AS TO THE ADMISSIBILITY OF

Application No. 35074/97

by Hikmet YILMAZ and 91 others

against Turkey

The European Commission of Human Rights sitting in private on 7 September 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

M.A. NOWICKI

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

E. BIELIŪNAS

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 17 December 1996  by Hikmet YILMAZ and 91 others whose names are annexed hereto, against Turkey and registered on 25 February 1997 under file No. 35074/97;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicants, whose names appear in the appendix, are Turkish citizens. They were, when the application was introduced, detained at Buca prison in Ä°zmir .

The facts of the present case, as submitted by the applicants, may be summarised as follows.

Between 26 April 1994 and 2 April 1996 there were several serious  incidents in prisons all around Turkey, the most serious ones taking place in Diyarbakĸr , Metris and Buca prisons. As a result of these incidents nine detainees died (three of them in Buca prison) and hundreds more were injured.

On 26 April 1994 some of the detainees of Buca prison refused to return to their cells after their visitors had left the prison. The gendarmes attacked these detainees, as a result of which most of them were wounded. These detainees filed criminal complaints with the  Public Prosecutor attached to the Ä°zmir State Security Court against the governors and warders of Buca prison. On 29 September 1994 the Public Prosecutor decided not to institute criminal proceedings since the incidents had been caused by the detainees themselves and the gendarmes had had to use force to make the detainees obey prison rules.              

On 20 July 1995 gendarmerie forces attacked twenty-two detainees  from Buca Prison while they were being brought before the Ä°zmir State Security Court for a hearing. The detainees were severely beaten  and the court therefore decided to postpone the trial. The wounded detainees filed criminal complaints with the Ä°zmir Public Prosecutor but did not receive any response. The alleged victims of this incident complained to the Commission on 20 October 1995.             

On 20 May 1996 detainees convicted of political crimes started a hunger strike all over Turkey which lasted for 63 days. As a result of this hunger strike twelve prisoners died (four in Bayrampaşa Prison, three in Ümraniye Prison, three in Bursa Prison, one in Aydĸn Prison and one in Çanakkale Prison).

COMPLAINTS

1. The applicants complain of a violation of their right to life as guaranteed by Article 2 of the Convention. They submit that given the circumstances in the prisons in Turkey, the Turkish Government have failed to provide security in prisons and breached their positive obligation to take all necessary precautions to protect the lives of the detainees. The applicants submit that the fact that prisoners all over Turkey have died is evidence of the existence of a real and immediate risk to their lives.

2. The applicants allege under Article 5 of the Convention that their right to personal security has been breached. They submit that the Government have not taken adequate steps to protect their lives in prison.

3. The applicants also submit under Article 6 of the Convention that their right to a fair trial has been violated. They allege that some detainees were beaten by gendarmes while they were being brought before a court.

THE LAW

1. The applicants complain under Article 2 of the Convention that their right to life has been violated, because the Government have not taken the necessary precautions to protect their lives in prison.

The Commission recalls its case-law according to which there must be a sufficiently direct link between the applicant and the damage or loss which he considers he has suffered as a result of the alleged violation. Thus the Convention does not provide for an actio popularis , but imposes as a condition for the exercise of the right of individual petition that every applicant should have an arguable claim to be himself a direct or indirect victim of a violation of the Convention as a result of an act or omission attributable to a Contracting State (No. 6481/74, Dec. 12.12.74, D.R. 1, p. 79, and

No. 28204/95, Dec. 4.12.1995, D.R. 83-B, p. 112-134).

In this case, the applicants refer to various incidents. Some of these incidents occurred in other prisons and have no link with the Buca prison. Other incidents occurred in Buca prison. However, the applicants have not shown that they were personally affected by the events which took place in that prison. Nor does it appear that the  conditions prevailing in that prison are such as to constitute a threat to the applicants' lives.

Having regard to the foregoing, the Commission considers that the applicants cannot claim to be victims of a violation of Article 2 of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 27 para. 2 of the Convention.             

