CEDH · CASELAW;REPORTS;ENG — 22 mai 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 Nos. 22491/93 and 22497/93                     Özcan Aslan and izzet Aslan                               against                               Turkey                      REPORT OF THE COMMISSION                      (adopted on 22 May 1997)                          TABLE OF CONTENTS                                                             Page   I.    THE PARTIES      (paras. 1 - 3) . . . . . . . . . . . . . . . . . . . . .1   II.   SUMMARY OF THE FACTS      (paras. 4 - 7) . . . . . . . . . . . . . . . . . . . . .1   III. THE PROCEEDINGS BEFORE THE COMMISSION      (paras. 8 - 23)   . . . . . . . . . . . . . . . . . . . .2   IV.   THE DECISION OF THE COMMISSION      (paras. 24 - 33) . . . . . . . . . . . . . . . . . . . .5   APPENDIX I:     DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF APPLICATION NO. 22491/93   .   8   APPENDIX II:    DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF APPLICATION NO. 22497/93.    14   I.    THE PARTIES   1.    This Report, which is drawn up in accordance with Article 30 para. 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, concerns the application brought by izzet and Özcan Aslan against Turkey.   2.    The applicants are Turkish citizens, born in 1976 and 1947 respectively. The first applicant, Özcan Aslan, was resident in Çinarönü at the time of introduction of the application but is now of address unknown. The second applicant, izzet Aslan, is resident in Çinarönü, Savur district and states that he complains on his own behalf and on behalf of his son Özcan, his nephew Serif and his brother Ömer. They are represented before the Commission by Professor K. Boyle and Ms. F. Hampson, both teachers at the University of Essex.   3.    The application is directed against Turkey. The respondent Government were represented by their Agent, Mr. A. Gündüz.   II.   SUMMARY OF THE FACTS   4.    The facts of the case as submitted by the parties are set out in the Commission's decisions on admissibility of 20 February 1995, annexed hereto, and may be summarised as follows:   5.    The complaints made on behalf of the first applicant alleged that on 14 February 1993, while he was grazing animals with his cousin Serif, members of the security forces stripped them naked, threatened to rape them and assaulted them. He invoked Articles 3 and 13 of the Convention. The complaints made on behalf of the second applicant alleged that on 13 February 1993 security forces carried out an operation in Çinarönü village during which they forced the men of the village to lie down in the snow all night, beat and abused them and burned the house of Ömer Aslan. Articles 3, 5, 6, 8, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 1 are invoked in this respect. These complaints were contained in statements dated 17 February and 3 August 1993 taken by the Human Rights Association (HRA) in Diyarbakir.   6.    An investigation (1993/238) was commenced by the public prosecutor of Savur into the allegations of the applicants. On 30 December 1993, he took statements from izzet and Özcan Aslan. In the statement of Özcan Aslan, it is stated that soldiers stripped him naked and ill-treated him, identifying by name a village guard involved. In the statement of izzet Aslan, it is stated that during an operation in the village, a soldier took his son by the hair and struck his head against a wall causing it to bleed and that later his son complained that while he was grazing the sheep he was stripped by soldiers and subjected to degrading treatment. On 30 December 1993, statements were taken from other members of the family including Sevim Aslan, the mother of Özcan Aslan, who stated that his head had been broken open during a search by soldiers and that he had said that he had been stripped by soldiers and his hand injured with pincers. She named one of the gendarme officers present. Statements were taken on 17 January 1994 and 21 January 1994 from the gendarme officer and village guard who were named and who denied the allegations. A statement was taken on 1 February 1994 from the central gendarmerie commander at Savur who also denied taking part in any operation at the village. By letter dated 27 December 1993, the gendarme district commander responded to the enquiry of the public prosecutor stating that according to their records the Savur District gendarmerie had not carried out any activities on the date or at the place indicated.   7. In a decision dated 18 April 1994, the public prosecutor terminated the investigation, referring to an absence of evidence and the reply of the district gendarme command above.   III. THE PROCEEDINGS BEFORE THE COMMISSION   8.    The applications were introduced on 9 and 12 August 1993 respectively and registered on 20 August 1993.   9.    On 11 October 1993, the Commission decided to communicate application No. 22497/93 to the Turkish Government, who were invited to submit their observations on admissibility and merits. On 29 November 1993, the Commission communicated application No. 22491/93.   10.   In application No. 22491/93, on 30 March 1994, the Government submitted observations on the admissibility and merits and on 12 May 1994, the applicant's representatives replied. In application No. 22497/93, on 22 April 1994, the Government submitted observations on the admissibility and merits and on 27 June 1994, the applicant's representatives submitted further observations and information.   11.   On 20 February 1995, the Commission declared the applications admissible and joined them.   12.   The text of the Commission's decisions on admissibility was sent to the parties on 7 March 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 which they might wish to put before delegates.   