CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 4 mars 2008

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF3B96856 { width:11.87pt; display:inline-block } .sCDCBE903 { width:225.78pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 71998/01 by Seyithan AYDIN against Turkey The European Court of Human Rights (Fourth Section), sitting on 4   March 2008 as a Chamber composed of:   Nicolas Bratza, President,   Giovanni Bonello,   Rıza Türmen,   Stanislav Pavlovschi,   David Thór Björgvinsson,   Ján Šikuta,   Päivi Hirvelä, judges and Fatoş Aracı Deputy Section Registrar , Having regard to the above application lodged on 15 January 2001, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together. Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Seyithan Aydın, is a Turkish national who was born in 1969 and lives in Izmir. He was represented before the Court by Mr   S. Çetinkaya and Mr A. Terece, lawyers practising in Izmir. The Turkish Government (“the Government”) were represented by their Agent. A.     The circumstances of the case 2.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The armed attack against the applicant and the investigation into the incident 3.     At the time of the events giving rise to the present application the applicant was working as a health officer in Batman. 4.     On 4 February 1992 he was shot at and seriously injured in an attack by two men in his house in Batman. The three bullets fired by one of the assailants entered the applicant’s stomach and seriously injured him. 5.     The applicant was immediately taken to a hospital by his neighbours and their guest, F.C., who was a police officer. The operation to remove the bullets from the applicant’s body was performed in the intensive care unit of the Diyarbakır Hospital since his injuries were life-threatening. He spent twenty days in the hospital. 6.     On the same day the police officers prepared a sketch-map of the scene of the incident which described the interior of the house and location of the spent cartridges. They also prepared an incident report in which they noted their findings at the scene of the incident as well as a protocol stating that they had recovered six cartridges and three bullets found at the scene. The police officers took statements from the persons who had taken the applicant to the hospital. The witnesses G.K., E.K. and Ö.F.C. stated that they had heard gunfire and had gone to the applicant’s flat and had found him injured. They then took him to the hospital. Another witness, F.C. stated that the applicant had described the perpetrators and had told him that they were members of an illegal terrorist organisation, the Hizbullah. The witness H.Y. stated he had gone to help the applicant following the assault. He had not seen the assailants. 7.     On 6 February 1992 police officers took statements from the applicant at the hospital. The applicant described the assailants and course of events leading to his injuries and asked the officers to bring them to justice. He noted that he had no problem with any person. 8.     On 10 February 1992 the bullets as well as their outer casing were examined in the District Criminal Police Laboratory. The experts concluded that the bullets had been fired from a 7.65 mm pistol; however they had not matched with bullets fired from any other weapon which had been used in previous criminal incidents. The experts thus decided that the incident should be classified as attack by an unknown perpetrator and that the bullets and cartridges should be kept in the laboratory. 9.     On 19 February 1992 the police superintendent ( Başkomiser ) sent an investigation report on the incident to the Batman Security Directorate ( Bölge Asayiş Şube Müdürlüğü ) for transmission to the Batman Public Prosecutor. He noted in the report that the applicant had suffered life ‑ threatening injuries and that the perpetrators of the attack had not yet been found. 10.     On the same day the Batman Public Prosecutor received the investigation report on the incident. However he did not initiate a criminal investigation into the incident but merely sent a reply to the Batman Security Directorate noting that the investigation documents should be sent after the identification of the perpetrators. 2.     The applicant’s inquiry into the investigation 11.     On 27 October 2000 the applicant’s representative filed a petition with the Batman Public Prosecutor’s office and requested information about the ongoing investigation into the incident. 12.     On 3 November 2000 the Batman Public Prosecutor sent letters to the Batman Anti ‑ terrorist Branch and the Homicide Office attached to the Batman Security Directorate (Cinayet Büro Amirliği) and requested information on the investigation which had been carried out until that date. 13.     On the same day a police superintendent sent the investigation documents and a report in which he noted that the perpetrators had not yet been found. 14.     The Batman public prosecutor received the documents and sent a further letter to the Batman Security Directorate ( Batman Emniyet Müdürlüğü ) attached to the Batman Governor’s office requesting information on the investigation which had been carried out until that date. 15.     On 6 November 2000 the Batman Security Directorate sent a reply noting that there were no documents in their archives concerning the incident in question. They further noted that the incident had been registered in their records as one of infliction of bodily harm rather than a terrorist act. The investigation into the incident had been followed by the Homicide Office attached to the Batman Security Directorate. 