No violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);No violation of Art. 3;Violation of Art. 3;Not necessary to examine Art. 3 (procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicants were born in 1957 and 1949 and live in Aydın (Turkey) and Australia respectively. The application concerns the killing of the first applicant's brother, Seyit Külekçi, and the second applicant's son, Doğan Altun, the alleged mutilation of their corpses by security forces and the alleged failure to conduct an effective investigation into the applicants' allegations.

On 14 April 1999 Seyit Külekçi, and Doğan Altun were killed by security forces in the course of an armed clash which occurred in the village of Yeşilalan, Turhal district (province of Tokat).

According to the scene-of-incident report (olay yeri tespit tutanağı) drawn up and signed by four gendarmerie officers from the Turhal district gendarmerie command, security forces had set up an ambush in Yeşilalan in order to capture members of the TKP-ML/TIKKO (Communist Party of Turkey / MarxistLeninist / Turkish Workers and Peasants' Liberation Army). Six members of the organisation arrived in the village and were ordered to surrender. A clash broke out after they opened fire. When the firing ceased the security forces found two corpses. They also found two automatic rifles, four chargers and fifty cartridges next to the bodies. The other four persons fled. It is stated in the report that the security forces used 10 hand grenades, 2,780 Bixi-type bullets, 1,420 G3-type bullets, 2,620 Kalashnikov-type bullets, and other ammunition used for illumination. The gendarmerie officers further drew a sketch-map of the scene of the incident.

On 15 April 1999 the rifles and the cartridges found after the clash were sent to the Tokat provincial gendarmerie command for a ballistic examination.

On 14 May 1999, upon the request of the Tokat gendarmerie command, three ballistic experts at the gendarmerie general command conducted a ballistic examination of two rifles and 44 of the cartridges found at the scene.

Following the incident, officers from the Turhal gendarmerie command took the corpses to their command's yard. The bodies had been identified as those of Seyit Külekçi and Doğan Altun.

On 15 April 1999 post-mortem examinations were carried out on the deceased in the Turhal gendarmerie command's yard by a medical expert, in the presence of the Turhal public prosecutor. According to the expert's report, Doğan Altun had received nine bullets to his head, shoulders, chest and legs. It was also noted that half of his left ear had been cut off. The medical expert observed that Seyit Külekçi had received eight bullets to his head, shoulders, arms, chest, abdomen and lumbar region. He further observed that both of Seyit Külekçi's ears had been cut off. The expert noted numerous other wounds on the bodies. He concluded that the cause of their deaths was haemorrhaging and damage to the cerebral tissue as a result of wounds caused by firearms. He considered that there was no need to carry out a full autopsy as the cause of death was clear from the findings of the examination. During the post-mortem examination, photographs of the deceased were taken. After the examination the corpses were placed in the Turhal State Hospital morgue.

On the same day, the gendarmerie officers took the statement of Z.U., an inhabitant of Yeşilalan who was wounded during the armed clash on 14 April 1999. Z.U. maintained, inter alia, that at 9 p.m. terrorists had arrived at the village and asked him to take them to the house of the village headman (muhtar). On their way, shots were fired. He hid in a ditch and, subsequently, in the garden of a house. Z.U. contended that he had remained hidden until the following morning, whereupon, having dressed his wound, soldiers had taken him to Turhal hospital.

On 16 April 1999 the corpses of Doğan Altun and Seyit Külekçi were returned, respectively, to the second applicant, Fevzi Altun, and to Seyit Külekçi's brother, Ali Külekçi.

On an unspecified date, the Turhal public prosecutor initiated an investigation (no. 1999/624) against the deceased and four others, who were all suspected of belonging to the terrorist organisation TKP-ML/TIKKO.

On 15 June 1999 the applicants filed a complaint with the Turhal public prosecutor's office. In their complaint they maintained that Doğan Altun's left arm had been cut. They further contended that the ears of Seyit Külekçi and Doğan Altun had been cut off and that there were various injuries on their bodies which could not have been caused by firearms. The applicants alleged that their relatives had been tortured before they died or, alternatively, that the security forces had ill-treated the corpses. The applicants requested the public prosecutor to initiate an investigation against those members of the security forces who were responsible for the mutilation of their relatives' bodies.

