CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mars 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. 25354/94                       by Nuray SEN                       against Turkey        The European Commission of Human Rights sitting in private on 5 March 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                  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 4 April 1994 by Ms. Nuray Sen against Turkey and registered on 29 September 1994 under file No. 25354/94;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 8 December 1994 to communicate the      application;   -     the observations submitted by the respondent Government on      20 March 1995 and the observations in reply submitted by the      applicant on 18 May 1995;   -     further information and documents submitted by the respondent      Government on 14 November 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish citizen of Kurdish origin, was born in 1951 and resides at Nizip, Gaziantep. She is represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex, England. The applicant states that she makes the application not only on her own behalf but also on behalf of her deceased husband and her daughter.        The facts as submitted by the parties may be summarised as follows:        The applicant states that the following occurred:        The applicant's husband Mehmet Sen was a Turkish national of Kurdish origin. He was an active member of the Democracy Party (DEP) in Turkey until the party withdrew from local elections. He became the candidate of the DEP for the office as Leader of Ayran (Birecik, Sanli Urfa) Council in the 1994 local elections.        Throughout his involvement with the DEP, Mehmet Sen was followed and threatened by plainclothes police and this continued after his withdrawal from the candidacy.        On 25 March 1994, Mehmet Sen informed the applicant that he was not being followed by the usual plainclothes policemen but by other people who he said might be "hitmen".        On 26 March 1994 at approximately 5 p.m., two plainclothes policemen attended and drank at the Çagdas cafe in Birecik, which was owned by Mehmet Sen and R. A. At approximately 7 p.m., a Dogan SLX car (registration number 34 PLT 30) blocked the door of the cafe. Three plainclothes persons entered the cafe. The car engine was left running and a fourth person remained in the car. One of the three persons asked R. A. whether he was Mehmet Sen. When he answered he was not, the person went to Mehmet Sen who confirmed his identity and showed his identity card. Before nine people in the cafe, the abductors stated they were plainclothes police and said they were taking Mehmet Sen to Security. Mehmet Sen was grabbed by the arms and taken away in the waiting car. It was later ascertained that a second car with four persons inside left with the Dogan SLX car.        Upon hearing the news of the abduction, the applicant contacted:        (a) the Nizip Struggle with Terrorism Branch who denied having Mehmet Sen and denied any knowledge of the abduction;        (b) the Gaziantep Security Directorate who also denied any knowledge of the abduction;        (c) the Gaziantep Branch of the Human Rights Association (IHD) with a request that they look into the matter;        (d) the Gaziantep and Urfa Provincial Leadership and the Birecik District Leadership to request that they take initiatives.        Other persons also contacted the Gaziantep Security Directorate on the applicant's behalf but were told that they did not have Mehmet Sen in their custody.        On 28 March 1994, the applicant applied to the Nizip Prosecution by way of petition and reported that Mehmet Sen had been abducted.        On 30 March 1994, an unknown person telephoned the Özgür Gündem newspaper and the Gaziantep Branch of the DEP to state that Mehmet Sen's body was at the Gaziantep State Hospital.        The applicant went to the hospital and found that Mehmet Sen had been killed by torture. The condition in which the applicant found her husband's body was as follows:        - right eye gouged out,      - right side of the head crushed to pieces,      - right arm broken,      - fingers broken,      - marks evidencing blows to the body,      - a bullet wound to the head and one to the neck with no      traces of blood, implying that the shots had been fired after      death.        An autopsy report concluded as follows:        - bullet wound to the left side of the chest,      - bullet wound above right eyebrow, fired at almost point      blank range, exited body from back of the head,      - bullet wound to the left cheek, fired at a distance of 95 cm,      travelled through the body and lodged in the rib cage,      - no other wounds, blows to the body or head,      - death caused by bullet to head.        On 31 March 1994, the applicant and the DEP MP for Siirt Naif Günes met the representative of the Governor of Gaziantep. The Gaziantep Security Director and the Provincial Gendarme Commander were also present. The Gendarme Commander said that the body of Mehmet Sen had been found by a shepherd near Karpuzalan village, Sehit Kamil District, Gaziantep, and that, following the find, gendarmes had collected the body.        The State Prosecutor N. A. gave the applicant the same information. However, he also stated that the body had no identity card on it, and therefore the autopsy report was headed "unidentified body".        