16.     On 8 November 2000 the Batman Security Directorate sent a reply to the Batman Public Prosecutor and noted that the investigations were still pending. 17.     On 10 November 2000 the Batman Public Prosecutor sent a letter to the Homicide Office attached to the Batman Security Directorate and requested their office to carry out an investigation into the perpetrators of the attack and to inform him of their findings. 18.     On the same day, the Batman Public Prosecutor sent a letter to the applicant’s representative and informed him that the investigation was still pending and that the perpetrators could not be identified. 3.     The arrest and prosecution of a suspect called R.D. 19.     On 6 December 2001 police officers from the Anti-terrorist branch of the Istanbul Security Directorate arrested a person, R.D., on suspicion of membership of an illegal organisation, the Hizbullah. In his statements to the police, R.D. gave a detailed account of the activities he had carried out in the Hizbullah and stated, among other things, that he had perpetrated the attack on the applicant together with a certain M.H. and that he had shot the applicant in his flat in Batman. 20.     On the same day, police officers took R.D. to the applicant’s flat in Batman. R.D. told them the details of the attack on the applicant. 21.     In a letter of 11 December 2001 the Chief Public Prosecutor at the Diyarbakır State Security Court informed the Batman Chief Public Prosecutor that the Istanbul police had caught a member of the Hizbullah and that this person had admitted having been involved in the attack on the applicant. 22.     On 12 December 2001 the Batman Public Prosecutor sent an investigation report ( fezleke ) to the Chief Public Prosecutor’s office at the Diyarbakır State Security Court noting R.D. as an accused who had perpetrated the attack on the applicant. 23.     On 7 January 2002 the Batman Public Prosecutor filed a bill of indictment against R.D. charging him under Article 146 § 1 of the Criminal Code, with attempting to undermine the constitutional order. In the bill of indictment the public prosecutor noted that R.D. had perpetrated the armed assault on the applicant on the instructions of another Hizbullah member V.D. The applicant was named as one of the complainants. 24.     In its assessment report ( tensip zaptı ) dated 15 January 2002 the Diyarbakır State Security Court stated that the applicant should be heard as a complainant. 25.     On 12 March 2002 the Diyarbakır State Security Court heard oral evidence from R.D. When asked about his involvement in the attack on the applicant, R.D. claimed that he did not know him and he had not been involved in the attack. 26.     In a letter of 21 October 2002 the Diyarbakır State Security Court asked the Nusaybin Assize Court to take statements from the applicant. 27.     On 20 November 2002 the Nusaybin Assize Court heard the applicant who stated that he did not know who had shot him. He asked the court to bring the perpetrators of the attack to justice. 28.     On 15 October 2002 the case file concerning the prosecution of R.D. was joined to the main investigation file (no. 2000/171) concerning the Hizbullah. 29.     As a result of dispute over jurisdiction between the Diyarbakır State Security Court and the Assize Court, case file no. 2000/171 was sent to the Court of Cassation. 30.     On 18 February 2003 the Court of Cassation decided that all cases concerning the prosecution of members of the Hizbullah should be joined to the main file no. 2000/171 pending before the Diyarbakır Assize Court. 31.     On 20 February 2003 the case concerning the trial of R.D. was joined to the main file before the Diyarbakır Assize Court. 32.     According to the Government’s submissions dated 29 September 2006, it appears that the criminal proceedings against R.D. and other Hizbullah members are still pending before the Diyarbakır Assize Court. B.     Relevant domestic law and practice 33.     The relevant domestic law and practice are set out in the Ya şa v.   Turkey judgment of 2 September 1998 ( Reports of Judgments and Decisions 1998 ‑ VI, §§ 47-55) COMPLAINTS 34.     The applicant alleged a violation of Articles 2, 3 and 13 of the Convention. 35.     The applicant complained under Articles 2 and 3 of the Convention that his right to life had been infringed since he had suffered serious bodily harm after the armed attack perpetrated against him. He maintained that the perpetrators had been indirectly supported by the State. 36.     The applicant submitted under Article 13 of the Convention that he had been denied an effective remedy in domestic law since the national authorities had failed to conduct an effective investigation into the attack perpetrated against him. THE LAW 37.     The applicant complained under Articles 2, 3 and 13 of the Convention that he had suffered serious bodily harm as a result of the armed attack against him and that the authorities had failed to carry out an adequate investigation into his complaints. He stated that he had not pursued any remedies in domestic law since at the relevant time they were ineffective. 38.     The Government submitted that the applicant had failed to exhaust all domestic remedies given that the criminal proceedings against the suspects were still pending before the domestic courts. They claimed, in the alternative, that the applicant had not observed the six-month rule either. The application had been lodged more than eight years after the attack. In view of the applicant’s allegations that there were no effective remedies in domestic law since 1992 and that he had submitted his application on 15   January 2001, this application should be considered to have been lodged outside the six months’ time-limit. 