Lexploria

AS TO THE ADMISSIBILITY OF

Applications No. 22947/93 and No. 22948/93

by Nebahat AKKOC

against Turkey

The European Commission of Human Rights sitting in private on

11 October 1994 , the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the applications introduced on 1 November 1993

by Nebahat Akkoç against Turkey and registered on 18 November 1993

under files Nos. 22947/93 and 22948/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the Commission's decision of 28 February 1994 to communicate part

of application No. 22947/93 and to declare the remainder of that

application inadmissible,

- the Commission's decision of the same date to communicate

application No. 22948/93,

- the applicant's communication of 31 March 1994,

- the Commission's decision of 14 April 1994 to join the two

applications and to communicate the new complaints presented by the

applicant,

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen of Kurdish origin, born in

1953 and resident at Diyarbakir. She is represented before the

Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of

the University of Essex, England.

The facts as presented by the applicant may be summarised as

follows:

Application No. 22947/93

The applicant has been, until recently, Head of the Diyarbakir

Branch of the Education and Science Workers Union (Egit-Sen). The Union

was founded in 1990, but the applicant's branch was declared illegal

on 28 September 1992 by the Office of the Chief of Police and the Mayor

of Diyarbakir.

Because of her activities on behalf of the members of Egit-Sen,

the applicant has been the object of persistent threats and other forms

of pressure which eventually forced her to leave her occupation as a

teacher, to cease to function as a trade union official, and to be

deprived of compensation otherwise due to her under Turkish law. She

now lives alone with two children and remains in fear for her life and

those of her children.

On 26 October 1992 a meeting between the applicant, some of her

colleagues and the National Education Director had been arranged for

the following day. The purpose was to appeal to the Director to put an

end to attacks against members of Egit-Sen, since in October 1992 four

members had been attacked, one of them had died, others were undergoing

treatment, and about 40 members had been exiled in other regions.

When the applicant arrived at the meeting on 27 October 1992, she

saw the building surrounded by plain clothes police and cameras made

ready to film those arriving for the meeting. The Director said he

could only receive a small group. The applicant organised a group of

seven persons and told the others to leave, but the police did not

allow anybody to leave and filmed and verbally abused the persons who

had gathered there. Everybody's identity was checked. A woman who did

not wish to show her identity papers was pulled by the hair and bundled

into a waiting police car. Another thirteen educational workers were

also taken away.

After the meeting the applicant went to the City Governor to

complain of their treatment. The Governor's reply was that they had

been told not to go to the National Education Directorate and that they

had bad motives. He further said: "You don't raise your voices when the

State's soldiers or police die. Why do you want to meet when teachers

die?"

The day after these events the applicant received a telephone

call and was told: "You are also going to die. It is now your turn. We

are going to kill you off."

In November 1992 the applicant applied to the Diyarbakir State

Prosecutor about the incident on 27 October 1992. After initial delays

the case was dismissed in February 1993.

After the events on 27 October 1992 the applicant made a

statement to the newspaper Diyarbakir Soz on 31 October 1992 under the

headline "Eleven teachers detained in Diyarbakir". In that article she

gave an account of the events prior to and including the meeting at the

Directorate, focusing on the fact that the meeting had been by prior

arrangement.

On 23 November 1992 she made another statement to the same

newspapaper in an open letter bearing the headline "24 November is not

Teachers' Day". Referring to the fact that 24 November is a day

designated to honour teachers, she stated in that open letter that

teachers had little cause to celebrate such a day, and proceeded to

indicate the ways in which education workers suffered. She listed,

inter alia, the lack of trade union rights, the hours of work of

teachers and their clothing allowance, the fact that students feel

pressured to give a gift to their teacher which they often cannot

afford. She then focused on her region and pointed to the exiles and

attacks on teachers in the region, to the fact that classes were too

large and to the fact that police interfere with the functioning of

secondary schools by arresting students in class and insulting

teachers.

As a result of these statements to the press, and of her trade

union activity, the applicant was the subject of three formal findings

by the National Education Ministry:

1. On 22 February 1993 the Diyarbakir National Education Directorate

declared that the applicant had violated Article 26 of Law No. 657,

which prohibits statutory applications or complaints to be made jointly

by two or more State officials and which also bans collective action

by civil servants. The Directorate concluded that this was behaviour

not suited to the dignity of a civil servant, which required the issue

of a formal warning according to Article 125 of the said Law.

2. On 5 March 1993 the Diyarbakir Provincial National Education

Disciplinary Committee found that the applicant had taken part in the

activity of a trade union whose authorities and responsibilities were

not known, i.e. was an unauthorised and therefore illegal trade union.

The applicant was also found to be in violation of Section 4 of Law No.

