BASBILEN v. TURKEY - 35872/08 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2016] ECHR 378 (26 April 2016)

In the case of Başbilen v. Turkey,

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

          Julia Laffranque, President,
          Işıl Karakaş,
          Nebojša Vučinić,
          Valeriu Griţco,
          Ksenija Turković,
          Jon Fridrik Kjølbro,
          Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 26 April 2016,

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

PROCEDURE

1. The case originated in an application (no. 35872/08) 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 two Turkish nationals, Mr Vehbi Başbilen and Mrs Keziban Başbilen (“the applicants”), on 17 July 2008.

2. The applicants were represented by Mr S.R. Başbilen, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicants alleged that the domestic authorities had not taken reasonable and adequate steps to clarify the circumstances surrounding the death of their son. In particular, they complained of several shortcomings and excessive delays in the investigation.

4. On 24 November 2014 the application was communicated to the Government.

THE FACTS

5. The applicants were born in 1953 and 1950 respectively and live in Ankara. They are the parents of Mr Hüseyin Başbilen, who was an engineer working for Aselsan, a defence contractor that produces technology for the Turkish Armed Forces.

6. On 4 August 2006, at around noon, Mr Hüseyin Başbilen’s wife informed the police that her husband had been missing since the morning of the same day.

7. On 5 August 2006, at around 9 p.m., the mayor of Aydıncık village, in the district of Altındağ, in Ankara, informed the gendarmerie that there was a car in the vicinity of the cemetery of the village. When the gendarmerie arrived at the scene at 9.30 p.m., they found Hüseyin Başbilen’s dead body in his car.

I. Investigation no. 2006/131472

8. A crime scene report was drafted and signed by two crime scene gendarmerie officers on 6 August 2006. The report stated that a public prosecutor together with a doctor and the crime scene officers had arrived on the scene at 9.30 p.m. on 5 August 2006 and had conducted an on-site inspection of the area. According to the report, Mr Hüseyin Başbilen’s car was locked when the officers found it. His head was under the glove compartment on the passenger side and his feet were on the driver’s seat. A doctor examined the deceased’s body and observed that there was a cut of 15-20 cm on the left side of his throat and another cut of 10 cm on his left wrist. A number of personal objects, a briefcase and a box cutter covered with traces of blood were found in the car. The deceased’s personal objects and the briefcase were given to officers from the Altındağ gendarmerie command. The crime scene officers noted bloodstains on various parts of the interior of the car.

9. A suicide note entitled “FAREWELL”, typed on a computer and signed, was also found in the car. The note stated that the applicant had no problems with his wife, his family or at work, but he wished to put an end to his life as he was in emotional pain. In the note, details of Mr Hüseyin Başbilen’s bank accounts and an explanation as to how he wished his property to be managed following his death were included.

10. The crime scene officers took fingerprints of the deceased and collected fingerprints both from the interior and the exterior of the car. The officers also obtained blood and hair samples from the car, prepared two sketch maps of the scene of crime and took approximately one hundred photos. Mr Hüseyin Başbilen’s body was then sent to the Forensic Medicine Institute for autopsy. The fingerprints collected at the crime scene and the suicide note were sent to the Gendarmerie General Command for examination by experts. The deceased’s clothes as well as hair and blood samples were sent to the police crime laboratory.

11. Meanwhile, on 6 August 2006 a gendarmerie officer, Ş.K., from the Altındağ gendarmerie command, went to Mr Hüseyin Başbilen’s workplace in order to verify whether the suicide note found at the scene of the crime had been written using his office computer. According to a confiscation report drafted at 1.40 p.m. on that day and signed by Ş.K. and two employees of Aselsan, a document entitled “For those who love me” was found in the “Documents” file on the deceased’s computer. This document had the same content as the suicide note found in the car. The copy of the suicide note submitted to the Court also contains a brief note on the back of it which states that a document entitled “For those who love me” was in a USB flash drive in one of the drawers of Mr Hüseyin Başbilen’s desk at work.

12. On the same day an autopsy was carried out on the deceased’s body. The doctors noted that the body was in an advanced state of decomposition and that there were two cuts on it: one cut of 8 cm on the left wrist; another one between the left thyroid cartilage and the left ear. The doctors concluded that the cut on the deceased’s left wrist was the fatal wound and that the cause of death was excessive bleeding. They also noted that the cut on Mr Hüseyin Başbilen’s throat was superficial.

