CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 octobre 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Applications No. 22947/93 and No. 22948/93                       by Nebahat AKKOC                       against Turkey        The European Commission of Human Rights sitting in private on 11 October 1994 , the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the applications introduced on 1 November 1993 by Nebahat Akkoç against Turkey and registered on 18 November 1993 under files Nos. 22947/93 and 22948/93;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to :   -     reports provided for in Rule 47 of the Rules of Procedure of the      Commission;   -     the Commission's decision of 28 February 1994 to communicate part of application No. 22947/93 and to declare the remainder of that application inadmissible,   -     the Commission's decision of the same date to communicate application No. 22948/93,   -     the applicant's communication of 31 March 1994,   -     the Commission's decision of 14 April 1994 to join the two applications and to communicate the new complaints presented by the applicant,        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Turkish citizen of Kurdish origin, born in 1953 and resident at Diyarbakir. She is represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex, England.        The facts as presented by the applicant may be summarised as follows:        Application No. 22947/93        The applicant has been, until recently, Head of the Diyarbakir Branch of the Education and Science Workers Union (Egit-Sen). The Union was founded in 1990, but the applicant's branch was declared illegal on 28 September 1992 by the Office of the Chief of Police and the Mayor of Diyarbakir.        Because of her activities on behalf of the members of Egit-Sen, the applicant has been the object of persistent threats and other forms of pressure which eventually forced her to leave her occupation as a teacher, to cease to function as a trade union official, and to be deprived of compensation otherwise due to her under Turkish law. She now lives alone with two children and remains in fear for her life and those of her children.        On 26 October 1992 a meeting between the applicant, some of her colleagues and the National Education Director had been arranged for the following day. The purpose was to appeal to the Director to put an end to attacks against members of Egit-Sen, since in October 1992 four members had been attacked, one of them had died, others were undergoing treatment, and about 40 members had been exiled in other regions.        When the applicant arrived at the meeting on 27 October 1992, she saw the building surrounded by plain clothes police and cameras made ready to film those arriving for the meeting. The Director said he could only receive a small group. The applicant organised a group of seven persons and told the others to leave, but the police did not allow anybody to leave and filmed and verbally abused the persons who had gathered there. Everybody's identity was checked. A woman who did not wish to show her identity papers was pulled by the hair and bundled into a waiting police car. Another thirteen educational workers were also taken away.        After the meeting the applicant went to the City Governor to complain of their treatment. The Governor's reply was that they had been told not to go to the National Education Directorate and that they had bad motives. He further said: "You don't raise your voices when the State's soldiers or police die. Why do you want to meet when teachers die?"        The day after these events the applicant received a telephone call and was told: "You are also going to die. It is now your turn. We are going to kill you off."        In November 1992 the applicant applied to the Diyarbakir State Prosecutor about the incident on 27 October 1992. After initial delays the case was dismissed in February 1993.        After the events on 27 October 1992 the applicant made a statement to the newspaper Diyarbakir Soz on 31 October 1992 under the headline "Eleven teachers detained in Diyarbakir". In that article she gave an account of the events prior to and including the meeting at the Directorate, focusing on the fact that the meeting had been by prior arrangement.        On 23 November 1992 she made another statement to the same newspapaper in an open letter bearing the headline "24 November is not Teachers' Day". Referring to the fact that 24 November is a day designated to honour teachers, she stated in that open letter that teachers had little cause to celebrate such a day, and proceeded to indicate the ways in which education workers suffered. She listed, inter alia, the lack of trade union rights, the hours of work of teachers and their clothing allowance, the fact that students feel pressured to give a gift to their teacher which they often cannot afford. She then focused on her region and pointed to the exiles and attacks on teachers in the region, to the fact that classes were too large and to the fact that police interfere with the functioning of secondary schools by arresting students in class and insulting teachers.        As a result of these statements to the press, and of her trade union activity, the applicant was the subject of three formal findings by the National Education Ministry:   1.    On 22 February 1993 the Diyarbakir National Education Directorate declared that the applicant had violated Article 26 of Law No. 657, which prohibits statutory applications or complaints to be made jointly by two or more State officials and which also bans collective action by civil servants. The Directorate concluded that this was behaviour not suited to the dignity of a civil servant, which required the issue of a formal warning according to Article 125 of the said Law.   2.    