EPÖZDEMIR v. TURKEY
Inadmissible
Georg Ress
The applicant, Muazzez Epözdemir, is a Turkish national, who was born in 1973 and living in Siirt, Turkey. She is represented before the Court by Mr Güzel, a lawyer practising in Diyarbakır. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant married Nihat Epözdemir in 1988 and the couple had three children. In 1998 the applicant’s husband suffered psychological problems as a result of his financial problems and he left their matrimonial home in June 1998. Since that date the applicant has never seen her husband. On 1 September 1998 the applicant applied to the Siirt public prosecutor with a petition and informed the prosecutor that her husband was missing. She also informed the prosecutor that her husband was suffering serious psychological problems and asked the prosecutor for assistance to find her husband. On 16 March 1999, more than six months after having been thus informed, the Siirt prosecutor took a decision to discontinue the investigation into the disappearance of the applicant’s husband. As to his reasoning for this decision, the prosecutor stated that the applicant’s husband had not disappeared in suspicious circumstances and that no evidence of a crime had been found in the investigation. In April 1999 the uncle of the applicant’s husband went to the registry office to obtain a copy of the family’s registry records for an unconnected purpose. He discovered that there was an entry in the records stating that the applicant’s husband had been killed in July 1998. On 18 April 1999 the uncle went to the office of the Dargeçit public prosecutor to ask for clarification as to how the applicant’s husband had met his death and why the family had never been informed about the death despite the fact that the applicant had informed the prosecutor of her husband’s disappearance. He also asked the prosecutor where the applicant’s husband was buried. The prosecutor said that no one knew where the applicant’s husband was buried and that the authorities had no obligation to hand the body over to the family. The prosecutor further stated that on 23 July 1998, following the applicant’s husband’s death, he had sent the file to the Diyarbakır State Security Court and asked them to make a decision as to whether they wanted to prosecute the applicant’s deceased husband for membership of the PKK but on 13 August 1998 the prosecutor of the Diyarbakır State Security Court had taken a decision not to prosecute the applicant’s husband as he was dead. The applicant subsequently obtained a copy of the report of the autopsy which had been carried out on 20 July 1998. According to the statement of a village guard which was recorded in the autopsy report, the applicant’s husband had been in a group of PKK terrorists which had been involved in an armed clash with a group of village guards on 19 July 1998. He had been shot and killed and the other members of the PKK team had managed to escape. No other persons had been injured or killed in the clash. According to the autopsy report the applicant’s husband had been killed by five bullets, possibly fired from different weapons. On 6 May 1999 the applicant asked the Diyarbakır State Security Court for a copy of the investigation file. On 29 June 1999 the applicant, with the assistance of her lawyer, applied to the Diyarbakır State Security Court and asked for the village guards named in the autopsy report to be prosecuted for her husband’s murder. She also stated that her husband had never been a PKK member and that he had been suffering serious psychological problems. She further stated that it was cruel that the authorities had not informed her about the killing despite the fact that according to the autopsy report her husband had had his identity card on him. On 6 September 1999 the Diyarbakır State Security Court prosecutor decided not to prosecute the village guards. The prosecutor stated that although it was established that the applicant’s husband was killed by the village guards, it was not possible to establish which one of the four village guards had shot him. In Turkish law – for the purposes of preliminary investigations by prosecutors – criminal acts are divided into two categories; firstly those in respect of which a victim must inform the prosecutor so that an investigation can be started by the latter, and secondly, those in respect of which the victim is not required to make a complaint in order for an investigation to be started by the prosecutor (Article 151 of the Code of Criminal Procedure, hereinafter the CCP). Murder is classified as one of the crimes in the second category. However, this does not prevent relatives of victims from lodging criminal complaints with the authorities. Pursuant to Article 152 of the CCP, if there is evidence to suggest that a deceased has not died of natural causes, the police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation in respect of that person. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient. Insofar as a criminal complaint has been lodged, a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged, within fifteen days after notification of this decision to the complainant, with the president of the Court of Assize in whose jurisdiction the public prosecutor who had taken the decision not to prosecute works (Article 165 CCP). The president of the Assize Court may request the public prosecutor to send him or her the investigation file. The president, in order to reach his decision, may also ask for the investigation to be expanded by the local Magistrates’ Court judge (Article 166 of the CCP). If the president concludes that there are insufficient grounds to initiate a prosecution, he or she may reject the appeal (Article 167 of the CCP). If the president agrees with the grounds invoked by the appellant, he or she may decide to order a prosecution. The public prosecutor is obliged to enforce the president’s decision (Article 168 of the CCP). According to article 463 of the Penal Code, if a person is killed by two or more persons, and if it is not established at the trial which one of these persons caused the death, the prison sentence to be imposed on any of the perpetrators is not more than two-thirds and not less than half of the maximum prison sentence stipulated in the Penal Code for the offence of murder.