SULTAN DOLEK AND OTHERS v. TURKEY - 34902/10 - Chamber Judgment [2015] ECHR 433 (28 April 2015)

In the case of Sultan Dölek and Others v. Turkey,

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

          András Sajó, President,
          Işıl Karakaş,
          Nebojša Vučinić,
          Helen Keller,
          Egidijus Kūris,
          Robert Spano,
          Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 31 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 34902/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Turkish nationals (“the applicants”), whose particulars are set out in the appendix, on 3 June 2010.

2. The applicants, who had been granted legal aid, were represented by Mr Ali Tandoğan Kaçıra, a lawyer practising in Mersin. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicants alleged, in particular, that the investigation conducted into the death of their close relative Mustafa Döleksoy had not been effective and was thus in breach of Article 2 of the Convention.

4. On 14 June 2012 the application was communicated to the Government.

5. On 25 July 2013 the Government presented a unilateral declaration to the Court. On 22 October 2013 the Court examined the Government’s unilateral declaration and decided not to accept it.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

6. The first applicant is the mother and the remaining six applicants are the siblings of Mustafa Döleksoy who was born in 1952 and died in 2007.

7. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.

8. At around 10 a.m. on 25 August 2007 Mustafa Döleksoy’s neighbours noticed a strong smell coming from his summer house near the town of Erdemli in southern Turkey. They informed the caretaker and the security guard of the summer house complex, who immediately went to Mustafa Döleksoy’s house. The door to the house was closed but the two men were able to see, by looking under the door, that Mustafa Döleksoy was lying on his back on the floor. They then called the gendarmerie.

9. A number of gendarmes, accompanied by a doctor from the local health clinic, arrived at the scene at around 10.30 a.m. As the door to the house was locked, a locksmith had to be found to open the door.

10. The doctor who accompanied the gendarmes prepared a report at 10.30 a.m. in which he concluded that Mustafa Döleksoy had died of a cerebral haemorrhage and circulatory failure which had been caused by head trauma as a result of falling from the worktop in the kitchen. The doctor estimated that the death had occurred four to five days previously.

11. In their statements to the gendarmerie, the applicants Mahmut and Ahmet Cengiz Dölek said that they did not know who might have been responsible for the death of their brother and that they did not suspect anyone in particular. The caretaker and the security guard of the summer house complex were also questioned by the gendarmes and they were reported as having stated that they had no idea how Mustafa Döleksoy might have met his death.

12. The Erdemli prosecutor went to the house at around 11.40 a.m. and drew up an examination report with the assistance of the same doctor. Mustafa Döleksoy’s body was formally identified by a colleague from the law firm where Mustafa Döleksoy had been working as a lawyer. The colleague also told the prosecutor that Mustafa Döleksoy had recently purchased the summer house and had been making preparations to move in.

13. In his report the prosecutor noted the presence of a large amount of dried blood on the floor which had come from Mustafa Döleksoy’s head. He observed that the corpse had swollen and the face had completely blackened. The doctor reported two fractures on both the left and right of the occipital region of the head and two cuts above the fractures. No indications of firearm injuries or stab wounds were noted on the body. A handful of hair found in the left hand of Mustafa Döleksoy and the samples taken from Mustafa Döleksoy’s own hair were placed in two separate envelopes and sealed. A decision was made to hand over to the family the clothes taken off the body, because the prosecutor considered that they had no evidential value as there were no holes in them caused by a firearm or a knife. The personal belongings, such as a wallet with money and credit cards in it and a mobile phone found in the trouser pockets, were taken away as evidence.

14. The doctor did not find it necessary to conduct a full post mortem examination because, in his opinion, the cause of death had already been established as cerebral haemorrhage and circulatory failure caused by head trauma. Nevertheless, having regard to the fact that “the death had occurred in an empty house and the deceased had a clump of hair in his hand”, the prosecutor decided to send the body to the Adana Branch of the Forensic Medicine Institute for a full post-mortem examination to be carried out so that any suspicions could be eliminated by determining the exact cause of death and the cause of the injuries observed on the head.

15. Crime scene officers from the gendarmerie who moved the body at 12.30 p.m. the same day after the prosecutor’s examination also noted the two cuts on the back of the head and recorded their finding in a report. According to the report, there were no signs of a struggle in the house which, in any event, had been unfurnished. The crime scene officers also drew up a sketch of the house which also indicated the position of the body.

16. The same day a post mortem examination was carried out at the Adana Branch of the Forensic Medicine Institute. The report pertaining to that examination was prepared on 12 November 2007. It was noted in the report that, contrary to what had been stated in the prosecutor’s report (see paragraph 13 above), the skull was intact and there were no fractures on it. The forensic experts considered that “the two lesions on the head”, which had been described as “cuts” in the prosecutor’s above-mentioned report, might have been caused by decomposition.

17. When preparing their report of 12 November 2007 the forensic experts also took into account two other forensic reports. The first report, dated, 24 September 2007, pertained to a toxicological examination and confirmed that there were no toxic substances in Mustafa Döleksoy’s body.

18. The second report taken into account by the forensic experts at the Adana Branch of the Forensic Medicine Institute was obtained from the Biology Specialisation Department of the Istanbul Branch of the Forensic Medicine Institute on 28 September 2007 and concerned the hair samples. According to that report, the hair samples found in Mustafa Döleksoy’s hand were “not responding to a DNA examination”. It was also stated in that report that, according to a DNA analysis, the stains found on the paper in which the hair found in Mustafa Döleksoy’s hand had been wrapped, and the hair samples taken from Mustafa Döleksoy’s head by the prosecutor (see paragraph 13 above) were a match.