13. On the same day the applicants, Mr Hüseyin Başbilen’s sister and his wife made statements to the gendarmerie. While the applicants and Mr Hüseyin Başbilen’s sister denied the possibility that he had committed suicide, his wife stated that he had been suffering from depression and had been undergoing psychiatric treatment. She believed that her husband had committed suicide.

14. On 22 August 2006 a report was drawn up by experts from the Gendarmerie General Command stating that the signature at the bottom of the suicide note was considered to belong to the deceased. The experts compared the signature on the suicide note with two documents taken from Aselsan. On the same day a further fingerprint analysis report was also issued. According to this report, most of the fingerprints collected from the crime scene were not suitable for analysis. The experts noted that only four fingerprints could be analysed and that two of them belonged to Mr Hüseyin Başbilen. The remaining two fingerprints did not belong to the deceased and did not match any of those in the fingerprint database.

15. On 29 August 2006, following examination of the hair and blood samples collected at the crime scene, the Ankara police crime laboratory issued a report. According to the report, the blood and hair found in the car belonged to the deceased.

16. On 7 September 2006 the applicants lodged a complaint with the Ankara public prosecutor’s office, asking for the scope of the investigation to be expanded. They requested, in particular, that the transcripts of the deceased’s telephone conversations, his emails, messages and all information on his computers be examined; that the date of creation of the file containing the suicide note be determined and that an examination of the deceased’s computer be carried out by experts. The lawyer also stated that the psychiatrist who had been treating Mr Hüseyin Başbilen had told Mrs Başbilen that her son had not had suicidal tendencies.

17. On 12 October 2006, upon a request by the public prosecutor, Turkcell, a mobile network operator, submitted a list of communications made from the deceased’s mobile phone between 10 July and 5 August 2006 to the Ankara public prosecutor’s office.

18. On 28 November 2006 the Ankara public prosecutor decided to close the investigation into Mr Hüseyin Başbilen’s death. In his decision, the public prosecutor noted that the signature on the suicide note belonged to the deceased and that the letter had been found on his work computer. He further noted that the fingerprints and the blood and hair samples collected at the crime scene belonged to Mr Hüseyin Başbilen and that according to the autopsy report the fatal wound on his body had been the cut on his left wrist, which had caused bleeding. The public prosecutor considered that Mr Hüseyin Başbilen had committed suicide using a sharp object and thus decided to close the investigation.

19. On 25 December 2006 the applicants lodged an objection with the Sincan Assize Court against the decision of 28 November 2006. They referred to a number of shortcomings in the investigation conducted by the Ankara public prosecutor. They complained, in particular, about the failure of the public prosecutor to take statements from their son’s wife, the psychiatrist who had been treating Mr Hüseyin Başbilen, and other possible witnesses, to have the deceased’s computer, his emails and the transcripts of his telephone conversations examined and to determine the date the suicide note file had been created on his computer. They also noted that the briefcase found in the deceased’s car had not been subject to an examination and was not listed in the crime scene inventory. The applicants considered that their son had been murdered as he had been working on important projects for Aselsan.

20. On 12 April 2007 the Sincan Assize Court asked the Forensic Medicine Institute to clarify whether in suicide cases it was possible to have two separate cuts, that is to say one on the throat and another on the wrist, like in the present case.

21. On 28 September 2007 the first section of expertise of the Forensic Medicine Institute held, by a majority, that the cut on Mr Hüseyin Başbilen’s throat was superficial and that the fatal cut, which had caused extensive bleeding, was the one on his wrist. The report concluded by saying that it was possible that both cuts had been inflicted by Mr Başbilen himself. A minority expressed a dissenting opinion. Taking into account the circumstances of the case, in particular the fact that the deceased had not been in a suicidal state of mind, the position of the deceased’s body in the car and the nature of his injuries, they considered that Mr Hüseyin Başbilen had not committed suicide.

22. On 13 December 2007 the Sincan Assize Court dismissed an objection lodged by the applicants and upheld the public prosecutor’s decision. The court based its decision on the conclusions of the Forensic Medicine Institute’s report, according to which it was possible that the deceased himself had inflicted the two cuts on his body. This decision was served on the applicants on 18 January 2008.

