CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 février 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. 26144/95                       by Abdülrezak and Halil iKiNCiSOY                       against Turkey         The European Commission of Human Rights sitting in private on 26 February 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                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  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 19 May 1994 by Abdülrezak and Halil iKiNCiSOY against Turkey and registered on 6 January 1995 under file No. 26144/95;         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       8 August 1995 and the observations in reply submitted by the       applicant on 3 November 1995;         Having deliberated;         Decides as follows:   THE FACTS         The first applicant, Abdülrezak ikincisoy, a Turkish citizen of Kurdish origin, was born in 1933 and lives in Diyarbakir.         The second applicant, Halil ikincisoy, a Turkish citizen of Kurdish origin, was born in 1974 and lives in Diyarbakir. He is the son of the first applicant.         The applicants are applying to the Commission on their own behalf, on behalf of Mehmet Sah ikincisoy (born in 1971) the eldest son of the first applicant and brother of the second applicant, and on behalf of   Hüseyin ikincisoy the younger son (born in 1979), Makbule ikincisoy (born in 1970), Nefise ikincisoy (born in 1972) and Garipsah ikincisoy (born in 1976), all daughters of the first applicant.         They are represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both university teachers at the University of Essex.         The facts as submitted by the parties may be summarised as follows:   A.     Particular circumstances of the case   1.     Events relating to the death of Mehmet Sah ikincisoy and the       arrest and detention of the applicants and members of their       family         The applicants state as follows:         The applicants live in Melikahmet neighbourhood in Diyarbakir. On the night of 22 November 1993 both applicants were at their home. At about 01:00 hours there was a knock on the door of their house. When the first applicant, Abdülrezak, opened the door, he saw plain clothed members of the Anti-Terror Branch of the police. They introduced themselves to Abdülrezak as policemen but did not produce any identification. Four of them entered the applicants' house while others waited outside. The police went through the rooms in the house and asked where Abdülrezak's son, Mehmet Sah, was. Abdülrezak told the police that Mehmet Sah was staying with his uncle, Abdülrezak's brother. Mehmet Sah worked in the uncle's cafe at night. Three policemen then required the second applicant, Halil ikincisoy, to take them to the uncle's house.   One or two of the policemen stayed at Abdülrezak's house.         When Halil ikincisoy arrived at his uncle's building, one policeman stayed at the entrance of the building and the other two went up to the uncle's flat on the second floor. Halil ikincisoy knocked on the door and it was opened immediately. He saw that there were 23 people in the house - his uncle, his uncle's wife, his two sons, his daughter-in-law, their fifteen children, two workers from the uncle's cafe and his brother, Mehmet Sah.         The police looked at the identity cards of those present and searched the house. One policeman took the two workers into a room and began to take their statement. The others remained in the sitting room. At one point they heard two gunshots. They realised that a clash had broken out in the room where the policemen were questioning the two workers. One of the policemen was killed. After the gunshots the other policemen took Mehmet Sah and told him that someone had made a statement against him. Mehmet Sah was taken downstairs by the police so that they could place him in custody. Halil and the other occupants of the room were witness to this. Halil and the others in the room were very frightened because of the clash and because Mehmet Sah had been taken away;   they stayed in silence in the flat. Meanwhile, the workers went on to the roof and tried to climb down. Another clash was heard; apparently the workers had clashed with the police at the door. They learned later that one of the workers had died and the other escaped. One of the policemen was also injured. Press reports claimed that the workers were PKK members.         Ten to fifteen minutes after this second clash dozens of policemen surrounded the building. They searched the whole building. They entered the uncle's flat and Halil, his uncle Abdülkadir, his uncle's wife Adile, his uncle's son Nasir, his uncle's daughter-in-law Sabriye and his uncle's grandson Bilgi were all taken by minibus into custody to the Market Place Police Station. This station is located on Gazi street which adjoins Balikçilarbasi and Dörtyol in the centre of Diyarbakir. During the trip, the detainees were subjected to constant hitting by the police.         