19. In the light of the post mortem examination conducted by them on 25 August 2007, as well as having regard to the two expert reports summarised in the preceding paragraphs, the experts at the Adana Branch of the Forensic Medicine Institute concluded in their report of 12 November 2007 that Mustafa Döleksoy had not been poisoned and that there was no medical evidence to show any involvement of an external factor in his death. On account of the fact that the hair found in Mustafa Döleksoy’s hand had not responded to DNA analysis, they could not establish whether or not it was his own hair. The experts concluded that they were unable to establish the exact cause of death on account of the advanced state of decomposition of the body.

20. On 19 December 2007 the lawyer representing the first applicant and her husband informed the Erdemli prosecutor in a petition that in their opinion their son had died in suspicious circumstances. They asked the prosecutor to examine their son’s law firm and his mobile phone with a view to clarifying the circumstances surrounding his death. They also asked for a copy of the investigation file to be given to them.

21. On 25 December 2007 the Erdemli prosecutor contacted the Biology Specialisation Department of the Istanbul Branch of the Forensic Medicine Institute and requested that further examinations be conducted on the hair samples found in Mustafa Döleksoy’s left hand with a view to establishing whether they belonged to Mustafa Döleksoy and whether they were even human hair. The prosecutor also asked the Institute to explain why the hair samples had not responded to DNA analysis and requested that both hair samples be returned to his office after the new examination.

22. On 21 January 2008 the first applicant, Sultan Dölek, and her husband petitioned the Erdemli prosecutor and requested that a number of witnesses, including persons living in the same summer house complex where their son was found dead, be heard. Mr and Mrs Dölek also repeated their earlier request for their deceased son’s telephone records to be examined and informed the prosecutor that two persons had told them that their son had been receiving threatening telephone calls shortly before his death.

23. Mustafa Döleksoy’s parents also informed the prosecutor that their son and his wife had been involved in prolonged court proceedings in the course of which his wife had refused to divorce him. They alleged that Mustafa Döleksoy’s wife, accompanied by a number of persons, had attempted to go secretly to the farmhouse where Mustafa Döleksoy had been living some one and a half years previously, but had been deterred by his dogs. The dogs had subsequently been mysteriously poisoned and killed. They added that Mustafa Döleksoy’s wife had told them on a number of occasions that she would not divorce Mustafa Döleksoy and that she would “make him suffer”. They also added that their son’s death had occurred some two weeks after he had brought a new case for divorce. Finally, Mr and Mrs Dölek asked the prosecutor to examine why the hair found in their son’s hand had not responded to DNA analysis when the hair taken from his head by the crime scene officers had.

24. On 11 February 2008 Mr and Mrs Dölek presented another petition to the same prosecutor. They reiterated the suspicions they had voiced earlier about the alleged role of Mustafa Döleksoy’s wife in their son’s death and added that they had suspicions that the wife’s sister had also been involved in Mustafa Döleksoy’s death. They gave the prosecutor a copy of a post mortem report pertaining to the examination of the body of İ.B., who had been the husband of Mustafa Döleksoy’s wife’s sister, and who had been found dead in his house in 2001 in circumstances similar to those of their son. They told the prosecutor that İ.B.’s post mortem report had been given to them by their son Mustafa Döleksoy, who had told them that his wife and her sister might have been responsible for İ.B.’s death and that if anything were to happen to him, they should give that document to the investigating authorities.

25. A specialist department within the Istanbul Branch of the Forensic Medicine Institute conducted a number of further examinations and adopted its report on 20 October 2008 in response to the prosecutor’s request of 25 December 2007 (see paragraph 21 above). It was established in the report that the hair found in Mustafa Döleksoy’s hand was human hair and that a certain amount of force must have been used to pull them from the scalp. The report confirmed the conclusion of the earlier forensic examinations that the “hair samples were not responding to DNA analysis”. According to the report, macroscopic and microscopic examination of the hair found in Mustafa Döleksoy’s hand had revealed strong similarities to the samples of his own hair.

26. On 4 December 2008 the Erdemli Public Prosecutor decided to close his investigation into the death. Taking into account the medical reports summarised above, the prosecutor considered that there was no evidence to show that Mustafa Döleksoy’s death had been “caused by an external source, such as having been killed intentionally or unintentionally by another person or persons”.

27. On 25 December 2008 Mrs Dölek filed an objection against the prosecutor’s decision, and argued that the investigation had been deficient. She alleged that the prosecutor had failed to take into account the information provided in her petitions. She further complained that the residents of a flat facing that of her son had not been heard and that the search for fingerprints and other evidence had not been carried out properly. Her son’s mobile telephone records had not been examined with a view to checking the calls made to and from his telephone at around the time of his death. She also questioned the forensic reports and submitted that the reason why the hair found in her son’s hand had not responded to DNA analysis while the hair samples taken from his own head had, had not been explained in the reports.

28. On 26 March 2009 the Tarsus Assize Court considered that the reasons set out in the prosecutor’ decision were adequate and rejected the objection lodged by the first applicant. This decision was communicated to the applicants’ lawyer on 28 May 2009.

29. The first applicant made an application to the Ministry of Justice on 6 April 2009 and asked the Minister to use his powers to intervene and issue an order to have the decision of the Tarsus Assize Court set aside. She repeated her earlier misgivings about the prosecutor’s investigation and argued that the decision of the Tarsus Assize Court rejecting her objection had not been adequately reasoned. She added that, although a decision had been made to return to the family the clothes her son had been wearing at the time of his death, this had not been done.

30. The application to the Ministry of Justice was rejected on 13 May 2009 on the grounds that the Tarsus Assize Court’s decision was in accordance with applicable law and procedure.

31. On 17 September 2009 Mrs Dölek wrote to the Erdemli prosecutor, and requested a copy of the investigation file together with the hair samples because she wanted to have a DNA examination of them carried out privately at a university. She pointed out that, according to academics from several universities with whom she had had contacts, a DNA examination could satisfactorily be carried out on the hair samples.