II. Investigation no. 2010/142387

23. On 8 November 2010 Mr Hasan Başbilen, Mr Hüseyin Başbilen’s twin brother, lodged a complaint with the Ankara public prosecutor’s office. In his complaint, Hasan Başbilen noted that according to a number of news articles published, an investigation had been initiated against a number of officials attached to the Naval Forces suspected of forming a criminal organisation and espionage. According to the transcripts of telephone conversations between the suspected members of the organisation, they had stolen important weapons technology from Aselsan and similar establishments, sold it abroad, killed those who had not wished to collaborate with them and made those murders look like suicides. Hasan Başbilen asked the public prosecutor’s office to re-open the investigation and to remedy the previous investigation’s shortcomings.

24. Upon the receipt of Hasan Başbilen’s complaint, the Ankara public prosecutor initiated a new investigation into the death of Hüseyin Başbilen.

25. On 29 December 2010 the public prosecutor took a statement from the first applicant, who contended that he believed that his son had been murdered. The first applicant stated that he had received phone calls after his son’s death during which he had been informed that his son had been killed by foreign intelligence services who had stolen a project his son was working on. He further stated that he did not believe that the suicide note found in his son’s car had been drafted by him given that he had not gone to his workplace on the day of his death. The first applicant also contended that his son’s briefcase found in his car was missing. He asked the public prosecutor to take statements from the deceased’s colleagues and wife and to extend the scope of the investigation.

26. On 31 December 2010 the Ankara Magistrates’ Court authorised the Ankara public prosecutor to conduct a search of Hüseyin Başbilen’s computer in Aselsan, to obtain copies of the computer files thereon, to have those files converted to text formats and to seize any evidence that could help the investigation.

27. On 4 January 2011 the Ankara public prosecutor, three police technical specialists and a computer engineer went to Aselsan’s office. According to the search report, the engineer who acted as an expert stated that he was unable to copy the files on the computer on the spot and that therefore the computer case and the hard disk should be confiscated for further examination in a laboratory. The company officials also handed over a number of documents to the public prosecutor. These documents had been in the briefcase found in the deceased’s car and had been given to his wife, who had in turn given them to Aselsan.

28. On 5 January 2011 the Ankara public prosecutor asked the Altındağ gendarmerie command to submit the USB flash drive found in the deceased’s workplace and confiscated on 6 August 2006, and the report concerning the date of creation of the suicide note document found on the deceased’s computer on the same date, if such a report had been drawn up. The public prosecutor asked the gendarmerie command to explain the reasons for not determining the date the letter was written on, if such an investigative step had not been carried out. He lastly asked that Ş.K., the gendarmerie officer who had conducted the examination of the deceased’s computer, be referred to the public prosecutor’s office to make a statement.

29. On 16 March 2011 the Altındağ gendarmerie commander sent a letter to the Ankara public prosecutor in which he stated that the gendarmerie forces did not have any information as to the whereabouts of the USB flash drive and that it had not been possible to ascertain whether an examination of the suicide note document to ascertain its date of creation had been carried out. He further stated that the USB flash drive had not been found on the gendarmerie command premises and that he had no information as to whether such an object had been found at the scene of the crime or whether the public prosecutor had an order for its confiscation. He noted that when Ş.K. had been asked to give information regarding the public prosecutor’s inquiry, he had contended that he had not confiscated such an object. The gendarmerie commander lastly stated that Ş.K. had retired.

30. Meanwhile, on 12 January 2011 fingerprints collected from various parts of Mr Hüseyin Başbilen’s car were once again subjected to an analysis by experts from the Ankara police headquarters, who noted that ten of the fingerprints taken were not suitable for an analysis. They further noted that one fingerprint belonged to the deceased and that three fingerprints which were suitable for an analysis did not belong to Mr Hüseyin Başbilen.

31. On 27 January 2011 S.A., a relative of the deceased who had gone to the crime scene together with the deceased’s father, made a statement to the Ankara public prosecutor. He noted a number of peculiarities that he had observed there, such as the fact that there had been little blood in the car, and that the driver seat had been pushed back even though the deceased had been a short man. He also noted that there had been three plain clothed men at the crime scene whose access to the crime scene had been prevented by the gendarmerie officers.

32. On 31 January 2011 Hasan Başbilen made a statement to the Ankara public prosecutor, in which he reiterated his suspicions regarding his brother’s death.

33. In February and March 2011, upon the Ankara public prosecutor’s instructions, the computer files were examined by police officers attached to the technical bureau at the anti-terror department of the Ankara police headquarters, who prepared two reports.