13.   On 9 March 1995, the Government submitted observations on the admissibility and merits. On 21 April 1995, the Government submitted observations on the Commission's decision on admissibility.   On 30 May 1995, the Government submitted complementary information and observations.   14.   On 1 July 1995, the Commission decided to take oral evidence in respect of the applicants' allegations. It appointed three delegates for this purpose: Mrs. G.H. Thune, Mr. N. Bratza and Mr. E. Konstantinov. It notified the parties by letter of 27 July 1995, proposing certain witnesses and requesting the Government to identify security force personnel who were present during the operation in issue and the relevant public prosecutor.   15.   On 17 and 13 September 1995, the Government submitted information identifying certain witnesses.   16.   By letter of 15 September 1995, the applicant's representatives made proposals as to witnesses.   17.   By letter dated 26 September 1995, the Commission requested the Government to confirm that the entire contents of the investigation files had been submitted in annex to their previous observations, to verify whether the two proposed gendarme witnesses had been present during the operation and, if not, to identify senior officers who would be able to give eye-witness evidence as to the conduct of the operation.   18.   By letter dated 12 January 1996, the Secretariat informed the applicants' representatives that the summonses issued to the applicants, Serif and Ömer Aslan had been returned on the basis that they were no longer at the addresses indicated. By letter dated 12 January 1996, the applicants' representatives stated that no contact had yet been made with the applicants.   By letter dated 17 January 1996, the Secretariat informed the applicants' representatives that the summons sent to Sevim Aslan had been returned by the post. By letter of 25 January 1996, the Government proposed that three additional witnesses be heard.   19.   Evidence was heard by the delegation of the Commission in Ankara on 6-7 February 1996. Before the Delegates the Government were represented by Mr. A. Gündüz, Agent, assisted by Mr A. Sölen, Mr. A. Kurudal, Ms. N. Erdim, Mr. Abdülkadir Kaya, Mr. A. Polat, Mr. Ahmet Kaya, Mr. C. Aydin, Ms. T. Toros, Ms. M. Gülsen and Ms. A. Emülser. The applicants were represented by Ms. F. Hampson, and Mr. O. Baydemir, counsel, assisted by Ms. A. Reidy and Ms. D. Deniz (interpreter). izzet Aslan appeared at the hearing but Özcan Aslan, Ömer Aslan, Serif Aslan and Sevim Aslan did not appear. At the conclusion of the hearings, and later confirmed by letter of 14 February 1996, the Delegates requested the Government to provide certain information and explanations concerning matters arising out of the hearing and the applicants' representatives were requested to clarify the absence of Özcan Aslan at the hearing. The time-limit expired on 5 April 1996. By letter of 10 April 1996, the applicants' representatives explained that they were endeavouring to find information with a view to furnishing an explanation as soon as possible.   20.   On 2 March 1996, the Commission decided to invite the parties to present their written conclusions on the merits of the case, following transmission to the parties of the verbatim record. The time-limit was fixed at 20 May 1996.   21.   On 20 May 1996, after an extension of the time-limit until 31 May 1996, the applicants' representatives submitted their final observations on the merits. On 1 July 1996, the Government submitted their final observations, after obtaining a further extension in the time-limit.   22.   On 22 May 1997 the Commission decided to strike the present application out of its list of cases, pursuant to Article 30 para. 1 (c) of the Convention.   23.   The Commission adopted the present Report and decided to transmit it to the Committee of Ministers and the Parties for information and to publish it.   The following members of the Commission were present when the Report was adopted:             Mr.   S. TRECHSEL, President           Mrs. G.H. THUNE           Mrs. J. LIDDY           MM.   E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                F. MARTINEZ                C.L. ROZAKIS                L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                C. BÎRSAN                P. LORENZEN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA           Mrs. M. HION           Mr.   A. ARABADJIEV   IV.   THE DECISION OF THE COMMISSION   A.    Concerning Application No. 22491/93   24.   The applicant Özcan Aslan's representatives submit that there is no evidence of any desire on his part to withdraw his application. They have submitted that the Commission should seek to hear evidence from him and his cousin Serif and that they are trying to locate the applicant in Istanbul. They point to the evidence which exists to the effect that an operation did take place at the village, despite earlier denials of the Turkish authorities, and to the fact that izzet Aslan did make complaints about ill-treatment to the public prosecutor and also gave oral testimony that his son Özcan suffered injuries.   25. The Government have contended, in particular in light of the testimony of izzet Aslan (see below), that there is doubt that any valid application exists.   26.   The Commission notes that the applicant Özcan Aslan was summoned to give evidence in the taking of evidence in the application presented on his behalf and that he failed to appear. It recalls that the summons sent to his address was returned and that since then his representatives have not had any contact with him and have been unable to provide an explanation for his absence at the hearing, which was requested on 14 February 1996 more than a year and three months ago.   27.   