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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

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ASLAN and ASLAN v. TURKEY

ASLAN and ASLAN v. TURKEY