CEDH · CASELAW;REPORTS;ENG — 8 avril 1997

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 22495/93                             Esref Yasa                               against                               Turkey                      REPORT OF THE COMMISSION                      (adopted on 8 April 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-24). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-20) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 21-24). . . . . . . . . . . . . . . . . . .3   II.   ESTABLISHMENT OF THE FACTS      (paras. 25-78) . . . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 25-48). . . . . . . . . . . . . . . . . . .4        B.    The evidence before the Commission           (paras. 49-61). . . . . . . . . . . . . . . . . . .7        C.    Relevant domestic law and practice           (paras. 62-78). . . . . . . . . . . . . . . . . . 10   III. OPINION OF THE COMMISSION      (paras. 79-137). . . . . . . . . . . . . . . . . . . . 13        A.    Complaints declared admissible           (para. 79). . . . . . . . . . . . . . . . . . . . 13        B.    Points at issue           (para. 80). . . . . . . . . . . . . . . . . . . . 13        C.    Approach to the evidence           (paras. 81-83). . . . . . . . . . . . . . . . . . 13        D.    As regards the complaints relating to Hasim Yasa           (paras. 84-88). . . . . . . . . . . . . . . . . . 14        E.    As regards Article 2 of the Convention           (paras. 89-107) . . . . . . . . . . . . . . . . . 15             CONCLUSION           (para. 108) . . . . . . . . . . . . . . . . . . . 19        F.    As regards Article 3 of the Convention           (paras. 109-112). . . . . . . . . . . . . . . . . 19             CONCLUSION           (para. 113) . . . . . . . . . . . . . . . . . . . 20                          TABLE OF CONTENTS                                                             Page        G.    As regards Article 10 of the Convention           (paras. 114-117). . . . . . . . . . . . . . . . . 20             CONCLUSION           (para. 118) . . . . . . . . . . . . . . . . . . . 21        H.    As regards Articles 6 para. 1 and 13 of the Convention           (paras. 119-122). . . . . . . . . . . . . . . . . 21             CONCLUSIONS           (paras. 123-124). . . . . . . . . . . . . . . . . 22        I.    As regards Articles 14 and 18 of the Convention           (paras. 125-128). . . . . . . . . . . . . . . . . 22             CONCLUSIONS           (paras. 129-130). . . . . . . . . . . . . . . . . 22        J.    Recapitulation           (paras. 131-137). . . . . . . . . . . . . . . . . 23   PARTLY DISSENTING OPINION OF MR. A.S. GÖZÜBÜYÜK JOINED BY MR. F. MARTINEZ . . . . . . . . . . . . . . . . . 24   PARTLY DISSENTING OPINION OF MR. L. LOUCAIDES . . . . . . . 25   APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 26   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a Turkish citizen born in 1962, who lives in Diyarbakir. He complains on his own behalf and on behalf of his uncle, Hasim Yasa, who was a Turkish citizen born in 1956 and resident in Diyarbakir until he was shot dead on 14 June 1993. The applicant is represented before the Commission by Professor K. Boyle and Ms. F. Hampson, both teachers at the University of Essex, England.   3.    The application is directed against Turkey. The respondent Government were represented by their Agent, Mr. B. Çaglar.   4.    The applicant alleges that he was seriously injured and his uncle killed in attacks by agents of the State as part of a campaign against persons involved in the distribution of certain newspapers, that he was ill-treated by the police while in detention and that he has no access to court or effective remedy in respect of these matters. He invokes Articles 2, 3, 10, 6, 13, 14 and 18 of the Convention.   B.    The proceedings   5.    The application was introduced on 12 July 1993 and registered on 20 August 1993.   6.    On 11 October 1993, the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 22 April 1994, after two extensions in the time-limit fixed for this purpose.   The applicant replied on 15 June 1994.   8.    On 30 August 1994, the Commission requested the Government to submit further information.   9.    On 24 October 1994, the Government provided further information after an extension in the time-limit. The applicant submitted comments on this information on 20 December 1994.   10.   On 3 April 1995, the Commission declared the application partly admissible, partly inadmissible.   11.   The text of the Commission's decision on admissibility was sent to the parties on 10 April 1995 and they were invited to submit such further information or observations on the merits as they wished. They were also invited to indicate the oral evidence they might wish to put before delegates.   12.   On 18 April 1995, the Government submitted supplementary comments on the application. On 24 April 1995, the applicant submitted supplementary information.   13.   Following an extension in the time-limit for the submission of observations on the merits, the Government provided observations on 17 July 1995. The applicant submitted comments on these observations on 7 September 1995.   14.   