The Commission has had regard to the seriousness of the allegations made in the application on behalf of Özcan Aslan. Nonetheless it recalls that individual applicants bear the responsibility of co-operating with procedures flowing from the introduction of their complaints, particularly where factual issues arise which may only be resolved by their personal participation in the proceedings (No. 22057/93 Kapan v. Turkey dec. 13.1.97). Given the length of time since the hearing of evidence in February 1996, during which no further information from Özcan Aslan has been forthcoming, and the fact that it is apparent that the applicant's representatives have not been able to contact the applicant for some time since he has changed his address, the Commission finds that it is no longer justified to continue the examination of the petition made on his behalf, which should therefore be struck off the list pursuant to Article 30 para. 1(c) (Art. 30-1-c) of the Convention.   B.    Concerning Application No. 22497/93   28.   The representatives of the applicant izzet Aslan submit that there is a valid application introduced by him. Though he denied the signatures on the application documents, he acknowledged that they were similar. There was also a clear resemblance with the sample signatures given to the Delegates. While he now states that he wishes to withdraw any application, the representatives note that he did at one time want to complain about events, since he made similar complaints to the public prosecutor, and that though they are not aware of why he now has changed his mind, they would submit that the Commission should continue its consideration of the case in the interests of the public order of Europe (Eur. Court HR, Tyrer judgment of 25 April 1978, Series A no. 26). They point to the seriousness of the allegations, the discrepancies in the evidence of official witnesses, and the evidence which supports the complaints made in the application.   29.   The Government submit that there is no valid application. From izzet Aslan's testimony, they state that a petition was concocted following a conversation by him with a lawyer of the Human Rights Association (HRA)in a coffee shop and that he signed something under the mistaken impression that it was a petition to the Turkish authorities. They point to the fact that the statement purporting to bear his signature is dated four days after the events while he stated that he had spoken to the HRA lawyer four months later and that the statements of izzet Aslan and other members of his family to the public prosecutor contradict many of the allegations made in the purported application to the Commission.   30.   The Commission has examined the transcript of the evidence given by izzet Aslan as regards the circumstances in which he lodged his application and has had regard to the Delegates' assessment that in appearing before them he demonstrated an anxiety and unease, which rendered him reluctant to acknowledge any signature put to him for confirmation, including his signature on the statement to the public prosecutor which was not in fact disputed. It agrees with the representatives' view that the signatures are not markedly dissimilar. However, even assuming that he did sign the statement of complaints and the letter of authority, there are doubts as to whether he understood that it involved a petition to an international jurisdiction and he has expressed his wish to the Commission's Delegates that the examination of the application does not continue.   31.   The Commission has considered whether it would nonetheless be justified in continuing the examination of the application. It has noted that izzet Aslan did claim to witness his son's head bleeding and that he heard his son state that a soldier had caused it. Supporting evidence is found in a statement taken by the public prosecutor from the boy's mother. It also notes that the public prosecutor in reaching his decision not to prosecute relied, inter alia, on the evidence from the gendarme command that no operation took place in the village as alleged whereas before the Delegates one of the gendarme officers stated that he had taken part in an operation in the village in February 1993 as a guide. The Government were requested to provide an explanation for this discrepancy with the official gendarme response to the public prosecutor's investigation but no reply has been forthcoming.   32.   Notwithstanding these troubling elements, the Commission notes the lack of evidence to support many of the allegations made in the application as to ill-treatment and destruction of property. In the absence of a willingness of izzet Aslan, Özcan Aslan (see above) or other members of the family to give further, detailed evidence in respect of events there is no prospect that the Commission can effectively fulfil its task under Article 28 para. 1 (a) (Art. 28-1-a) to establish the facts.   33. In these circumstances, the Commission considers that it is no longer justified to continue the examination of the application introduced on behalf of izzet Aslan, which should therefore be struck off the list pursuant to Article 30 para. 1(c) (Art. 30-1-c) of the Convention.        For these reasons, the Commission, unanimously,   DECIDES TO STRIKE APPLICATION Nos. 22491/93 and 22497/93 OUT OF ITS LIST OF CASES;   ADOPTS   THE PRESENT REPORT;   DECIDES TO SEND THE PRESENT REPORT to the Committee of Ministers for information, to send it also to the parties' representatives, and to publish it.           H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission