conducted an investigation into them. However, neither the applicants nor their representative had pursued their complaints further. Nor had they instructed a local Turkish lawyer to pursue proceedings in Turkey.

57.  The proceedings at issue had resulted in a decision not to prosecute, issued by the Şemdinli Chief Public Prosecutor (see paragraph 29 above). Although that decision had been served on the applicants, with the exception of Said Pourmola Borazan, who lived in Sweden, by the Turkish Consulate General in Orumiyeh in Iran, the applicants had failed to appeal against it. In this context, referring to the Court's decisions in similar cases against Turkey where it had found that there were precedents indicating that appeals against decisions of public prosecutors not to prosecute had been successful and subsequently prosecutions had been brought (they cited Epözdemir v. Turkey (dec.), no. 57039/00, 31 January 2002; Fidan v. Turkey (dec.), no. 2429/94, 29 February 2000; and Saraç v. Turkey (dec.), no. 35841/97, 2 September 2004), the Government asserted that the applicants could not be considered to have complied with the exhaustion of domestic remedies rule laid down in Article 35 § 1 of the Convention.

58.  Furthermore, the Iranian authorities had claimed compensation from the Turkish Government at the request of the applicants. The Turkish authorities had paid USD 175,000 in order to maintain good relations. This amount had been received by the Iranian authorities on behalf of the applicants and a friendly settlement had been reached between the parties. The applicants had refused to accept the compensation in order to pursue their application before the Court. Contrary to the applicants' allegations, the Turkish Government had not offered compensation of their own motion. Nor had they exerted any pressure on the applicants in order to force them to accept the compensation in question.

(b)  The applicants

59.  The applicants claimed that they were absolved from their duty to exhaust domestic remedies as all remedies had proved to be illusory on account of the authorities' failure to open an investigation into the killing of seven Iranian citizens and/or to provide evidence of the steps taken within that investigation.

60.  Furthermore, the applicants wholly rejected the Government's assertion that the Şemdinli Chief Public Prosecutor's decision of 7 November 2000 not to prosecute had been delivered to them. They maintained that they had been made aware of that decision after receiving the Government's observations from the Court on 27 September 2005. The Turkish authorities had also not made any attempt to serve the decision not to prosecute on the first applicant, Mansur Pad, who lived in Stockholm, Sweden. The petitions sent to the Turkish authorities had been written on headed notepaper from the Kurdish Human Rights Project (“KHRP”) with the correspondence address clearly set out and signed by Philip Leach, who had been the applicants' appointed legal representative at the relevant time. Any response to the petitions should therefore have been sent to him at the specified address in London. No copy had been received.

61.  The applicants further challenged the authenticity of the notification which allegedly bore their fingerprints. They pointed out, by way of example, that this document bore the fingerprint of Jaafar Afrasi. However, Mr Afrasi could not have affixed his fingerprint to the document since he had died on 25 February 2000, before the decision not to prosecute was taken on 7 November 2000. Likewise, Mansur Pad could not have received a copy of the decision not to prosecute because at the relevant time he had been living in Stockholm, Sweden. Moreover, no attempt had been made to serve the decision on the applicant Said Pourmola Borazan.

62.  The applicants contended that the Government had not submitted any supplementary documentation to explain why a decision not to prosecute had been taken or to show that a sufficient investigation had been carried out into the events.

63.  The applicants claimed, in the alternative, that they should be dispensed from trying to institute judicial proceedings in Turkey as in the case of Issa and Others v. Turkey ((dec.), no. 31821/96, 30 May 2000), where the Court in its admissibility decision had considered that the judicial mechanism in Turkey was physically and financially inaccessible to the applicants, who lived in a village in northern Iraq.

2.  The Court's assessment

64.  The Court reiterates at the outset that the machinery for the protection of fundamental rights established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention does not lay down for the Contracting States any given manner for ensuring within their internal law the effective implementation of the Convention. The choice as to the most appropriate means of achieving this is in principle a matter for the domestic authorities, who are in continuous contact with the vital forces of their countries and are better placed to assess the possibilities and resources afforded by their respective domestic legal systems (see, Sisojeva and Others v. Latvia [GC], no. 60654/00, § 90, ECHR 2007-..., and Chapman v. the United Kingdom [GC], no. 27238/95, § 91, ECHR 2001-I).

65.  Having regard to the above principles, the Court notes that the respondent Government chose to make reparations following the diplomatic intervention of the Government of the Islamic Republic of Iran, who acted on behalf of the applicants. An agreement was signed and the Turkish Government transferred USD 175,000 to the Ambassador of the Islamic Republic of Iran to be paid to the relatives of the deceased (see paragraph 31 above). Accordingly, the Turkish Government could be deemed to have fulfilled their duty to make reparation for the alleged wrong by the payment of compensation to the Iranian Government. Those circumstances could lead the Court to conclude that it is no longer justified to continue the examination of the application within the meaning of Article 37 § 1 (c) of the Convention (see, mutatis mutandis, Association SOS Attentats and de Boëry v. France [GC], (dec.), no. 76642/01, § 39, ECHR 2006-XIV).

66.  Be that as it may, the Court observes that the Government also raised an objection alleging non-exhaustion of domestic remedies which hinges upon the applicants' failure to challenge the decision of 7 November 2000 not to prosecute. The applicants, however, disputed the Government's submissions and contended that they were unable to challenge that decision since it had not been served on them. In this connection, they challenged the authenticity of the notification document and asserted, in the alternative, that the remedy in question was in any event ineffective given that the perpetrators of similar crimes were never prosecuted in Turkey.

67.  The Court notes that it has already found in a number of Turkish cases that an appeal against decisions of public prosecutors not to prosecute constitutes, in principle, an effective and accessible remedy within the meaning of Article 35 § 1 of the Convention (see, in particular, Hıdır Durmaz v. Turkey, no. 55913/00, § 29, 5 December 2006, and Epözdemir, cited above).

68.  That being so, the Court observes that it is not required to determine whether the notification document in question was indeed served on the applicants. Even if the decision not to prosecute had not been formally served on the applicants, the Court considers that the applicants and/or their representative, had they acted more diligently, could have apprised themselves of the decision much sooner. It notes in this connection that, under the relevant domestic law (see paragraphs 36 and 37 above), the applicants could have contested the prosecutor's decision within fifteen days after the date on which they found out about it. However, the applicants did not avail themselves of that remedy even after they had learned about the prosecutor's decision (see paragraph 60 above).

69.  In so far as the applicants sought to rely on the Issa and Others decision (see paragraph 63 above), the Court would note that, given their ability to instruct a lawyer in the United Kingdom, they cannot claim that the judicial mechanism in Turkey, a foreign country, was physically and financially inaccessible to them.

70.  Accordingly, the Court does not find any circumstances dispensing the applicants from the obligation to object to the public prosecutor's decision not to prosecute in order to exhaust domestic remedies (see, as the most recent authority, Hıdır Durmaz, cited above, §§ 29-31). The Court further notes in this connection the applicants' failure to display due diligence by appointing a local legal representative to follow up their case as required by Turkish law (see paragraph 38 above).

71.  Against this background, the Court upholds the Government's objection that the applicants have failed to exhaust domestic remedies.

72.  It follows that the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Boštjan M. Zupančič 
 Registrar President

1.  Replaced the applicant Sayyed Abdul Majid Pad, who died on 26 February 2006.


2.  Replaced the applicant Jaafar Afrasi, who died on 25 February 2000.


1  Replaced the deceased applicant Ali Hossain.


PAD AND OTHERS v. TURKEY DECISION


PAD AND OTHERS v. TURKEY DECISION