CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 janvier 1996

.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. 19807/92                  by 1. Hüseyin ERDOGAN                       2. Sevgi ERDOGAN                       3. Esme SiMSEK                       4. Hüseyin SiMSEK                       5. ismail Hakki ILCI                       6. Nahit ÖZKAYA                       7. Mahmut Ali ELiUYGUN                       8. Necla NURLU                  against Turkey        The European Commission of Human Rights sitting in private on 16 January 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  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.P. PELLONPÄÄ                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              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 6 January 1992 by by Mr. Hüseyin Erdogan, Ms. Sevgi Erdogan, Ms. Esme Simsek, MM. Hüseyin Simsek, ismail Hakki Ilci, Nahit Özkaya, Mahmut Ali Eliuygun and Ms. Necla Nurlu against Turkey and registered on 7 April 1992 under file No. 19807/92;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 9 September 1992 to communicate the      application;   -     the observations submitted by the respondent Government on 7      January and 10 May 1993 and the observations in reply submitted      by the applicants on 8 April and 29 October 1993;   -     the additional information and observations submitted by the      applicants on 23 December 1994 and by the Government on 16 March      and 20 July 1995;   -     further information submitted by the applicants on 16 October      1995 and by the Government on 12 January 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are all Turkish citizens. They are relatives of ibrahim Erdogan, Yücel Simsek, ibrahim Ilci, Cavit Özkaya and Hasan Eliuygun, alleged members of Dev-Sol (Revolutionary Left) who were killed by the security forces in Istanbul on 12 July 1991.        The applicants' particulars, i.e., their dates of birth, place of residence and their relationship to those who were killed in the operation are as follows:   Name                Date           Resident     Relationship                    of birth       at   Hüseyin ERDOGAN       1933         istanbul    ibrahim Erdogan's father Sevgi ERDOGAN         1956         istanbul    ibrahim Erdogan's wife Esme SiMSEK           1946         istanbul    Yücel Simsek's mother Hüseyin SiMSEK        1942         istanbul    Yücel Simsek's father ismail Hakki ILCI     1960         izmir       ibrahim Ilci's brother Nahit ÖZKAYA          1962         istanbul    Cavit Özkaya's brother Mahmut Ali ELiUYGUN   1926         istanbul    Hasan Eliuygun's father Necla NURLU           1956         istanbul    Hasan Eliuygun's sister          The applicants are all represented before the Commission by Ms Françoise Hampson, senior lecturer in law in the University of Essex.        The facts as submitted by the parties may be summarised as follows.   1.    General background        On 12 July 1991 the police carried out operations against Dev-Sol activists in four buildings located in different areas in Istanbul. Ten alleged members of Dev-Sol were killed during these operations. No police were killed or injured.        According to the applicants, in every case, the victims had been under surveillance for some time and the area was sealed off before the operation. The applicants also submit that the operations were coordinated. According to some newspaper reports, the Minister of Interior Affairs at the material time had confirmed in a press statement that the victims had been under surveillance before the operations took place and that the operations had been coordinated.        According to certain of the newspaper reports, after the operations Mr. Mehmet Agar, Chief of the Istanbul Police, congratulated the members of the police force who had taken part in the raids.        The purpose of the operations, according to the Government, was to apprehend those who were suspected of having been involved in terrorist activities and to bring them to trial and also to prevent possible terrorist attacks.        According to the applicants, the purpose of the operations must be inferred from the result. All the alleged terrorists were killed. The only person injured was a resident in the building. Following the killings, there was no police investigation. The applicants assert that the arming of the police with grenades and their use during the operations was inconsistent with any intention to arrest.        The Government submit that the police made several calls to surrender. The police reports suggest that in each case several calls to surrender were made, to which the deceased replied by opening fire.        According to the applicants, the Government have failed to distinguish between the four different locations or to adduce independent evidence that calls to surrender were made in each case.        Certain newspaper reports suggest that there were calls to surrender, while some others claim that no call to surrender was made.        