EHRM, 09-01-2007, nr. 55962/00

EHRM, 09-01-2007, nr. 55962/00

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Uitspraak 09‑01‑2007

J.-P. Costa, I. Cabral Barreto, R. Türmen, M. Ugrekhelidze, A. Mularoni, E. Fura-Sandström, D. Popović

Partij(en)

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55962/00

by

Rahime ERİK

against

Turkey

The European Court of Human Rights (Second Section), sitting on 9 January 2007 as a Chamber composed of:

Mr J.-P. COSTA, President,

Mr I. CABRAL BARRETO,

Mr R. TÜRMEN,

Mr M. UGREKHELIDZE,

Mrs A. MULARONI,

Mrs E. FURA-SANDSTRÖM,

Mr D. POPOVIĆ, judges,

and Mrs S. DOLLE, Section Regisrar,

Having regard to the above application lodged on 28 October 1999,

Having deliberated, decides as follows:

The facts

The applicant, Rahime Erik, is a Turkish national of Kurdish ethnic origin who was born in 1950 and lives in Diyarbakır. She was represented before the Court by Mr M. Muller, Mr T. Otty, Ms L. K. N. Claridge, and Mr K. Yıldız of the Kurdish Human Rights Project in London.

A. The circumstances of the case

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

In late November or early December 1995, a large team of police officers forcibly entered the applicant's house and arrested her son, Hakan Erik. The applicant claims that, during arrest, they were ill-treated and that for a long time she was unable to discover the whereabouts of her son. She further claims that the police threatened her that if her son was not conscripted for military service he would be killed.

On 7 December 1995 the applicant's son, Hakan Erik, commenced his compulsory military service. He was stationed in Nazilli Military Headquarters. The applicant submits that her son had told her that some of the soldiers, namely M.A.S., B.Y.Ö and I.O., had threatened to kill him because he was from Lice and, therefore, a terrorist.

On 29 April 1996 Hakan Erik was found shot. He was taken to the SKK Hospital, where he died. A post mortem examination was conducted on the deceased. The doctor considered that no autopsy was needed since the cause of death was internal bleeding from a single shot gun wound to the chest. No bruises were found on the body. The authorities were of the opinion that the applicant's son had committed suicide.

On 1 May 1996 Hakan Erik's body was transferred to Diyarbakır for burial. The applicant claims that she was told several times not to uncover the body and to bury it within ten minutes. She further submits that when she uncovered the body she discovered that apart from the gun wound there was bleeding coming from the right eye, right ear and nose.

On 2 May 1996 the applicant's husband complained to the Diyarbakir public prosecutor's office that his son had been killed by two soldiers and claimed that his son's body had suspicious injuries. He requested an autopsy. On 2 and 3 May 1996, the prosecutor heard the applicant's husband, who reiterated his previous submissions. In May 1996 the prosecutor decided that he lacked competence to investigate the complaints and transferred the case file to the İzmir military prosecutor.

On 10 May 1996 the body of Mr Erik was exhumed. The autopsy confirmed that the cause of death was internal bleeding from a single shot gun wound to the chest. The autopsy report also found that there was a scaled graze of 1x0.5 cm on the right ankle and that there were no other signs of bruises on the body. Finally, the report indicated that due to putrefaction of the body there was swelling, blood-clots and a change of colour in some parts of the body.

Acting by proxy, the Diyarbakir public prosecutor heard the applicant and her husband on 13 May 1996.

By a decision dated 19 December 1996, the Izmir military prosecutor decided to discontinue the proceedings. In her decision, the prosecutor, relying on the testimonies of other conscripts, two civilians, the ballistic report and the autopsy report, concluded that there was no indication which would lead her to conclude that the death of Mr Erik had been caused by someone else's intent or negligence.

In the same decision the prosecutor filed an indictment against Mr I.O. for the ill-treatment of subordinates. She submitted that, independent of the death of Hakan Erik, it had been established by witness testimony that Mr I.O. had slapped the deceased and two other conscripts for not keeping a proper guard. She requested that Mr I.O. be charged and convicted under Article 117 § 1 of the Military Criminal Code.

On 8 January 1997 the applicant objected to the prosecutor's decision to discontinue the proceedings. In her petition, the applicant submitted, in particular, that her son had not committed suicide but had been killed. She claimed that her son had told her that he had been threatened by Mr M.A.S. and Mr B.Y.Ö. She further complained about the contradictions between the post mortem examination and the autopsy report. In this regard, she submitted that the autopsy report had found a graze on her son's right ankle whereas the post mortem report had found no bruises on his body.

On 31 January 1997 the applicant's objections against this decision were dismissed by the İzmir Military Court. This decision was served on the applicant on 19 February 1997.

In the meantime, Mr I.O. was convicted under Article 117 § 1 of the Military Criminal Code and sentenced to a fine. This decision became final on 4 February 1999 as no one appealed. The applicant was not a party to the proceedings.

B. Relevant procedure before the Court

The first letter concerning the application was submitted by the applicant's lawyers on 13 June 1997 to the European Commission on Human Rights. After giving a brief description of the events and submitting without further specification that the applicant alleged a violation of Articles 2, 3, 6, 9, 10, 13 and 14 of the Convention, the lawyers informed the Commission that they were assembling the necessary documentation in order to submit the full application. A number of official documents were attached to the first letter.

