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Cite as: [2010] ECHR 296
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FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
58933/00
by Kaside ADIYAMAN
against Turkey
The European Court of Human Rights (Fourth Section), sitting on 9 February 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David
Thór Björgvinsson,
Ledi Bianku,
Işıl
Karakaş, judges,
and Lawrence Early, 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 applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Kaside Adıyaman, is a Turkish national who was born in 1950 and lives in Mersin. She was represented before the Court by Mr H. Yılmaz, a lawyer practising in Mersin. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 June 1993, at around 10.50 a.m., the applicant's husband, Eyüp Adıyaman and his friend, Muhterem Demir, were shot by unknown perpetrator(s) in the centre of Silvan, a district attached to Diyarbakır. The security forces, arriving shortly after the incident, transferred the applicant's husband and Mr Demir to a state hospital, where they died.
On the same day the security forces drafted an incident report and drew up a sketch map. Twelve spent 9-mm cartridges were found at the scene and sent for ballistics examination. According to the incident report, when the police officers arrived at the scene of the incident, Mr Adıyaman and Mr Demir were lying on their backs in a pool of blood, surrounded by a crowd of about hundred to two hundred people. They were immediately transferred to the hospital. Afterwards the police officers collected evidence and tried to collect eyewitness statements. However, no one was able to testify as to what had happened, since they all claimed only to have heard gunshots. The report also mentions that Mr Adıyaman and Mr Demir were known to be PKK (Workers' Party of Kurdistan) sympathisers.
On the same day, a post-mortem examination of Eyüp Adıyaman's body was carried out by two pathologists in the presence of the Silvan public prosecutor and Mr Fuat Adıyaman, the deceased's brother. According to the verbatim record, the deceased was forty-three years old, 175 cm tall and weighed eighty-five kilograms. He had black hair, brown eyes and a brown moustache. The record further described the deceased's clothing and personal items found on his person. Rigor mortis and post-mortem hypostasis had not yet set in. An external examination revealed the following injuries: a bullet entry wound 2 cm in front of the right ear lobe and a bullet exit wound on the left side of the head which had destroyed the left ear lobe. A bullet entry wound 2 cm below the right ear lobe and a bullet exit wound on the left occipital bone, which had broken the bone. Two further bullet entry wounds on the right side of the head were identified together with a single bullet exit wound from the left side of the head. A bullet entry wound on the right elbow and a bullet entry wound on the right arm were observed. The experts also noted a bullet entry wound on the front of the left shoulder, an exit wound on the left front shoulder 6 cm from the previous entry wound, and another bullet entry wound on the chest, on the left next to the sternum.
The doctors concluded that the cause of death was haemorrhage and damage to the cerebral tissue as a result of wounds caused by firearms. They considered that there was no need to carry out a classical autopsy as the cause of death was clear from the findings of the external examination. The prosecutor agreed. Afterwards the body of the deceased was given to the family for burial and a bullet extracted from the body of the deceased retained as evidence.
On the same day, the preliminary investigation into the killings was instigated by the Silvan public prosecutor. He requested the Silvan Security Headquarters to secure the presence of family members of the deceased in order to take statements from them.
On an unspecified date the applicant moved to Mersin with her children because other family members had received death threats. Fearing for her safety the applicant neither pursued the investigation into the death of her husband nor lodged a civil or administrative action with the authorities, as she did not want her address to be known.
On 10 June 1993 the Silvan Security Headquarters submitted an additional incident report to the Silvan prosecutor's office, which contained the same information as that of the first incident report. This report stated that it had been established that the deceased were active PKK sympathisers.
On the same day, the police took witness statements from four people who either lived or worked in the street where the killing took place. Mrs L.E. claimed that she was not at home at the time of the incident. Mr H.S. submitted that his shop was closed on the day of the incident. Mrs A.T. and Mrs S.K. claimed to have heard gunshots but that they were not witnesses to the incident.
In the meantime the Regional Criminal Police Laboratory conducted a ballistics examination of the twelve spent cartridges found at the scene. The report issued on 10 June 1993 stated that the cartridges examined were 9 mm parabellum cartridges of two different groups of foreign origin and that they were fired from two different guns.