The Government submit that the deceased were armed. They further submit that in each case the deceased opened fire first. According to the police reports, in each location, guns and rifles of various size, bombs, hand grenades and material used for producing explosives were found. The Public Prosecutors' reports confirm this.        The applicants, who contend that no Public Prosecutor in fact attended at the scene of any of the operations, rely on the lack of any independent corroborative evidence of this assertion.   2.    Particular circumstances of each of the four operations        The circumstances of the four operations, which were coordinated, were as follows:   (a)   Ekmek fabrikasi Sokak, No 26/1 - Nisantasi - istanbul        According to the Police Reports, this apartment was the first to be raided at 19.00 hours on 12 July 1991.        The police reports suggest that there was an armed clash for one and a half hours between police and those inside the building. A resident (I.G.) who tried to run away from the place of the incident was shot by the police and wounded.         Two alleged terrorists were killed by the police at this location: ibrahim Ilci and Bilal Karakaya.        The autopsy report on Ilci states the cause of death as rib fractures and internal haemorrhage due to bullet wounds.   (b)   Dikilitas Gelincik Sokak, No 6/2, Besiktas - istanbul          The police reports suggest that this was the second building to be raided at 19.45 hours on 12 July 1991. They also suggest that there was an armed clash between the police and the alleged terrorists.        Cavit Özkaya and Hasan Eliuygun and three other alleged terrorists, Niyazi Aydin, Zeynep Eda Berk and Nazmi Türkcan, were killed at this address.        The autopsy report on Cavit Özkaya gives his cause of death as an internal haemorrhage, fractures of shoulder blades and ribs, concurrent with the perforation of internal organs resulting from bullet wounds.        A Forensic Pathologist who, at the request of the applicants, inspected the premises after the incident and examined the autopsy reports ("the Forensic Pathologist"), commented that the only fatal wound to the front of Özkaya was probably the last shot to the body and that it was fired when the body was on a firm surface, such as the ground. According to the Forensic Pathologist, three of the fatal shots and two non-fatal shots indicate that the individual was shot from behind.        The autopsy report on Hasan Eliuygun gives his cause of death as internal haemorrhage caused by bullet wounds. The report indicates that he was shot by five bullets. Five metal fragments also hit his body.   (c)   Balmumcu, Özmelik Apartmani, No 11/1 Besiktas, istanbul        This was the third building raided at 22.30 hours.        Two alleged terrorists were killed at this address: ibrahim Erdogan and Yücel Simsek. The official report claims that there was an armed clash with the people inside the building. No police were killed or injured.        The autopsy report on ibrahim Erdogan gives his cause of death as internal bleeding due to bullet wounds and skull and spinal column fractures. According to the autopsy report on Yücel Simsek, his death occurred as a result of internal and external haemorrhage, destruction of the brain and skull and vertebrae fractures caused by bullets and metallic parts of an explosive material.        According to the Forensic Pathologist, "there is no evidence of an exchange of gunfire having occurred within the apartment; the main room of the apartment shows evidence of a minimum of 9 gunshots having been fired, all 9 gunshots fired in the main room of the apartment were directed downwards towards the floor with a shooter to target distance of about 3 metres or less; if a person was shot dead within the main room of the apartment, the evidence suggests that the person was on or close to the floor, within 3 metres of the shooter, and was not firing a weapon at the time of being shot".   (d)   1. Levent, Birlik Sokak No 10/1, Besiktas - istanbul        The fourth raid took place at this location. One alleged terrorist, Ömer Coskunirmak, was killed there. His death is not the subject of any application to the Commission.   3.    Proceedings before the domestic authorities   (i)   Complaint by Sevgi Erdogan to the Public Prosecutor against the      Istanbul Chief of Police and the police officers who participated      in the operations        On 16 July 1991 the second applicant Sevgi Erdogan filed a complaint with the Public Prosecutor of istanbul. Her legal representatives claimed that, having regard to the use of grenades during the operation, the presence of explosive fragments found in the bodies of the deceased, the signs on the bodies which indicated that they had been shot at close range, the fact that the operation was carried out within a short space of time and the fact that all the people living in the raided house had been killed, it was apparent that the security forces had aimed at killing these persons rather than arresting them. It was further submitted that, as none of the members of the security forces had been injured, it was questionable whether there had really been any clashes. It was requested that criminal proceedings be instituted for murder against the Istanbul Chief of Police and the security personnel involved in the operation.        