However, the applicant was informed that a person at the hospital had witnessed four plainclothes policemen take Mehmet Sen's body to the hospital morgue on the night of 29 March 1994.        On 13 April 1994, the Gaziantep Branch of the IHD, on behalf of the applicant, made an application to the Governorship of Gaziantep and the State Prosecution. On 22 April 1994, the Governorship replied that it had not been possible to determine any suspect or suspects but that the inquiry was continuing. The State Prosecution has also indicated that the inquiry into Mehmet Sen's death was continuing.        The applicant is not satisfied with the inquiry and the answers she has been given. The information she has received is inconsistent with her own findings in the following ways:        (a) The Gendarme Commander stated that the body was found by a shepherd in the countryside near Karpuzalan village and that the body was collected by gendarmes. However, a person at the hospital has said that on the night of 29 March 1994 four plainclothes policemen took the body to the morgue.        (b) The Gendarme Commander stated that there was no identity papers on the body. However, on 30 March 1994 an unknown person telephoned the Özgür Gündem newspaper and the Gaziantep Branch of the DEP to state that Mehmet Sen's body had been taken to the morgue. The body had obviously been identified by this unknown person.        (c) The applicant, who saw her husband's body, could observe clear signs of torture to the body. In the autopsy report there is no reference to torture and the description of the state of the body differs greatly from what the applicant saw.        (d) Although the abductors stated before some nine people in the Çagdas cafe that they were plainclothes policemen, the Gendarme Commander has denied that police were involved in the abduction.        The applicant has continued to contact the State for answers. She was informed on 26 May 1994 by the State Prosecutor that no developments had been made.        The respondent Government state the following:        According to the statements of O.O. and M.Y., on 26 March 1994, one of the three persons entered the cafe where Mehmet Sen was playing cards. One of these persons asked where he could find Mehmet Sen. When Mehmet Sen presented himself, he was asked to show his identity card. Then the person in question came closer to Mehmet Sen and showed him a card. O.O. and M.Y. and other eye witnesses R.A., A.S. and D.K. stated that they had not seen the card shown to Mehmet Sen. They also stated that the persons who came in the cafe had not openly presented themselves as plainclothes police. R.A. stated that Mehmet Sen had not resisted the abductors as if he had known them.        On 29 March 1994, Mehmet Sen's body was found in a building yard near Kahramanmaras - Gaziantep highway. On the same day an autopsy was carried out. The autopsy report concluded that the death resulted from a skull fracture, destruction of the cellular tissues of the brain and an internal haemorrhage due to a bullet wound. There were no signs of assault or torture.        The Nizip Public Prosecutor started an investigation into the killing of Mehmet Sen. On 18 May 1994, a decision of non-jurisdiction was issued and the file was sent to the Gaziantep Public Prosecutor. According to the preliminary findings, Mehmet Sen was not taken into custody by the security forces. The car by which he was driven away carried a false registration number. The inquiry is still pending.   COMPLAINTS        The applicant complains of violations of Articles 2, 3, 6, 13 and 14 of the Convention.        As to Article 2, she alleges that her husband was intentionally deprived of his life contrary to that Article and that the right to life has also been infringed because of the failure to initiate legal proceedings to determine whether or not those responsible acted lawfully. She also refers to the inadequate protection of the right to life in domestic law.        As to Article 3, she alleges that her husband was subjected to torture and that she herself has suffered inhuman treatment in that she has been unable to discover what events led to the death of her husband.        As to Article 6, she alleges that she has been denied effective access to court on account of the failure to initiate proceedings before an independent and impartial tribunal against those responsible for the killing and the injuries, as a result of which she cannot bring civil proceedings arising out of those events.        As to Article 13, she refers to the lack of any independent national authority before which her complaint can be brought with any prospect of success.        As to Article 14, she refers to an administrative practice of discrimination on grounds of race. She considers that this Article has been violated in conjunction with Articles 2, 6 and 13, since only Turkish citizens of Kurdish origin are regularly subjected to unlawful killings and are affected by the breakdown of the investigation, prosecution and court system.        As to the exhaustion of domestic remedies, the applicant maintains that there is no requirement that she pursue such remedies, since any alleged remedy is illusory, inadequate and ineffective because        (a) the operation which led to the killing was officially planned, organised and executed by agents of the State,        (b) there is an administrative practice of non-respect of the rule which requires the provision of effective domestic remedies (Article 13),        (c) whether or not there is an administrative practice, domestic remedies are ineffective in this case owing to the failure of the legal system to provide redress,        (d) whether or not there is an administrative practice, the situation in South-East Turkey is such that potential applicants have a well-founded fear of the consequences, should they invoke alleged remedies.