When Halil ikincisoy and the others entered the police station they were told to keep their heads to the wall, which they did. They were detained in the entrance hall. On the right hand side of the entrance hall in the Market Place Police Station there are three rooms. Two of these rooms are usually used for interrogation purposes while the third is the superintendent's room. Halil ikincisoy was called into one of the small rooms to make a statement. As he was entering the room, he saw through a hole in his tracksuit his brother Mehmet Sah lying face down in the next room, with his red leather jacket pulled over his face. Mehmet Sah was wearing the same clothes that he had been wearing when he was detained in his uncle's house.         In the other room, Halil ikincisoy was questioned about the incident by the police. He could not make out what was going on around him as he was constantly punched and kicked by the police. He told them what he knew and made an oral statement. Halil did not sign anything. This lasted about five minutes and then he was returned to the entrance hall.         In the meantime, the police had taken Abdülrezak, his son Hüseyin and his daughters Makbule, Nefise and Garipsah into custody. They were also transferred by minibuses and cars to the Market Place Police Station. When they entered they were forced to keep their clothes pulled over their heads to prevent them seeing anything. However, Abdülrezak says he saw - through the parting in his clothes - the other group   - Halil, Abdülkadir, Adile, Nasir, Sabriye and Bilgi ikincisoy - in the entrance hall. He asked his daughter, Nefise, in Kurdish if it was Halil who was sitting there. She replied that it was and that her uncle was there too. Both Nefise and Abdülrezak were beaten for talking. Abdülrezak was hit with an iron bar.         After he had been taken into the room to give his statement, Halil ikincisoy heard the second group being brought into the police station, When the others entered the hall, he did not dare to look up at the people. They were policemen standing beside them and the policemen who would pass them in the hall would abuse them or hit them. However, Halil recognised the voices of his father and sister and he heard his father ask if it was Halil who was in the entrance hall. He also heard his sister reply that it was. Halil recognised the cries of his sister.         Abdülrezak and his group stayed only five minutes in the station before being taken out, lined up and again being put into the minibuses. As Abdülrezak's eyes were not covered he was able to see easily that the person standing behind was his son Mehmet Sah who had pulled the clothes back over himself. Halil and his group were also put into minibuses. The minibuses took the detainees to some unknown destination. Abdülrezak says that his son Mehmet Sah was also present at this second destination. During the journey the applicants were beaten.         They were finally brought to a third place which they did not know either. Here they were interrogated. Abdülrezak was beaten and sustained two broken ribs. He was subjected to intense mental torture as he could hear the screams of his children while they were being tortured. Abdülrezak was told by the police that if anyone asked about Mehmet Sah, he must say that the police did not take him and that he had fled to the mountains to join the guerillas.         Abdülrezak was transferred to a cell where there were four other people. The others in the cell told him that he was in the Riot Police place. This is referred to amongst the people as the torture place. Officially it is a police station where student policemen are educated. It is located in Cezaevi in Diyarbakir.         Halil was taken to the second or third floor of the building. After about fifteen minutes, he was taken into a room for interrogation. He was asked the same questions as he had been asked in the Market Place station about the incident. Halil gave the same replies that he had given the police at that police station. While he was being questioned, he could hear the screams of his brother, Mehmet Sah, being tortured. Then Mehmet Sah's voice stopped.         Halil was then taken, blindfolded, into the torture room. He was made to strip until he was naked. The police then hosed Halil with pressurized water. He was beaten and the policemen stuck their hands down his throat to prevent his screams from being heard. When they had finished torturing Halil, he was left for about half an hour, naked, on a concrete floor in the hall where his family were. Finally, he was allowed to put on his tracksuit and was taken into another room. Here his blindfold was lifted a little and he was asked to identify people in photographs. Some of the people in the photographs were family members while others, he said he did not recognise. He was returned to the hall where he could hear screams from people, his family, being tortured.         He was then put into a cell with three other people. These people likewise told him that they were at the Riot Police place. Halil says that all three other detainees in his cell had also been severely tortured. One of these detainees, called Hüseyin, had a broken arm as a result of being suspended.         