On 28 November 1991 the Istanbul Public Prosecutor's Office referred the matter to the istanbul Governor's Office to obtain a decision as regards prosecution pursuant to the provisions of the Law on the Prosecution of Civil Servants. The istanbul Provincial Administrative Council subsequently decided that there were no grounds for opening an investigation.   No appeal was lodged against this decision.   (ii) Criminal Proceedings instituted by the Public Prosecutor of      Istanbul before the Sixth Chamber of the istanbul Criminal Court      (Agir Ceza Mahkemesi)        In an indictment dated 25 February 1992, the Public Prosecutor of Istanbul charged nine policemen, in relation to the events in three locations referred to in Sections 2 (b) (c) and (d) above, with unintentional homicide and causing death in a way which rendered the identification of the perpetrator impossible. The charges were brought under Articles 452/1, 463, 50 and 51/2 of the Turkish Criminal Code.        During the first hearing which took place on 21 April 1992 the applicants Sevgi Erdogan, Nahit Özkaya, Hüseyin Simsek, Esme Simsek and Mahmut Eliuygun applied to the Court to intervene in the proceedings. In their statement to the Court, the applicants submitted that, "apart from the so-called warnings to surrender, there was no indication of either an intention or a willingness to arrest these people alive ... It is essential in this case to investigate whether or not the object of the operation was to arrest these people". The Court granted their applications at the hearings on 7 July and 15 September 1992.        Between 21 April 1992 and 16 June 1993 the defendants made their statements to the Court. Owing to the late appearance of some of the defendants, it took eleven hearings for the Court to complete the taking of oral evidence from all the defendants.        During the course of five hearings held between 23 September 1993 and 3 March 1994, the Court heard some twenty witnesses.        Between 1 June 1994 and 24 November 1994 the Court, at the request of the applicants' legal representatives, adjourned the hearings several times for them to make their final submissions.        In a decision dated 8 February 1995, the Court found no grounds for imposing any punishment on the defendants.   The Court noted the evidence according to which the deceased had participated in various terrorist activities. It also noted the evidence showing that weapons and explosives had been discovered in the flats of the deceased and found it established that the deceased were members of Dev-Sol. The Court noted that it had not carried out an examination at the sites of various operations as requested by the intervening parties since there had been an initial examination and since there was no purpose in any further examination having regard to the time which had elapsed since the events in question. The Court held that, according to the oral evidence given by the witnesses, in all three operations the area had first been sealed off and the deceased had been warned many times by megaphones. According to some witnesses, the deceased had started shooting from the windows and the security forces had fired back. Some witnesses had stated that they could not tell clearly who fired first. However, other witnesses confirmed that they had first heard shootings from the flats. The Court therefore found it established that the police had given the necessary warnings, and when being fired on, had started shooting back. It considered that, in all three cases, the defendants acted in accordance with their orders and within the scope of their duties. It found that the acts of the accused remained within the limits of legitimate defence.        A relative of Zeynep Eda Berk who had been killed during the operations appealed from the decision to the Court of Cassation. The appeal is still pending.        On 16 February 1995 a petition was submitted to the Court by Mr. Ahmet Düzgün Yüksel, signed in the capacity as the "legal representative for the intervening parties" without identifying the parties. In the petition Mr. Yüksel stated that he had been unable to be present at the hearing during which he understood that the Court had given its judgment and that he appealed against the Court's decision and would submit a detailed statement of appeal after receiving its reasoned judgment.   (iii) Criminal Proceedings before the Fourth Chamber of the istanbul       Criminal Court (Agir Ceza Mahkemesi)        These proceedings concern the killing of Ibrahim Ilci and Bilal Karakaya in respect of the raid at the first location (2 (a) above).        According to the Government's submissions, during the preliminary investigation, these proceedings were severed from the proceedings relating to the three other locations (3 (ii) above) and the case was referred to the Public Prosecutor of the Sisli District. The case was then referred back to the Public Prosecutor of istanbul.        