32. In reply to Mrs Dölek’s request, the Erdemli Public Prosecutor took another decision of non-prosecution on 13 October 2009 in which he set out the steps taken previously in the investigation. The prosecutor decided to give a copy of the documents from the investigation file, but refused permission for the hair samples to be handed over. He considered that this part of the request was not in conformity with domestic legislation.

33. Mrs Dölek lodged an objection on 22 October 2009 against the prosecutor’s decision and repeated her allegations about the investigation.

34. On 7 December 2009 the Tarsus Assize Court upheld the prosecutor’s decision because it considered that this decision had been adequately reasoned. That decision was served on the applicants’ lawyer on 14 January 2010.

35. A request made by the first applicant to the Ministry of Justice on 18 January 2010 to take steps to have the Tarsus Assize Court’s decision of 7 December 2009 set side was rejected by that Ministry on 3 March 2010. The Ministry’s decision was communicated to the applicants on 24 March 2010.

36. When notice of the application was given to the respondent Government, the Court requested the Government to obtain and to submit an explanation from their forensic authorities on whether the Forensic Medicine Institute’s conclusion that the hair found in the deceased person’s hand could not be subjected to DNA analysis was based on an adequate examination.

37. The Government complied with that request and submitted to the Court a report prepared by the Forensic Medicine Institute on 17 August 2012. In this report the scientific methods used by the forensic experts who drafted the above-mentioned reports were explained and it was stated that it had not been possible to obtain “autosomal, gonosomal or mitochondrial DNA results” from the hair found in Mustafa Döleksoy’s hand.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE CONVENTION

38. Relying on Articles 2 and 13 of the Convention the applicants complained that the State had failed to protect the life of Mustafa Döleksoy on account of its failure to carry out an effective investigation into his death.

39. The Court deems it appropriate to examine the applicants’ complaint solely from the standpoint of Article 2 of the Convention, which reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

40. The Government contested those allegations.

A. Admissibility

1. Compliance with the requirement to exhaust domestic remedies

41. The Government pointed out that only the first applicant Mrs Sultan Dölek had taken part in the domestic proceedings and lodged an objection against the Erdemli prosecutor’s decisions not to institute a criminal case and argued that the remaining six applicants had thus failed to comply with the requirement to exhaust domestic remedies.

42. The applicants submitted that Article 2 of the Convention, as interpreted by the Court in its judgments, obliged national authorities to investigate a death as soon as they become aware of it. They also submitted that their complaints concerned the effectiveness of the prosecutor’s investigation and that there had not been a criminal trial in which they could have taken part as civil parties.

43. The Court notes that, as pointed out by the applicants, discovery of a dead body in suspicious circumstances gives rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death (see, inter alia, Süheyla Aydın v. Turkey, no. 25660/94, § 171, 24 May 2005). Indeed, the national legislation of Turkey also obliges prosecutors to investigate suspicious deaths ex proprio motu without waiting for an official complaint. This was indeed what happened in the present case where the Erdemli prosecutor started an investigation immediately after the discovery of Mustafa Döleksoy’s body long before the first applicant made an official complaint.

44. Having regard to the national authorities’ above-mentioned ex officio obligation to investigate deaths, and having further regard to the fact that one of the applicants has made use of the available domestic remedies and brought their Convention complaints to the attention of the national authorities, the Court considers that the involvement of one of the applicants was sufficient and that it was not necessary for all seven applicants to intervene in the investigation (see, inter alia, Yüksel Erdoğan and Others v. Turkey, no. 57049/00, §§ 74-75, 15 February 2007).

45. In light of the above, the Court dismisses the Government’s objection based on the exhaustion of domestic remedies.

2. Compliance with the six-month time-limit

46. The Government were of the opinion that the investigation into the applicants’ relative’s death had been completed on 26 March 2009 (see paragraph 28 above) when the Tarsus Assize Court upheld the Erdemli prosecutor’s first decision dated 4 December 2008 (see paragraph 26 above). They noted that the Tarsus Assize Court’s decision had been served on the applicants on 28 May 2009 (see paragraph 28 above) and argued that the applicants had failed to comply with the six-month time limit because they had not lodged their application with the Court within six-months following that date.

47. The Government argued that, even though the Erdemli prosecutor subsequently rendered another decision of non-prosecution in response to the first applicant’s request for certain items to be returned to her, that decision did not interrupt the running of the six-month time-limit because no new evidence had been adduced or proposed in order to revive the procedural obligation to investigate Mustafa Döleksoy’s death. In support of these submissions the Government referred to the judgments in the cases of Gasyak and Others v. Turkey (no. 27872/03, § 63, 13 October 2009); and Brecknell v. the United Kingdom (no. 32457/04, § 71, 27 November 2007).

48. The applicants responded by claiming that they had complied with the six-month rule as they had lodged their application within six months after the decision of the Ministry of Justice rejecting their application had been communicated to them on 24 March 2010 (see paragraph 35 above).

49. The Court stresses at the outset that relevant parts of the judgments referred to by the Government in the preceding paragraph concern the issue of whether an item of evidence or crucial new information revives the obligation to carry out an effective investigation into a death. As such, they are irrelevant in the present case. In the present case, after the completion of the criminal investigation on 26 March 2009 with the Tarsus Assize Court’s rejection of the objection lodged by the applicants (see paragraph 28 above), the applicants wrote to the prosecutor and asked for the hair found in the hand of their relative to be handed over to them so that they could have it forensically examined.