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 4 April 1994 and registered on 29 September 1994.        On 8 December 1994, the Commission decided to communicate the application to the Government and ask for written observations on the admissibility and merits of the application.        The Government's observations were submitted on 20 March 1995. The applicant's observations in reply were submitted on 18 May 1995.        Further information and documents were submitted by the Government on 14 November 1995.   THE LAW        The applicant alleges that her husband was killed in circumstances for which the State is responsible.   She invokes Article 2 (Art. 2) (the right to life), Article 3 (Art. 3) (prohibition on inhuman and degrading treatment), Article 6 (Art. 6) (the right of access to court), Article 13 (Art. 13) (the right to effective national remedies for Convention breaches) and Article 14 (Art. 14) (prohibition on discrimination) of the Convention.        Exhaustion of domestic remedies        The Government submit 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 investigation initiated by the Public Prosecutor of Gaziantep into the killing of the applicant's husband is still pending.        The applicant maintains that there is no requirement that she pursue domestic remedies. In her opinion, any purported remedy is illusory, inadequate and ineffective since, inter alia, the killing of her husband was planned and executed by agents of the State. She refers to an administrative practice of unlawful killings giving rise to a presumption that the local remedies are not effective.        The applicant further argues that, whether or not there is an administrative practice, domestic remedies are ineffective in this case, owing to the failure of the legal system to provide redress.        As regards the investigation by the Public Prosecutor of Gaziantep, she has made various applications to ensure that her husband's death was investigated. The only response to her inquiries was that the inquiry was continuing and there were no developments or clues.        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. 11.5.89, D.R. 61, pp. 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, because it agrees with the applicant that it has not been established that she had at her disposal adequate remedies to deal effectively with her complaints.        The Commission notes that while the Government refers to the pending inquiry by the public prosecutor into the death of the applicant's husband on or around 26 March 1994, almost two years have elapsed since the killing and the Commission has not been informed of any progress having been made in the investigation. In view of the delays involved and the serious nature of the crime, the Commission is not satisfied that this inquiry, in the prevailing circumstances, can be considered as furnishing an effective remedy for the purposes of Article 26 (Art. 26) of the Convention.        The Commission 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 (see eg. No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75, p. 207). 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 submit that Mehmet Sen was never taken into custody by the security forces. Referring to the witness statements, they submit that the persons who abducted Mehmet Sen had not openly stated that they were plainclothes officers. The eye witnesses had not clearly seen the card or identity document shown to Mehmet Sen by one of these persons. Therefore, the persons who abducted Mehmet Sen wanted to give the impression that they were police officers in order incriminate the State.        As regards the allegations of ill-treatment, the Government submit that the autopsy report stated that there were no signs of assault or torture.        The Government further submit that the submission of the applicant that Mehmet Sen's body was taken to the hospital morgue on the night of 29 March 1994 by four plainclothes policemen is unfounded.        The applicant maintains her account of events.        The applicant further submits that the witness statements to which the Government refer cannot be relied upon. Some of the descriptions in those statements are identical as if they have been written by one person.        The applicant also submits that she had witnessed clear signs of torture to her husband. She questions the reliability of the autopsy report. She asserts that in November 1994, her husband's father was handed by Birecik Public Prosecutor a ring and a watch belonging to her husband. This fact contradicts the autopsy report which stated that no money or valuables were found on the body.        The Government in reply submit that the personal belongings found on the body of the deceased were duly delivered to the justice of the peace in accordance with the provisions of the Turkish Civil Code. The Birecik Justice of the Peace, after establishing who were the heirs of the deceased, delivered the watch and the ring to the applicant.        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 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)