CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 février 1995

.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. 21986/93                     by Behiye SALMAN                     against Turkey        The European Commission of Human Rights sitting in private on 20 February 1995, the following members being present:             MM.   C. A. NØRGAARD, President                H. DANELIUS                C.L. ROZAKIS                S. TRECHSEL                A.S. GÖZÜBÜYUK                A. WEITZEL                J.-C. SOYER                H.G. SCHERMERS           Mrs. G.H. THUNE           Mr.   F. MARTINEZ           Mrs. J. LIDDY           MM.   L. LOUCAIDES                M.P. PELLONPÄÄ                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                I. BÉKÉS                J. MUCHA                D. SVÁBY                E. KONSTANTINOV                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 20 May 1993 by Behiye SALMAN against Turkey and registered on 7 June 1993 under file No. 21986/93;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      31 January 1994 and the observations in reply submitted by the      applicant on 23 March 1994;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish national born in 1950, is a housewife.        She is the widow of Agit Salman and is represented before the Commission by Professor Kevin Boyle and Mrs. Françoise Hampson, both university teachers at the University of Essex.        Particular circumstances of the case        The facts, as submitted by the applicant, may be summarised as follows:        In the early hours of the morning of 28 April 1992, plain clothes policemen who introduced themselves as such, came to the applicant's house, asking for Agit Salman. The applicant informed them that her husband was a taxi driver and that he worked at Aksoy taxi rank. The police officers left.        Later, at about 02.30, her husband's colleagues brought his taxi home and informed her that he had been detained by the police.        Mr. Salman was being questioned for "participating in the Nevroz celebrations in Adana on 23 March 1992. Lighting a fire in the road and chanting slogans of the terrorist PKK organisation to protest at the Sirnak incidents, taking part in illegal marches, being involved in attacks on security forces, being the cause of death of one person and injury of four persons in the clash which broke out, collecting money by force for the PKK in rural areas, participating in the killing of a person who was killed on 5 February 1992 and similar offences".        On the following day a telephone call was received from the police at the applicant's house at about 11.30 a.m. They asked that her son Mehmet should meet them at the taxi rank. He did so and was taken to the Adana Police Headquarters, Anti Terror Department, to make a statement. Mehmet was asked by a police officer if there had been anything wrong with his father, and when he replied there had not been, he was told that his father had died of a heart attack.        On 30 April 1992 the applicant, fearing that her husband had been killed by the police, made a formal complaint to the Adana Public Prosecutor. In the complaint she asserted that her husband had no heart condition and that she believed he had died as a result of torture.        On 18 May 1992 advocate Ramazan Uzkaya petitioned the Public Prosecutor, seeking a copy of the autopsy report and the preliminary investigation of the death by the prosecutor. He also informed the prosecutor that he had taken photographs of the body and that these would be presented to the prosecution and the court during trial. He stated that, when the body was examined by the family, there had been injuries and bruising on the lower armpits, the legs and the soles of the feet, those marks being consistent with torture.        On 20 May 1992 the applicant's lawyer made a legal application for the autopsy report but was informed that it was not authorised by the law to supply the documentation requested. The autopsy report was later made available along with other medical records.        The autopsy report dated 21 May 1992 stated that:        "discoloration has set in on the back and on areas not      subject to pressure on the body of the circumcised male,      externally two superficial bloody blunt bruises, traumatic      graze wounds of dimensions 1x1cm were identified on the      front side of the left ankle, an old violet-coloured bruise      traumatic echimose of dimensions 5x10 cm was identified on      the centre of the front side of the breast, two dried blunt      bruises, traumatic graze wounds of dimensions 3x1cm were      identified under the front part of the right armpit. No      injuries from a firearm or a sharp or pointed weapon were      observed."             The report concluded that the case should be sent to the Specialists Committee of the Forensic Head Offices in Istanbul for it to establish the cause of death.        On 8 July 1992 Mr. Uzkaya wrote to the Prosecutor to inform him that he had found a witness, present in the interrogation centre at the same time as Mr. Agit Salman. He requested that the Prosecutor should have this witness's statement recorded.        In its report of 15 July 1992 the Forensic Medicine 1st Specialist Committee suggested that the "superficial traumatic changes" on Mr. Salman's body "could be ascribed to the resistance and struggle during apprehension or his being placed in a vehicle after being taken ill". The report also records:        "breakage in the sternum corpus and fresh bleeding in the      surrounding soft tissues which could have been caused by      attempted resuscitation".        The report referred to the large size of the heart and the subject's longstanding heart disease and concluded:        "It is the unanimous and considered decision that death was      caused by the stoppage of the heart connected to      neurohumoural changes brought about by the pressure of the      incident because of his existent heart disease".        On 19 October 1992 the Adana Public Prosecutor, in a written decision, determined that there were no grounds to proceed against 10 named police officers mentioned in his decision as defendants, and all of whom were from the Adana Police Headquarters.        On 13 November 1992 the Tarsus Criminal Court refused the appeal, holding that the Adana Prosecutor's decisions had been "proper and appropriate". The case-files were ordered to be closed and the applicant was informed.        Pursuant to Article 343 of the Code of Criminal Procedure, the Minister of Justice, after communication of the case to the Government by the Commission, referred the case to High Court of Appeals for review of the Tarsus Criminal Court's refusal of the appeal.        A hearing in the matter took place before the High Court of Appeals on 1 December 1994.   COMPLAINTS        The applicant complains of violations of Articles 2 and 3 of the Convention in that her husband died as a result of torture in the hands of Adana Security Police who were interrogating him.        