50. The Court considers that request to be a continuation of the applicants’ attempts to have the death of their close relative investigated. The Court, like the applicants, also considers the hair found in Mustafa Döleksoy’s hand to be potentially relevant in order to clarify the circumstances concerning the death of Mustafa Döleksoy and finds that the applicants’ attempts to have it privately examined by forensic experts at a university was not unreasonable. Given that the response of the prosecutor to the applicants’ request was in the form of a decision not to prosecute, the Court considers that the applicants did not act unreasonably by lodging an objection against that decision. Indeed, subsequently the Tarsus Assize Court examined the merits of both the prosecutor’s decision and the applicants’ objection in its decision of 7 December 2009.

51. As for the applicants’ submissions that they complied with the six-month rule by introducing their application within six months after the decision of the Ministry of Justice rejecting their application had been communicated to them on 24 March 2010, the Court notes that the applicants’ application to the Ministry of Justice to have the decision of the Tarsus Assize Court set aside was made in accordance with the “appeal in the interest of law” procedure, provided for in section 309 of the Code of Criminal Procedure. The Court has already examined that particular procedure and considered it to be an extraordinary remedy because it was not directly accessible (see Bayraktaroğlu v. Turkey (dec.), no. 5283/10, 23 October 2012). It therefore finds that exhausting that particular remedy does not interrupt the running of the six-month time-limit which started to run when the Tarsus Assize Court’s decision rejecting the applicants’ objection to the prosecutor’s second decision was served on the applicants on 14 January 2010 (see paragraph 34 above). Noting that the applicants introduced their application with the Court on 3 June 2010, the Court considers that they complied with the six-month rule.

52. In view of the aforementioned considerations, the Court dismisses the Government’s objection based on the six-month time-limit.

53. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The applicants

54. The applicants complained that very few steps had been taken by the national authorities, and argued that those steps were not sufficient to clarify the circumstances surrounding their relative’s death. In the opinion of the applicants, the steps taken in the investigation had not been adequate to establish whether Mustafa Döleksoy had been killed intentionally or unintentionally.

55. The applicants drew the Court’s attention to the failure to establish the cause of Mustafa Döleksoy’s death and challenged the credibility of the forensic reports. They pointed out that a DNA examination had not been carried out on the hair found in Mustafa Döleksoy’s hand and argued that the macroscopic examination conducted on that hair was not sufficient to conclude that it was his own hair. In any event, it was absurd to suggest that a fatally injured person would pull his own hair out.

56. The applicants also argued that the crime scene investigations had not been conducted properly; in particular, the crime scene officers had not looked for fingerprints and had not examined Mustafa Döleksoy’s clothes. In this connection they challenged the conclusion reached by the doctor from the health centre, namely that Mustafa Döleksoy had met his death after having fallen from the worktop in the kitchen (see paragraph 10 above), and argued that that conclusion was not supported by any evidence. Nevertheless, no authority had questioned that finding and given thought to the impossibility of such an occurrence because the space between the worktop and the wall facing it was so narrow that no manner of falling would have caused the injuries found on Mustafa Döleksoy.

57. The applicants complained that the investigating authorities had not only failed to question the neighbours whose houses faced that of Mustafa Döleksoy with a view to finding out whether they had heard or seen anything suspicious, but had even failed to question the witnesses named and proposed by them who would have been in a position to provide information to the authorities about the threats received by Mustafa Döleksoy shortly before his death.

2. The Government

58. The Government submitted that the investigation into Mustafa Döleksoy’s death had been carried out by an independent and impartial judicial authority, namely the Erdemli prosecutor, who had commenced an investigation ex proprio motu immediately after the incident. The investigation had been accessible to the applicants and they had been able to make several requests to the national authorities. Furthermore, the authorities had acted speedily and completed the investigation within nineteen months.

59. During the course of the investigation the authorities had taken all necessary steps and the investigation had thus been capable of leading to the identification of anyone who may have been responsible for the death.

60. When notice of the application was given to them, the Court invited the Government to clarify the reasons behind the investigating authorities’ failure to question the neighbours living near Mustafa Döleksoy’s summer house and to look for any potential eyewitnesses. In response to that question the Government argued that there had been nothing in the statements taken from Mustafa Döleksoy’s two relatives, the caretaker or the security guard (see paragraph 11 above) to “raise any doubt of homicide, intentional or unintentional”. Secondly, the Forensic Medicine Institute had stated in its report dated 20 October 2008 that “the hair samples found in the hand of Mustafa Döleksoy morphologically revealed strong similarities to the samples taken from his own scalp”. That evidence, in the opinion of the Government, had excluded the involvement of another person and the existing evidence at that time had already shed light on the incident.

61. The Government further submitted that the persons whom the first applicant had requested in her petition of 21 January 2008 to be heard (see paragraph 22 above) had had no direct information which could have altered the course of the investigation. Referring to the Court’s case-law, the Government submitted that Article 2 of the Convention did not impose a duty on the investigating authorities to satisfy each and every request made by a relative in the course of an investigation.

62. In response to another question put to them by the Court the Government argued that the hair found in Mustafa Döleksoy’s hand had been subjected to a number of detailed analyses by using advanced techniques. However, these tests had revealed that it was not possible to make a DNA examination.

63. The Government submitted that the fact that some persons had not been heard as witnesses and that DNA results could not be obtained from the hair samples had not diminished the effectiveness of the investigation. They added that there had not been any other actions left to take by their authorities and that the obligations arising from Article 2 of the Convention and the Court’s established case-law on the subject had been fulfilled in the present case.

3. The Court’s assessment

64. The Court observes that the applicants’ complaint relates solely to the effectiveness of the investigation carried out by the national authorities into the death of their relative and, as such, should be examined from the standpoint of the procedural obligation to carry out effective investigations.

65. To that end, the Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324; and Kaya v. Turkey, 19 February 1998, § 105, Reports of Judgments and Decisions 1998-I).

