CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 janvier 1998

.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. 25660/94                     by Süheyla AYDIN                     against Turkey        The European Commission of Human Rights sitting in private on 12 January 1998, the following members being present:               Mr    S. TRECHSEL, President           MM    J.-C. GEUS                E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                C.L. ROZAKIS           Mrs   J. LIDDY           MM    L. LOUCAIDES                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                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             Mr    M. de SALVIA, 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 October 1994 by Süheyla Aydin against Turkey and registered on 14 November 1994 under file No. 25660/94;        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      20 July 1995 and the observations in reply submitted by the      applicant on 13 October 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish citizen of Kurdish origin, born in 1966, is a nurse and lives in Urfa, Turkey. She is 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        The applicant claims that the following events occurred.        On 18 March 1994 at 9.00 p.m., the applicant and her husband Necati Aydin, president of a health workers' trade union, were taken into custody along with nine other members of the Aydin family.   They were brought to the Struggle against Terrorism Branch in Diyarbakir for interrogation.        The applicant was six months pregnant at the time. During the interrogation, she claims that she was blindfolded, she received threats and she was obliged to take her clothes off. She was also told that her husband would be killed.        On 22 March 1994 at 2.30 a.m., the applicant was released without having been brought before a prosecutor.        The applicant's husband Necati Aydin and his cousin Mehmet Ay were not released.        On 4 April 1994, the applicant's husband and Mehmet Ay were brought before the State Security Court in Diyarbakir. They were seen by a large number of people. Lawyers confirmed that they saw the two detainees in court.        The prosecutor demanded that they remain in custody, but the duty judge ordered Necati Aydin and Mehmet Ay to be released that day. The prosecutor lodged an objection to Mehmet Ay's release with State Security Court No. 3, but the appeal was rejected.        Despite the order of release from the State Security Court, the two men were taken out through the back door of the court building and taken to an unknown destination. Their families waited outside the court building until late in the evening, but they never again saw Necati Aydin and Mehmet Ay alive. The following day, 5 April 1994, the families of the two men applied to the prosecutor in order to get some information. The prosecutor told them that Necati Aydin and Mehmet Ay had been released, and that they had not been re-arrested. He suggested that the families apply elsewhere for information. The Emergency Region Governor and other authorities likewise denied that the two men had been re-arrested.        On the evening of 9 April 1994, villagers working in a field at Silvan district near the Pamuklu river about 40 kilometres outside Diyarbakir discovered three bodies. A bullet in the head had killedeach of them. They were buried side by side about one metre deep. A ring in the pocket of one of the dead carried the name of Süheyla, which is the applicant's name. Their families identified the bodies of Necati Aydin and Mehmet Ay that evening. A third body found buried with the others was not identified.        On 8 April 1994, one day before the bodies were discovered, Yasemin Aydin, a cousin of Necati Aydin, was called by telephone to meet with a Prosecutor, Mr. Osman. At this meeting held in the State Security Court building, Mr. Osman, the Chairman of State Security Court No. 3, another prosecutor and a judge were present. The chief prosecutor Bekir Selçuk also joined the meeting later. The discussion at this meeting concerned the question how Necati Aydin could have gone missing from inside the court building. The judge at the meeting noted that apart from the front entrance there was only one other entrance which was at the back of the building used solely by the police to transport prisoners to and from the State Security Court. The judge wondered whether "those people with the walkie-talkies" could have taken away the two men, but did not finish his sentence. At the end of the meeting Mr. Osman exchanged telephone numbers with Yasemin Aydin.        The families retrieved the bodies of Necati Aydin and Mehmet Ay the following day from the morgue at Diyarbakir State hospital. Many people who visited the morgue were turned away. Three teachers, members of EGiT-SEN (Education Union), were taken into custody. While in custody, they were threatened and told that Necati Aydin and Mehmet Ay had been "killed in a clash".        The applicant invokes the statement of a witness, Salih Güler, who was detained in the same cell as Necati Aydin on 4 April 1994, according to which Necati Aydin had told him that he had been tortured the first two days of his detention and that he was fearing that he would be killed by the security forces.        The respondent Government state as follows.        Having been arrested on 17 November 1993, the applicant was examined by a doctor on 23 November 1993.   The Government submit the medical report, according to which there were no signs of ill-treatment or torture on her body.        In relation to the arrest of the applicant's husband and of Mehmet Ay on 18 March 1994, the Government submit a request made on 4 April 1994 by the State Security Directorate (Struggle against Terrorism Branch) that Necati Aydin and Mehmet Ay be examined by a doctor.        As a result of this request, on 4 April 1994 at 0.45 a.m., the applicant's husband and Mehmet Ay were examined by a doctor who concluded that there were no signs of ill-treatment or torture.        On 4 April 1994, the applicant's husband and Mehmet Ay were brought before the judge, who ordered their release. At 9.00 a.m., they were brought to the chief of the security forces, who drew up a record to the effect that their personal belongings had been restituted to them. They then left the court building.On 9 April 1994, the applicant's husband's body, the body of Mehmet Ay and a third body not identified were found buried at a distance of 40 kilometres from Diyarbakir.        The autopsy performed concluded that they had been summarily executed, as the bodies were found with the hands tied behind their backs.        An ex officio investigation was opened under file no. 1994/2233 in order to identify the PKK terrorists, authors of the murders.   The investigation is still pending.        Following the lodging of the application before the Commission, an ex officio investigation was opened in relation to the allegations of ill-treatment and torture during the arrest.        On 6 October 1995, the Chief Prosecutor of Diyarbakir decided not to prosecute as there was no evidence supporting the applicant's allegations.     B.    Relevant domestic law and practice        Civil and administrative procedures        Article 125 of the Turkish Constitution provides :        < 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."        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."        Any illegal act by civil servants, be it a crime or tort, which causes material or moral damage, may be the subject of a claim for compensation before the ordinary civil courts and the administrative courts.        Damage caused by terrorist violence may be compensated out of the Social Help and Solidarity Fund.    Criminal procedures        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).        In general, in respect of criminal 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 not to institute criminal proceedings.        Emergency measures        Articles 13 to 15 of the Constitution provide for fundamental limitations of constitutional safeguards.        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.        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.        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.        Article 8 of Decree 403 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 compensation from      the State for damage suffered by them without justification."   COMPLAINTS        The applicant complains of violations of Articles 2, 3, 6, 11, 13 and 14 of the Convention.        As to the Article 2 she alleges that the intentional deprivation of the life of her husband was not attributable to any of the purposes exhaustively listed in para. 2 of Article 2, was not proportionate to any ground on which force that might result in death could be used, and was not absolutely necessary to achieve any legitimate purpose. She also refers to the inadequate protection of the right to life in domestic law.        As to Article 3 she complains of discrimination on grounds of language and ethnic origin. She also refers to the subjection of her husband to treatment incompatible with this article during his interrogation by the police. She further complains that she was subjected to ill-treatment during her detention. In particular, although she was six months pregnant at the time, she was blindfolded during interrogation, she received threats and she was obliged to take her clothes off.        As to Article 6 she refers to the failure to initiate criminal proceedings before an independent and impartial tribunal against those responsible for the killings, as a result of which she cannot bring civil proceedings arising out of those events.        As to Article 11 she maintains that the murder of her husband was due, in large part, to his participation in union activities, and in particular to his position as president of the Diyarbakir branch of a trade union.        As to Article 13 she complains of the lack of any independent national authority before which these complaints can be brought with any prospect of success.        As to Article 14 the applicant refers to discrimination on the ground of their Kurdish origin in the enjoyment of their rights under Articles 2, 3, 6 and 11 of the Convention.        As to the exhaustion of domestic remedies, the applicant notes that her husband and another person released by the court disappeared from the court building which meant that the authorities were immediately fully aware of the facts of the case. The applicant also explains that she, her relatives and her lawyers made intensive efforts to alert the authorities to the apparent disappearance of her husband. She notes that a judge of the State Security Court confirmed on 8 April 1994 that apart from the front entrance of the Court House there was only one other entrance which was at the back of the building and used solely by the police to transport prisoners to and from the State Security Court. The applicant maintains that there is no requirement that she pursue alleged domestic remedies, as any such alleged remedy is illusory, inadequate and ineffective. Whether or not there is an administrative practice, the situation in South-East Turkey is such that potential applicants justifiably fear the consequences of invoking any alleged remedies.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 4 October 1994 and registered on 14 November 1994.        On 27 February 1995, the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 17 July 1995, after an extension of the time-limit fixed for that purpose. The applicant replied on 13 October 1995.     THE LAW        The applicant complains about the abduction and the killing of her husband and about her ill-treatment during her detention in March 1994. She invokes Article 2 (Art. 2) (the right to life), Article 3 (Art. 3) (the prohibition on inhuman and degrading treatment), Article 6 (Art. 6) (the right to a tribunal), Article 11 (Art. 11) (the freedom of association), Article 13 (Art. 13) (the right to effective national remedies for Convention breaches) and Article 14 (Art. 14) (the prohibition of discrimination) of the Convention.        The Government submit firstly that the applicant cannot claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention, insofar as she complains about the killing of Mehmet Ay.        The Commission notes that, although the applicant refers throughout her submissions to the case of Mehmet Ay, at no moment did she complain of his abduction and killing. The Commission therefore considers that the case of Mehmet Ay was referred to by the applicant only in relation to her husband's case and interprets the application as concerning her husband Necati Aydin.        Exhaustion of domestic remedies        The Government submit that the applicant has failed to comply with the requirement under Article 26 (Art. 26) of the Convention to exhaust domestic remedies before lodging an application with the Commission.        The Government contend that the applicant could have made a claim for damages in the administrative courts pursuant to Article 125 of the Constitution, Article 1 of Law no. 2935 on the State of Emergency and Article 8 of Decree 430.        