Abdülrezak was detained for four days. During his first   three days of detention, he was given no food or water, but simply left in his cell. On the fourth day he was taken to give a statement. He explained to the police all he knew. The police told him that Mehmet Sah had gone to the mountains and that he should go to get him. Abdülrezak said that Mehmet Sah had been taken into custody, that he was at the Riot Police place and that even his jacket was in the entrance hall. When they asked who owned the jacket he said that it was Mehmet Sah.         Abdülrezak was then taken with Hüseyin, Nefise, Garipsah, Makbule and Bilgi to the State Hospital. He did not tell the doctor that he had been tortured as he was scared. Abdülrezak's daughters did try to tell the doctor that they had been tortured. They told the doctor three times that they had been tortured. When they did this, the police took them to the cars and threatened to take them back to the interrogation centre if they repeated their claims. The girls were too scared to complain of torture after that. The doctor made no report. All five were then released.         Halil was not released until 14 days after his detention, He too was denied food during his first two days of detention. On the third day, he was further interrogated about the incident and he was asked if he knew certain people or not. He said he did not know them. He was beaten up again. He was also told that his brother had not been caught and that he had fled to the mountains. Halil refuted this and said that his brother had been taken into custody from the house and that he had heard his voice under torture. He was then returned to his cell and was twice transferred to different cells which were overcrowded. At one point, there were six people kept in a cell meant for only three persons. During his detention, Halil was only given one piece of bread a day and allowed to go to the toilet once a day.         On the twelfth day his statement was taken by the police. Two days later, he was released by the Prosecutor. On his release, Halil was taken to the doctors by the police who he alleges tortured him. They threatened him not to complain that he had been tortured. He did tell the doctor that he had been tortured but the doctor did not pay any attention to what he said. After he had told the doctor, the police threatened him again and he did not dare to repeat his complaint. His uncle's daughter-in-law, Sabriye, was also released on the same day. Abdülkadir and Nasir were remanded and put into prison.   A case has been opened against Halil ikincisoy and other members of the family. They are accused of being members of an illegal organisation and assisting illegal organisations.         On 6 December 1993 Abdülrezak went to the State Security Court (DGM) Prosecutor and gave him a petition relating to his son Mehmet Sah. The Prosecutor took him personally aside and showed him some photographs. Amongst them he recognised one of his son Mehmet Sah. He was naked from the waist up and there were no marks on his body. Abdülrezak inquired where his son was. The Prosecutor told   him that he had been killed on 25 November 1993 in a clash near the Öngözlü bridge 4-5 km from Diyarbakir and that his son had been buried in the cemetery. The Prosecutor gave him a document which said "Sent to the Offices of the Leader of the Council with Document No. Hz. 1993/5394 dated 25.11.1993". Later Abdülrezak went with Halil to the Offices of the Leader of the Council and they were sent from there to the Mardinkapi cemetery. They were shown an unmarked grave and were told that it was that of Mehmet Sah. They requested that it be opened but they were refused.         On 7 December 1993 Abdülrezak submitted a petition to the DGM Chief Prosecution requesting permission to open his son's grave. He also stated his desire to be allowed to visit the grave on Fridays and to be able to make a burial ritual.   The petition was refused verbally without being processed on the grounds that neither the DGM Chief Prosecution nor the DGM Prosecutor had the authority to grant permission.         On 13 December 1993 Abdülrezak made two more petitions to the DGM Chief Prosecution in Diyarbakir. In the first petition he stated that he thought that his son had been killed in custody and requested that they perform an autopsy in order to learn the truth about the circumstances of his son's death. In the second petition, entered as No. 1993/5702 Hz. A.B. and 1993/2096 Es., he requested information to be given to him as to the fate of his son, who had been taken into custody on 22 November 1993. According to two statements made by him on 13 December 1993, neither petition was processed. He states that the first petition was turned away without being processed officially and that he was told to apply to the court. In respect of the second petition, he was told that his son had been killed in a clash without the petition being processed at all.         