66. In that connection, the Court points out that this obligation is not confined to cases where it is apparent that the killing was caused by an agent of the State (see Salman v. Turkey [GC], no. 21986/93, § 105, ECHR 2000-VII). Neither is it confined to cases where it is apparent that the victim has been killed; authorities faced with a suspicious death will also be under an obligation to carry out an effective investigation (see Kolevi v. Bulgaria, no. 1108/02, § 191, 5 November 2009 and the cases cited therein).

67. The Court reiterates that the obligation to investigate is not an obligation of result, but of means; as such, not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006 and the cases cited therein).

68. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Aktaş v. Turkey, no. 24351/94, § 300, ECHR 2003-V (extracts) and the cases cited therein). In particular, the investigation’s conclusion must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of enquiry undermines to a decisive extent the investigation’s ability to establish the circumstances of the case and the identity of those responsible (see Kolevi v. Bulgaria, cited above, § 201, and the judgments cited therein).

69. Turning to the specific circumstances of the present case, and having regard to the injuries observed on Mustafa Döleksoy, the Court considers it appropriate to stress at the outset that the fact that the forensic authorities were unable to find any medical evidence to show the involvement of an external factor in the death does not exclude foul play, given that in any event, those authorities were also unable to establish the circumstances leading to the death on account of the advanced state of decomposition of the body (see paragraph 19 above). In any event, the carrying out of an investigation solely with a view to establishing or ruling out the involvement of other persons in a suspicious death is not sufficient to satisfy the procedural obligation; the national authorities’ obligation also extends to establishing the cause of the death (Kolevi v. Bulgaria, cited above, § 191).

70. In the light of the foregoing the Court considers that Mustafa Döleksoy’s death was “suspicious” within the meaning of the preceding paragraph and required an investigation. In this connection the Court considers it noteworthy that the prosecutor who examined the body also considered it necessary to conduct a post mortem examination to eliminate any suspicions by determining the exact cause of death and the cause of the injuries observed on the head (see paragraph 14 above). The Court will therefore examine whether or not the national authorities carried out an effective investigation capable of establishing the circumstances leading to Mustafa Döleksoy’s death and leading to the identification and punishment of anyone responsible for it.

71. The Court agrees with the applicants that indeed very few steps appear to have been taken by the authorities in investigating the death. In fact, in the course of the entire investigation, the only pertinent steps were the examinations conducted by the forensic authorities. Although, admittedly, those examinations had been ordered by the investigating prosecutor (see paragraphs 14 and 21 above), no other steps appear to have been taken by that prosecutor while the forensic examinations were being carried out. For example, in the period that elapsed between the discovery of the body on 25 August 2007 and the preparation of the post mortem report on 12 November 2007, which should have been regarded as the most crucial period in the investigation into the death, no investigatory steps appear to have been taken by the prosecutor.

72. The applicants argued that the investigating authorities failed to question the neighbours who faced the summer house of Mustafa Döleksoy. There is indeed no indication that the prosecutor or any other investigator spoke during the investigation to the residents living in the vicinity of Mustafa Döleksoy’s house. The Court considers that the questioning of these potential witnesses, as soon as possible after the discovery of the body, could have yielded information on whether they had seen or heard anything suspicious. It considers that the failure to take such an obvious measure constitutes an important gap in the investigation (see paragraph 80 below).

73. In this connection the Court notes that the Government have tried to explain this failure by submitting that there had been nothing in the statements taken from Mustafa Döleksoy’s two relatives, the caretaker or the security guard to “raise any doubt of homicide, intentional or unintentional”. The Court is not convinced by those submissions. It observes that the statements taken from the two relatives, the caretaker and the security guard (see paragraph 11 above) merely confirmed that those persons had no relevant information to offer in respect of the death and do not conclusively rule out the involvement of another person in Mustafa Döleksoy’s death.

74. The Government also referred to the Forensic Medicine Institute’s report of 20 October 2008 according to which the hair samples found in Mustafa Döleksoy’s hand had morphologically revealed strong similarities to the samples taken from his own scalp. This, in the opinion of the Government, meant that no one had been involved in the death and that the incident had already been solved (see paragraph 25 above). Once again the Court is unable to accept the Government’s submissions because it notes that the report referred to by the Government was drawn up more than one year after Mustafa Döleksoy’s body was found and cannot, therefore, explain the prosecutor’s failure to seek and question any eyewitnesses during that period.

75. The Court also calls into question the efficacy of the crime scene investigation conducted in Mustafa Döleksoy’s house after the discovery of his body. As pointed out by the applicants, no attempts appear to have been made to look for fingerprints or to examine the condition of the entrance and exit points to the house. Moreover, the clothing worn by Mustafa Döleksoy was not preserved and not subjected to forensic examination because the prosecutor considered that “it had no evidential value” (see paragraph 13 above).

76. Furthermore, although Mustafa Döleksoy’s mobile phone was found in his pocket and could have offered important leads about his movements and the persons with whom he had been in contact immediately before his demise, it was not examined.

77. The Court notes that the national authorities not only failed to take those most rudimentary investigatory steps, but also failed to act even after they were urged to do so by the applicants in their many requests submitted to them (see paragraphs 20, 22-24, 27, 29, 31, 33 and 35 above). As set out above, no responses were given to the pertinent points raised by the applicants in the course of the investigation, which continued for a period of two and a half years, and no explanations were proffered to justify those failures by arguing, for example, that questioning the people in the vicinity, looking for fingerprints in the house, examining the call records in the mobile phone and forensically examining the clothes would not be relevant to solving the incident.