34. On 14 February 2011 Ş.K. made a statement to the Ankara public prosecutor. He submitted that when he had gone to the premises of Aselsan on 6 August 2006, he had examined the deceased’s computer together with an Aselsan manager. They could not find the suicide note on the computer but found it on the USB flash drive. He printed the letter out using a printer there and sent it to the crime laboratory. He also maintained that he had confiscated the USB flash drive and given it to E.Ş., the then Altındağ gendarmerie commander. He had then assumed that the USB flash drive would be sent to the public prosecutor’s office to be included in the investigation file. Ş.K. stated that he had not looked into when the suicide note document had been created as he had limited knowledge of information technology and as he had not received an order to carry out such an analysis. He considered that fingerprinting the suicide note would be sufficient for a comparison between the copies of the letter found at the deceased’s workplace and in his car. Ş.K. lastly noted that he did not have any knowledge as to the briefcase and the documents therein found in Mr Hüseyin Başbilen’s car.

35. On 21 February 2011 an expert from the Ankara police crime laboratory examined the photographs of the crime scene and the other evidence in order to determine whether Mr Hüseyin Başbilen’s death had been homicide or suicide. The expert opined that the cuts had been inflicted when the deceased had been in the driver’s seat; that he had touched the left door handle at least once; that later on he had crawled to reach the door on the passenger side for an unknown reason; that he had lost consciousness and his head had fallen under the glove department on the passenger side; and that he had then died. The expert also noted a number of dubious issues. In particular, having regard to the position of the briefcase and the absence of blood on it, he considered that the briefcase had been put in the place where it had been found after the death had occurred and the blood clots had dried. The expert lastly noted that the source of the bloodstains observed in front of the left rear seat could not be determined.

36. On 22 February 2011 H.A., the psychiatrist who had been treating Mr Hüseyin Başbilen for depression, made a statement to the Ankara public prosecutor. He contended that he had diagnosed the deceased with serious depression and had prescribed medication for his health issues. The psychiatrist considered that the deceased had not had suicidal tendencies. He noted that had he considered Hüseyin Başbilen at risk of killing himself, he would have informed his family members and confined him to a hospital for psychiatric treatment. However, he considered it possible that an event might have triggered his suicide given that he had suffered from depression.

37. On various dates between February and April 2011 the Ankara public prosecutor obtained witness statements from six persons who had been Hüseyin Başbilen’s friends or colleagues. They all maintained that he had been an intelligent and hardworking engineer who had had good social relations and that they had not been aware that he had had health issues. His colleagues also noted that the project on which he had been working had not been a critically important project and that his death had not had an impact on its running.

38. Following an instruction received from the Ankara public prosecutor, the anti-terror branch of the Ankara police headquarters sent a list of names and email addresses found on Hüseyin Başbilen’s computer to the Istanbul police headquarters. They asked the latter to carry out an examination of the files of the military espionage and Ergenekon[1] investigations with a view to determining whether those names and the deceased’s name appeared therein. On 14 April 2011 the deputy director of the Istanbul police headquarters sent a report prepared by three police officers according to which some of those names, including Hüseyin Başbilen, had been found in some of the documents seized from two suspects in the military espionage and Ergenekon investigations.

39. On 20 June 2011 E.Ş. made a statement to the Ankara public prosecutor. He submitted that a team from the gendarmerie command had gone to Aselsan and found the suicide note on a USB flash drive which they had confiscated. E.Ş. stated that he had not been given the USB flash drive, which should have been sent to the gendarmerie crime laboratory. He also did not have any knowledge of the whereabouts of the documents in the briefcase found at the crime scene. He had seen the briefcase when the deceased’s car had been brought to the gendarmerie command. The crime scene gendarmerie officers had showed the documents to Aselsan officials and had asked whether they were important and should be returned to Aselsan. The officials had not considered the documents important. He however did not know to whom those documents had been handed over.

40. On 19 August 2011 the Ankara public prosecutor sent a letter to the Air Force Command requesting information as to whether the Air Force had asked Aselsan to develop software for Turkish military aeroplanes.

41. On 21 September 2011 the deputy legal advisor at the Air Force Command informed the Ankara public prosecutor that the Air Force had not asked Aselsan to develop software. He sent to a list of military projects in which Aselsan had been involved to the public prosecutor’s office in support of his reply.

42. On 3 November 2011 the box cutter found at the crime scene was analysed at the Ankara criminal police laboratory. The experts did not note any fingerprints on it.

43. On 12 December 2011 the Ankara public prosecutor asked the Forensic Medicine Institute to prepare a new report regarding Hüseyin Başbilen’s death. On 4 January 2012 the first section of expertise of the Forensic Medicine Institute issued a report in which it concluded, by a majority, that the injuries found on the deceased’s body had been self-inflicted.