In an indictment dated 1 June 1994 the Public Prosecutor of istanbul charged twelve police officers with intentional homicide and causing death in a way which rendered the identification of the perpetrator impossible. The charges were brought under Articles 450/5, 463, 281, 31, 33, 49/1-3 and 50 of the Turkish Criminal Code.        Between 1 June 1994 and 21 February 1995 all the defendants gave their statements to the istanbul Criminal Court.        At the hearing on 29 June 1995 the legal representative of the applicant ismail Hakki Ilci, brother of the deceased Ibrahim Ilci, requested to intervene in the proceedings. At the hearing of 21 September 1995, the Court ordered the submission of documents indicating the family relationship between Ismail Hakki Ilci and Ibrahim Ilci. The hearing was adjourned to 24 October 1995. The Commission has not been informed any further progress in these proceedings.   COMPLAINTS        The applicants allege, both in their own names and on behalf of their dead relatives, that they have been victims of violations of Articles 2, 6 and 13 of the Convention.        It is alleged that there has been a violation of Article 2 on a number of grounds. It is claimed that        (i) the intentional deprivation of life was not attributable to any of the exhaustive list of purposes set out in paragraph 2; alternatively        (ii) the deprivation of life was attributable to a use of lethal force disproportionate to any lawful ground on which force which might result in death could be used;        (iii) the deprivation of life was attributable to the use of a degree of force more than "absolutely necessary" to achieve any legitimate purpose;        (iv) there was a failure adequately to protect the right to life by initiating legal proceedings to determine whether or not those responsible for the deaths acted lawfully;        (v) there was inadequate protection of the right to life in domestic law.        It is alleged that Article 6 has been violated on account of the failure to initiate proceedings before an independent and impartial tribunal for a determination of the applicants' civil right to have the right to life of their relatives adequately protected and for determining whether or not those responsible for the deaths had acted lawfully.        It is alleged that Article 13 has been violated on account of the lack of any independent national authority before which these complaints can be brought with any prospect of success.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 6 January 1992 and registered on 7 April 1992.        On 9 September 1992 the Commission decided to communicate the application to the respondent Government and to ask for written observations on the admissibility and merits of the application.        The Government's observations were submitted on 7 January and 10 May 1993. The applicant submitted observations in reply on 8 April and 29 October 1993.        On 28 November 1994 the Commission decided to invite the parties to submit simultaneously their additional observations and information on the facts.        The applicants submitted their additional observations and information on 23 December 1994. On 16 March and 20 July 1995 the Government submitted their additional observations and information.        Further information was submitted by the applicants on 16 October 1995 and by the Government on 12 January 1996.   THE LAW   1.    The applicants complain, both in their own names and on behalf of their dead relatives, that they have been victims of violations of Article 2 (Art. 2) (right to life), Article 6 (Art. 6) (right of access to court) and Article 13 (Art. 13) (right to effective remedies) of the Convention.   2.    Exhaustion of domestic remedies        The Government submit that the applicants have failed to exhaust domestic remedies before lodging their application with the Commission as required by Article 26 (Art. 26) of the Convention.        The Government submit in this regard that   -     the complaint lodged against the istanbul Chief of Police was not duly pursued, as the applicants failed to file an appeal before the State Council against the decision of non-prosecution by the Provincial Administrative Council;     -     the criminal proceedings instituted against the police officers in respect of all four operation locations are still pending;   -     the applicants Hüseyin Erdogan and Necla Nurlu, relatives of the deceased Erdogan and Eliuygun, failed in any event to intervene in the criminal proceedings before the Sixth Chamber of the istanbul Criminal Court and therefore have not exhausted domestic remedies;   -     it is open to the applicants to bring a civil claim for compensation against the officers involved in the operations; and   -     it is also open to the applicants to file a claim for compensation against the Administration.        