78. The Court also notes the doubts raised by the applicants throughout the investigation about the results of the forensic examinations according to which the hair found in Mustafa Döleksoy’s hand had not responded to DNA analysis. The Court considers that the main reason for the applicants’ dissatisfaction with the forensic authorities’ actions seems to be that the authorities’ failed to clarify with any certainty the reasons why the hair found in Mustafa Döleksoy’s hand had not responded to DNA analysis. In this connection the Court stresses that its own doubts about the failure to explain those reasons were not dispelled by the information obtained from the Forensic Medicine Institute at its request. It notes that the report merely states that “it had not been possible to obtain autosomal, gonosomal or mitochondrial DNA results” from the hair found in Mustafa Döleksoy’s hand and does not seek to explain the reasons for that failure (see paragraph 37 above).

79. The Court considers that the applicants’ suspicions must have been exacerbated by the added failure to explain why the hair sample taken from Mustafa Döleksoy’s head post mortem had responded to DNA analysis when the hair found in his hand had not. Without passing judgment on the quality of the examinations conducted by the respondent State’s forensic experts and notwithstanding the respondent State’s obligation to pursue an effective investigation, the Court considers it pertinent for its assessment that the applicants were denied the opportunity to have the hair examined privately by forensic experts according to whom it would have been possible to obtain results (see paragraph 31 above). Had the applicants been able to do so and establish that the hair belonged to another person, they could have brought that information to the attention of the judicial authorities who would have had to conduct fresh inquiries. If the results of the private forensic examinations had confirmed the results of the Forensic Medicine Institute, then the applicants’ suspicions would have been alleviated.

80. Finally, the Court considers that the information the applicants brought to the prosecutor’s attention about the threats made to Mustafa Döleksoy shortly before his death and the suspicions raised by the applicants about the involvement of certain persons in the death (see paragraphs 22-24 above) were not frivolous and should not have been discarded without any explanation, but deserved some degree of verification. Nevertheless, there is no information in the file to suggest that even the most rudimentary steps were taken in respect of that information and those suspicions.

81. The Court agrees with the Government that Article 2 of the Convention does not impose a duty on the investigating authorities to satisfy every request made by a relative in the course of an investigation. However, it considers that the requests made by the applicants were so important and pertinent that clarifying the circumstances surrounding Mustafa Döleksoy’s death could not conceivably have been achieved without taking them into consideration.

82. As set out above, according to the Court’s case-law, any deficiency in an investigation which undermines its ability to establish the circumstances leading to the death ‒ or the person responsible for such a death ‒ will risk falling foul of the standard of effectiveness expected from the national authorities (see paragraph 68 above). Having examined and highlighted the numerous failures in the investigation in the present case, the Court concludes that the investigation conducted into Mustafa Döleksoy’s death was not capable of establishing the cause of death or leading to the identification and punishment of anyone who might have been responsible for it.

83. The Court concludes, therefore, that there has been a violation of Article 2 of the Convention in its procedural aspect in respect of Mustafa Döleksoy’s death.

84. In the particular circumstances of the present application the Court considers it appropriate to refer to a set of recent amendments introduced in the Turkish legal system. According to those amendments, in cases in which the Court finds a violation of the Convention on account of a failure to carry out an effective investigation, the applicants have the opportunity to ask the national authorities to reopen investigations into the deaths of their relatives (see Durmaz v. Turkey, no. 3621/07, § 34 and 68, 13 November 2014). It is therefore possible for the applicants in the present case to ask the investigating authorities to reopen the investigation into the death of Mustafa Döleksoy and to ask those authorities to conduct a new and effective investigation by taking into account the deficiencies identified by the Court in the previous investigation.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

85. Lastly, the applicants complained under Article 14 of the Convention that the criminal investigation had not been conducted in a satisfactory manner because their relative had not been a well-known person.

86. In light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court does not find that this complaint discloses any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

87. It follows that this part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

88. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

89. The first applicant claimed 10,000 euros (EUR) in respect of pecuniary damage. She claimed that her son Mustafa Döleksoy used to provide for her financially and as a result of his death she was deprived of that financial assistance.

90. Each of the fourth and the fifth applicants claimed EUR 5,000 in respect of pecuniary damage and claimed that as a result of their brother’s death they had been deprived of the financial assistance provided to them by their brother.

91. The applicants also claimed a total of EUR 90,000 in respect of
non-pecuniary damage.

92. The Government considered that there was no causal link between the alleged violation and the claim for pecuniary damage. They also considered that the sums claimed for both pecuniary and non-pecuniary damage were excessive and did not correspond to the awards made by the Court in its judgments.

93. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects those claims. On the other hand, it awards the seven applicants, jointly, EUR 20,000 in respect of non-pecuniary damage.

B. Costs and expenses

94. The applicants claimed that they had agreed to pay their legal representative the total sum of 10,000 Turkish Lira (TRY - EUR 4,220) for the costs and expenses incurred before the Court. They submitted to the Court the bills given to them by their legal representative, showing that they had paid that legal representative the amount of TRY 3,000 (approximately EUR 1,260) on 16 May 2011 as the first instalment. In support of their claims the applicants also submitted to the Court a copy of the Mersin Bar Association’s recommended fee scales.

95. The Government invited the Court not to make an award for costs and expenses because of the applicants’ failure to itemise their claim and to show that those expenses had actually been incurred.

96. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court observes that the applicants have submitted bills showing that they had paid their legal representative the amount of TRY 3000 (EUR 1,260), but have not submitted any other documentation - such as a bill, a fee agreement or a document showing the time spent by the legal representatives on the case - in support of the remainder of their claim of EUR 4,220. It is to be observed in this connection that a mere reliance on the recommended fee scales issued by Bar Associations does not constitute sufficient evidence to substantiate a claim for a legal representative’s fees (see, inter alia, Eşim v. Turkey, no. 59601/09, §§ 28 and 31, 17 September 2013).