On 13 December 1993 (and again on 18 January 1994) Abdülrezak also petitioned Mehmet Kahraman, the State Minister concerned with human rights in Ankara, to investigate the circumstances of his son's death. The Minister replied on 5 April 1994. He informed Abdülrezak that his application had been forwarded to the relevant Ministries (the Ministry of the Interior and the Ministry of Justice) and an investigation had been requested into the matter; however the Ministry of the Interior had replied in a letter of 21 March 1994, denying that Mehmet Sah ikincisoy had been taken into custody and claiming that there were no records on the matter.         The applicants are convinced that Mehmet Sah did not die in a clash but was killed in custody under torture. Halil witnessed his brother being taken into custody by the police. Both of the applicants claim that they saw him while he was in custody and heard his screams under torture.         The Government state as follows:         On 22 November 1993, pursuant to receipt of information concerning the PKK, a team of security officers went to the house of Abdülrezak ikincisoy to take Mehmet Sah, his son, into custody for questioning. On being told that he was at his uncle's house, the police officers were taken to the house by Halil ikincisoy. While searching the house, the police officers came under fire from four men lying in a room. One police officer was killed and one wounded. Of the gunmen one was killed and the others escaped.         Abdülrezak ikincisoy was taken into custody on 22 November 1993 at about 14.30 hours and released on 25 November 1993.         Halil ikincisoy was taken into custody on 22 November 1993 and released on 3 December 1993 after being brought before the public prosecutor.         Neither Halil ikincisoy or Abdülrezak ikincisoy made any complaint to the public prosecutor about alleged ill-treatment in custody.         On 23 November 1993, following receipt of information by telephone that two armed men were sheltering in a hut near the Ongözlü bridge, a security force team went to the   hut. Fire was opened on the security forces from the hut. During the subsequent armed clash, both men in the hut were shot dead.   One of the deceased was identified as Atilla Güller. The second body was not identified, no identity card being found on it, and photographs were taken. An autopsy was conducted on 24 November 1995. Subsequently, on 6 December 1993, by means of the photographs the unidentified deceased man was identified as Mehmet Sah ikincisoy by Abdülrezak ikincisoy.         The Government state that arms which were found near the hut at the bridge have been established by ballistics experts as having been used in the armed clash during the search at Abdülkadir ikincisoy's house.   2.     Events subsequent to the introduction of the application         The Government have submitted to the Commission a statement signed by the first applicant, Abdülrezak ikincisoy, taken by the public prosecutor on 6 June 1995 after the application was communicated. In this statement, he denies that he wanted to bring an application to the Commission and he states that he withdraws his complaint.         The applicants' representatives have subsequently submitted another statement signed by Abdülrezak ikincisoy, dated 31 October 1995, in which he explains that he was forced to sign the statement before the public prosecutor and confirms that he wishes his application to the Commission to continue.   COMPLAINTS         The applicants complain of violations of Articles   2, 3, 5, 6, 8, 9, 13 and 14 of the Convention.         As to Article 2 they complain of the death of Mehmet Sah ikincisoy whilst in police custody. They also complain of the threats to the lives of both of them during their detention, on account of the conditions and their subjection to torture.         As to Article 3 they refer to the acts of torture inflicted on all the applicant detainees while in the custody of the police at the Market Place police station and the Riot Police Headquarters. They also complain in relation to the two applicants in so far as the conditions of their detention, particularly the deprivation of food and sustenance over several days, constitute at a minimum inhuman treatment. The two applicants finally refer to their inability to obtain true information on the circumstances of Mehmet Sah's death and to open his grave to have an autopsy carried out.         As to Article 5 they allege that they were detained for periods between four and fourteen days in circumstances incompatible with the requirements of Article 5 paras. 1 (c), 3, 4 and 5 of the Convention, even taking into account the respondent Government's derogation.         As to Article 6 the applicants complain that the first applicant is unable to start proceedings to determine the circumstances of his son's death because of the refusal of the Prosecutor and other authorities, and that he is totally without remedy in determining the responsibility for his son's death and compensation for his torture and unlawful killing.         As to Article 8 they complain that the police arbitrarily entered their home in the middle of the night and took twelve family members into custody in total.         