2. The applicants submit under Article 5 of the Convention that their right to personal security has been breached in view of the large number of deaths in prisons all around Turkey.

With regard to this complaint, the Commission recalls that the expression "liberty and security of person" in Article 5 para. 1 must be read as one single concept and that, consequently, "security" should be understood in the context of "liberty". The protection of "security" in its context is concerned with arbitrary interference, by a public authority, with an individual's personal "liberty" (No. 4715/70, 4783/71 and 4827/71,

Dec. 6.3.1978, D.R . 13, p. 17-26).

In the present case the applicants do not allege that they are unlawfully detained or that their detention is otherwise contrary to Article 5 of the Convention. Consequently, there can be no breach of their right to security of person either. This part of the application must therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention. 

3. The applicants finally submit under Article 6 of the Convention that some detainees have been subjected to beatings by gendarmes while they were being brought before a court. They allege that this constitutes a breach of their right to a fair trial.

The Commission notes that there is no complaint of any incident affecting one or more of the applicants personally. In these circumstances, it does not appear that their right to a fair trial has been breached.

It follows that this part of the application should also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.             

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

        M. de SALVIA                                                            S. TRECHSEL

         Secretary                                                                          President

      to the Commission                                                      of the Commission

APPENDIX

THE LIST OF THE APPLICANTS

1. Hikmet YILMAZ, born in 1967, in Diyarbakĸr .

2.  Ali DURÇ, born in 1975, in Mardin .

3.  Ali Haydar AŞKIN, born in 1975, in Diyarbakĸr .

4. Kasĸm AVCI, born in 1968, in Kars .

5. Fikri DEMÄ°R, born in 1971, in Mardin .

6. Haydar AKTAÅž, born in 1932, in Tunceli .

7. Bayram KAYMAZ, born in 1971, in Mardin .

8. Ahmet YEŞİLMEN, born in 1973, in Mardin .

9. Yakup ÇELÄ°KOÄžLU, born in 1972, in Mardin .

10. Kadir SÖNMEZ, born in 1964, in Adana .

11. Ali Rĸza YURTTAŞ, born in 1943, in İzmir .

12. Mehmet İNCİ, born in 1976, in Elazĸğ .

13. Hüseyin ATAY, born in 1954, in Diyarbakĸr .

14. Abdullah GELDÄ°, born in 1965, in Bitlis .

15. Hanifi ERİDİ, born in 1965, in Diyarbakĸr .

16. Nuri AKBULUT, born in 1965 in Şĸrnak .

17. Mahfuz GÃœLERYÃœZ, born in 1973, in Erzurum .

18. İsmail ARTUT, born in 1975, in Ağr ĸ.

19. Abdurrahim ÖZKAHRAMAN, born in 1965, in Muş .

20. Nedim ÖNDEŞ, born in 1969, in Mardin .

21. Nihat YAÄžIZ, born in 1972, in Mardin .

22. Mehmet Emin BAYAR, born in 1961, in Urfa .

23. Mustafa KARATEPE, born in 1960, in Diyarbakĸr .

24. Ä°brahim TEKÄ°N, born in 1958, in Batman.

25. Cemal TANHAN, born in 1955, in Mardin .

26. Sabri ÖNER, born in 1963, in Diyarbakĸr .

27. Hüseyin GÜÇLÜ, born in 1971, in Siirt .

28. Ahmet ODABAŞI, born in 1967, in Diyarbakĸr .

29. Ekrem GÃœNAY, born in 1960, in Erzurum .

30. Yahya KEZER, born in 1960, in Siirt .

31. Mehmet YAVUZ, born in 1969, in Mardin .

32. Şehmus ÇELİK, born in 1972, in Mardin .