On 9 September 1995, the Commission examined the state of proceedings and decided to request further written observations on the merits in relation to specified questions, fixing a time-limit of 1 November 1995. The applicant's response was submitted on 3 November 1995. The Government were reminded by letter of 25 January 1996 that they had not replied to the Commission's request and informed that the Commission would shortly examine the application. A new time-limit of 22 February 1996 was fixed for the Government's response.   The Government's observations were received on 10 April 1996.   15.   On 18 May 1996, the Commission considered the state of proceedings. On its instructions, the Secretariat consulted the parties to verify that neither party considered that there was essential evidence that should be taken orally before the Commission's delegates. The parties were requested to respond by 17 June 1996. An extension was granted at the request of the Government until 5 July 1996.   16.   By letter dated 14 June, the applicant replied that there was no essential evidence which he wished heard by Commission delegates.   17.   By letter dated 2 July 1996, the Government informed the Secretariat that they had no objection to the hearing of witnesses. By letter dated 5 July 1996, the Secretariat replied that the Commission had not proposed taking evidence but that the Government should inform the Commission by 2 August 1996 if there were any witnesses which the Government considered should be heard. No further response has been received from the Government.   18.   On 19 October 1996, the Commission examined the state of proceedings in the application.   19.   On 8 April 1997, the Commission decided that there was no basis on which to apply Article 29 of the Convention.   20.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   21.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mr.   S. TRECHSEL, President           Mrs. G.H. THUNE           Mrs. J. LIDDY           MM.   E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                C.L. ROZAKIS                L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA                M. VILA AMIGÓ           Mrs. M. HION           MM.   R. NICOLINI                A. ARABADJIEV   22.   The text of this Report was adopted on 8 April 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   23.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   24.   The Commission's decision on the admissibility of the application is attached hereto as an Appendix.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   1.    Concerning the incidents involving the applicant and his uncle   a.    Facts as presented by the applicant   25.   Until recently the applicant carried out the business of a newsagent or newspaper vendor from a shop or a kiosk in the town of Diyarbakir. From October 1992 his life has been threatened by the police because he sold certain newspapers, especially Özgür Gündem and Özgür Halk.   26.   In November 1992 about a week before his shop was set on fire and burned down, he was visited by two police officers from the Diyarbakir Security Headquarters. One of them was Commissioner Kemal Fidan. The applicant did not know the other officer's name. These policemen told him that they would burn down his shop.   27.   In the early hours of 15 November 1992 his shop was set on fire and destroyed. He calculates the damages as being 70 000 000 Turkish Liras.   28.   After this incident, the other newsagents decided to make a protest strike and on a date unspecified in November 1992 refused to sell anything including all newspapers. The police forced the sellers to accept newspapers and sell them but the applicant refused. As a result he was taken to the police station where he was ill-treated.   29.   On 15 January 1993 at 07.00 hours   the applicant was shot at in the Mardin Kapi area in Turistik Street. He provides the following account: when he was going by bicycle from home to his workplace with his son, he noticed two people about 20-25 years old, one of them tall and the other of average height. As a passenger minibus came past him from behind very quickly he was driven towards the pavement where these men were and he stopped. At that moment he saw one of the two men firing a gun. Immediately he pulled out his unlicensed 7.65 mm pistol from his waist, and fired six shots. None of them hit the mark. But eight bullets from the gun fired at him hit his body, three of these grazing his back and one his right leg. One entered his right arm, one his left wrist, one between his left fore and middle fingers and one through his right buttock into his belly.   30.   The applicant got in a car and went to Diyarbakir hospital. He gave the driver his unlicensed gun and asked him to take it and leave it with one of his relatives.   31.   According to the applicant his operation to remove bullets in the Diyarbakir hospital intensive care unit was delayed for two hours by the actions of the police. His relatives were later subjected to insults and death threats at the hospital.   32.   The applicant spent 11 days in the hospital. His left arm and several fingers of his left arm are still unusable.   33.   The applicant made a statement to the police at the hospital in which he claimed that his assailants were police. He has not been asked to make a statement about this crime by any prosecutor.   34.   