On 9 August 1993 the Silvan public prosecutor heard the applicant's brother-in-law and Mr Demir's father. They both submitted that they did not know who could have committed the killing and requested that those responsible be brought to justice.
On 16 August 1993 the Silvan Security Headquarters informed the Silvan public prosecutor that the investigation into the killings was ongoing and that the perpetrators had not yet been identified. The Government submitted numerous items of similar correspondence of various dates between the prosecutor and the Security Directorate.
On 25 July 1994 the Silvan public prosecutor relinquished jurisdiction over the case since he considered that the killing of the deceased, who were known to be active PKK sympathisers, by unknown perpetrators, fell within the jurisdiction of the public prosecutor at the Diyarbakır State Security Court.
On 19 June 1995 the Silvan Security Headquarters informed the Silvan public prosecutor that three suspects arrested following an operation conducted against Hizbullah had claimed that Mr K.A. was responsible for the killing of the applicant's husband and Mr Demir and that the security forces were working to capture the suspect.
On 13 March 1996 the prosecutor at the Diyarbakır State Security Court ordered the Silvan and Diyarbakır Security Headquarters and the Provincial Gendarmerie Command to coordinate their efforts in the search for the perpetrators. The prosecutor instructed that he be informed of any tip offs, confessions or any other evidence regarding the incident as well as briefed on developments in the case every three months. The prosecutor also requested the collaboration of the Silvan public prosecutor in this respect.
On 28 March 1996 the Silvan Security Headquarters informed the prosecutor that they were still searching for Mr K.A.
In the meantime, on 7 May 1999, the applicant requested the public prosecutor's office at the Diyarbakır State Security Court to provide her with a copy of her husband's death certificate to be submitted to the Social Security authorities for the establishment of a pension. She personally received the relevant document on 11 May 1999.
On 26 November 1999 the applicant lodged a petition with the Silvan public prosecutor's office and requested information as regards the developments in the investigation into the death of her husband. In this petition, the applicant also stated that in her view her husband had been killed either by the security forces or by militia acting in collusion with them
On 30 November 1999 the Silvan public prosecutor informed the applicant that the case regarding the death of her husband had been transferred to the public prosecutor's office at the Diyarbakır State Security Court on 25 July 1994.
On an unspecified date the applicant lodged a request with the Silvan public prosecutor's office for information as regards the developments in the investigation into the death of her husband1. The applicant noted that the documents sent to her by the prosecutor's office concerned only the investigation conducted immediately after the death of her husband. She requested to know what additional steps had been undertaken by the prosecutor and whether any new evidence had been admitted to the case file. She repeated that in her view her husband had been killed either by the security forces or by militia acting in collusion with them.
On 20 December 1999 Mr G.K., a public prosecutor at the Diyarbakır State Security Court, with reference to the applicant's request dated 26 November 1999, informed the applicant that the investigation into the killing of her husband and Mr Demir was ongoing and that the perpetrator(s) had not yet been found.
On 7 January 2000 the Diyarbakır Security Headquarters informed the prosecutor that it had not been possible to identify the gun with which the 9 mm parabellum cartridges of foreign origin had been fired, as no information had been found linking them to any gun stored in the database.
The Government submitted numerous items of correspondence of various dates in which various Security Headquarters regularly informed the prosecutor in charge of the case file about developments in the search for the alleged perpetrator of the killings.
On 6 November 2000 public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against Mr K.A accusing him of membership of an illegal armed organisation, namely Hizbullah, and of participating in armed activities on its behalf.
On 29 August 2001 Mr K.A., who was carrying a false identity card, was arrested. On 7 September 2001 he was questioned by the police. On that date, Mr K.A. submitted that in the nineties Silvan was mixed ideologically, that he had joined a religious community in 1989 and that until 1994 there was no concept of Hizbullah. Mr K.A. maintained that until February 1992 when a fellow community member Mr H.B. was killed by the PKK their only activities were to gather and to discuss Islam. After this killing it became dangerous to move from one street to another and as a result street patrols were created. Mr K.A. claimed that a few months after that incident he became part of the military wing of the community, since it had become clear to the community that if they did not fight back they would be killed by the PKK. He gave details about the subsequent structure of the organisation of the community and the killings perpetrated by him and other members on various dates. Mr K.A. was later asked to comment on a number of documents found following an operation conducted in the house of the leader of the organisation on 17 January 2000 and police statements of fellow members. Mr K.A., when asked about his involvement in the killing of the applicant's husband, denied taking part in it. He further maintained that after 1995 his ties with the organisation had lessened.