The Government point out that the applicant could also have lodged a claim for compensation in an ordinary civil court, on the basis of the Code of Obligations, or could have filed a criminal complaint for homicide on the basis of the relevant provisions of the Penal Code.        Finally, the Government state that an investigation into the murders has been opened ex officio under the file no. 1994/2233, but the investigation is progressing very slowly, as the PKK terrorists who executed the applicant's husband are of an extreme mobility.The applicant submits that, in the circumstances of this case, the only remedy which she could be expected to pursue is the investigation commenced by the public prosecutor in relation to the killing of her husband. In this respect, she contends that the investigation has been going on since 1994 without any evidence of progress.   She claims that the investigation is not an independent and thorough one, as at no moment have the authorities considered the possibility that her husband might have been killed by security forces or others working under the authority of the State.        The applicant refers to the findings of a report issued by the Turkish Parliamentary Commission on extra-judicial killings, which concluded, after a two year investigation, that security forces have been involved on the extra-judicial killings of Kurds who are viewed by the authorities to be separatists. She further submits that, according to the same report, security forces were not being held accountable for their illegal actions. The applicant maintains that there is no requirement to pursue domestic remedies, as when a crime is carried out by state officials and condoned by the authorities, there are real doubts about the effectiveness of any remedy available.        The applicant also submits that, in the light of her previous arrests and ill-treatment by the security forces, and the constant intimidation and harassment for her trade union work, she has a well- founded fear of reprisals for pursuing domestic remedies more vigorously.        The Commission recalls that Article 26 (Art. 26) of the Convention only requires the exhaustion of those remedies which relate to the alleged breaches of the Convention and at the same time can provide effective and sufficient redress. An applicant does not need to exercise remedies which in reality do not 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 HR, De Jong, Baljet and Van den Brink judgment of 22 May 1994, Series A no. 77, p. 18, para. 36, and Nos. 14116/88, and 14117/88, Sargin and Yagci v. Turkey, Dec. 11.05.89, D.R. 61, p. 250, 262).        The Commission notes that an investigation into the killing of the applicant's husband was opened ex officio under file no. 1994/2233. This investigation is still pending, more than three years after the killing. The Commission has not been informed of any findings made as a result of this investigation.        The Commission considers that in the circumstances of this case the applicant is not required to pursue any legal remedy separate from the investigation commenced by the public prosecutor (see eg. No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75, p. 207). The Commission concludes that the applicant may be considered to have complied with the domestic remedies rule laid down in Article 26 (Art. 26) of the Convention. Consequently, the application cannot be rejected for non-exhaustion of domestic remedies under Article 27 para. 3 of the Convention.        As to the substance of the applicant's complaints        The Government deny that the applicant's husband was killed by security forces.   They contend that the applicant's husband left the court building immediately after his personal belongings had been restituted to him. The Government point out that no evidence was submitted by the applicant in support of her allegations.        The Government also deny that the applicant's husband was ill- treated or tortured during his detention and refer to the medical report drawn up on 4 April 1994.        The Government further submit that Necati Aydin's activities as a trade union leader were   of no interest to the authorities and claim that his case was investigated in relation to his alleged links with the PKK. In particular, the indictment mentioned that the applicant was accused of assisting the PKK.        The applicant submits that the Government has not offered a plausible explanation why Necati Aydin and Mehmet Ay did not leave through the main entrance of the court building, nor did they provide any information as to the precise time of their release.        The applicant contends that the two men were taken out from the court building by the back door, which is used only by security forces. The applicant maintains that the last time the two men were seen was in the custody of the security forces while attending the court hearings. Therefore, in the absence of substantive evidence of the men having been abducted by a third party from the court building, the responsibility for the safety of the men rests with the State under whose authority they were at the time of their disappearance.        The applicant submits further that an essential part of the obligation to protect the right to life is the conduct of genuine investigations into the allegations that the State has been responsible for the deprivation of life. In the present case, the prosecuting authorities failed to consider the totality of the circumstances in which the men disappeared while in the custody of the security forces and were later found dead, this raising an issue under Article 2 (Art. 2) of the Convention.        As to the alleged ill-treatment of her husband while in police custody, the applicant refers to the statement of Salih Güler. The applicant claims that the medical report of 4 April 1994 submitted by the Government is totally inadequate. She stresses that her husband had no adequate medical supervision while he was in custody, the medical examination having been performed on the day when he was brought to the court.        The applicant also maintains that she has herself been subjected to ill-treatment while in custody. She stresses that the Government have provided no medical report concerning her detention between 18 and 22 March 1994, the report submitted by the Government concerning an earlier detention in November 1993.The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of 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, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.           M. de SALVIA                         S. TRECHSEL          Secretary                            President       to the Commission                    of the Commission