44. On various dates in 2011 the Ankara public prosecutor collected information on Mr Hüseyin Başbilen’s financial status. In particular, he requested and received documents concerning his bank accounts from several banks. Similarly, in 2011 the public prosecutor collected medical records of Mr Başbilen as well as two other engineers who had worked for Aselsan and who had passed away.

45. On 6 April 2012 the Ankara public prosecutor asked Aselsan to provide a list of persons who had had access to Hüseyin Başbilen’s office and computer and a list of persons who had worked for Aselsan in 2006 as well as their mobile phone numbers.

46. On 8 June 2012 the legal director and the legal expert of Aselsan informed the Ankara public prosecutor that all staff members at Aselsan had had access to Hüseyin Başbilen’s office. They further noted that Hüseyin Başbilen had had two computers and that other employees could use Hüseyin Başbilen’s computers if they logged onto the system with their usernames and passwords. In such a case, if Hüseyin Başbilen had not limited access to the hard disk of his computers as an administrator, other users could have accessed the hard disk. Lastly, Aselsan sent a list of persons who had shared Hüseyin Başbilen’s office and another list containing the names of those who had worked for Aselsan in 2006 with their mobile phone numbers.

47. Meanwhile, on 21 May 2012 the first applicant made a further statement to the Ankara public prosecutor reiterating that his son’s death raised suspicions and asking the public prosecutor to continue to investigate.

48. On 5 July 2012 S.D. and M.K., the residents of Aydıncık village who had found the deceased’s car, were interviewed by the public prosecutor. S.D. stated that he had heard from somebody that three cars had arrived in the village a day before Hüseyin Başbilen’s car had been found and that the deceased’s car had been one of them. He had learned that the persons in the cars had got out in the village’s main square and that there had been a quarrel. They had then left the village and driven towards the cemetery. S.D. contended that he did not recall who had talked to him about this incident.

49. On 5 Mart 2013 a graphology expert conducted an examination of the signature found on the suicide note and prepared a report. According to the report, the expert compared the signature on the suicide note with the deceased’s signature found on four documents, namely a document taken from Aselsan, two documents taken from the deceased’s bank and a document taken from another company. The report concluded that the signature belonged to the deceased.

50. On 26 October 2013 the Ankara public prosecutor once again asked the Forensic Medicine Institute to prepare a report regarding Hüseyin Başbilen’s death.

51. On 13 February 2014, the plenary assembly of the Forensic Medicine Institute concluded, by a majority (seventeen votes), that it was possible that the injuries on Hüseyin Başbilen’s body had been inflicted by himself; however, seven members considered that Mr Hüseyin Başbilen had not committed suicide and fourteen members opined that it could not be determined whether the deceased had been killed or had committed suicide.

52. On 16 July 2014 a public prosecutor from the office for investigating offences allegedly committed by civil servants (Memur Suçları Soruşturma Bürosu), attached to the Ankara public prosecutor’s office, asked the Ankara provincial gendarmerie command to form a task force and to reinvestigate the deaths of Hüseyin Başbilen and four other engineers who had also worked for Aselsan. The public prosecutor’s office also requested that a number of steps be taken in the investigations into these deaths. As to the investigation into Hüseyin Başbilen’s death, the public prosecutor noted four issues and ordered further enquiries regarding these points. The prosecutor, firstly, ordered a further report on the dubious issues noted in the report dated 21 February 2011 (see paragraph 35 above). Secondly, he considered suspicious the fact that the deceased’s briefcase had not been forensically examined but had been given to his wife, and requested that the officer who had given the order to deliver the briefcase to his wife be identified. Noting that the USB flash drive found in Hüseyin Başbilen’s office had disappeared and criminal proceedings had been brought against Ş.K. and E.Ş., the public prosecutor asked for information as to whether disciplinary proceedings had been brought against the relevant officers. Lastly, the public prosecutor noted that on the basis of Hüseyin Başbilen’s credit card statements it had been found out that he had bought petrol in a filling station at 6.56 a.m. on 4 August 2006. He ordered that enquiries be carried out into whether the video surveillance recordings had been requested from the filling station and that, if so, that they be sent to the public prosecutor’s office. He also ordered the gendarmerie to find out whether the recordings were extant if they had not already been secured.

53. On 7 August 2014 the deputy commander of the Ankara gendarmerie command sent a list of gendarmerie officers to be included in the task force, and a table containing the instructions given by the Ankara public prosecutor, to the Ankara public prosecutor’s office.