On the same date Mr K.A. was heard by a public prosecutor and a judge at a State Security Court, where he denied being part of the armed wing of Hizbullah and participating in any killings. Mr K.A. was subsequently remanded in custody.
On 21 November 2000 and 19 September 2001 the public prosecutor at the Diyarbakır State Security Court filed additional bills of indictment against Mr K.A. and other suspects for, inter alia, participating in armed activities on behalf of Hizbullah. In respect of Mr K.A. these were the killing of Mr Ay on 31 May 1992, Mr Ayhan on 19 June 1992, Mr Budak on 1 October 1992 and Mr Cesur on 3 March 1993. He was also accused of participating in the attempted killing of Mr Ekinci and Mr Yuce on 23 October 1992. All these incidents took place in Silvan.
On 6 October 2003 the Silvan Security Headquarters informed the Silvan public prosecutor that Mr K.A. had been arrested in 2001 following an operation conducted against Hizbullah and was currently in detention.
On 17 May 2004 the prosecutor at the Diyarbakır State Security Court filed an additional bill of indictment against Mr K.A. for inter alia, participating in armed activities on behalf of Hizbullah. This time Mr K.A. was accused of killing the applicant's husband and Muhterem Demir.
On 24 May 2004 the criminal proceedings against Mr K.A. regarding the killing of the applicant's husband and of Muhterem Demir commenced before the Diyarbakır Security Court (no. 2004/160). The applicant and Muhterem Demir's wife were written down as plaintiffs (müşteki) and the court ordered that their statements be heard.
In the next hearing held on 10 June 2004 Mr K.A. was heard by the Second Division of the Diyarbakır State Security Court. He denied all the charges against him. In particular, he submitted that he did not kill the applicant's husband and Mr Demir. He also stated that Mr M.A. and Mr I.B. had been tried and acquitted as regards the same incident. The court decided to join the case related to the applicant's husband's killing to another case pending before it (no. 2000/115).
Throughout the criminal proceedings a number of related cases pending before various courts and concerning Mr K.A. and other suspects and their activities on behalf of Hizbullah were joined to case no. 2000/15.
On 16 July 2004 Mrs Demir, wife of Mr Muhterem Demir, was heard by the court, which was acting on rogatory letters, and she maintained that she had not witnessed the events and had no knowledge of the incident.
In the course of the trial, the first-instance court heard witnesses and the accused and collected documents from various authorities. It also appears that the court tried unsuccessfully several times to locate the applicant in order to obtain her testimony via rogatory letters. Throughout this time Mr K.A. denied all accusations, submitted that he had been ill-treated during police custody and claimed his innocence.
On 3 July 2008 the Diyarbakır Assize Court, in a 224-page reasoned judgment, delivered its verdict in the trial in respect of seven of the accused. Having regard to the evidence in the case file, the court found it established that Mr K.A. was member of an illegal armed organisation, namely Hizbullah, and that he had participated in a number of armed activities on its behalf, including the killing of the applicant's husband on 7 June 1993, and sentenced him to life imprisonment. It transpires from the reasoned judgment of the Diyarbakır Assize Court that proceedings before its Sixth Division concerning another suspect, who had originally been arrested in the operation conducted in1995 and was currently being tried in absentia for taking part in the applicant's husband's killing, were pending.
The case against Mr K.A. is pending before the Court of Cassation.
B. Relevant domestic law and practice
A description of the relevant domestic law at the material time can be found in Sabuktekin v. Turkey, no. 27243/95, §§ 60-68, ECHR 2002 II (extracts).
COMPLAINTS
The applicant complained that Eyüp Adıyaman had been killed by State agents or with their connivance and that no effective investigation had been conducted into his death, in breach of Article 2 of the Convention.
THE LAW
The applicant complained under Article 2 of the Convention about the killing of her husband and the alleged lack of an effective investigation into the circumstances of his death.
Article 2 of the Convention, the relevant part of which provides as follows:
“Everyone's right to life shall be protected by law.”