The Government assert that these remedies are effective and that Turkish Law envisages the enforcement of constitutional and Convention rights before the domestic courts. They submit that the purpose of the operation was to apprehend the suspects and bring them to justice and that there is no substantiation of the applicants' claim that the authorities officially instigated the killing of the persons concerned.        The applicants first maintain that the evidence in these cases relieves them of any need to exhaust domestic remedies. They argue in this regard that the deaths were the result of operations which had been officially authorised and approved and which had proceeded as planned and that this element of official instigation sufficed to relieve the applicants of the need to exhaust domestic remedies. They further assert that the provision of any remedy after the event cannot be a substitute for the prohibition of unlawful killings.        The applicants further submit that for the following reasons the available remedies were ineffective and that, to the extent that they were required to exhaust such remedies, they had in any event done so:   -     as regards their complaint against the Chief of Police, the applicants submit that the Public Prosecutor wrongly referred the case to the Governor. Since a prosecution was in any event brought against the police involved in the operation, there was no purpose in pursuing an appeal against the refusal of the Provincial Administrative Council to prosecute the Chief of Police. Furthermore such an appeal offered no prospect of success. There is no precedent for such proceedings against a Chief of Police;   -     the proceedings before the Sixth Chamber of the istanbul Criminal Court were and are fundamentally flawed, in that the indictments asserted that the police officers returned fire, thereby depriving the Court of the opportunity of examining the vital issue as to whether the deceased opened fire first; the proceedings advanced remarkably slowly; certain defendants had not been present at certain hearings because they were on duty; and the court failed to obtain the clothing of the deceased for forensic examination;   -     as regards the failure of Hüseyin Erdogan and Necla Nurlu to intervene in the proceedings, the applicants submit that there was no necessity for them to be made parties because Sevgi Erdogan and Mahmut Ali Eliuygun, relatives of the deceased Erdogan and Eliuygun, were parties and were able to raise all the issues concerning their killing;   -     as regards the proceedings before the Fourth Chamber of the istanbul Criminal Court, the applicants point especially to the length of the preliminary investigation before the proceedings were commenced;   -     the applicants maintain that civil proceedings against the police officers stand no prospect of success and are ineffective unless there has been a prior criminal conviction; and   -     the applicants further maintain that there is no precedent for an administrative remedy being sought successfully in such a case.        The Commission does not consider it necessary to determine whether the applicants were relieved of the need to exhaust domestic remedies on the grounds of their allegations that the killings were officially instigated, since for the following reasons the Commission finds that there has in any event been no failure to exhaust domestic remedies.        The Commission recalls that according to its constant case-law, the obligation to exhaust domestic remedies requires only that an applicant make normal use of remedies likely to be effective, adequate and accessible (cf. e.g. No. 19819/92, Dec. 5.7.94, D.R. 78 p. 88). An applicant does not need to exhaust 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. 11.5.89, D.R. 61 pp. 250, 262).        In the present case the Commission notes that the operations which took place in four different locations appear to have been coordinated. It further observes that two separate sets of criminal proceedings were instituted before the Fourth and Sixth Chambers of the istanbul Criminal Court and that all but two of the applicants intervened in the proceedings before the Sixth Chamber and an application was made by the applicant Mr. Ilci to intervene in the proceedings before the Fourth Chamber, the outcome of which application is not known to the Commission.        The Commission considers that in principle such proceedings constitute a domestic remedy which the applicants were required to exhaust. However, in determining whether in practice the proceedings afforded the applicants an effective domestic remedy and, if so, whether the applicants may be treated as having exhausted the remedy, regard must be had to the length of the proceedings and to the time which has elapsed since the events of which complaint is made (see mutatis mutandis No. 21895/93, Cagirga v. Turkey, Dec. 19.10.94, unpublished).        