The Registry of the Commission acknowledged receipt and the case was given a provisional number.

On 28 October 1999 the applicant's lawyers submitted the completed application form together with documents.

On 14 December 1999 the Registry of the Court informed the applicant's lawyers of certain shortcomings in the application, namely that the full application form had been submitted 2 years, 4 months and 15 days after the first letter and requested that they provide an explanation of the reasons for the delay. The applicant's lawyers' attention was drawn to the Convention organs' case-law on this point.

On 4 January 2000 the applicant's lawyers submitted that the applicant and her family were subjected to constant intimidation and threats by the authorities, that the failure to investigate Mr Erik's death constituted a continuing violation and that there were considerable delays in obtaining the documents pertaining to the domestic investigation.

On 27 March 2000, upon the receipt of a revised authority form, the application was registered. The applicant's lawyers were informed that the date of introduction of the application would be considered as having been 13 June 1997 unless the Court decided otherwise.

Complaints

The applicant complained under Articles 2, 6 and 13 of the Convention that her son was intentionally killed by two conscripted soldiers and a non-commissioned officer of the Turkish army and that the investigation into the circumstances of his death was inadequate, ineffective and deprived her of the possibility to claim compensation.

The applicant complained under Article 3 of the Convention on account of the ill-treatment inflicted on her son during his arrest and military service and the harassment and ill-treatment to which she and other members of the family were subjected during her son's arrest and during the investigation into the circumstances of his death. She further complained of the anguish and distress caused to her by the death of her son.

The applicant complained under Article 14 in conjunction with Articles 2, 3, 6 and 13 of the Convention that she and her family were discriminated against on account of their Kurdish ethnic origin.

The law

1

The applicant complained under Articles 2, 6, and 13 of the Convention that her son was intentionally killed by two conscripted soldiers and a non-commissioned officer of the Army and that the investigation into the circumstances of his death was inadequate, ineffective and deprived her of the possibility to claim compensation. The applicant complained under Article 3 of the Convention that the ill-treatment her son had been subjected to at the hands of fellow officers, the anguish and distress caused to her by the death of her son and the treatment she and other family members were subjected to during the investigation concerning her son's death, all breached Article 3 of the Convention. Finally, the applicant complained under Article 14 in conjunction with Articles 2, 3, 6 and 13 of the Convention that she and her family were discriminated against on account of their Kurdish ethnic origin.

The Court reiterates that, in accordance with its established practice, the date of introduction of an application is the date of the first letter indicating an intention to lodge an application and giving some indication of the nature of the complaint. However, when a substantial interval follows before an applicant submits further information as to the proposed application, the Court examines the particular circumstances of the case in order to decide what date shall be regarded as the date of introduction, from which to calculate the running of the six-month period set out in Article 35 § 1 of the Convention (see, among others, Alzery v. Sweeden, (dec.), no. 10786/04, 26 October 2004, and Gaillard v. France, (dec.), no. 47337/99, 11 July 2000).

It would be contrary to the spirit and the aim of the six-month rule if, by any initial communication, an applicant could set into motion the proceedings under Article 34 of the Convention and then remain inactive for an unexplained and unlimited period of time. In this regard, it must be reiterated that delays in pursuing the case are only acceptable in so far as they are based on reasons connected to the subject matter of the application or the applicant personally (see Quaresma Afonso Palma v. Portugal, (dec.), no. 72496/01, 13 February 2003).

In the instant case, the Court notes that the applicant's first communication with the Commission was on 13 June 1997, whereas the completed application form was submitted to the Court only on 28 October 1999, i.e. 2 years and 4 months later. There is no doubt as to the seriousness of the alleged violations of which the applicant claims to have been the victim. However, there is no satisfactory explanation as to the lengthy delay by the applicant's representatives in submitting a completed application form. In this regard, the Court observes that the applicant's allegations of being harassed and intimidated by the authorities are not supported by any evidence whatsoever. It further notes that the applicant, at that time, gave a power of attorney to several lawyers, including two Turkish lawyers. She has not claimed that they were in any way hindered by the authorities. Moreover, the Court finds that there is no reason why the documents contained in the case file could not have been obtained at a much earlier date, either by the applicant and/or her representatives since, apart from one document, they all date from 1997. Therefore, the applicant's explanation for the lack of timely follow-up to her initial letter is not persuasive. Consequently, the Court considers that the delay in the application cannot be considered to be based on reasons connected to the case but is due rather to a lack of due diligence on the part of the applicant's representatives.

In view of the considerations above, it cannot be held that the reasons submitted by the applicant's representatives are such that they could have suspended the running of the six month period referred to in Article 35 § 1 of the Convention. Therefore, notwithstanding the applicant's initial letter of 13 June 1997, the Court considers 28 October 1999 to be the date of introduction of the application. However, the Court notes that the final decision from which the six-month period should be calculated is the Izmir Military Court's decision of 31 January 1997, which was served on the applicant on 19 February 1997. It follows that, having thus been introduced out of time, the above complaints must be rejected under Article 35 §§ 1 and 4 of the Convention.

2

The applicant complains under Article 3 of the Convention on account of the ill-treatment she, her son and other family members allegedly received during her son's arrest.

The Court notes that this complaint appears never to have been brought to the attention of the domestic authorities. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. DOLLÉ

Registrar

J.-P. COSTA

President

Deze functie is alleen te gebruiken als je bent ingelogd.