CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 avril 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. 23143/93                       by 1. Sevtap YOKUS                          2. Musa FARISOGULLARI                          3. M. Selim SEFTALI                          4. Yuksel ZENGIN                          5. Bedri ALTINDAG                          6. Omer YARDIMCI                          7. Ahmet CICEK                          8. Kadri KAYA                          9. Osman KARAKAS                         10. Ismet SUZER                         11. Ahmet SEVER                         12. Abdullah ZENGIN                       against Turkey        The European Commission of Human Rights sitting in private on 3 April 1995, the following members being present:              MM.    C.A. NØRGAARD, President                  H. DANELIUS                  C.L. ROZAKIS                  S. TRECHSEL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY              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 7 December 1993 by Sevtap Yokus and 11 others against Turkey and registered on 19 August 1993 under file No. 23143/93;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The facts of the present case as submitted by the applicants may be summarised as follows:        The applicants are all members of the Diyarbakir Branch of the Education and Science Workers Union (Egit-Sen). They are represented before the Commission by Professor Kevin Boyle, Ms. Francoise Hampson and Ms. Sheldon Leader, all university teachers at the University of Essex.        The Union was founded on 13 November 1990, but has never been granted formal legal status. The Diyarbakir Branch was declared illegal by the Office of the Chief of Police and the Mayor of Diyarbakir.        On 26 October 1992 a meeting between the union and the National Education Director was arranged for the following day. The purpose was to appeal to the Director to put an end to the 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 to other regions.        The fourth applicant, Yuksel Zengin, was the first to arrive at the meeting on 27 October 1992. When he saw that there were police forces outside the Directorate, he explained to them that there was not going to be any protest action but only a meeting with the Director. The police accepted that a meeting had been arranged by appointment, but said that they had no intention of leaving.        Shortly thereafter, about a hundred members of the trade union, including the other applicants, arrived and were allowed into the grounds of the Ministry. The Director said he could only receive a small delegation and those not part of that delegation could leave. The delegation went into the building, but the police did not allow the remainder of the group to leave. The persons who had gathered there were surrounded by the police who filmed, verbally abused and threatened them. During the filming, the commanding officers said to their officers, "Look at them well, get to know them well. From now on, if anything happens pick them up from the schools and bring them in. These are traitors." After the filming, the police carried out an identity check and wrote down everyone's identity details and home address. The fourth applicant submits that, following this development, the persons who were subjected to identity checks, have been telephoned, visited and disturbed in their homes.        While the filming and identity checks were taking place, the applicants M. Selim Seftali (third applicant), Kadri Kaya (eighth applicant) and Abdullah Zengin (twelfth applicant), together with eleven other attendants, were allegedly manhandled and detained.        M. Selim Seftali submits that when they were taken to the Police Headquarters, they were kicked and sworn at until they reached the eighth floor. When they got to the top, the policemen who had brought them said to their colleagues, "We have brought you some traitors". M. Selim Seftali was detained for 30 hours and released without charge.        After being arrested Abdullah Zengin was threatened by a plain clothes officer who said, "Take your steps carefully. Otherwise I will break your feet. We know what you are up to in the school. You shout slogans with your pupils." Abdullah Zengin was detained for one and a half days in the Headquarters of the Police Anti-Terrorism Branch and then released.        Kadri Kaya was detained for 29 hours and then released.        Since their release, none of these three applicants has been charged with any offence arising out of the meeting on 27 October 1992.        A woman educationalist, while being arrested, was allegedly kicked, slapped and abused.        In a later statement to the press, the National Education Director stated that the meeting had gone smoothly and that no teacher had been detained.        Since those events, the applicants claim to have been subjected to threats.        On 2 July 1993 the Diyarbakir Province National Education Disciplinary Committee examined a proposal to impose a disciplinary sanction on Yuksel Zengin (the fourth applicant). It was stated in the proposal that the applicant had signed a statement relating to a press conference as the Secretary to Egit-Sen, a trade union whose authorities and responsibilities were not known, i.e. its activities in Diyarbakir Province were unauthorised and therefore illegal. The proposal was brought in accordance with Article 125 D(g) of Law No. 657, which prohibits State officials from "giving information and statements to the press, news agencies, radio or television institutions when not authorised to do so". The proposed sanction was to suspend the applicant's promotion for a period of one year. The Committee, considering   that the applicant had a good record and that his defence was partly satisfactory, rejected the proposal and sent the file to the Governor's Office.        