As to Article 9 they refer to the refusal of the authorities to permit the first applicant to open the grave where they buried Mehmet Sah and to allow him to rebury his son according to his religious beliefs and customs.         As to Article 13 they allege that there is a lack of any independent national authority which could offer them a remedy for the alleged violations.         As to Article 14 in conjunction with all the above articles of the Convention the applicants allege their family members have been discriminated against on the ground of their Kurdish origin.         The applicants maintain that they have made fruitless attempts to have their complaints addressed and they are not required to pursue any other alleged domestic remedies as they are illusory, inadequate and ineffective because:         a)    there is a systematic practice of torture and       disappearances and unacknowledged murders by the authorities in       Turkey and these practices make it impossible for the applicants       to seek adequate redress;         b)    there is an administrative practice of not respecting the       rule under Article 13 of the Convention which requires the       provision of effective domestic remedies;         c)    whether or not there is an administrative practice, the       refusal of the prosecution in this case to officially process the       first applicant's petitions and to give adequate oral replies to       them leaves the applicants with no legal channels open to them;         d)    alternatively the applicants have already exhausted all       available remedies as the petitions to the State Security Court's       Chief Prosecution were not processed; the first applicant has       also made an extra-judicial plea to the State Minister concerned       with Human Rights to intervene.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 19 May 1994 and registered on 6 January 1995.         On 3 April 1995, the Commission decided to communicate the application to the respondent Government.         The Government's written observations were submitted on 8 August 1995 after the expiry of the time-limit fixed for that purpose.   The applicant replied on 3 November 1995 within the extension of the time-limit granted.   THE LAW         The applicants allege that Mehmet Sah ikincisoy was killed whilst in police custody and that they are unable to have the grave re-opened to have an autopsy carried out and for his body to be buried by the family in accordance with their beliefs. They also complain of torture, ill-treatment and threats which they and other members of their family suffered while in police custody and of the circumstances of the applicants' arrest and detention. They invoke Article 2 (Art. 2) (the right to life), Article 3 (Art. 3) (prohibition on inhuman and degrading treatment), Article 5 (Art. 5) (right to liberty and security of person), Article 6 (Art. 6) (the right of access to court), Article 8 (Art. 8) (right to respect for family life and home), Article 9 (Art. 9) (freedom to manifest religion), Article 13 (Art. 13) (the right to effective national remedies for Convention breaches) and Article 14 (Art. 14) of the Convention (prohibition on discrimination).         The Government submit that the application should be dismissed:   1.     as regards the first applicant, since there is no valid application;   2.     for failure to exhaust domestic remedies in respect of the applicants' allegations of ill-treatment in custody;   Article 25: existence of a valid petition in respect of the first applicant         The Government submit that, as indicated by the statement of the first applicant to the public prosecutor dated 6 June 1995, the applicant had no intention of complaining to Strasbourg and that he wishes to withdraw any application in his name.         The applicants' representatives have submitted a statement dated 31 October 1995 from the first applicant to the effect that he had been obliged to sign a statement which he was unable to read after police came to his house and took him away. In the statement of 31 October 1995, he expresses his wish to continue with the application.         The Commission notes that the application submitted to it contains a power of attorney signed by the first applicant in favour of the applicants' representatives. The statement of 6 June 1995 to the public prosecutor does not in fact contest that this is the genuine signature of the first applicant.   The Commission finds no element to indicate that the application lodged in the first applicant's name was not a valid exercise of the right of individual petition under Article 25 (Art. 25) of the Convention. The Commission therefore has competence to examine it. Further, given the subsequent signed statement of the first applicant dated 31 October 1995 casting doubt on the voluntariness of an alleged intention to withdraw his application, the Commission finds that there is no basis on which it could safely proceed to strike the application from the list pursuant to Article 30 para. 1 (a) (Art. 30-1-a) of the Convention at the present time.         