CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 novembre 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                         Application No. 23178/94                       by Sükran AYDIN                       against Turkey        The European Commission of Human Rights sitting in private on 28 November 1994, the following members being present:              MM.    C.A. NØRGAARD, President                  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                  B. MARXER                  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 application introduced on 21 December 1993 by Sükran Aydin against Turkey and registered on 7 January 1994 under file No. 23178/94;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Turkish citizen of Kurdish origin, born in 1976 and resident at Derik, Mardin.   She is represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex.        The facts of the present case as submitted by the applicant may be summarised as follows.        On 29 June 1993 the applicant was at home in her village, Taslik. There was no electricity in the village.   At around 17.00 hours, a group including protectors and two special teams arrived at the village in four vehicles.   The protectors started to wander around the outside of the village.   Given the lack of electricity, which meant the villagers could not see what was happening, when they went to bed they thought that the protectors had gone from the village.   In the morning, before sunrise and whilst it was still slightly dark, four people suddenly entered the applicant's home.   They asked them "Where are those who came to the house in the evening ?"   The applicant's family insisted that no one had come to their house.   The four people claimed that those whom they alleged had entered the house were PKK representatives.   The four threatened and insulted the applicant's family and they then collected together the applicant's family and the other villagers in the square next to the school.        They took the applicant, her father and her sister-in-law and separated them from the other villagers.   They blindfolded them and, as they led them from the village square, they shouted to the villagers, "PKK supporters have been to these people's house, helping the PKK ; see how we'll show them".   The applicant does not know which way they were taken because she was blindfolded.   They were finally taken to Derik gendarme station.   When they arrived at the gendarme station, they were separated in different rooms.   In the meantime, the forces kept denigrating them and threatening that they were going to kill them, tear them in pieces etc.   Soon after the applicant was taken to the room, she was taken to what she calls "the torture chamber". The applicant, her father and her sister-in-law were stripped naked. They were put into car tyres.   Once inside, they were spun round and round, beaten and had high-pressure cold water jets played on them. Towards midday, the applicant was taken, together with her sister-in- law, from "the torture chamber" to the room she had been in.        The applicant was then taken, blindfolded, to the interrogation room.   The door was locked.   An individual in military clothing with her in the room ripped her dress off by force and stripped her.   She was trying to shout out but he held her mouth very tightly.   When she was naked, he laid her on her back and raped her.   In the meantime, the applicant's sister-in-law had apparently been brought to the door and was being kept waiting, completely naked.   When the person raping the applicant had finished, he got up off her and told her to get up and to get dressed immediately.   When she got up, she was covered in blood and was in severe pain.        Later, the applicant and her sister-in-law were taken to another room.   When evening came, a plain-clothed member of the team, with a beard, came and took her to "the torture chamber".   There the applicant was beaten, slapped and kicked badly for about an hour.   Other people there joined in the assault.   Whilst they were doing so, they kept warning her over and over again not to tell anyone what they had done to her.   After the beating, they took the applicant back to the room she had been in before.   On the third day, she was released, along with her father and sister-in-law.   They were released on the same day but separately.   The applicant was left alone in the mountains near her village.   When the forces left her, they threatened her, telling her not to tell anyone of the rape and that, if she did, other things would happen to her.        The applicant wants the protectors and soldiers to be punished. Amnesty International reported on 30 July 1993 that the applicant had a medical examination, the report of which was consistent with her allegation of rape.   The organisation also reported that she made a formal complaint to the local prosecutor, saying that she would be able to recognise the officer who raped her, even though she was blindfolded.   The rape in custody has been reported by Amnesty International and at page 26 of the report by a British Parliamentary Human Rights Group, "A desolation called peace".   The latter report also refers to a press report in Özgur Gündem on 18 July 1993.   COMPLAINTS        The applicant complains of violations of Articles 3, 6 and 13 of the Convention.        As to Article 3, she complains of physical ill-treatment (blindfolding, stripping her naked, putting her inside a wheel which was spun round and round, beating, slapping and kicking her, hosing her with high pressure cold water, verbally abusing and threatening her) and rape, which should be considered to constitute torture and which represented a form of discrimination since it was based on the applicant's race or ethnic identity.        As to Article 6, she complains of the denial of an effective right of access to court.        As to Article 13, she submits that there was no effective domestic remedy in regard to the violations of her rights to which she was subjected.        As to the exhaustion of domestic remedies, the applicant states that there is no requirement that she pursue alleged domestic remedies. She considers that any alleged remedy is illusory, inadequate and ineffective because        (a)    the detention, rape and torture of the applicant was done      by State officials in an official place, the Derik gendarme      station ;        (b)    there is an administrative practice of non-respect of the      rule which requires the provision of effective domestic remedies      (Article 13) ;        (c)    whether or not there is an administrative practice,      domestic remedies are ineffective in this case, owing to the      failure of the legal system to provide redress ;        (d)    alternatively, the applicant has done everything she can do      to exhaust domestic remedies by submitting a formal complaint to      the local prosecutor ; the fact that it has yielded no result      confirms the ineffectiveness of any alleged remedy.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 21 December 1993 and was registered on 7 January 1994.        On 5 April 1994 the Commission decided to communicate the application to the Turkish Government who were invited to submit their observations on its admissibility and merits before 5 July 1994. At the Government's request, this time-limit was subsequently extended until 5 August 1994.        By letter of 29 July 1994 the Government asked for a further extension of the time-limit until 12 September 1994. The Commission's Secretary answered, by letter of 4 August 1994, that the Preesident of the Commission had not granted a further extension of the period concerned.        By letter of 6 September 1994 the Commission's Secretary pointed out to the Government that the period for the submission of the Government's observations had expired long ago. It was added that the application was being considered for inclusion in the list of cases for examination by the Commission at its October or November session.        No observations have been submitted by the Turkish Government.     THE LAW        The applicant complains of violations of Articles 3, 6 and 13 (Art. 3, 6, 13) of the Convention in that she was ill-treated and raped at a gendarme station to which she had been brought blindfolded.        The Government, which have been informed that the application was considered for inclusion in the agenda of the Commission at its present session, have submitted no observations on the admissibility and merits of the application.        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 application cannot be rejected on the ground that the domestic remedies have not been exhausted.        Moreover, the Commission is of the opinion that the application raises important questions of fact and law which cannot be resolved at the stage of the admissibility but require an examination on the merits. The application cannot therefore be considered manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and no other ground for declaring it inadmissible has been established.   For these reasons, the Commission, unanimously,   DECLARES THE APPLICATION ADMISSIBLE.   Secretary to the Commission             President of the Commission          (H.C. KRÜGER)                     (C.A. NØRGAARD)