On 14 June 1993 at 07.30 hours, the applicant's uncle, Hasim Yasa, was shot and killed. He had been managing the applicant's newspaper business since March 1993, while the applicant kept away due to fear. He died as a result of bullets fired in the head by unknown assailants. His seven year old son was the only witness.   On the same day, the applicant was arrested, assaulted and threatened with death by the police. He was told by the police that they had carried out the shooting and that he was the intended target.   35.   Investigations by the public prosecutor at Diyarbakir into the shooting of the applicant and the killing of his uncle, which were commenced at a date unspecified in 1993, are still pending.   b.    Facts as presented by the Government   36.   The Government refer to the investigations of the public prosecutors into these events. They deny any allegations of wrongdoing, ill-treatment of the applicant or his uncle for which State authorities might be responsible. They state that the applicant has not complained to the public prosecutor that the shooting of himself and his uncle was the responsibility of the authorities.   2.    Proceedings before the domestic authorities        Concerning the shooting of the applicant   37.   A police report dated 15 January 1993 records the shooting to have taken place at about 07.15 hours in Turistik Street. Fifteen empty cartridges and two bullet shells were taken for forensic examination. A plan of the scene was drawn up.   38.   A police incident report dated 16 January 1993, countersigned by the applicant's brother Nazif Yasa and a nurse, records that the applicant was taken to hospital for treatment. The applicant was reminded of his right to a lawyer. The applicant stated that he was not fully conscious and that since he wanted a lawyer, he would not give a statement.   39.   A statement was taken by the police from the applicant in hospital on 17 January 1993 in the presence of his lawyer. This statement indicated as follows. On 15 January 1993, while riding on his bicycle to his newspaper kiosk with his son Diren on the back, he noticed two persons (description detailed) waiting, one about 10 metres away, and became alarmed that they intended some harm. He tried to turn his bicycle but it was struck by a taxi and he and his son fell to the ground. He was aware of one of the two men shooting at him and he drew his own Ceska pistol and fired back. He did not know if the second man fired since he was injured and fainting. The applicant stated that he was the intended murder victim because he ran a newsagent's business and sold specifically left wing newspapers. There had been previous attacks on newsagents which was why he had bought the Ceska pistol and had been carrying it with him for the previous three-four days.   40.   A police custodial and seizure record dated 15 January 1993 indicates that the applicant had given his pistol to the taxi driver who had taken him to hospital and that it had then been taken to the applicant's kiosk. The police questioned the person at the kiosk, Sahabettin Altunhan, about the gun and it was produced from a scrap tin box under the counter. The taxi driver and Sahabettin Altunhan were taken into custody and their statements concerning the gun were taken (dated   15 January 1993) from which it appears that the applicant gave the gun to the taxi driver who took him to hospital, that he had given it to another taxi driver (also taken into custody and a statement taken on 15 January 1993) who knew the applicant's kiosk and that that second taxi driver had placed the gun under the counter. The three persons concerned were released from custody the same day.   41.   In response to an enquiry of 15 January 1993 from the Security Directorate police, the hospital doctor recorded the following injuries to the applicant: one bullet entry to the left gluteal region, one bullet entry and exit to the middle left fore arm, one bullet scratch to the left index finger, one bullet entry and exit on the middle front upper right arm between the elbow and axillary region and a bullet track slightly below the skin tissue, surfacing under the arm.   42.   A summary incident report dated 17 January 1993 concerning the shooting incident and titled as crime record no 1993/C-14 referred to the applicant as an injured suspect and stated that the other unidentified suspects were at large.   43.   A note dated from 20 January 1993 from the public prosecutor requested the public security branch to pursue the grievous bodily harm case involving the applicant and to investigate and apprehend the suspects.   44.   An expert ballistics report from the Diyarbakir regional criminal police laboratory dated 11 February 1993 indicated that the cartridges found at the scene of the shooting on 15 January 1993 showed identical traces and marks to those in the shooting of Mehmet Tekdag in Diyarbakir on 11 February 1993 and in the killing of Mehmet Sait Erten in Diyarbakir on 3 November 1992.   45.   A hospital report to the public prosecutor dated 2 March 1993 indicated that the applicant's general medical state was good and that he was to be seen in a month's time. A further report dated 8 April 1993 indicated that the applicant would be unable to work for one month and that recovery would take two months.   46.   