Further, the Commission has had regard to the serious matters which arise from the first applicant's statement of 31 October 1995, in particular, that it is alleged that the first applicant was taken from his home by the police to be questioned about his application to the Commission and required to sign a statement, which he was unable to read and which was not read to him. The Commission considers that these matters require examination under Article 25 para. 1 (Art. 25-1) in fine of the Convention, by which Contracting States undertake not to hinder in any way the effective exercise of the right of individual petition.   Applicants' allegations of ill-treatment in custody         The Government submit that the applicants have failed to exhaust domestic remedies in respect of their complaints of ill-treatment while in custody. Neither applicant has made a complaint to the public prosecutor in respect of their allegations.         The applicants accept that they did not make complaint at the time. They submit that the authorities' reactions to Mehmet Sah's death destroyed their trust in legal proceedings and they decided not to pursue cases for their own injuries. They consider (see above under Complaints) that remedies are illusory, inadequate and   ineffective since, inter alia, it is alleged that there is a widespread practice of torture in police custody.         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. A mere doubt as to the prospect of success however is not sufficient to exempt an applicant from submitting a complaint to the competent court (see eg. No. 20357/92, Dec. 7.3.94, D.R. 76-A, p. 80). 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).         The Commission notes that the ill-treatment in custody of which the applicants complain is prohibited by the Turkish Criminal Code and that it is not in dispute that if such acts took place, they would have been in contravention of the criminal law to which the police are subject. The Turkish legal system provides in such instances for investigation to be carried out by the Public Prosecutor who takes the decision whether or not to initiate a prosecution against the alleged perpetrators. In the event a decision not to prosecute is issued, there is the possibility under Article 165 of the Code of Criminal Procedure of appealing to a court. Further, there are court precedents indicating that police officers have been prosecuted and convicted for offences involving ill-treatment in custody and that payment of compensation has been ordered.         In the present case, the applicants have taken no step by which their complaints were brought to the attention of any relevant or competent authority, in particular, making no complaint to the public prosecutor. While in a previous case (Aksoy v. Turkey, No. 21897/93, Dec. 19.10.94, D.R. 79-A, p. 60), the applicant, who had complained of torture, was found to have exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention, the Commission recalls that it took the view that,   whether or not the applicant had expressly complained to the public prosecutor about his treatment, it had no doubt that there were elements arising in his interview with the prosecutor (in particular, his complaint that he was unable to use his hands) which should have alerted the prosecutor to the existence of possible grounds for an investigation or led him to seek further information as to the cause of the applicant's injuries. It is not apparent from the facts submitted in this application, that the substance of the applicants' complaints in respect of their alleged ill-treatment in custody was drawn to the attention of the public prosecutor either directly or indirectly, even though the first applicant was in contact with the Chief Prosecution office at the State Security Court shortly after his release.         The Commission has had regard to the apparently unsatisfactory nature of the response made by the authorities to the applicants' complaints in respect of Mehmet Sah. However, given the existence of a legal framework of redress to which they had recourse in respect of the death of Mehmet Sah, the Commission finds that the exhaustion of domestic remedies imposes in the circumstances of this case that the applicants do the minimum which might be required to bring their complaints to the notice of the competent authorities to give them the opportunity, as the basic principle at the heart of Article 26 (Art. 26) requires, to investigate and offer redress before the matter is pursued before an international jurisdiction. Consequently, the Commission finds that the applicants cannot be considered as having complied with the requirement for the exhaustion of domestic remedies laid down in Article 26 (Art. 26) of the Convention. The part of the application relating to their allegations of ill-treatment in custody must therefore be rejected for non-exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3) of the Convention.   Remaining complaints, including those relating to the death of Mehmet Sah ikincisoy         The applicants allege that Mehmet Sah ikincisoy was killed in custody under torture and invoke in this respect Article 2 (Art. 2) of the Convention.         Insofar as the Government's submissions that the applicants have failed to exhaust domestic remedies in respect of their complaints of ill-treatment while in custody can be interpreted as extending to their allegations about the death of Mehmet Sah while in police custody, the Commission notes that the first applicant made a number of approaches to the authorities:         (i) a petition of 7 December 1993 to the Chief Prosecution at the       State Security Court in which he asked for permission to open the       grave of his son;         (ii) a petition of 13 December 1993 to the Chief Prosecution at       the State Security Court, in which he stated that he did not       believe that his son was killed in a clash but believed that his       son, after being taken into custody, had been killed in custody;       he further asked for an autopsy to be performed in order to learn       the truth;         (iii) a petition dated 13 December 1993 to the Chief Prosecution       at the State Security Court in which he asked for information       about the fate of his son, pointing out that he had been taken       into custody by the police on 22 November 1993 from the home of       the first applicant's brother;         (iv) a petition of 13 December 1993 by the first applicant to Mr.       Mehmet Kahraman, State Minister for Human Rights, in which he       requested an investigation of the cause of his son's death.         The Commission notes that the first applicant has stated that none of his petitions to the Chief Prosecution were processed officially and that he was met with the reply that his son was killed in a clash. Further in the response to his petition to the Human Rights Minister, he was told that the Ministry of the Interior had made it clear that the first applicant's son had not been taken into custody in Diyarbakir and that there were no records on the matter.         The Commission considers that the first applicant made serious attempts to obtain an investigation about the cause of his son's death from relevant and competent authorities. In view of the reactions which he received from these authorities, he cannot, in the Commission's view, be required under Article 26 (Art. 26) of the Convention to pursue any other legal remedy in this regard (cf. No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75, p. 207).         The Commission concludes that the applicants may therefore be said to have complied with the domestic remedies' rule laid down in Article 26 (Art. 26) of the Convention and, consequently, this part of the application should not be rejected for non-exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3) of the Convention.         Insofar as the applicants complain also of their inability to obtain true information on the circumstances of Mehmet Sah's death or to open his grave to obtain an autopsy, their detention for periods of four to fourteen days, the inability to take proceedings or obtain a remedy for Mehmet Sah's ill-treatment and death in custody, the circumstances of the police raid, in which twelve family members were taken into custody, the refusal to allow the first applicant to rebury his son according to his religious beliefs and customs and of discrimination, the Commission notes that the Government have made no express comment. The Commission therefore finds no basis on which these complaints can be rejected for non-exhaustion of domestic remedies.         As regards the substance of the applicants' remaining complaints, the applicants submit, inter alia, that they are convinced that Mehmet Sah died as a result of ill-treatment in custody. They submit that the second applicant saw him being taken into custody and that both applicants saw and heard him while they were in custody.   They submit that the Government have affirmed that the applicants' home was raided and that they and members of their family were taken into custody and held for up to twelve days.         The Government submit that the applicants' complaints are devoid of any supporting evidence. They submit that Mehmet Sah was not taken into custody but killed when he participated in an armed clash against the security forces.         The Commission considers, in light of the parties' submissions, that these complaints raise complex issues of law and fact, the determination of which should depend on an examination of the merits as a whole. The Commission concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.         For these reasons, the Commission,         by a majority,       DECLARES INADMISSIBLE the applicants' complaints relating to       their alleged ill-treatment in custody;         unanimously,       DECLARES ADMISSIBLE, without prejudging the merits, the       applicants' remaining complaints;         unanimously,       DECIDES TO EXAMINE FURTHER whether there has been interference       with the effective exercise of the first applicant's right of       individual petition under Article 25 para. 1 (Art. 25-1) in fine       of the Convention.   Secretary to the Commission                  President of the Commission         (H.C. KRÜGER)                                (S. TRECHSEL)