On an unspecified date the Turhal public prosecutor opened an investigation into the applicants' allegations (no. 1999/1117).

On 11 October 1999 the Turhal public prosecutor decided to join investigations nos. 1999/624 and 1999/1117, since they concerned the same incident.

On 15 February 2000 S.Ş., a gendarmerie private who had participated in the military operation in Turhal on 14 April 1999, gave statements to the Turhal public prosecutor. He contended that there had been an armed clash between terrorists and the security forces on the day in question and that, at the end of the clash, two terrorists had been found dead. S.Ş. further maintained that these two persons had been killed by special teams. He stated that the ears of the deceased had already been cut off when he saw them, and that he had signed the scene-of-incident report without having read it.

On 17 February 2000 the Turhal public prosecutor took statements from K.K., the deputy gendarmerie station commander in the Turhal gendarmerie command. He maintained that in April 1999 there had been a military operation conducted by gendarmerie commando teams together with a special team, and that he had participated in this operation as a guide. He stated that, following the armed clash between the terrorists and the security forces, he and his team had taken the corpses to the town centre. He did not realise that the terrorists' ears had been cut off since the corpses were covered with mud. He opined that the inhabitants of Yeşilalan village could have cut off the terrorists' ears out of fear because the armed clash had occurred in their village.

On 30 March 2000 M.Ç., another gendarmerie private who was performing his military service in Turhal in 1999, gave statements to the Kurşunlu public prosecutor in Çankırı. He maintained that Seyit Külekçi and Doğan Altun had been killed by special teams. He contended that he had not approached the corpses. He saw that hand grenades had exploded on the bodies. He denied the allegation that he had ill-treated them.

On 18 April 2000 S.Y., a sergeant who had served in Turhal between 1996 and 1999, gave statements to the Elazığ public prosecutor. The sergeant contended that he had neither seen nor ill-treated the corpses. He maintained that the damage to the corpses could have been caused by firearms.

On 3 September 2000 the Turhal public prosecutor decided to separate the investigation against the officers who had participated in the operation conducted on 14 April 1999 from the investigation against the deceased and the four other suspects who had fled on the same day. In his decision, he noted that these matters fell within the jurisdiction of different courts. The public prosecutor identified the charge against the security forces as that of “insulting corpses”.

On 10 October 2000 the Turhal public prosecutor filed a bill of indictment charging the gendarmerie officers M.Ç., K.K., S.Ş. and S.Y. with “insulting” the corpses of Seyit Külekçi and Doğan Altun, contrary to Article 178 § 1 of the Criminal Code.

On the same day the Turhal Criminal Court of First Instance placed those officers on trial.

On 31 October 2000 M.Ç. made statements before the Kurşunlu Criminal Court of First Instance, denying the allegation that he had cut the ears off the corpses. He maintained that he had neither seen nor ill-treated them.

On 20 December 2000 the Turhal Criminal Court of First Instance held a hearing.

On 5 January 2001 the first-instance court decided to defer the imposition of a final sentence upon the accused, pursuant to section 1 of Law no. 4616. The court held that the criminal proceedings against the accused would be suspended and a final sentence imposed should they be convicted of a further intentional offence within five years of this decision.

The judgment of 5 January 2001 became final, as neither the public prosecutor nor the accused officers appealed against it.

A description of the domestic law at the material time can be found in Ergi v. Turkey (judgment of 28 July 1998, Reports of Judgments and Decisions 1998IV, §§ 48 and 51), İlhan v. Turkey ([GC], no. 22277/93, §§ 36, 41 and 42, ECHR 2000VII) and Şahmo v. Turkey ((dec.), no. 37415/97, 1 April 2003).


Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant, Mr Ülari Metsaveer, is an Estonian national who was born in 1973 and lives in Vantaa, Finland. He was represented before the Court by Ms B. Mõttus, a lawyer practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was tried by a criminal court, apparently having been charged with theft. On 1 February 2003, before the judgment in the criminal case had been delivered, a newspaper, Pärnu Postimees, published an article entitled ‘Gang of Thieves on Trial’ (Vargajõuk kohtu all). According to the applicant the article gave the impression that the accused were guilty although they had not yet been convicted.

The applicant brought a civil suit against Pärnu Postimees AS, the public limited company that published the newspaper. He claimed 300,000 kroons (EEK) (approximately 19,170 euros (EUR)). On 30 September 2005 the Pärnu County Court dismissed his claim. An appeal was dismissed by the Tallinn Court of Appeal by a judgment of 25 November 2005. The applicant received the judgment on 3 December 2005. An appeal to the Supreme Court could be filed within thirty days of the receipt of the judgment, that is, by 2 January 2006 at the latest.

On 13 December 2005 the Court of Appeal received a request from the applicant for an extension of the time-limit for appeal, together with a request for legal aid.

On 21 December 2005 the Court of Appeal granted the applicant legal aid for lodging an appeal with the Supreme Court. The Court of Appeal’s decision was sent to the applicant and to the Estonian Bar Association (Eesti Advokatuur) so that the latter could appoint a lawyer for him. The applicant’s address was given in the decision. It was explained in the decision that it was not possible to extend the time-limit for filing the appeal but it was possible to request the restoration of the time-limit after its expiry if good reason existed for the failure to comply with it.

By a letter of 27 December 2005 the Board of the Bar Association (Advokatuuri juhatus) sent the Court of Appeal’s decision to the law office of the advocate who had been appointed, R., who received the letter on 30 December 2005. The applicant was not informed that the advocate had been appointed for him. R. neither contacted the applicant nor filed an appeal with the Supreme Court.

According to different documents in the case file, the applicant became aware of the name and contact details of the appointed lawyer, R., either at the end of January 2006 when he telephoned the Court of Appeal, or on 9 February 2006 when he telephoned the Bar Association.

On 9 February 2006 the applicant also telephoned R.

According to the applicant, R. said that the time-limit for an appeal to the Supreme Court had already passed and she was no longer dealing with the case. The applicant himself should have sought to contact her. She had no time to meet the applicant on 9 or 10 February 2006.

According to R. she had been unable to take any steps to lodge an appeal against the Court of Appeal’s judgment without having met the applicant. She proposed a meeting for 13 February 2006 but this was not suitable for the applicant, who said that he had to leave for Finland to start a new job on that date.

On 9 February 2006 the applicant made a complaint to the Court of Honour (aukohus) of the Bar Association against R.

R. was contacted by the Bar Association on the same date and was advised to file a request with the Supreme Court for the restoration of the time-limit for appeal. She filed the request, sent a copy to the applicant and requested the latter to contact her and pay the security for appeal.

On 12 February 2006 the applicant requested that the Court of Honour suspend the proceedings as R. had filed a request for restoration of the time-limit with the Supreme Court.

On 1 March 2006 the Supreme Court sent a letter to R. noting that according to Article 68 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik) the appeal itself had to be lodged together with the request for restoration of the time-limit. Moreover, security had to be paid. On that basis the Supreme Court returned the application to R. The applicant was not informed thereof.

It appears that in April 2006 the applicant, having telephoned the offices of different courts, learned of the Supreme Court’s letter and the fact that the case file had been sent back to the first-instance court as no appeal had been lodged and no security had been paid. On 19 April 2006 the applicant asked the Court of Honour to resume the examination of his complaint against R. He also requested that a new lawyer be appointed for him.

