Přehled
Rozhodnutí
SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 15363/04
by Kasım KILIÇ
against Turkey
The European Court of Human Rights (Second Section), sitting on 14 November 2006 as a Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović, judges,
and Mr S. Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 26 April 2004,
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 decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Kasım Kılıç, is a Turkish national who was born in 1965 and lives in Diyarbakır. He is represented before the Court by Mr Selahattin Demirtaş, Ms Aygül Demirtaş, Ms Reyhan Yalçındağ and Mr Cihan Aydın, lawyers practising in Diyarbakır. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 October 2001 at about 6.30 a.m. a group of police officers from the Anti-Terrorism Branch of the Diyarbakır Security Department surrounded the applicant’s house in Silvan. The applicant alleges that the police officers entered the house, carried out a search and asked the applicant’s daughter, Selma Kılıç, to show them the cellar which was in the basement of the house. Selma resisted going down with them; however the officers forced her to. The applicant then heard the police officers ask Selma whether there were any PKK terrorists in the house. When Selma replied that there was no one else in the house, she was beaten and insulted. After a few minutes, the applicant heard gun shots. The firing continued for about two minutes. When the firing stopped, the applicant and the other family members were taken out and they saw that Selma, who was badly wounded, was lying in the street. The applicant tried to help his daughter, but the police officers prevented him by pointing a gun at his head. No medical assistance was requested and Selma was left in the street for a long time. The police officers told Selma that they would only take her to the hospital if she accepted that there were other terrorists in the house. After some time, Selma was taken to the State Hospital, where she died.
On the same day, a classical autopsy was performed on Selma’s body at the Diyarbakır State Hospital in the presence of the Silvan public prosecutor. The report indicates that a bullet which had entered the body from the left of the chest damaged the spleen, stomach, and the left part of the liver, and the cause of death was internal bleeding.
On the same day, the police officers drew up an incident and arrest report. In the report, it was stated that, upon receipt of intelligence that armed PKK terrorists had been hiding in the applicant’s house, an operation was conducted to arrest the terrorists. The incident report states that, upon arrival at the scene at around 6 a.m., the house was surrounded by the security forces. At that time, three persons tried to leave the house by the back door. The security forces ordered them to surrender but one of the terrorists threw a hand grenade towards the officers. The officers then fired warning shots into the air and the terrorists responded with gun shots. A clash broke out, during which two terrorists died and one of them was wounded. Two police officers were also wounded during the clash. The wounded terrorist (Selma Kılıç) was taken to the State Hospital. The police then secured the area and conducted a search. They found three hand grenades and a Browning pistol on the first terrorist, N.O., and two hand grenades and an Astra model gun on the second terrorist, S.R, a Syrian national. They also found another hand grenade which was ready to explode near the two bodies. Kasım Kılıç (the applicant), Reşit Kılıç and Adil Kılıç were taken into custody for aiding and abetting the PKK.
Also on the same day, the Diyarbakır Emergency Governor issued a public statement and announced that, in the course of an operation conducted against the PKK, three terrorists had been killed and two police officers had been wounded.
On 19 October 2001 the Diyarbakır Criminal Police Laboratory delivered a ballistics report. It established that there were gunpowder traces on the hands of N.O. and S.R. No evidence of any gunpowder residue was found on Selma’s hands. The ballistics report further confirmed the existence of an explosive material in the earth sample which had been brought for analysis from the scene of the incident where the hand grenade had exploded.
For the purpose of the proceedings before the domestic courts, the applicant instructed two lawyers who worked at the same law office, namely Ms Reyhan Yalçındağ and Mr Cihan Aydın.
On 19 November 2001 the applicant’s representatives lodged a petition with the Silvan public prosecutor, stating that the applicant’s daughter had been unlawfully killed by the police. Maintaining that Selma was not connected to any illegal organisation, they requested the prosecutor to conduct an investigation into her death.
On 4 February 2002, pursuant to Law No. 4483 on the prosecution of civil servants, the Silvan prosecutor sent the file to the Diyarbakır Emergency Governor’s office to obtain authorisation to initiate criminal proceedings against the forty-three police officers who had been involved in the operation.
On 18 February 2002 the Governor appointed a police officer as rapporteur to investigate the allegations. On 2 April 2002, basing himself on the rapporteur’s report, the Governor decided that there was no need to prosecute the accused police officers.
This decision was challenged before the Diyarbakır Regional Administrative Court. However, the challenge was rejected.
On 1 August 2003, referring to the decision of the Diyarbakır Emergency Governor, the Silvan public prosecutor delivered a decision of non-prosecution in respect of the police officers.
On 9 September 2003 the applicant’s representatives appealed.
On 1 October 2003 the Siverek Assize Court rejected the applicant’s appeal. This decision was notified to Ms Reyhan Yalçındağ on 22 October 2003 and to Mr Cihan Aydın on 28 October 2003.
COMPLAINTS
The applicant complained that his daughter was unlawfully killed by the security forces. He also stated that the domestic authorities failed to conduct an adequate and effective investigation into his daughter’s death. In respect of his allegations, the applicant invoked Articles 2 and 17 of the Convention.
Under Article 3 of the Convention, the applicant stated that he suffered emotional distress as he had to witness the death of his daughter. He referred in this respect to the police officers’ failure to call for medical assistance.
The applicant further maintained that, as a result of the authorities’ failure to investigate his claims under Article 2 of the Convention, he had been denied an effective remedy, as required by Article 13 of the Convention.
THE LAW
In their observations, the Government argued that the application was introduced outside the six month time-limit. In this respect, they informed the Court that during the domestic proceedings the applicant was represented by two lawyers, namely Ms Reyhan Yalçındağ and Mr Cihan Aydın. Ms Reyhan Yalçındağ was notified of the final decision on 22 October 2003 and Mr Cihan Aydın on 28 October 2003. As the application was introduced on 26 April 2004, the Government asked the Court to reject the application for being introduced outside the six month time-limit.
In reply, the applicant’s lawyers stated that the six month period should start running from 28 October 2003, when Mr Cihan Aydın was notified of the final domestic decision.
The Court recalls in the first place that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six month period as running from the date of service of the written judgment (Papachelas v. Greece [GC], no. 31423/96, § 30, ECHR 1999‑II).
The Court further reiterates that the six month period runs from the date on which the applicant’s lawyer become aware of the domestic remedies, notwithstanding the fact that the applicant only became aware of the decision later (see Ö.K. and others v. Turkey (dec.), no. 36091/97, 7 September 1999; Pejić v. Croatia (dec.), no. 66894/01, 19 December 2002; and Károly Andorka and Ferenc Vavra v. Hungary (dec.), nos. 25694/03 and 28338/03, 12 September 2006).
In the instant case, the Court observes that during the domestic proceedings the applicant was represented by two lawyers who worked at the same law office. One of these lawyers received a copy of the final domestic decision on 22 October 2003 and the other on 28 October 2003. It should also be noted that the names of these two lawyers appear in the list of lawyers who brought the applicant’s case to Strasbourg. In these circumstances, the Court considers that, irrespective of when the second lawyer became aware of the final decision, the six month time-limit must be calculated from 22 October 2003.
As a result, since the application was introduced on 26 April 2004, it should be rejected for non-compliance with the six month time-limit, pursuant to Article 35 §§ 3 and 4 of the Convention.
Finally, Article 29 § 3 of the Convention should no longer apply to the case.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
S. Naismith J.-P. Costa
Deputy Registrar President