39.     The Court considers that it is not required to decide whether the applicant can be considered to have exhausted domestic remedies or whether there existed such special circumstances in the present case which would dispense the applicant from the obligation to pursue further remedies in domestic law. Even if he is correct in his assertion that he had no effective remedies, this does not re lieve him of the obligation to comply with the six-month rule. 40.     The Court recalls in the first place that the purpose of the six-month rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see Bulut and Yavuz v.   Turkey (dec.), no. 73065/01, 28 May 2002; and Bayram and Yıldırım v.   Turkey (dec.), no. 38587/97, ECHR 2002-III). 41.     The Court further recalls that if no remedies are available or if they are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no.   62566/00, 10 January 2002). 42.     However, special considerations could apply in exceptional cases where an applicant avails himself or relies on an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective; in such a case it is appropriate to take as the start of the six-month period the date when he first became aware or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001; Bulut and Yavuz, cited above). 43.     In this connection, in a number of cases concerning on-going investigations into the deaths of the applicants’ relatives the Court examined the period of time from which the applicant could or should started doubting the effectiveness of a remedy (see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Bulut and Yavuz , cited above; Bayram and Yıldırım , cited above; Kıniş v. Turkey (dec.), no. 13635/04, 28 June 2005; Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005). Although the Court refrained from indicating a specific period for establishing when an investigation has become ineffective for the purposes of assessing when the six-month period begins to run, the determination of such period by the Court depended on the circumstances of each case and other factors such as the diligence and interest displayed by the applicants as well as the adequacy of the investigation in question. 44.     In the instant case, the Court notes that following the attack the domestic authorities immediately commenced an investigation with a view to identifying the assailants. In this connection, they prepared an incident report and a sketch-map of the scene and took statements from a number of witnesses, including the applicant (see paragraphs 6 and 7 above). The bullets and their outer casing were also examined in a criminal laboratory but did not yield any result (see paragraph 8 above). However, it transpires from the documents submitted by the parties that as from 19   February 1992 no meaningful investigation has since been carried out by the authorities who merely left the matter on file until the perpetrators were found (see paragraph   10 above). 45.     In the meantime, despite the lack of any concrete development in the investigation, the applicant remained totally passive following the attack apart from giving statements to police officers and asking them to bring the assailants to justice (see paragraph 7 above). It was only on 27 October 2000 that the applicant made his first inquiry into the outcome of the investigation through his representative, which is approximately eight years and eight months after the assault. While the inactivity of the applicant for a certain period can be explained by the state of his health, he could nevertheless have been expected to have displayed due diligence and to have taken the requisite initiative in informing himself about the progress made in the investigation after his recovery given that he was the very victim of the attack in question. The applicant explained that he did not pursue any remedies because the domestic remedies at the relevant time were ineffective. Even assuming that there were no effective remedies in the present case, the applicant must be considered to have been aware of this situation much earlier than 15 January 2001, the date on which the application was submitted to the Court. It follows that the applicant has failed to observe the six months’ rule under Article 35 § 1 of the Convention. 46.     Finally, as regards the criminal proceedings against R.D. who allegedly perpetrated the attack on the applicant, the Court observes that these proceedings did not stop the running of the six months period given that R.D. denied having been involved in the assault on the applicant (see paragraph 25 above) and that the applicant did not intervene in the criminal proceedings in question which could have enabled him to have access to the investigation and ultimately to appeal against any adverse finding by the criminal courts. 47.     In view of the foregoing and the applicant’s failure to substantiate the existence of specific circumstances which might have prevented him from observing the six-month time-limit, the Court finds that the application has been introduced out of time and is inadmissible under Article 35 §§ 3 and 4 of the Convention. 48.     In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application. For these reasons, the Court unanimously Declares the application inadmissible.   Fatoş Aracı   Nicolas Bratza Deputy Registrar   President