On 8 July 1993 the Governor of Diyarbakir Province disciplined the fourth applicant by a reduction of 1/30 of his salary in accordance with Article 125   C of Law No. 657. The Governor held that, based on the decision of the Committee, he had imposed a lower sanction on the applicant.   COMPLAINTS        The fourth applicant complains that the disciplinary penalty imposed upon him on 8 July 1993 by the Governor of Diyarbakir Province breached his Convention rights and freedoms as follows:   -     The penalty which was imposed upon him for signing a press      statement in his capacity as a trade union official constituted      an unjustified interference with his freedom of expression and      freedom of association, in relation to his trade union activity,      guaranteed by Articles 10 and 11 of the Convention.   -     The penalty was not the product of a fair and public hearing by      an independent and impartial tribunal as guaranteed by Article      6 para. 1 of the Convention.   -     The violation of Article 6 para. 1 in the disciplinary      proceedings was the result of a breakdown in the system of      justice to a degree that occurs on a systematic basis only in      South-East Turkey, and thus also constitutes discrimination under      Article 14 of the Convention.        The applicants allege the following violations of the Convention arising out of the meeting at the Diyarbakir National Education Directorate on 27 October 1992:   -     The third, eighth and twelfth applicants complain of a violation of Article 5 of the Convention, in that their arrest and detention were not for any legitimate purpose prescribed in paragraph 1 of that Article.   They assert in this regard that the police did not have any intention of charging them with any offence but rather wished to intimidate them.   -     The applicants all complain of a violation of Article 8 of the Convention, in that the filming and taking of their personal details by the police constituted an unjustified interference with their private life.   -     The applicants all complain of a violation of Article 11 of the Convention in that the intimidation, to which they were subjected for assembling at the National Education Directorate, constituted an unjustified interference with their freedom of peaceful assembly and their freedom of association in relation to their trade union activity.   -     The applicants   all complain under Article 14 in conjunction with Articles 11 of the Convention that, as trade unionists, they are subjected to legal disabilities and police action which are not applied to trade unionists in other parts of Turkey.        As regards the six months' time-limit laid down in Article 26 of the Convention, the applicants consider that, in view of the ongoing threats and intimidation to which they are exposed, there is a continuing situation for the purposes of fixing the time-limit for application to the Commission. The applicants further assert that the last action taken by the State against the fourth applicant, Yüksel Zengin, for his activities as a trade union official occurred on 8 July 1993, which was the latest event in this continuing situation. As a further alternative, the applicants consider that the six months' rule should be suspended in their case, since they have not been in a position to supply the full facts because of continuing fears of reprisal from the authorities.        As regards exhaustion of domestic remedies for the purposes of Article 26 of the Convention, the applicants submit that there is a fear of reprisal, which should be seen as a legitimate reason for not exhausting remedies. In any case, the remedies are not effective. There is a common practice of arbitrary application of the law, and for none of the wrongs they have suffered   is there an adequate prospect of receiving justice by having recourse to domestic remedies.   THE LAW   1.    The fourth applicant complains that the disciplinary penalty imposed upon him by the Governor of Diyarbakir Province for his statement to the press in his capacity as a trade union official violated Articles 10 and 11 (Art. 10, 11) of the Convention. Article 10 (Art. 10) of the Convention guarantees freedom of expression, subject to certain limited exceptions, and Article 11 (Art. 11) of the Convention guarantees freedom of association with others, including the right to form and join trade unions for the protection of one's interests, subject to certain restrictions concerning, inter alia, civil servants.        The Commission finds that these complaints raise questions involving the exhaustion of domestic remedies, as well as the facts and law. It cannot, therefore, on the basis of the present state of the file, determine the admissibility of these complaints and considers that it is necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this part of the application to the respondent Government.   2.    The fourth applicant also complains of a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that he allegedly did not have a fair   and public hearing by an independent and impartial tribunal in the disciplinary proceedings brought against him.        Article 6 para. 1 (Art. 6-1) of the Convention provides, inter alia, that "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ... ".        