A note dated 14 April 1993 from the public prosecutor requested the public security branch to pursue the grievous bodily harm case involving the applicant and to investigate and apprehend the suspects, prepare the case-file and otherwise for the search to continue and the public prosecutor's office (office of the Attorney General) to be kept informed every three months until the end of the deadline (indicated as 15 January 1998).        Concerning the shooting of Hasim Yasa   47.   A preliminary investigation file no. 1993/2248 was opened into the killing of Hasim Yasa and is, according to a letter dated 2 November 1995 from the prosecutor at the Diyarbakir State Security Court, still pending. The file as provided by the Government contains an autopsy report dated 14 June 1993, recording four bullet entry wounds, two of which were fatal. The police prepared a scene of the incident sketch and took statements on 14 June 1993 from two witnesses at the scene of the shooting, which occurred about 07.50 hours. According to these statements, Vedat Simsek heard the shots, saw a person running behind the people who were gathering but would be unable to identify him. Ramazan Orhan, who ran a stall in the street, heard but did not see the shooting. When he reached the scene, Hasim Yasa was lying on the ground and he helped him into a taxi to take him to the hospital. Minutes noted by the police on questioning Hasim Yasa's son Aziz (7-8 years) recorded that the boy was with his father during the incident, that he saw but did not recognise the attacker. The boy stated that after the first shot Hasim Yasa fell to the ground, that the attacker repeatedly fired his gun at him and then made his escape. An expert ballistics report dated 21 June 1993 indicated that the bullet shells retrieved from the scene were too deformed for useful examination.   48.   No other information has been received concerning any steps of investigation taken in relation to these incidents.   B.    The evidence before the Commission   49.   In addition to the statements and investigation file materials referred to above, submissions and materials have been submitted relating to background events.        Facts as presented by the applicant   50.   The applicant alleges that there has been a campaign of persecution and attacks directed towards those involved in the distribution of certain newspapers, in particular, the Özgür Gündem. Reference is made to the following incidents:        Closure of the Özgür Gündem   51.   The Özgür Gündem ceased publication in April 1994 as the result of a culmination of prosecutions brought against it by the State. From its inception in May 1992, it had been subject to prosecutions and confiscations. It had temporarily ceased production from 15 January 1993 to 26 April 1993 due to the number of closure orders and fines. While it was never officially banned from sale, there were periods when confiscation and closure orders prevented or rendered difficult publication or distribution. The Özgür Ülke, the successor to the Özgür Gündem, was forced to close in February 1995 and the Yeni Politika which replaced it ceased publication in August 1995.        Attacks on Özgür Gündem staff   52.   The applicant has provided lists of attacks, ill-treatment, detentions and threats made against staff and distributors of the Özgür Gündem and similar newspapers in 1992, 1993 and early 1994. He alleges that these show a pattern of targeting persons working for Özgür Gündem.   53.   The applicant states that at least seven journalists working for the Özgür Gündem have been killed (Yahya Orhan, Hüseyin Deniz, Musa Anter, Hafiz Akdemir, Cengiz Altun, Ferhat Tepe and Kemal Kiliç) while others have been subject to attack and injury (Burhan Karadeniz, Mehmet Senol, Aysel Malkaç and Nazim Babaoglu). Numerous other journalists have been detained in custody and, in some instances, been subject to ill-treatment (Salih Tekin).   54.   The applicant states that news stands have been attacked for selling the Özgür Gündem:        - On 16 November 1992, the news stand of Kadir Saka was subject      to an arson attack in Diyarbakir. He claimed that he had been      threatened by the security forces prior to the burning.      - On 19 November 1992, in the Sehitlik district of Diyarbakir,      a stationers owned by Süleyman Sunal was burned down.      - In Mazidagi, the main newsagent was threatened and subject to      an arson attack.      - On 24 November 1992 in Bingöl a teashop belonging to Zeki      Bulut, which sold the newspaper, was burned.      - In early October 1993, in the Yüksekova district of Hakkari,      the newsagents belonging to Ferhat Altun was attacked by special      teams.      - On 21 October ?1993, the Kültür bookshop in Van was burned down      after a molotov cocktail was thrown into it by unidentified      persons. The shop had been previously threatened by the security      forces.      - On 3 December 1994, Özgür Ülke's headquarters in Istanbul and      the office in Ankara were bombed, killing one person and injuring      18.   55.   There have also been numerous incidents in which persons and vehicles involved in distributing the Özgür Gündem have been attacked. The applicant states that eleven vendors or distributors have been killed: Kemal Ekinci, Halil Adanir, Orhan Karaagar, Lokman Gündüz, Hasim Yasa, Zülküf Akkaya, Adil Baskan, Yalçin Yasa, Kadir ipeksümer, Mehmet Sencer and Adnan Isik. In addition, on 29 November 1992 newsagent Coskun Baloglu, who had been previously threatened, was attacked by two unknown persons with clubs and severely beaten; in September 1993, Abdülkadir Altan was seriously injured when he was attacked with meat axes by two persons within 150 metres of the Mardinkapi police station in Diyarbakir; on 2 January 1993, six persons selling the newspaper in Batman were stopped, beaten up and had their papers confiscated in full sight of the police who did not act; on 8 August 1993 Senol Öztürk who was distributing newspapers in Mersin was beaten up by the police and taken to the police station; the vehicle belonging to the main newsagent in Bingöl was destroyed by fire on 17 November 1992.   56.   The applicant also states that persons involved in distributing the newspaper have been frequently subjected to threats. In Bismil, the main newsagent ibrahim Savas was threatened that he would be killed if he sold the Özgür Gündem. On 18 November 1993, the main newsagent in Silvan, Gani Amac, was threatened and stopped selling the paper. In Batman, the chief newsagent Muharrem idman received death threats and stopped selling the newspaper. The applicant states that on 20 November 1992 20 newsagents in Diyarbakir decided not to sell the Özgür Gündem because of the risks involved. He refers also to 32 statements from streetsellers who in 1992-1993 decided not to sell the newspapers because of the risks involved. On 12 October 1993 Volkan distribution in Antalya received death threats for distributing the paper. They had already been subject to an arson attack and four vehicles doing freight work had been destroyed. They decided that they could no longer distribute the paper. A similar threat was made to Erdem Marketing in Antalya on 12 October 1993 and they also stopped distribution.   57.   A statement from the Secretary of the Human Rights branch at Diyarbakir made in or about June 1994 refers to an eight and a half months closure of the Özgür Gündem and it is alleged that the new newspaper, Özgür Ülke, intended to replace it, has been effectively prevented from being delivered to Diyarbakir, those copies which arrive being subject to seizure.   58.   Reference is also made to the numerous prosecutions instituted against the Özgür Gündem and its owners, editors and journalists, which have involved closure orders, confiscations and heavy fines. These are the subject of Application No. 23144/93 Ersöz and others v. Turkey, declared admissible on 20 October 1995. For example, from 31 May 1992 to April 1993, 39 out of 228 issues of the newspaper had been subject to confiscation orders and between April and July 1993 a further 41 issues were confiscated. The prosecutions against the editors, owners and journalists were based, inter alia, on the provision under the Anti-Terrorism Act prohibiting propaganda against the indivisible unity of the State.   59.   The applicant refers to publications detailing information and concerns about infringements on freedom of expression in Turkey through legal and extralegal pressures on certain newspapers and those persons involved with them eg. "A desolation called peace" report by the Parliamentary Human Rights Group, "Censorship and the rule of law in Turkey: violations of press freedom and attacks on Özgur Gündem" by Article 19, "What happened to the press in 1993" by Özgür Gündem and extracts from 1993 Info-Türk (E.208-7, E.209-6, E.212-8/9) and "Free Expression in Turkey 1993: Killings, convictions, confiscations" Helsinki Watch Vol. 5 Issue 17 and "L'intimidation - rapport sur les meurtres de journalistes et les pressions à l'encontre de la presse turque" by Reporters Sans Frontières (January 1993).        Facts as presented by the Government   60.   The Government refute any allegation that there has been official intimidation of persons connected with the sale of newspapers, such newspapers being freely available throughout Turkey. Only   when the courts in Istanbul, where the headquarters of the Özgür Gündem was located, issued the requisite order for seizure were any steps taken to confiscate copies of the paper. Seizure of copies would not be possible without such order.   61.   In a letter dated 2 November 1995, appended to the Government observations, from the public prosecutor's office at the Diyarbakir State Security Court to the Ministry of Justice (General Directorate of International Law and Foreign Relations), it is stated that there were no assassins acting on the State's behalf in South-Eastern Anatolia. There were armed conflicts, taking place between armed organisations or internal conflicts within organisations but attributing such incidents to the State and labelling such individuals as state assassins were ugly claims.   C.    Relevant domestic law and practice   62.   The Government submit that the following provisions are relevant.        Article 125 of the Turkish Constitution provides as follows:        (translation)        "All acts or decisions of the Administration are subject to      judicial review ...        The Administration shall be liable for damage caused by its      own acts and measures."   63.   This provision is not subject to any restrictions even in a state of emergency or war.   