On 5 March 1993 the Diyarbakir Provincial National Education Disciplinary Committee found that the applicant had taken part in the activity of a trade union whose authorities and responsibilities were not known, i.e. was an unauthorised and therefore illegal trade union. The applicant was also found to be in violation of Section 4 of Law No. 657 insofar as it prohibits "involvement in collective action and behaviour unsuitable to the dignity of a State official" as well as Article 26 of the same Law, which prohibits State officials from associating in groups of two or more in order to make an application or a complaint to their employer. Because of her statement to the newspaper on 23 November 1992 the applicant was also found to be in violation of Article 125 D(g) of the same Law, which prohibits State officials from "giving information and statements to the press, news agencies, radio or television institutions when not authorised to do so". As a result of these findings, the Committee sanctioned the applicant by a reduction in salary, in accordance with Article 125 C.   3.    On 14 May 1993 the Diyarbakir Provincial National Education Disciplinary Committee found that the applicant's statement to the newspaper on 31 October 1992 had been a violation of Article 125 D(g) of Law No. 657. Her case was then referred to the Provincial Office of National Education for consideration of blockage of her promotion, as authorised by Article 126 of the same Law.        Subsequently the applicant has been the subject of threats and pressure which have obliged her to leave her occupation as a teacher, and hence her position in the trade union. Because of the disciplinary penalties she has not been able to receive her severance pay and obstacles are placed in the way of her collection of her pension. She is also continuously being exposed to threats.        Application No. 22948/93        The applicant's husband, Zübeyir Akkoç, was a teacher at the Diyarbakir Hürriyet primary school.   The applicant, also a teacher, was the Head of the Diyarbakir Branch of the Union of Education and Science workers (Egit-Sen).   As a result of their prominence in Kurdish affairs, the applicant and her husband regularly received anonymous threats by telephone as well as verbal threats by the police.        On 13 January 1993, Zübeyir Akkoç was attacked and killed by gunshot wounds while going from his home at Diyarbakir to his place of work at the Hürriyet school.   He was accompanied by another person who was also killed in the same attack.        An enquiry into the circumstances of his death was undertaken by the police but remains open.   It has been provisionally placed in the category of killings by "persons unknown" by the State Security Court. A final conclusion to this effect has not been reached by the Court.        Independently of the finding of the State Security Court, the Diyarbakir National Education Directorate decided on 30 June 1993 that the killing of the applicant's husband was by "persons unknown".   As a result of this finding, the Pensions Treasury of the Republic of Turkey refused to grant the applicant the compensation and pension that would be due to her if her husband had died while carrying out his duties.        Since the killing of her husband, the applicant has been subjected to continuing threats to her life.        Applications Nos. 22947/93 and 22948/93        In early February 1994 the applicant was arrested at her home. According to her account she was questioned about her applications to the Commission. The police had in their possession files relating to these applications. She was later taken to the Diyarbakir police station and detained. She was subjected to severe torture over a period of nine days. She was assaulted by her interrogators and accused over the applications she had made under the European Convention.        After ten days in detention she was taken before the public prosecutor who ordered her release. It appears that a charge against her related to invoking the European Convention in an individual application. The prosecutor stated that it was not illegal to bring her case to the Commission as she had sought domestic remedies and failed. He also stated that there was insufficient evidence to prove that she was a member of the PKK.        The applicant received a very severe blow to the right side of her upper jaw, leaving her in severe pain. Following her release this was diagnosed as a fracture resulting in her upper teeth moving. However, when the doctor she consulted learned that she had been in detention he tore up the report he had prepared. She spent fifteen days in bed in her mother's house where there was police surveillance night and day for one week. She has been unable to return to her home and has had to arrange an escort for her son to and from the university every day.     COMPLAINTS        Application No. 22947/93        The applicant originally complained of violations of Articles 2, 6, 10, 11, 13 and 14 (in conjunction with Articles 6 and 11) of the Convention and Article 1 of Protocol No. 1.        After the Commission's partial decision of 28 February 1994 on the admissibility of the application, the remaining complaint concerns Article 10 of the Convention. In this respect the applicant submits that the penalties imposed upon her as a result of her statements to the newspaper are in conflict with her right to freedom of expression, for which there is no justification under para. 2 of Article 10.        Application No. 22948/93        The applicant complains of violations of Articles 2, 6, 13 and 14 of the Convention and Article 1 of Protocol No 1.        As to Article 2, the applicant alleges that the Turkish State failed to provide sufficient protection of her husband's right to life. She refers to the high incidence and systematic pattern of killings of Kurdish teachers in the area of Diyarbakir (as of 14 September 1993, there have been 20 killings of Kurdish teachers in that city), particularly of those prominent in, or relatives of those prominent in, the affairs of the Kurdish people.        Alternatively, the applicant states that it is reasonable to infer that the Turkish State either ordered the killings of Kurdish teachers in the area during the period concerned or gave its tacit authorisation to third parties to engage in these killings.   She further alleges that the State failed adequately to investigate the killings and prosecute the offenders.   She also considers that her husband and herself have been victims of an administrative practice of violation of the obligation to protect life.        As to Article 6, the applicant submits that, because of the failure adequately to investigate the circumstances of her husband's murder, she has been unable to pursue her claim for compensation due to her through the civil courts.        