TSALIKIDIS AND OTHERS v. GREECE JUDGMENT
31
lost sight of the possible connection – to take all necessary measures to
investigate Mr Tsalikidis’ death and the circumstances surrounding it.
107. In the light of the foregoing, the Court considers that the national
authorities failed to carry out an adequate and effective investigation into
the circumstances surrounding the death of Mr Tsalikidis. The Court
observes, in particular, that the difficulty in determining whether there was
any substance in the applicants’ claim that their relative was unlawfully
killed rests with the failure of the authorities adequately to investigate the
circumstances of the death (see Esat Bayram v. Turkey, no. 75535/01, § 52,
26 May 2009) in breach of the procedural obligations imposed under
Article 2 of the Convention.
108. That said, the Court does not consider that the applicants acted
inappropriately when choosing to pursue the case under the Code of
Criminal Procedure. In particular, the Court notes that, as far as the
supplementary investigation is concerned, the applicants submitted an
application to the public prosecutor requesting the reopening of the
investigation on the basis of new evidence. At the same time, they expressed
their wish to join the proceedings as civil parties. Apart from the possibility
of requesting compensation in respect of non-pecuniary damage, as civil
parties and by virtue of the Code of Criminal Procedure, the applicants had
the right to participate in the criminal procedure and to request that certain
investigative acts be conducted by the investigating authorities and to have
technical experts present when the investigative acts were carried out (see
Papapetrou and Others, cited above, § 39, 12 July 2011). The Court
observes that the applicants duly made use of the above-mentioned
possibilities provided to them by law. The Court’s conclusion that these
proceedings turned out to be ineffective cannot be held against them (see
Elena Cojocaru v. Romania, no. 74114/12, § 123, 22 March 2016).
109. As regards the applicants’ ability to bring an action for damages
against the investigative authorities who conducted the investigation into the
death of Costas Tsalikidis, the Court reiterates that when there has been no
intentional taking of life, an award of damages through civil or
administrative proceedings may offer appropriate redress (see, among other
authorities, Mustafa Tunç and Fecire Tunç v. Turkey [GC], cited above,
§ 131). However, in cases of fatal assault, the breach of Article 2 cannot be
remedied exclusively through an award of compensation to the relatives of
the victim (see, among other authorities, Tanrıkulu v. Turkey [GC],
no. 23763/94, § 79, ECHR 1999 IV). Consequently, the award of damages
is not sufficient in such cases to remedy the violation of Article 2 of the
Convention and to deprive the applicant of his status as a victim (see Erkan
v. Turkey (dec.), no. 41792/10, § 61, 28 January 2014).
110. In cases where it is not clearly established from the outset that the
death has resulted from an accident or another unintentional act, and where
the hypothesis of unlawful killing is at least arguable on the facts, the