657 insofar as it prohibits "involvement in collective action and

behaviour unsuitable to the dignity of a State official" as well as

Article 26 of the same Law, which prohibits State officials from

associating in groups of two or more in order to make an application

or a complaint to their employer. Because of her statement to the

newspaper on 23 November 1992 the applicant was also found to be in

violation of Article 125 D(g) of the same Law, which prohibits State

officials from "giving information and statements to the press, news

agencies, radio or television institutions when not authorised to do

so". As a result of these findings, the Committee sanctioned the

applicant by a reduction in salary, in accordance with Article 125 C.

3. On 14 May 1993 the Diyarbakir Provincial National Education

Disciplinary Committee found that the applicant's statement to the

newspaper on 31 October 1992 had been a violation of Article 125 D(g)

of Law No. 657. Her case was then referred to the Provincial Office of

National Education for consideration of blockage of her promotion, as

authorised by Article 126 of the same Law.

Subsequently the applicant has been the subject of threats and

pressure which have obliged her to leave her occupation as a teacher,

and hence her position in the trade union. Because of the disciplinary

penalties she has not been able to receive her severance pay and

obstacles are placed in the way of her collection of her pension. She

is also continuously being exposed to threats.

Application No. 22948/93

The applicant's husband, Zübeyir Akkoç, was a teacher at the

Diyarbakir Hürriyet primary school. The applicant, also a teacher, was

the Head of the Diyarbakir Branch of the Union of Education and Science

workers (Egit-Sen). As a result of their prominence in Kurdish

affairs, the applicant and her husband regularly received anonymous

threats by telephone as well as verbal threats by the police.

On 13 January 1993, Zübeyir Akkoç was attacked and killed by

gunshot wounds while going from his home at Diyarbakir to his place of

work at the Hürriyet school. He was accompanied by another person who

was also killed in the same attack.

An enquiry into the circumstances of his death was undertaken by

the police but remains open. It has been provisionally placed in the

category of killings by "persons unknown" by the State Security Court.

A final conclusion to this effect has not been reached by the Court.

Independently of the finding of the State Security Court, the

Diyarbakir National Education Directorate decided on 30 June 1993 that

the killing of the applicant's husband was by "persons unknown". As

a result of this finding, the Pensions Treasury of the Republic of

Turkey refused to grant the applicant the compensation and pension that

would be due to her if her husband had died while carrying out his

duties.

Since the killing of her husband, the applicant has been

subjected to continuing threats to her life.

Applications Nos. 22947/93 and 22948/93

In early February 1994 the applicant was arrested at her home.

According to her account she was questioned about her applications to

the Commission. The police had in their possession files relating to

these applications. She was later taken to the Diyarbakir police

station and detained. She was subjected to severe torture over a period

of nine days. She was assaulted by her interrogators and accused over

the applications she had made under the European Convention.

After ten days in detention she was taken before the public

prosecutor who ordered her release. It appears that a charge against

her related to invoking the European Convention in an individual

application. The prosecutor stated that it was not illegal to bring her

case to the Commission as she had sought domestic remedies and failed.

He also stated that there was insufficient evidence to prove that she

was a member of the PKK.

The applicant received a very severe blow to the right side of

her upper jaw, leaving her in severe pain. Following her release this

was diagnosed as a fracture resulting in her upper teeth moving.

However, when the doctor she consulted learned that she had been in

detention he tore up the report he had prepared. She spent fifteen days

in bed in her mother's house where there was police surveillance night

and day for one week. She has been unable to return to her home and has

had to arrange an escort for her son to and from the university every

day.

COMPLAINTS

Application No. 22947/93

The applicant originally complained of violations of Articles 2,

6, 10, 11, 13 and 14 (in conjunction with Articles 6 and 11) of the

Convention and Article 1 of Protocol No. 1.

After the Commission's partial decision of 28 February 1994 on

the admissibility of the application, the remaining complaint concerns

Article 10 of the Convention. In this respect the applicant submits

that the penalties imposed upon her as a result of her statements to

the newspaper are in conflict with her right to freedom of expression,

for which there is no justification under para. 2 of Article 10.

Application No. 22948/93

The applicant complains of violations of Articles 2, 6, 13 and

14 of the Convention and Article 1 of Protocol No 1.

As to Article 2, the applicant alleges that the Turkish State

failed to provide sufficient protection of her husband's right to life.

She refers to the high incidence and systematic pattern of killings of

Kurdish teachers in the area of Diyarbakir (as of 14 September 1993,

there have been 20 killings of Kurdish teachers in that city),

particularly of those prominent in, or relatives of those prominent in,

the affairs of the Kurdish people.

Alternatively, the applicant states that it is reasonable to

infer that the Turkish State either ordered the killings of Kurdish

teachers in the area during the period concerned or gave its tacit

authorisation to third parties to engage in these killings. She

further alleges that the State failed adequately to investigate the

killings and prosecute the offenders. She also considers that her

husband and herself have been victims of an administrative practice of

violation of the obligation to protect life.

As to Article 6, the applicant submits that, because of the

failure adequately to investigate the circumstances of her husband's

murder, she has been unable to pursue her claim for compensation due

to her through the civil courts.