As to Article 13, the applicant complains that there is no independent national authority in a position to investigate and bring to justice those responsible for this kind of killing.        As to Article 14 in conjunction with Articles 2 and 13, the applicant submits that Turkish citizens of Kurdish origin are the targets and/or victims of the breakdown of protection of the right to life and of the failure to provide effective remedies far more frequently than are other Turkish citizens.        As to Article 1 of Protocol No. 1, the applicant complains that, as a result of the finding that her husband had been killed by unknown perpetrators, she did not receive any compensation or any widow's pension.        Applications Nos. 22947/93 and 22948/93        In regard to her arrest in early February 1994, her subsequent detention and treatment by the police, the applicant has not invoked any particular provision of the Convention. She has alleged, however, that during her detention she was questioned about the applications she had filed with the Commission.     PROCEDURE BEFORE THE COMMISSION        Applications Nos. 22947/93 and 22948/93 were introduced before the Commission on 1 November 1993 and registered on 18 November 1993.        On 28 February 1994 the Commission declared application No. 22947/93 partly inadmissible and decided to communicate the remainder of the application to the Turkish Government who were invited to submit their observations on its admissibility and merits before 10 May 1994. On the same day the Commission decided to communicate application No. 22948/93 to the Turkish Government who were invited to submit their observations on its admissibility and merits before 13 May 1994.        In a communication of 31 March 1994 the applicant's representative informed the Commission that the applicant had been arrested in early February 1994 and questioned about her applications to the Commission. It was alleged that she had been detained for ten days and tortured during her detention.        On 14 April 1994 the Commission decided to join the two applications and to communicate the new complaints to the Turkish Government who were invited to submit, before 9 May 1994, observations on their admissibility and merits, having regard to Articles 3 and 25 of the Convention.        By letters of 6 and 9 May 1994 the Government requested extensions for one month of the time-limits fixed for the submission of their observations.        On 2 June 1994 the President of the Commission extended these time-limits until 13 June 1994 but asked the Government to submit their observations before the end of the extended period.        No observations have been submitted by the Government.   THE LAW        The applicant complains of a violation of Article 10 (Art. 10) of the Convention in that she was punished and was considered to have violated her professional duties for making statements to a newspaper (application No. 22947/93). She further complains of violations of Articles 2, 6, 13 and 14 (Art. 2, 6, 13, 14) of the Convention and Article 1 of Protocol No. 1 (P1-1) in connection with the killing of her husband, the lack of effective investigations and the refusal to grant her a widow's pension (application No. 22948/93).        The applicant claims to have been arrested, detained and tortured and to have been questioned during her detention about the applications she had lodged with the Commission. She has not in this respect referred to any particular provision of the Convention, but the Commission considers that her complaints raise issues under Articles 3 and 25 (Art. 3, 25) of the Convention.        Article 2 (Art. 2) of the Convention protects everyone's right to life. Article 3 (Art. 3) provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. According to Article 6 (Art. 6), everyone has the right to a fair hearing in the determination of his civil rights and obligations. Article 10 (Art. 10) ensures the right to freedom of expression. According to Article 13 (Art. 13), there shall be a right to an effective remedy in regard to violations of the Convention. Article 14 (Art. 14) prohibits discrimination in the enjoyment of the rights guaranteed by the Convention. Article 25 (Art. 25) provides, inter alia, that the contracting States shall in no way hinder the effective exercise of the right of individual petition. Article 1 of the Protocol (P1-1) ensures everyone's right to the peaceful enjoyment of his possessions.        The Commission recalls that the applications have been communicated to the Turkish Government who have been invited to submit observations on their admissibility and merits. The time-limit for the submission of such observations was extended, at the Government's request, until 13 June 1994. No observations have been submitted within that time-limit or after its expiry.        The Government have been informed that the applications were being considered for inclusion in the agenda for the Commission's session beginning on 10 October 1994.        As regards exhaustion of domestic remedies, it is the normal practice of the Commission, where a case has been communicated to the respondent Government, not to declare the application inadmissible for failure to exhaust domestic remedies, unless this matter has been raised by the Government in their observations. The Commission considers that the same principle should be applied where, as in the present case, the respondent Government have not submitted any observations at all.        It follows that the applications cannot be rejected on the ground that the domestic remedies have not been exhausted.        Moreover, the Commission is of the opinion that the applications raise important questions of fact and law which cannot be resolved at the stage of the admissibility but require an examination on the merits. Consequently, the applications cannot be considered manifestly ill-founded.        No other ground of inadmissibility is applicable to the present case.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE.   Secretary to the Commission                   President of the Commission          (H.C. KRÜGER)                                 (C.A. NØRGAARD)