54. On 29 September 2014 the Ankara public prosecutor asked the gendarmerie command to instruct the officers in the task force to conduct a thorough investigation, to be in constant contact with the public prosecutor’s office and to provide information on the outcome, especially in view of the public interest in the investigation.

55. According to the information in the case file, the investigation is ongoing.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

56. Relying on Articles 2 and 13 of the Convention, the applicants complained that the State authorities had failed to carry out an effective investigation into the death of Hüseyin Başbilen.

The Court deems it appropriate to examine the applicants’ complaint solely from the standpoint of Article 2 of the Convention (see Sultan Dölek and Others v. Turkey, no. 34902/10, § 39, 28 April 2015). Article 2 reads, in so far as relevant, as follows:

“1. Everyone’s right to life shall be protected by law...”

57. The Government contested that argument.

A. Admissibility

58. The Government argued that the applicants had failed to exhaust the domestic remedies available to them, within the meaning of Article 35 § 1 of the Convention. In this respect, they first submitted that the investigation into the death of Hüseyin Başbilen was still ongoing at the national level. They also argued that the applicants should have lodged an individual application with the Constitutional Court which had been entrusted with the power to provide redress for violations of the rights and freedoms protected by the Convention as acknowledged by the Court in its decision in Uzun v. Turkey ((dec.), no. 10755/13, §§ 68-71, 30 April 2013).

59. The applicants did not make any submissions on this point.

60. As to the Government’s objection regarding the use of the individual application to the Constitutional Court, the Court reiterates that, while it can be subject to exceptions which might be justified by the specific circumstances of each case, the issue of whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts)).

61. In this connection, the Court observes that subsequent to the constitutional amendments which entered into force on 23 September 2012, an individual application system was put in place in the legal system of Turkey. The new Article 148 § 3 of the Constitution gives jurisdiction to the Constitutional Court to examine individual applications concerning the fundamental freedoms and rights protected by the Constitution and by the European Convention on Human Rights and the Protocols thereto, after ordinary remedies have been exhausted.

62. The Court further recalls that it has already examined this new remedy in its decision in Uzun, cited above. Noting that the final domestic decision in that case had been rendered on 25 September 2012, that is to say, after the creation of the new remedy, the Court concluded that Mr Uzun should have applied to the Constitutional Court before lodging his application with the Court.

63. However, the present application is different from the case of Uzun in that it was lodged with the Court on 17 July 2008, more than four years before the creation of the new Constitutional Court remedy and within six months of 18 January 2008, the date on which the final decision of the Sincan Assize Court in investigation no. 2006/131472 had been served on the applicants (see paragraph 22 above). Besides, while it is true that the second investigation into the death of the applicants’ son is ongoing, more than nine years and seven months have elapsed since his passing. In the circumstances of the present case, the Court finds no reason to depart from the general rule that domestic remedies to be exhausted are those that applied on the date the application was lodged before the Court. As a result, the applicants were not required to avail themselves of the remedy before the Constitutional Court (see Şükrü Yıldız v. Turkey, no. 4100/10, § 45, 17 March 2015; and Cvetković v. Serbia, no. 17271/04, § 42, 10 June 2008). The Court accordingly dismisses the Government’s objection in this connection.

64. As regards the Government’s objection that the applicants should await the outcome of the investigation conducted at the domestic level, the Court finds that the question of whether the investigation in question could be regarded as effective under the Convention is closely linked to the substance of the applicants’ complaint. The Court therefore joins the Government’s objection on this point to the merits (see Veli Tosun and Others v. Turkey, no. 62312/00, §§ 39-40, 16 January 2007; Fırat Can v. Turkey, no. 6644/08, § 35, 24 May 2011; and Tarkan Yavaş v. Turkey, no. 58210/08, § 27, 18 September 2012).

65. The Court further notes that the application 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 parties’ submissions

66. The applicants complained that very few steps had been taken by the national authorities during the first investigation conducted in 2006 and 2007, and argued that those steps had not been sufficient to clarify the circumstances surrounding Hüseyin Başbilen’s death. In their opinion, their son had not committed suicide and the steps taken in the first investigation had not been adequate to establish the circumstances of his death. They complained, in particular, that: the signature at the bottom of the suicide note had not been compared with their son’s signature on an official document; the public prosecutor had failed to obtain the statements of several witnesses, particularly H.A. and their son’s wife; that they had not been interviewed by the public prosecutor; that the first report of the Forensic Medicine Institute had been completed more than a year after the death.