The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the Administration, whose liability is of an absolute, objective nature, based on a theory of "social risk". Thus the Administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.   64.   The principle of administrative liability is reflected in the additional Article 1 of Law 2935 of 25 October 1983 on the State of Emergency, which provides:        (translation)        "... actions for compensation in relation to the exercise of the      powers conferred by this law are to be brought against the      Administration before the administrative courts."   65.   The Turkish Criminal Code makes it a criminal offence   -     to oblige someone through force or threats to commit or not to      commit an act (Article 188),   -     to issue threats (Article 191),   -     to commit arson (Articles 369, 370, 371, 372), or aggravated      arson if human life is endangered (Article 382),   -     to commit arson unintentionally by carelessness, negligence or      inexperience (Article 383), or   -     to damage another's property intentionally (Article 526 et seq.).        The Turkish Criminal Code makes it a criminal offence to subject someone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment, inflicted by civil servants). As regards unlawful killings, there are provisions dealing with unintentional homicide (Articles 452,459), intentional homicide (Article 448) and murder (Article 450).   66.   For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.   67.   If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons' hierarchical superior (Articles 93 and 95 of Law 353 on the Constitution and the Procedure of Military Courts).   68.   If the alleged author of a crime is a State official or civil servant, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Council of State; a refusal to prosecute is subject to an automatic appeal of this kind.   69.   Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.   70.   Proceedings against the Administration may be brought before the administrative courts, whose proceedings are in writing.   71.   Damage caused by terrorist violence may be compensated out of the Social Help and Solidarity Fund.   72.   The applicant points to certain legal provisions which in themselves weaken the protection of the individual which might otherwise have been afforded by the above general scheme :   73.   Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards.   74.   Provisional Article 15 of the Constitution provides that there can be no allegation of unconstitutionality in respect of measures taken under laws or decrees having the force of law and enacted between 12 September 1980 and 25 October 1983. That includes Law 2935 on the State of Emergency of 25 October 1983, under which decrees have been issued which are immune from judicial challenge.   75.   Extensive powers have been granted to the Regional Governor of the State of Emergency by such decrees, especially Decree 285, as amended by Decrees 424 and 425, and Decree 430.   76.   Decree 285 modifies the application of Law 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils.   77.   Article 8 of Decree 430 of 16 December 1990 provides as follows:        (translation)        "No criminal, financial or legal responsibility may be      claimed against the State of Emergency Regional Governor or      a Provincial Governor within a state of emergency region in      respect of their decisions or acts connected with the      exercise of the powers entrusted to them by this decree,      and no application shall be made to any judicial authority      to this end. This is without prejudice to the rights of      individuals to claim indemnity from the State for damage      suffered by them without justification."   78.   According to the applicant, this Article grants impunity to the Governors. Damage caused in the context of the fight against terrorism would be "with justification" and therefore immune from suit. The law, on the face of it, grants extraordinarily wide powers to the Regional Governor under the state of emergency and is subject to neither parliamentary nor judicial control.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   79.   The Commission has declared admissible the applicant's complaints that he was seriously injured and his uncle killed, that he was ill- treated by the police in detention and his treatment in hospital was interfered with, that he has no access to court and no effective remedy in respect of his complaints, that he has been subject to discrimination and that his experiences disclosed restrictions on Convention rights for ulterior purposes.   B.    Points at issue   80.   The points at issue in the present case are as follows:        - whether there has been a violation of Article 2 (Art. 2)      of the Convention in respect of the applicant and/or his      uncle;        - whether there has been a violation of Article 3 (Art. 3)      of the Convention in respect of the applicant;        - whether there has been a violation of Article 10      (Art. 10) of the Convention in respect of the applicant;        - whether there has been a violation of Article 6 para. 1      (Art. 6-1) of the Convention in respect of the applicant;        - whether there has been a violation of Article 13      (Art. 13) of the Convention in respect of the applicant;        - whether there has been a violation of Article 14      (Art. 14) of the Convention in respect of the applicant;        - whether there has been a violation of Article 18      (Art. 18) of the Convention in respect of the applicant.   C.    Approach to the evidence   81.   The Commission notes that there are important disputes of fact between the parties. In particular, it is alleged by the applicant that he and his uncle were shot due to their involvement in the distribution of the newspaper Özgür Gündem as part of a campaign of attacks against that and other newspapers and that this campaign was with the connivance or acquiescence, if not involving the direct participation, of agents of the State. The Government deny that there has been any such campaign. There are also disputes of fact as concerns alleged ill- treatment of the applicant by police officers and threats made by them. The Commission recalls that there is a pending application No. 23144/93 Ersöz and others v. Turkey in which owners, editors and journalists of the Özgür Gündem invoke, inter alia, Article 10 (Art. 10) in relation to the measures taken against, and attacks made on, the newspaper and the persons concerned in its publication and distribution.   82.   The Commission, after consultation of the parties, did not hear oral evidence from witnesses in this case. It is of the opinion that the allegations are of a width and character that would not be easily amenable to clarification from oral testimony from the persons who could be identified as connected with the facts of this case. It observes that the events at the heart of the application are not disputed. The applicant was shot at and seriously injured in an attack by two men on 15 January 1993. His uncle Hasim Yasa was shot and killed by a gunman on 14 June 1993.   83.   The Commission has consequently decided to examine the applicant's allegations as to the violations disclosed by these events on the basis of the written materials in the file, including the contents of the investigation files provided at its request by the Government and the submissions of the parties made in answer to the questions posed by the Commission.   D.    As regards the complaints relating to Hasim Yasa   84.   The applicant has introduced a complaint in respect of the killing of his uncle Hasim Yasa, invoking Article 2 (Art. 2) of the Convention in respect of his death. He states that he brings this complaint on behalf of his uncle.   85.   The Government submit that the applicant has no standing to introduce a complaint on behalf of Hasim Yasa, his uncle, since no authority for the application has been presented by the legal heirs and the applicant cannot claim to be a victim in respect of the killing of his uncle.   86.   While the Government did not challenge the status of the complaints on behalf of Hasim Yasa before the application was declared admissible, the Commission has considered it appropriate to state its position on this aspect as a preliminary to its examination on the merits   87.   The Commission recalls that in previous cases concerning deaths it has generally been the spouse or heirs to the estate who have introduced applications before the Convention organs (eg. Eur. Court HR, McCann and others v. the United Kingdom judgment of 27 September 1995, Series A no. 324).   It is not however the position under the Convention system of protection that only those persons enjoying legal rights of representation or succession under domestic law may make complaints on behalf of alleged victims of violations of the provisions of the Convention, though the lack of standing in domestic law may be of relevance to the consideration of whether an applicant has legitimate interest in making the complaints. The Commission recalls that in the case of S.P., D.P. and A.T. v. the United Kingdom (No. 23715/94, dec. 20.5.96) an issue arose as to whether the solicitor who had represented children in child care proceedings was able validly to introduce a complaint before the Commission on their behalf. It had regard to the constant case-law underlining that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions, both procedural and substantive,   be interpreted and applied so as to make its safeguards practical and effective (eg. Eur. Court HR, Loizidou judgment of   23 March 1995, Series A no. 310, p. 26-27, paras. 70-72). It concluded that, notwithstanding the lack of standing in domestic law for the solicitor to represent the children, it would examine whether other or more appropriate representation existed or was available, the nature of the links between the solicitor and the children, the object and scope of the application introduced on their behalf and whether there existed any conflicts of interest.   88.   While in the present case the Government appear to allege that other persons have standing in domestic law to bring a case, it is not in fact apparent whether Hasim Yasa has a surviving spouse or parent or any child of adult age, who could or would more appropriately introduce a case. Since however the applicant is a close relative of the deceased Hasim Yasa, and he was, on facts uncontested in the application, in a business relationship with his uncle to