The Court of Honour examined the matter on 8 June 2006. It considered that a decision to grant legal aid had to be communicated to the applicant as well as to the lawyer who had been appointed. However, such an obligation could not be placed on the lawyer; nor was a lawyer responsible for paying the security for appeal. The Court of Honour found that R. had not committed a disciplinary offence and decided not to initiate proceedings in respect of her. It informed the applicant that it was not within its powers to appoint a new lawyer for him and that he could still turn to R. for legal assistance. It also informed the Board of the Bar Association of the circumstances relating to the informing of an applicant about the appointment of a legal-aid lawyer.

According to the applicant he attempted to contact R. by telephone and by letter; this having proved unsuccessful, on 26 September 2006 he requested the Supreme Court to appoint another lawyer and to extend the time-limit for lodging an appeal.

On 27 September 2006 the Supreme Court refused the applicant’s requests. It noted that a request for legal aid had already been granted by the Tallinn Court of Appeal on 21 December 2005, that a lawyer to provide him with legal assistance had already been appointed and that there were no grounds for replacing that lawyer as provided for in subsections 2 and 3 of section 20 of the State Legal Aid Act. The Supreme Court further noted that the applicant’s lawyer had requested that the time-limit for lodging an appeal be restored but her application had been dismissed and returned to her because she had failed to lodge the corresponding appeal and to pay the security. Finally, the Supreme Court pointed out that the appeal had not been attached to the applicant’s application and that he had also failed to comply with the requirement under Article 218 § 3 of the Code of Civil Procedure according to which submissions to the Supreme Court could only be made through a lawyer. Accordingly, it returned the application to the applicant.

Section 18(2) of the State Legal Aid Act (Riigi õigusabi seadus), as in force at the material time, stipulated that if a legal-aid lawyer was not appointed on the basis of a mutual agreement between him or herself and the claimant the court had to appoint a lawyer who consented thereto, or a lawyer named by the Bar Association, as the provider of State legal assistance. It was not specified how the claimant was to be informed thereof.

Section 19 of the State Legal Aid Act provided that a lawyer was not allowed to refuse to provide State legal assistance to a person or terminate the provision of legal services to a person before the final adjudication of the matter unless there was a conflict of interests (section 44(4) of the Bar Association Act (Advokatuuriseadus)) or if the client’s claims were unlawful or contrary to the lawyer’s professional ethics, or the lawyer became aware that a criminal offence was being planned (sections 44(5) and 45(5) of the Bar Association Act).

According to section 20 of the State Legal Aid Act the legal-aid lawyer could be replaced by another lawyer upon the latter’s consent and the mutual agreement of the original lawyer and the beneficiary of legal aid (subsection 1). If, arising from law, a lawyer was unable to continue to provide legal services to a beneficiary of State legal aid, he or she had to submit to a court an application for the appointment of a new legal-aid lawyer (subsection 2). Upon the exclusion of such a lawyer from the Bar Association or his or her disbarment, or upon the suspension of the professional activities or the death of the lawyer, a court had to appoint a new lawyer (subsection 3). Where a lawyer was replaced, the new lawyer had to continue providing legal services to the recipient from the point where the former lawyer had finished (subsection 4).

Article 341 § 2 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik), as in force until 31 December 2005, provided that an appeal against a judgment of an appeal court could be filed within thirty days of the judgment being made public, or within thirty days of receipt of a copy of the judgment if the judgment was given in written proceedings.

On 1 January 2006 a new Code of Civil Procedure (2006 Code) entered into force. Article 670 § 1 of the 2006 Code provided that an appeal in cassation was to be submitted within thirty days of the date on which the judgment was served on the appellant in cassation.

Article 218 § 3 of the 2006 Code provided that a party to litigation could perform procedural acts and submit requests and applications to the Supreme Court only through a lawyer (advokaat).

Article 68 § 2 of the 2006 Code provided that when a request was made for the restoration of a time-limit, the procedural act for which the restoration was requested had to be performed at the same time.

Article 67 § 2 of the 2006 Code provided that a request for restoration of a time-limit could be filed within fourteen days of the date on which the impediment which had hindered the participant to the proceedings in the performance of the procedural act ceased to exist, but not later than six months after the expiry of the time-limit.