However, the proceedings brought against the fourth applicant were clearly of a disciplinary character and cannot be considered to have concerned either his civil rights and obligations or the determination of a criminal charge against him (cf. No. 9208/80, Saraiva de Carvalho v. Portugal, Dec. 10.7.81, D.R. 26 p. 262; No. 10059/82, Dec. 5.7.85, D.R. 43 p.5). Consequently, Article 6 (Art. 6) was not applicable to those proceedings.        It follows that this complaint is incompatible ratione materiae with the provisions of the Convention, pursuant to Article 27 para. 2 (Art. 27-2).   3.    The fourth applicant also complains of discrimination under Article 14 (Art. 14) of the Convention in that the violation of Article 6 (Art. 6) was the result of a breakdown in the system of justice that occurs on a systematic basis only in South-East Turkey.        Article 14 (Art. 14) prohibits discrimination only in relation to the enjoyment of Convention rights and freedoms. It is true that the fourth applicant has invoked Article 6 para. 1 (Art. 6-1) of the Convention in conjunction with Article 14 (Art. 14). However, as the Commission found above, the complaint under Article 6 para. 1 (Art. 6-1) is incompatible ratione materiae with the provisions of the Convention.        It follows that the complaint under Article 14 (Art. 14) of the Convention is likewise incompatible ratione materiae with the provisions of the Convention, pursuant to Article 27 para. 2 (Art. 27-2).   4.    The applicants M. Selim Seftali (third applicant), Kadri Kaya (eighth applicant) and Abdullah Zengin (twelfth applicant) complain of a violation of their liberty of person ensured by Article 5 para. 1 (Art. 5-1) of the Convention because, allegedly, their arrest and detention following the meeting of 27 October 1992 was not for any of the legitimate purposes prescribed in that provision.        Furthermore, in relation to the events which occurred on 27 October 1992, the applicants all allege the following violations of the Convention:   -     a violation of Article 8 (Art. 8) in that the filming and taking      of their personal details by the police at the meeting      constituted an unjustified interference with their private life;   -     a violation of Article 11 (Art. 11) in that the intimidation to      which they were allegedly subjected for assembling at the      Directorate constituted an unjustified interference with their      freedom of peaceful assembly and association; and   -     a violation of Article 14 in conjunction with Article 11      (Art. 14+11) of the Convention, in that the situation in South-      East Turkey is such as to constitute discrimination in the      enjoyment of their Article 11 (Art. 11) freedoms.        As regards exhaustion of domestic remedies pursuant to Article 26 (Art. 26) of the Convention,   the applicants submit that there is a fear of reprisal, which should be seen as a legitimate reason for not exhausting remedies. They also allege that there are no effective remedies.        The Commission is of the opinion that it does not need to decide whether the applicants may be said to have exhausted domestic remedies, since Article 26 (Art. 26) of the Convention also provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken". According to the Commission's constant case-law, where no domestic remedy is available, the six month period runs from the act alleged to constitute a violation of the Convention, unless there is a continuing situation, in which case the six month period runs from the end of that situation (No. 9303/81, Dec. 13.10.86, D.R. 49 p. 44). The Commission further recalls that in the absence of a remedy against detention on remand, the six month period runs from the date of release from detention (No. 8130/78, Dec. 10.5.79, D.R. 16 p.120).        The Commission notes that, in the present case, the third, eighth and twelfth applicants were released from detention on remand on 28 October 1992. It further notes that the events which gave rise to the applicants' complaints under Articles 8, 11 and 14 (Art. 8, 11, 14) of the Convention occurred on 27 October 1992. Therefore the application, as regards these complaints, was filed after the expiry of the six months' time-limit.        The applicants have stated that, in view of the threats and intimidation to which they have been exposed and their fear of reprisals, the situation should be regarded as a continuing one, or that the six months' time-limit should be considered to have been suspended in their case.        The Commission cannot find on the facts of the present case that there exists a continuing violation of the Convention. Nor has it been shown that the applicants were unable to complain to the Commission during the period of six months following the meeting of 27 October 1992, or, as regards the third, eighth and twelfth applicants, following their release from detention. The Commission, therefore, finds that this part of the application has been lodged out of time and must be rejected in accordance with Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.        For these reasons, the Commission unanimously        ADJOURNS its examination of the fourth applicant's complaints      about violations of his freedom of expression and freedom of      association in relation to his trade union activity, allegedly      resulting from the decision of the Governor of Diyarbakir      Province on 8 July 1993;        DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.        Secretary to the Commission            President of the Commission          (H.C. KRÜGER)                          (C.A. NØRGAARD)