A. The parties' submissions
1. The Government
The Government raised a number of objections regarding the admissibility of the application. They first asked the Court to dismiss the application as being inadmissible for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. In this connection, the Government argued that the applicant had not raised the substance of her complaints before the national authorities. They further pointed out that the applicant had lodged her application with the Court before awaiting the results of the criminal investigation. Secondly, the Government maintained that the applicant had failed to comply with the six month rule. In this regard, they submitted that, since the applicant complained of a lack of an effective domestic remedy, she should have lodged her complaints with the Court long before she made requests to the authorities for the first time, which was on 26 November 1999, namely six and a half years after the incident or, alternatively, within six months of the date when the applicant applied to the Social Security authorities.
As to the merits, the Government, referring to the Court's case-law, maintained that they had fulfilled their obligation under Article 2 of the Convention. In particular, they submitted that serious efforts had been made to find those responsible for the applicant's husband's death and that the criminal proceedings brought against the alleged perpetrator were pending before the domestic courts.
2. The applicant
The applicant did not specifically respond to the Government's arguments on the admissibility of her application.
As to the merits, the applicant maintained that her husband had been killed by Hizbullah, acting in collusion with the State, because he was an active member of a pro-Kurdish party. In this connection, the applicant submitted that there was no dispute that her husband had been killed by Hizbullah, a terrorist organisation, which was being used by the security forces for their own purposes. The applicant pointed out that between 30 April 1992 and 14 October 1993 approximately twenty-eight people had been killed and nine injured in a city as small as Silvan. This demonstrated together with the fact that members of this group were not caught for a long time, in the applicant's view, State support for Hizbullah. The applicant further claimed that the security forces had tagged her husband as a PKK militant and put him on a death list. In support of her claims the applicant submitted a number of newspaper articles on the issue of semi-official organisations and a book on the confessions of Abdulkadir Aygan1, and referred allegedly to the police statements of the accused, namely that the security forces knew all about their activities and that after each act they would meet at a particular mosque. The applicant pointed out that mosques belonged to the Religious Affairs Department and that therefore the accused were plotting their killings at a place belonging to the State. Finally, the applicant criticised the manner in which the preliminary investigation had been conducted.
B. The Court's assessment
The Court considers it unnecessary to determine whether the applicant has exhausted domestic remedies or complied with the six-month rule within the meaning of Article 35 § 1 of the Convention, since her complaint is in any event inadmissible for the following reasons.
The Court reiterates the basic principles laid down in its judgments concerning a State's obligations under Article 2 of the Convention under both its substantive and procedural limbs (see, in particular, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-147, Series A no. 324; Buldan v. Turkey, no. 28298/95, §§ 73-75, 20 April 2004; Ülkü Ekinci v. Turkey, no. 27602/95, §§ 135-136, 16 July 2002; Shanaghan v. the United Kingdom, no. 37715/97, §§ 85-92, 4 May 2001; Finucane v. the United Kingdom, no. 29178/95, §§ 67-71, ECHR 2003 VIII; Ramsahai and Others v. the Netherlands, GC, no. 52391/99, § 321, ECHR 2007-... ; and Dölek v. Turkey, no. 39541/98, §§ 70 75, 2 October 2007). It will examine the present case in the light of those principles and in the light of the documentary evidence adduced by the parties.
As regards the killing of Eyüp Adıyaman, the Court observes that the applicant made serious allegations about involvement of State agents in his death. Having regard to the undisputed information provided by the applicant that a number of killings by unknown perpetrators had taken place in Silvan between 30 April 1992 and 14 October 1993, to its previous findings in similar Turkish cases to the effect that in 1993 and 1994, as a result of the conflict in south-east Turkey, there were rumours that contra-guerrilla elements were involved in targeting persons suspected of supporting the PKK (see, for example, Mahmut Kaya v. Turkey, no. 22535/93, § 89, ECHR 2000-III, and Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI) and to the fact that in a number of official documents the deceased is referred to as a PKK sympathiser, the applicant's allegation that her husband was killed at least with the connivance of State agents cannot therefore be discarded as prima facie untenable.