67. The applicants expressed their satisfaction on account of the initiation of a new investigation into their son’s death in 2010. They submitted that the public prosecutor’s office had carried out an extensive investigation. However, they considered that the steps taken in the new investigation indicated that there had been several shortcomings in the first investigation and that the second investigation was not capable of rectifying those shortcomings due to the passage of time. The applicants lastly noted that the outcome in the investigation was still pending.

68. The Government submitted that subsequent to Hüseyin Başbilen’s death, an investigation was initiated by the public prosecutor’s office, an independent and impartial authority. They argued that within the context of investigation no. 2006/131472, all necessary steps had been taken to clarify the reasons and the circumstances surrounding the death of the applicants’ son. They also noted that the applicants had had full access to the investigation. The Government further submitted that several investigatory steps had been taken within the context of the second investigation initiated upon the receipt of the complaint of the deceased’s brother. In particular, new technical analyses had been carried out on the evidence collected at the crime scene, witnesses had been interviewed by the public prosecutor and the investigation into the death of the applicants’ son had been joined with the investigations into the deaths of other engineers who had also worked for Aselsan. Noting that a special team had been assigned to the investigation, which is ongoing, the Government left it to the Court’s discretion to rule on the applicants’ complaint concerning the alleged ineffectiveness of the investigation.

2. The Court’s assessment

69. 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 son and, as such, should be examined from the standpoint of the procedural obligation to carry out effective investigations.

70. In this respect, the Court recalls 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 of the Convention 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 there is reason to believe that an individual has died in suspicious circumstances (see Emars v. Latvia, no. 22412/08, § 72, 18 November 2014). As to the requirements of an effective investigation, the Court refers to the principles outlined in Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 169-182, 14 April 2015) to the effect that the investigation in question should, in principle, be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. Such an investigation should be initiated promptly and conducted with reasonable expedition (see also Tahsin Acar v. Turkey [GC], no. 26307/95, § 224, ECHR 2004-III).

71. In the present case, the Court observes at the outset that an investigation was initiated promptly into the death of Mr Hüseyin Başbilen. Crime scene officers examined the scene, took photographs and drew two sketch maps. They also took fingerprints and hair samples from the car and sent them to police and gendarmerie laboratories. A number of objects found at the crime scene were seized. A gendarmerie officer visited Aselsan’s premises with a view to verifying whether the suicide note found at the crime scene had been drafted on the deceased’s computer at his workplace. An autopsy was carried out on the deceased’s body. Gendarmerie officers took statements from the deceased’s relatives, including the applicants. Signature analysis was carried out, at the end of which it was concluded that the signature at the bottom of the suicide note found in the deceased’s car belonged to the deceased. The Ankara public prosecutor then concluded that Hüseyin Başbilen had committed suicide and decided to close the investigation. The Sincan Assize Court, upon an appeal lodged by the applicants, asked the Forensic Medicine Institute to prepare a report concerning the injuries found on the deceased’s body and dismissed the appeal when the Forensic Medicine Institute’s report concluded that it was possible that Hüseyin Başbilen had killed himself.

72. Nevertheless, despite the fact that the State authorities appeared to have taken many steps in investigation no. 2006/131472, they failed to take the pertinent steps capable of leading to the establishment of the circumstances of Hüseyin Başbilen’s death.

73. In this connection, the Court first notes that the Ankara public prosecutor did not attempt to resolve the inconsistencies between the statements of the deceased’s wife and mother concerning his suicidal tendencies. According to her statement to the gendarmerie, Hüseyin Başbilen’s wife believed that her husband had committed suicide, basing her belief on the fact that he had been receiving psychiatric treatment, whereas his mother contended that H.A., the psychiatrist who had been treating his son, considered that he had not had suicidal tendencies. In the Court’s view, questioning H.A. could have yielded more accurate information for the public prosecutor on the deceased’s mental health.

74. The Court further notes that the Ankara public prosecutor failed to obtain statements from the applicants, the deceased’s brother and sister as well as his wife before deciding to close the investigation. Nor did he take any steps on his own initiative to identify and to question possible witnesses.