97. In light of the foregoing, and regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the sum of EUR 1,260 covering costs under all heads. From this sum there should be a deduction of EUR 850 in respect of legal aid granted under the Council of Europe’s legal aid scheme (see paragraph 2 above).

C. Default interest

98. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares, by a majority, admissible the complaints made by the first applicant Mrs Sultan Dölek under Article 2 of the Convention concerning the effectiveness of the investigation;

2. Declares, by a majority, admissible the complaints made by the remaining six applicants under Article 2 of the Convention concerning the effectiveness of the investigation;

3. Declares, unanimously, inadmissible the remainder of the application;

4. Holds, by six votes to one, that there has been a violation of Article 2 of the Convention in its procedural aspect in respect of the first applicant’s complaints that the national authorities failed to carry out an effective investigation into the death of Mustafa Döleksoy;

5. Holds, by four votes to three, that there has been a violation of Article 2 of the Convention in its procedural aspect in respect of the remaining six applicants’ complaints that the national authorities failed to carry out an effective investigation into the death of Mustafa Döleksoy;

6. Holds, by four votes to three,

(a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,260 (one thousand two hundred and sixty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, less the EUR 850 (eight hundred and fifty euros) granted by way of legal aid;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 28 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith András Sajó
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Judges Sajó, Keller and Spano are annexed to this judgment.

A.S.
S.H.N.

PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGE KELLER

I voted with the majority of my colleagues on whether there had been a violation of Article 2 of the Convention in its procedural aspect in respect of the first applicant’s complaints that the domestic authorities had failed to conduct an effective investigation into her son’s death. However, for the reasons set out below, I am unable to agree with the majority that the application should be declared admissible as regards the remaining six applicants. As a result, I cannot agree, firstly, that there has been a violation of Article 2 in its procedural aspect in respect of the remaining six applicants’ complaints that the domestic authorities failed to conduct an effective investigation into Mustafa Döleksoy’s death (I). Secondly, I believe that the Court should have mentioned the fact that an attempt was made to settle the case on the basis of a friendly settlement which ultimately did not yield any result (II).

I. Exhaustion of domestic remedies by Mustafa Döleksoy’s siblings

1. In the past, the Convention institutions have accepted applications from relatives of a deceased person where a violation of Article 2 was concerned. For example, the Court has acknowledged the victim status of a deceased’s wife (see Aytekin v. Turkey, 23 September 1998, Reports of Judgments and Decisions 1998-VII), a deceased’s mother (see Çiçek v. Turkey, no. 25704/94, 27 February 2001), a deceased’s father (see Hugh Jordan v. the United Kingdom, no. 24746/94, ECHR 2001-III (extracts)), a deceased’s brother and sister (see Ergi v. Turkey, 28 July 1998, Reports 1998-IV; and Şemsi Önen v. Turkey, no. 22876/93, 14 May 2002). However, the issue here is not whether the deceased’s relatives had victim status as indirect victims, but whether they exhausted the available domestic remedies.

2. Article 35 § 1 of the Convention requires applicants to exhaust domestic remedies before taking their case to Strasbourg. This principle, which expresses the subsidiarity of the machinery of protection established by the Convention, affords States the opportunity to remedy violations through their domestic legal systems before having to answer to the Court (see Vučkovič and Others v. Serbia [GC], no. 17153/11 etc., § 68, 28 August 2012).

3. In the past, the Court has excused applicants from exhausting domestic remedies that promised no real chance of addressing an alleged violation; furthermore, it has established that the respondent State must prove the availability and sufficiency of domestic remedies (see Aydın v. Turkey, no. 25660/94, Commission decision of 12 January 1998). For example, in Süheyla Aydın v. Turkey, which concerned the death of the applicant’s husband and two other individuals, all of whom had last been seen in the custody of State agents, the Court took the circumstances into consideration. It noted that the authorities denied having had custody of the victims at the time of their death and that the ex officio domestic investigation had not yielded any results; it consequently held that the applicant was not required to exhaust further domestic remedies (see Süheyla Aydın, cited above).

4. When a death occurs under suspicious circumstances, the domestic authorities are under an obligation to conduct an effective official investigation even if the death is not imputable to State agents (see Rantsev v. Cyprus and Russia, no. 25965/04, § 232, ECHR 2010 (extracts); citing Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V). The authorities cannot leave it to the next-of-kin to take the initiative to commence an investigation or assume responsibility for its conduct (see Rantsev, cited above, § 232; citing İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII; see also Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002-II). These principles apply in the present case, as the majority noted in paragraphs 43 and 44 of its judgment. However, this obligation alone does not suffice to exempt the applicants from exhausting domestic remedies. Any other conclusion would erode the exhaustion criterion in many Article 2 cases and deprive States of the opportunity to examine applicants’ claims via their own judiciary.

5. In the present case, the majority based its arguments on the case of Yüksel Erdoğan and Others v. Turkey (see paragraph 45 of the judgment). The facts of that case revolved, however, around a gun fight between the applicants’ relatives and a group of police officers in an Istanbul café. In its judgment in that case, the Court noted that three of the applicants, who were the mother and siblings of one of the deceased, had not intervened in the criminal proceedings as a civil party, nor had they lodged a criminal complaint. Nevertheless, the Court held that it was not necessary for them to take these steps. The Court based its reasoning on the fact that the domestic authorities were obliged to investigate of their own motion killings resulting from the use of force by members of the security forces, as well as on the fact that the deceased’s father had “joined the proceedings in question and raised all the issues concerning his son’s killing” (see Yüksel Erdoğan and Others v. Turkey, no. 57049/00, § 75, 15 February 2007).

