Lexploria

Application No. 39499/98

by Sirus NURKHALAJ and Mujdeh HASSANPOUR

against Turkey

The European Commission of Human Rights sitting in private on

9 July 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

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

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

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 7 January 1998 by

Sirus NURKHALAJ and Mujdeh HASSANPOUR against Turkey and registered on

23 January 1998 under file No. 39499/98;

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

2 March 1998 and the correspondence between the Secretariat and

the applicants and their representative since March 1998 ;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant, a medical attendant of Iranian nationality,

was born in 1959 in Teheran. He was represented before the Commission

by the Iranian Refugees' Alliance. He complains to the Commission on

behalf of himself and his wife Mujdeh Hassanpour (second applicant),

an Iraqi national of Kurdish origin, born in Sulaymania (Iraq).

The facts as submitted by the parties may be summarised as

follows.

The first applicant was an official supporter of the Organisation

of Iranian People's Fedaian Guerrillas (OIPFG) since 1978.

In 1981, he was arrested by the Iranian security forces on the

grounds of his anti-government political activities within the OIPFG.

He spent three months in prison and escaped while being transferred

from Evin prison (Teheran) to Gohardast prison (Karaj). While in

detention, prison autorities brutally tortured him to obtain a

confession about other members of the organisation. His fiancée, who

was also arrested, was executed.

After his excape from prison, the first applicant continued his

activities in Northern Iraq with the Kurdistan branch of the OIPFG. He

put his medical experience at the service of Iraqi Kurdish

organisations, mainly the Patriotic Union of Kurdistan (PUK),

accompanying critically ill PUK militants to government hospitals,

passing them off as OIPFG members.

After the Gulf war, non-Kurdish Iranian opposition members were

looked upon with suspicion and resentment. In May 1991, the Kurdish

members of the OIPFG separated to form a nationalist Kurdish group. The

remaining members of the OIPFG went to Kirkuk, a town under Baghdad

Government control. They were transferred by the Mukhabarat (the Iraqi

foreign intelligence agency) to the Al-tash refugee camp and, by 1993,

they all fled to Turkey.

The first applicant served the Iraqi Kurdish Front (IKF -

coalition of PUK and the Kurdish Democratic Party (KDP) in Sulaymania

and Penjmin as medical assistant and trainer.

In December 1991 he married Mujdeh Hassanpour, the second

applicant, who had been an active supporter of Rewft Communists during

1988-1989.

In 1989, the second applicant decided to leave the organisation

in order to attend university. In May 1992 she resumed her political

activities with the local People's Council, led by left-wing and

communist groups, for which she was constantly threatened.

In August 1992, there was an unsuccessful assassination attempt

against the first applicant by a man who was allegedly an Iranian

agent. Three months later he was shot at in front of his residence in

the centre of Sulaymania. After this incident, the head of Sulaymania's

security forces advised him to leave Iraqi Kurdistan, informing him

that the police were unable to protect him against Iran's agents and

that they might have to hand him over to the Iranian government.

In December 1992, the applicants entered Turkey illegally. They

were apprehended inside Turkey and deported back to Iraq, where they

were detained by the KDP security forces for several days.

In March 1993, they re-entered Turkey and made an application

to the UNHCR.

Acting upon the UNHCR's request, the Turkish authorities granted

them a provisional residence permit.

In May 1993, the UNHCR refused the applicants' request for

refugee status.

In July 1995, the applicants received a deportation order from

the Turkish autorities. The first applicant joined a group of 160

Iranians who had staged a sit-in at the offices of the United Socialist

Party in Ankara to protest against the UNHCR's rejection of their

refugee claims and to seek a reprieve for their deportation orders back

to Iraq.

In January 1997, the applicants' case was re-opened by the UNHCR.

The first applicant submits that, in November 1997, the UNHCR informed

him that he and his wife were granted refugee status within the meaning

of the Geneva Convention, thus confirming the risk of persecution the

first applicant would run, should he return to Iran. In December 1997

the applicants were told that they should return to Northern Iraq and

seek assistance from the UNHCR office there. This decision was

communicated to the applicant on 29 December 1997.

The applicants' residence permit expired at the end of December

1997 and has not been renewed.

COMPLAINTS

The first applicant claims that his return to Iraq would have the

foreseeable consequence of exposing him to a real risk of expulsion to

Iran and would endanger his and his wife's security due to the Kurdish

administration's inability to protect them against attacks by Iran's

agents.

He adds that he would be subject to discriminatory and inhuman

treatment by the Kurdish authorities because of his ethnic identity and

political views. He invokes Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 January 1998 and registered

on 23 January 1998.

On 7 January 1998, the first applicant applied to the Commission

requesting the application of Rule 36 of the Commission's Rules of

Procedure to prevent his and his wife's deportation to Iraq.

This application was accepted by the Acting President of the

Commission on 7 January 1998 who requested the Turkish Government not

to deport the applicants to Iraq until the Commission had an

opportunity to examine the application.

On 23 January 1998, the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 2 March

1998. These observations were sent to the applicants for comments

before 6 April 1998.

On 31 March 1998, the applicants' representatives informed the

Commission that they could not continue to represent the applicants due

to a break-down in communications and asked that the Government's

observations be transmitted to the first applicant himself at his

latest available address.

The observations were sent to the applicants with a time-limit

for replies until 6 May 1998. However, no reply was received by the

Commission.

By letter sent to the applicants on 28 May 1998 by registered

mail, the applicants were reminded that the time limit for the

submission of their replies to the Government's observations had

expired. They were further invited to state whether they intended to

pursue their application and were warned about the provision of Article

30 para. 1 (a) of the Convention. This letter has not been received by

the applicants as they were not at their address any more.

REASONS FOR THE DECISION

The Commission notes that the applicants did not react when

invited to submit observations in reply to the Government's

observations. The warning letter did not reach them as they had

apparently left their last known residence. They have not informed the

Commission of any change in their address.

In these circumstances, the Commission concludes pursuant to

Article 30 para. 1 (a) of the Convention that the applicants do not

intend to pursue their application and that it is, therefore, no longer

justified to continue the examination of the petition. Moreover, there

are no reasons of a general character affecting respect for Human

Rights as defined in this Convention which require the further

examination of the application by virtue of Article 30 para. 1 in fine

of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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NURKHALAJ AND HASSANPOUR v. TURKEY

NURKHALAJ AND HASSANPOUR v. TURKEY