75. The Court next observes that the effectiveness of the collection and examination of evidence at the crime scene was seriously undermined. In this connection, it notes that the box cutter that was considered to have been used in Mr Başbilen’s death was not subjected to a fingerprint analysis during the first investigation. Furthermore, the deceased’s briefcase, which had been found at the crime scene, was given to his wife without any forensic examination having been conducted on it and despite the fact that later in the second investigation an expert opined that its position at the crime scene had been suspicious. The Court also observes that the investigating authorities failed to order an examination of the deceased’s computer on which the suicide note had allegedly been written or to secure evidence collected at the deceased’s workplace, specifically the USB flash drive which allegedly contained the suicide note.

76. The Court also observes that while the Sincan Assize Court asked the Forensic Medicine Institute to draft a report containing an opinion on Mr Başbilen’s death, the report in question was drawn up more than one year after the death had occurred. Besides this, the first section of expertise of the Forensic Medicine Institute only opined that it was possible that Mr Başbilen had committed suicide. Therefore, in the Court’s view, this opinion does not justify the State authorities’ failure to continue the investigation and to seek more evidence.

77. The aforementioned considerations alone are sufficient to enable the Court to conclude that investigation no. 2006/131472 was not adequate and effective. This finding is also supported by the fact that in 2010 a new investigation was initiated and also by the decisions and steps taken by the public prosecutors in that subsequent investigation.

78. As a matter of fact, the investigating authorities took several steps in investigation no. 2010/142387 to establish the facts of the case. The Ankara public prosecutor’s office not only attempted to remedy the aforementioned shortcomings of the first investigation; it also carried out further enquiries into the circumstances surrounding Mr Başbilen’s death. In the Court’s opinion, the examination of the deceased’s credit card payments which resulted in the discovery that he had been at a filling station during the early hours of his date of death is a noteworthy step taken by the public prosecutor’s office. Similarly, the Ankara public prosecutor’s attempts to discover the whereabouts of the USB flash drive which had disappeared during the first investigation, and the report issued on 21 February 2011 analysing the crime scene, were essential measures for obtaining a comprehensive evidentiary basis with a view to establishing the circumstances of Mr Başbilen’s death. Further, following new enquiries by the investigating authorities, criminal proceedings were brought against two gendarmerie officers who had been involved in the first investigation and who had been responsible for securing the evidence.

79. The Court also finds it noteworthy that unlike the public prosecutor who had conducted the first investigation, the public prosecutor in the second investigation did not decide to close the investigation and even ordered a task force to be constituted despite the content of the reports of the Forensic Medicine Institute dated 4 January 2012 and 13 February 2014, which was identical to that of the report of 28 September 2007. He also took statements from the deceased’s relatives and many other persons who might have had knowledge regarding Mr Hüseyin Başbilen’s death.

80. Hence, the Court considers that the efforts of the investigating authorities in the framework of investigation no. 2010/142387 are commendable. However, it is not possible to conclude that the investigation in question has been effective given that it has not been conducted with reasonable expedition. The investigation in question has been pending for more than nine years and seven months since the death of the applicants’ son, and more than five years after it was initiated. As a result, the Court cannot but find that the authorities failed to take all measures that could be reasonably expected of them to ensure that the second investigation was in conformity with the requirements of Article 2 of the Convention.

81. The Court concludes that the authorities failed to carry out effective criminal investigations into the circumstances of Mr Hüseyin Başbilen’s death.

82. In the light of the foregoing factors and conclusions, the Court also dismisses the Government’s objection that the applicants failed to exhaust domestic remedies in view of the pending investigation.

83. There has accordingly been a violation of Article 2 of the Convention in its procedural aspect.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

84. 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

85. The applicants claimed 500,000 euros (EUR) in respect of pecuniary damage. They submitted that their son used to provide for them financially and that as a result of his death they had been deprived of that financial assistance. They also claimed EUR 500,000 in respect of non-pecuniary damage.

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

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

B. Costs and expenses

88. The applicants did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award them any sum on that account.

C. Default interest

89. 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. Joins to the merits the Government’s preliminary objection of non-exhaustion of domestic remedies, and dismisses it;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 2 of the Convention in its procedural aspect;

4. Holds

(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, EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable to the applicants, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 26 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Julia Laffranque
Registrar President

[1]. A short description of the Ergenekon investigations and proceedings may be found in Nedim Şener v. Turkey (no. 38270/11, § 6, 8 July 2014), and Şık v. Turkey (no. 53413/11, § 10, 8 July 2014).

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You are here: BAILII >> Databases >> European Court of Human Rights >> BASBILEN v. TURKEY - 35872/08 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2016] ECHR 378 (26 April 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/378.html Cite as: [2016] ECHR 378