6. Yüksel Erdoğan and Others must be distinguished from the present circumstances on the facts. In the former case, the applicants’ relatives had been killed - execution-style, according to their submissions - by police officers who were all acquitted almost nine years later (see Yüksel Erdoğan and Others, cited above, § 77). By contrast, there is no indication in the present case that Mustafa Döleksoy was killed by State actors. While the domestic investigation was ultimately deficient in this case, it is nonetheless to be distinguished from the special situation of State involvement in a death followed by passivity or even partiality on the part of the authorities or the utter ineffectiveness of the domestic remedies (compare Aytekin v. Turkey (preliminary objection), 23 September 1998, § 85, Reports 1998-VII).

7. Though there were effective remedies available before the Turkish courts, Mustafa Döleksoy’s adult siblings did not participate personally in the proceedings at the domestic level, instead allowing their parents - and later their mother - to do so alone. While the requirement to exhaust domestic remedies under Article 35 § 1 must be applied with some flexibility, I consider the degree of flexibility employed by the majority in this judgment to be unwarranted and not in conformity with the underlying principle of subsidiarity whereby applicants must have acted at domestic level so as to afford the member States the opportunity to secure their Convention rights. By finding that it was not necessary for the deceased’s siblings to exhaust domestic remedies, the majority departed from the test of determining whether, under the circumstances, an applicant or applicants did everything that could be reasonably expected to exhaust domestic remedies (see Avşar, cited above, § 380, with further references). At the time of the domestic investigation, Mustafa Döleksoy’s siblings failed to show any interest in participating in the proceedings. While this may later have changed, no special circumstances warrant an exemption from the requirement to exhaust domestic remedies. Though a different result may have been possible in the exceptional circumstances of Yüksel Erdoğan and Others, the same cannot be said for the present case.

8. In the light of the above, I cannot agree with the majority on the exemption of the deceased’s siblings from the requirement to exhaust domestic remedies. The majority’s approach makes the degree of flexibility employed in Yüksel Erdoğan and Others possible in many or all cases under Article 2 of the Convention, a result I consider contrary to the requirements of the exhaustion rule. Accordingly, I also voted against point no. 6 in the operative part of the judgment, as I believe that the siblings should not be granted any award under Article 41.

II. The failed friendly settlement

1. In paragraph 5 of its judgment, the majority mention that the Government proposed that the case be struck out on the basis of a unilateral declaration that was eventually rejected by the Court. I fully agree that this case merits examination in the form of a judgment. However, I believe that the fact that a friendly settlement was attempted but not reached should be mentioned in the judgment, as the Court has done on many occasions:

Rosenzweig and Bonded Warehouses Ltd. v. Poland: “Friendly-settlement negotiations between the parties failed to yield a result” (Rosenzweig and Bonded Warehouses Ltd. v. Poland (just satisfaction), no. 51728/99, § 6, 5 June 2012).

Megadat.com SRL v. Moldova: “On 19 August 2010, after failing to reach a friendly-settlement agreement with the applicant company, the Government informed the Court that they proposed issuing a unilateral declaration with a view to resolving the issue of just satisfaction” (Megadat.com SRL v. Moldova, no. 21151/04, § 7, judgment of 17 May 2011).

Racu v. Moldova: “The applicant and the Government did not reach a friendly settlement” (Racu v. Moldova, no. 13136/07, § 6, judgment of 20 April 2010).

Toğcu v. Turkey: “The parties further considered the possibility of a friendly settlement, but no settlement was reached” (Toğcu v. Turkey, no. 27601/95, § 7, judgment of 31 May 2005).

2. I am fully aware that friendly-settlement negotiations are confidential and without prejudice to the parties’ arguments in the contentious proceedings. Pursuant to Rule 62 of the Rules of Court, no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings (see Tahsin Acar v. Turkey [GC], no. 26307/95, § 74, Reports 2003-VI, for the difference between the confidential negotiation of a friendly settlement and a unilateral declaration, and, more specifically for our purposes, R.R. v. Poland, no. 27617/04, § 96, 26 May 2011). However, the simple fact that an attempt was made to solve the case on the basis of a friendly settlement is not confidential.

3. Friendly settlements are now more popular than at any time in the Court’s history (see, most prominently, the recent Grand Chamber judgment in S.J. v. Belgium (striking out) [GC] (no. 70055/10, 19 March 2015) and compare and contrast with the judgments in W.H. v. Sweden (striking out) [GC] (no. 49341/10, 8 April 2015) and M.E. v. Sweden (striking out) [GC] (no. 71398/12, 8 April 2015)[2]. The fact that an attempt to strike the case out of the list - in particular a case concerning Article 2 of the Convention - did not yield any result is worthwhile for the world outside the Court to note, and must not be concealed.

STATEMENT OF JUDGE SPANO

For the reasons provided by Judge Keller in her partly dissenting and partly concurring opinion, I disagree with the majority that the six applicants other than the first applicant exhausted domestic remedies for the purposes of their Article 2 complaints.

[1] Even with advanced technology “telogen hairs result in an overall success rate of 77.5% compared with 65% for hairs with no roots.” Roberts KA, Calloway C., “Mitochondrial DNA amplification success rate as a function of hair morphology”. Journal of Forensic Science, 2007 Jan; 52(1):40-7.

[2] For a more comprehensive description of the development of the Court’s case-law see Helen Keller / Magdalena Forowicz / Lorenz Engi, “Friendly Settlements Before the European Court of Human Rights - Theory and Practice”, Oxford 2010.

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You are here: BAILII >> Databases >> European Court of Human Rights >> SULTAN DOLEK AND OTHERS v. TURKEY - 34902/10 - Chamber Judgment [2015] ECHR 433 (28 April 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/433.html Cite as: [2015] ECHR 433