However, for the Court, the required evidentiary standard of proof for the purposes of the Convention is that of “beyond reasonable doubt”, and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among other authorities, Ülkü Ekinci v. Turkey, § 142, cited above). As regards the assessment of evidence, the Court reiterates that its role is of subsidiary nature, and that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Matyar v. Turkey, no. 23423/94, § 108, 21 February 2002). The Court notes that there is no indication in the case file that the applicant's husband had been threatened by anyone prior to his death or had had reason to believe that his life was at risk. Moreover, the applicant does not contest that her husband was killed by members of an illegal armed organisation, namely Hizbullah. As to the applicant's contention regarding the alleged relationship between Hizbullah and the State, the Court finds, in view of the documents adduced in the case file and in the absence of any tangible evidence, that it cannot be said, other than by conjecture or speculation, that there was any connivance by State authorities in Eyüp Adıyaman's death through Hizbullah.
In sum, there is no material in the case file to enable the Court to conclude beyond all reasonable doubt that the applicant was killed by any State agent or person acting on behalf of the State authorities.
As to the investigation into the circumstances surrounding Eyüp Adıyaman's death, in the present case there is no dispute over the steps that were taken by the investigating authorities during the preliminary investigation. The Court observes that security forces arrived at the scene immediately after the incident. They drafted an incident report, drew up a sketch map and collected twelve spent cartridges from the scene, which were subsequently sent for ballistics examination. A post-mortem examination was conducted on the body, at which it was established that death had occurred as a result of haemorrhage and damage to the cerebral tissue as a result of wounds caused by firearms. The police heard evidence from four people who either lived or worked in the incident area and the prosecutor heard the applicant's brother-in-law and the other deceased's father in relation to the killings. Although the fact that no attempts were made to secure additional witness statements from locals who worked or lived in that street in order to ascertain whether anyone saw the actual shootings was a regrettable deficiency at this stage of the investigation, it did not, in the Court's opinion, have weighty significance in the circumstances of the present case, for the following reasons. While the investigation into Eyüp Adıyaman's death was pending, in 1995, three suspects who were arrested in connection with an ongoing investigation concerning an illegal armed organisation, namely Hizbullah, submitted that Eyüp Adıyaman had been killed by a certain Mr K.A. Following this date it appears that the investigative efforts of the police were concentrated in the capture of this suspect. Although, Mr K.A. was arrested on 29 August 2001, it was not until 6 October 2003 that the Silvan public prosecutor and subsequently the prosecutor at the Diyarbakır State Security Court were informed of his capture. An additional bill of indictment was filed against Mr K.A., who was accused of killing the applicant's husband and of Muhterem Demir on behalf of Hizbullah. On 3 July 2008 the Diyarbakır Assize Court found it established that Mr K.A. was a member of an illegal armed organisation, namely Hizbullah, and that he had participated in a number of armed activities on its behalf, including the killing of the applicant's husband. The accused was sentenced to life imprisonment. His case is pending before the Court of Cassation. In this connection, the Court notes that the applicant, who appears to have been reluctant throughout this time to be involved in the ongoing investigation or proceedings, does not challenge the findings of the Diyarbakır Assize Court before this Court (see, a contrario, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 69, 27 June 2006). The Court further observes that another suspect is also being tried in absentia before the Diyarbakır Assize Court.
In view of the above, the Court concludes that the evidence in the investigation file shows that, although there were lengthy delays due to the nature of the crime, namely killing by an unknown perpetrator, and also the efforts needed to dismantle a criminal organisation such as Hizbullah, the investigation was not devoid of effect and it cannot be maintained that the authorities took no action with regard to the killing of the applicant's husband (see, for example, Bayrak and Others v. Turkey, no. 42771/98, §§ 54-55, 12 January 2006, and Acat and Others v. Turkey (dec.), no. 77200/01, 5 April 2005).
In the light of the aforementioned findings and having examined the various measures that were taken in the instant case, the Court finds that the investigation into the death of the applicant's husband may be regarded as satisfying Convention standards.
It
follows that the application must be rejected as being manifestly
ill-founded within the meaning of Article 35 §§ 3 and 4
of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza
Registrar President
1. There is no information in the case file to demonstrate that this request was sent to the domestic authorities.
1. A former member of the PKK (Workers’ Party of Kurdistan) and allegedly a member of JITEM (the Gendarme Intelligence Service).