33. Welat ESEN, born in 1973, in Mardin .

34. Zafer KALMAM, born in 1974, in Tunceli .

35. Nevzat KILIÇ, born in 1970, in Muş .

36. Cansur KIRT, born in 1974, in Diyarbakĸr .

37. Hac ĸ YANIK, born in 1971.

38. Mehmet ÇELİK, born in 1954, in Mardin .

39. Fethi DUMAN, born in 1962, in Bitlis .

40. Zeki KAYA, born in 1967, in Mardin .

41. Åžemsettin EKÄ°NCÄ°, born in 1955, in Batman.

42. Hasan AÅžKIN, born in 1973, in KahramanmaraÅŸ .

43. Zübeyir COŞKUN, born in 1956, in Siirt .

44. Muhittin BOTAN, born in 1973, in Hakkari .

45. Aslan BEŞİR, born in 1967, in Mardin .

46. Hüseyin YEŞİLTAŞ, born in 1956, in Tunceli .

47. Ali ÖZMEN, born in 1968, in Mardin .

48. Ömer ERKEK, born in 1972, in Mardin .

49. Hüseyin EKSİK, born in 1974, in Tunceli .

50. Sabri OCAK, born in 1976, in Urfa .

51. Abdurrahman ARAS, born in 1976, in Kars .

52. Sait KIZAR, born in 1952, in Batman.

53. Mehmet Emin TOPRAK, born in 1953, in Siirt .

54. Kutsi BEL, born in 1965, in Diyarbakĸr .

55. Cafer CENGÄ°Z, born in 1956, in Tunceli .

56. Ramazan KIZILDAÄž, born in 1974, in Bitlis .

57. Ä°smet ACAR, born in 1976, in Mardin .

58. Ekrem DEMİREL, born in 1958, in Diyarbakĸr .

59. İrfan KALAN, born in 1971, in Bingöl .

60. Mustafa TANKUÅž, born in 1971, in Urfa .

61. Abdülsamet ÇELİK, born in 1974, in Mardin .

62. Mustafa AYDIN, born in 1970, in Ä°zmir .

63. Abdülselam KAYA, born in 1974, in Batman.

64. Vefa KARTAL, born in 1974, in Ağr ĸ.

65. Salih ÖZDEMİR, born in 1960, in Tunceli .

66. Mehmet Halim TURAN, born in 1971 in Diyarbakĸr .

67. DoÄŸan HATUN, born in 1970, in Malatya .

68. Yusuf EROÄžLU, born in 1957, in Mardin .

69. Zülküf ATAY, born in 1963, in Diyarbakĸr .

70. Nazmi DEMÄ°R, born in 1960, in Batman.

71. Fadĸl IŞIK, born in 1967, in Batman.

72. Mehmet Nuri ÖZEN, born in 1976, in Muş .

73. Fesih YAVAÅž, born in 1971, in MuÅŸ .

74. Sekvan BECERÄ°KLÄ°, born in 1974,in Mardin .

75. Abdurrahman KOÇER, born in 1971, in Mardin .

76. Mehmet Emin ÇEÇİ, born in 1964, in Urfa .

77. Şemsettin TUNÇ, born in 1944, in Mardin .

78. Ömer KAÇAR, born in 1977, in İstanbul .

79. Osman ATABAY, born in 1969, in Mardin .

80. Filiz KAPLAN, born in 1976, in Ä°zmir .

81. Fatma TUNÇ, born in 1974, in Antalya .

82. Ä°lkay OÄžUZ, born in 1971, in Tunceli .

83. Sultan TOPTAÅž, born in 1976, in Batman.

84. Ernil ÅžAHÄ°N, born in 1975, in Konya .

85. Mehtap CEYLAN, born in 1976, in Adana .

86. Fatma SÖNMEZ, born in 1977, in Manisa .

87. Nurten KIZILIRMAK, born in 1973, in Kĸrşehir .

88. Arzu KAHRAMAN, born in 1975, in Bursa.

89. Mĸzgin POLAT, born in 1976, in Manisa .

90. Zeycan EFETRK, born in 1974, in Mardin .

91. Birgül TEKİN, born in 1978, in Aydĸn .

92. Hülya HASDEMÄ°R, born in 1979, in Kütahya .