As to Article 13, the applicant complains that there is no

independent national authority in a position to investigate and bring

to justice those responsible for this kind of killing.

As to Article 14 in conjunction with Articles 2 and 13, the

applicant submits that Turkish citizens of Kurdish origin are the

targets and/or victims of the breakdown of protection of the right to

life and of the failure to provide effective remedies far more

frequently than are other Turkish citizens.

As to Article 1 of Protocol No. 1, the applicant complains that,

as a result of the finding that her husband had been killed by unknown

perpetrators, she did not receive any compensation or any widow's

pension.

Applications Nos. 22947/93 and 22948/93

In regard to her arrest in early February 1994, her subsequent

detention and treatment by the police, the applicant has not invoked

any particular provision of the Convention. She has alleged, however,

that during her detention she was questioned about the applications she

had filed with the Commission.

PROCEDURE BEFORE THE COMMISSION

Applications Nos. 22947/93 and 22948/93 were introduced before

the Commission on 1 November 1993 and registered on 18 November 1993.

On 28 February 1994 the Commission declared application No.

22947/93 partly inadmissible and decided to communicate the remainder

of the application to the Turkish Government who were invited to submit

their observations on its admissibility and merits before 10 May 1994.

On the same day the Commission decided to communicate application No.

22948/93 to the Turkish Government who were invited to submit their

observations on its admissibility and merits before 13 May 1994.

In a communication of 31 March 1994 the applicant's

representative informed the Commission that the applicant had been

arrested in early February 1994 and questioned about her applications

to the Commission. It was alleged that she had been detained for ten

days and tortured during her detention.

On 14 April 1994 the Commission decided to join the two

applications and to communicate the new complaints to the Turkish

Government who were invited to submit, before 9 May 1994, observations

on their admissibility and merits, having regard to Articles 3 and 25

of the Convention.

By letters of 6 and 9 May 1994 the Government requested

extensions for one month of the time-limits fixed for the submission

of their observations.

On 2 June 1994 the President of the Commission extended these

time-limits until 13 June 1994 but asked the Government to submit their

observations before the end of the extended period.

No observations have been submitted by the Government.

THE LAW

The applicant complains of a violation of Article 10 (Art. 10)

of the Convention in that she was punished and was considered to have

violated her professional duties for making statements to a newspaper

(application No. 22947/93). She further complains of violations of

Articles 2, 6, 13 and 14 (Art. 2, 6, 13, 14) of the Convention and

Article 1 of Protocol No. 1 (P1-1) in connection with the killing of

her husband, the lack of effective investigations and the refusal to

grant her a widow's pension (application No. 22948/93).

The applicant claims to have been arrested, detained and tortured

and to have been questioned during her detention about the applications

she had lodged with the Commission. She has not in this respect

referred to any particular provision of the Convention, but the

Commission considers that her complaints raise issues under Articles

3 and 25 (Art. 3, 25) of the Convention.

Article 2 (Art. 2) of the Convention protects everyone's right

to life. Article 3 (Art. 3) provides that no one shall be subjected to

torture or to inhuman or degrading treatment or punishment. According

to Article 6 (Art. 6), everyone has the right to a fair hearing in the

determination of his civil rights and obligations. Article 10 (Art. 10)

ensures the right to freedom of expression. According to Article 13

(Art. 13), there shall be a right to an effective remedy in regard to

violations of the Convention. Article 14 (Art. 14) prohibits

discrimination in the enjoyment of the rights guaranteed by the

Convention. Article 25 (Art. 25) provides, inter alia, that the

contracting States shall in no way hinder the effective exercise of the

right of individual petition. Article 1 of the Protocol (P1-1) ensures

everyone's right to the peaceful enjoyment of his possessions.

The Commission recalls that the applications have been

communicated to the Turkish Government who have been invited to submit

observations on their admissibility and merits. The time-limit for the

submission of such observations was extended, at the Government's

request, until 13 June 1994. No observations have been submitted within

that time-limit or after its expiry.

The Government have been informed that the applications were

being considered for inclusion in the agenda for the Commission's

session beginning on 10 October 1994.

As regards exhaustion of domestic remedies, it is the normal

practice of the Commission, where a case has been communicated to the

respondent Government, not to declare the application inadmissible for

failure to exhaust domestic remedies, unless this matter has been

raised by the Government in their observations. The Commission

considers that the same principle should be applied where, as in the

present case, the respondent Government have not submitted any

observations at all.

It follows that the applications cannot be rejected on the ground

that the domestic remedies have not been exhausted.

Moreover, the Commission is of the opinion that the applications

raise important questions of fact and law which cannot be resolved at

the stage of the admissibility but require an examination on the

merits. Consequently, the applications cannot be considered manifestly

ill-founded.

No other ground of inadmissibility is applicable to the present

case.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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AKKOC v. TURKEY

AKKOC v. TURKEY