In this respect the Commission notes that the deaths in question occurred on 12 July 1991 (some four years and six months ago). As regards the deaths of ibrahim Erdogan, Yücel Simsek, Cavit Özkaya and Hasan Eliuygun, the criminal proceedings in the Sixth Chamber of the istanbul Criminal Court commenced on 25 February 1992, but the trial did not conclude until nearly three years later, on 8 February 1995. The Commission observes in particular that, owing to the late attendance of certain of the defendants, it took eleven hearings over a period of some seventeen months for the court to complete the taking of oral evidence from all the defendants. The Commission further notes that, although an appeal has been lodged against the decision of the Sixth Chamber by a relative of one of the persons killed in the police operations, the appeal is still pending and it is unclear when a determination is likely to be reached.        As regards the death of ibrahim Ilci, the Commission notes that there was a delay of some three years in instituting criminal proceedings against the police officers concerned, for which the Government have given no satisfactory explanation. The criminal proceedings which were eventually instituted before the Fourth Chamber of the istanbul Criminal Court were still pending in October 1995 and, on the information available to the Commission, have not yet concluded.        The Commission is of the opinion that the delays involved in the institution and prosecution of the criminal proceedings cast some doubt on the effectiveness of these remedies in the present case. However, even assuming that the criminal proceedings are to be regarded as remedies which the applicants were in principle required to exhaust, the Commission considers that, having regard to the lapse of time since the deaths in question, the applicants must be taken to have exhausted these remedies, despite the fact that the proceedings in the Fourth Chamber have not concluded and that it is unclear whether an appeal has been lodged on behalf of any or all of the applicants from the decision of the Sixth Chamber.        In these circumstances, it is not necessary to consider whether the criminal proceedings in the Sixth Chamber were in any event fundamentally flawed in the respects alleged by the applicants. Nor, since criminal proceedings were in any event brought against the police officers concerned in the operation, does the Commission find it necessary to consider whether the complaint against the istanbul Chief of Police was properly pursued by the applicants.        The Government submit that the first and eighth applicants, Hüseyin Erdogan and Necla Nurlu, relatives of the deceased Erdogan and Eliuygun, failed to intervene in the criminal proceedings and therefore have not exhausted the domestic remedies. In this regard, the Commission recalls that when an application is lodged by more than one party, the Commission may, in certain circumstances, examine the entire application despite the fact that only one party has exhausted domestic remedies (cf. No. 9905/82, Dec. 15.3.84, D.R. 36 pp. 187, 192). The Commission observes that in the present case the applicants Sevgi Erdogan and Mahmut Ali Eliuygun, who are also relatives of the deceased Erdogan and Eliuygun, intervened in the proceedings and were able to raise all the issues concerning their killing. It therefore considers that the first and eighth applicants were absolved from the need personally to exhaust domestic remedies by intervening in the proceedings.        The Commission also finds that in the circumstances of this case, the applicants are not required to pursue any further legal remedy concerning their complaints (see e.g. No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75 pp. 207, 215).        Having regard to the above, the Commission concludes that the applicants may 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 Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.   3.    As to the substance of the applicants' complaints        As to the complaint under Article 2 (Art. 2) of the Convention, the Government submit that the use of force was lawful and necessary. They rely, inter alia, on the facts that the deceased were armed, that in each case several calls to surrender had been made and that the deceased refused to surrender and opened fire on the security forces. The applicants maintain their allegations, inter alia, that there is no independent evidence as to whether or not calls to surrender were made and whether the deceased opened fire first. They assert that the arming of the police with grenades and their use by the police was inconsistent with an intention to arrest. They also rely on the findings of the Forensic Pathologist which cast doubts on the circumstances in which the applicants' relatives were killed.        As regards the complaints under Articles 6 and 13 (Art. 6, 13) of the Convention, the Government submit that there exist effective domestic remedies including the criminal proceedings instituted in the Fourth and Sixth Chambers of the istanbul Criminal Court. The applicants maintain their allegations as to the inadequacy and ineffectiveness of the remedies.        In the light of the parties' submissions, the Commission considers 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, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.   Secretary to the Commission              President of the Commission           (H.C. KRÜGER)                           (S. TRECHSEL)