She further submits that the failure of the Prosecutor to commence proceedings against those identified as involved in the custody, detention and questioning of her husband, cannot be justified in the light of the medical and photographic evidence and the statement of a witness. She submits that it can only be concluded that the prosecuting authorities and the police have conspired together to cover up her husband's death and to frustrate justice. The conclusion of the Adana Prosecutor that it had been impossible to obtain evidence which justified a prosecution is an arbitrary decision in the light of the documentation and evidence in the case. The review of that decision by the Tarsus judge was equally arbitrary. The applicant submits there has been a breach of Article 6 of the Convention.        The applicant maintains that the Prosecutor's decision to the effect "that there is no place in law for the execution of further proceedings relating to the incident of the death of the deceased" is an indictment of the Turkish legal system. The applicant submits that there has been a breach of Article 13 of the Convention in the circumstances of this case.        It is further submitted that it is established in this and other cases submitted by applicants from South East Turkey that there is an administrative practice of violations of Articles 2, 3, 6 and 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 20 May 1993 and registered on 7 June 1993.        On 30 August 1993, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application.        The Government's observations were submitted on 31 January 1994 after one extension in the time-limit.   The applicant submitted observations in reply on 23 March 1994.        On 27 June 1994 Commission decided to adjourn the further examination of the case and to include it in the agenda of the session beginning on 10 October 1994. The Government were requested to provide information concerning pending proceedings in the High Court of Appeals.        On 11 October 1994, the Commission decided to invite the Government to submit their observations on the substance of the applicant's complaint within eight weeks.        The Government provided further information to the Commission by letter dated 11 January 1995.   THE LAW        The applicant complains about the death of her husband in custody. She invokes Article 2 (Art. 2) (the right to life), Article 3 (Art. 3) (prohibition of torture), Article 6 (Art. 6) (access to court) and Article 13 (Art. 13) (the right to effective national remedies) of the Convention.        Exhaustion of domestic remedies        The Government argue that the application is inadmissible since the applicant has failed to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention before lodging an application with the Commission.        The Government point out that the case is pending before the High Court of Appeals following the referral by the Minister of Justice.        The applicant maintains that there is no requirement that she pursue domestic remedies. Any purported remedy is illusory, inadequate and ineffective. She refers to an administrative practice of unlawful killings, torture and inhuman treatment and of not respecting the requirement under the Convention of the provision of effective domestic remedies.        Further, the applicant submits that, whether or not there is an administrative practice, domestic remedies are ineffective in this case having regard, inter alia, to the situation in South-East Turkey which is such that potential applicants have a well-founded fear of the consequences; limitations on rights and remedies created by the state of emergency; the lack of genuine investigations by public prosecutors and other competent authorities; positive discouragement of those attempting to pursue remedies; an official attitude of legal unaccountability towards the security forces; and the lack of any prosecutions against members of the security forces for alleged extra- judicial killings or torture.        In respect of the pending matter before the High Court of Appeals,   the applicant submits that this is the result of a referral by the Minister of Justice, the exercise of which power cannot be considered as part of the process of the exhaustion of domestic remedies required of an applicant.        The Commission recalls that Article 26 (Art. 26) of the Convention only requires the exhaustion of such remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress.   An applicant does not need to exercise remedies which, although theoretically of a nature to constitute remedies, do not in reality offer any chance of redressing the alleged breach. It is furthermore established that the burden of proving the existence of available and sufficient domestic remedies lies upon the State invoking the rule (cf. Eur. Court H.R., De Jong, Baljet and Van den Brink judgment of 22 May 1984, Series A no. 77, p. 18, para. 36, and Nos. 14116/88 and 14117/88, Sargin and Yagci v. Turkey, Dec. 11.05.89, D.R. 61 p. 250, 262).        The Commission does not deem it necessary to determine whether there exists an administrative practice on the part of Turkish authorities tolerating abuses of human rights of the kind alleged by the applicant.        The Commission notes that public prosecutor refused to initiate a prosecution against the police officers allegedly concerned in the detention and interrogation of the applicant's husband and that on 13 November 1992, the appeal against this decision was rejected by the Tarsus Criminal Court. While the Government refers to the pending review of this rejection before the High Court of Appeals, the Commission notes that almost three years have elapsed since the applicant's death and that the applicant's complaints were communicated to the Government on 30 August 1993, 18 months ago. No indication has been given by the Government as to the likely date of a decision in the pending review.   In view of the delays involved and the serious nature of the alleged crime, the Commission is not satisfied that the review carried out pursuant to the exercise of a discretionary power by the Minister of Justice, can be considered as furnishing an available and sufficient remedy which requires to be exhausted pursuant to Article 26 (Art. 26) of the Convention.        The Commission accordingly finds that in the circumstances of this case the applicant is not required to pursue any other legal remedy in addition to the public prosecutor's inquiry and the appeal against his decision (see eg. No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R.75). The Commission concludes that the applicant should be considered to have complied with the domestic remedies rule laid down in Article 26 (Art. 26) of the Convention. Consequently, the application cannot be rejected for non-exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3) of the Convention.        As regards the merits        The Government have made no comment on the substance of the applicant's allegations.        The applicant maintains her submissions.        The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Commission concludes, therefore, that the application is not manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.   Secretary to the Commission            President of the Commission          (H.C. KRÜGER)                          (C.A. NØRGAARD)