Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 39553/98

by Harun ABiLOGLU and 96 others

against Bulgaria

The European Commission of Human Rights (Second Chamber) sitting

in private on 20 May 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 August 1996 and

15 January 1998 by Harun Abiloglu and 96 others against Bulgaria and

registered on 28 January 1998 under file No. 39553/98;

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, who are of Turkish ethnic origin, were born and

lived in Bulgaria and were Bulgarian nationals at least until 1989.

They are currently Turkish citizens, residing in Turkey, most of them

apparently having also preserved or restored their Bulgarian

citizenship. Before the Commission the applicants are represented by

Mr Resit Sasihüseyinoglu, a lawyer practising in Istanbul.

The facts of the case as submitted by the applicants may be

summarised as follows.

A. Particular circumstances of the case

Background of the case

In 1984 the Bulgarian communist regime embarked on a campaign

aiming at the assimilation of persons of Turkish origin. It appears

that in 1984 - 1985 several hundred thousand persons were forced to

change their Turkish names into Bulgarian-sounding names. This was

done with the help of the army and of the police, who often resorted

to arbitrary detention and internments of those who refused to change

their names. During clashes with the authorities, several persons were

killed.

In May 1989 the Bulgarian communist regime allowed all persons

of Turkish origin to leave the country and to travel to Turkey.

Although the authorities at the time attempted to present the mass

exodus which followed as a voluntary "trip", it has widely been seen

as a forced emigration. Persons of Turkish origin had apparently been

under pressure, direct or indirect, to leave the country.

Repressions against the applicants

Each of the applicants has been subjected to repressions between

1984 and 1989.

Mr Abiloglu was forcefully kept between 13 January and

17 February 1985 in a village where the Turks from the region were

brought. The village was surrounded by soldiers. On an unspecified

date in February 1985 all persons kept in the village were called to

choose a Bulgarian name from a pre-prepared list. They did as

requested under the threat of ill-treatment. Following his return to

his home, Mr Abiloglu, who was a teacher, was arrested in April 1985

and kept in detention incommunicado for about 30 - 40 days, and then

sent to prison, from where he returned in November 1985. In 1989 he

was forced to leave Bulgaria.

Another applicant alleges that her husband was shot and killed

in December 1984 when he was participating in a demonstration in

protest against the forceful change of the Turkish names. Allegedly

on the instruction of the secret police, the death certificate marked

only that her husband had died from a haemorrhage in the lungs, without

any mention that he had been shot.

Those of the applicants who were convicted in 1985 or later on

charges of anti-state activities and requested, after 1989, a revision

of their judgments, were successful and their convictions were quashed.

The applicants have not explained whether they applied to the

rehabilitation commissions set up under the 1991 Rehabilitation Law

(see below) or whether they received compensation.

The property of some of the applicants was confiscated or they

were compelled to sell it at low prices or to abandon it when they had

to leave Bulgaria during the forced exodus in the summer of 1989.

After 1990 some of them were apparently able to recover their property.

In 1997 the applicants' lawyer wrote to the Chief Public

Prosecutor demanding the punishment of those responsible for the

repressions but allegedly did not receive a response.

B. Relevant domestic law and practice

a. On 30 March 1990 the Parliament adopted a Decision on Political

and Civil Rehabilitation of Convicted Persons and Victims of

Repressions (reshenie za politicheska i grazhdanska reabilitatzia na

osudeni i represirani litza, D.V. br. 30/1990), which provided for

procedures for rehabilitation of victims of repressions.

The Decision was superseded in 1991 by more comprehensive

legislation, the Law on Political and Civil Rehabilitation of Victims

of Repressions (Zakon za politicheska i grazhdanska reabilitatzia na

represirani litza, D.V. br. 50/1991) (the Rehabilitation Law).

Under this law persons who have been unlawfully detained,

convicted, or subjected to other repressions, inter alia, based on

their origin, or during the campaign for the forceful change of the

names of the Bulgarian Turks, obtain rehabilitation (Section 1).

Those of them who were convicted for anti-State and other

particular crimes, who were detained in camps or interned are entitled

to a lump-sum compensation (Section 2). The time spent in prison, in

detention or internment is recognised as time spent in employment for

a state retirement pension or for other purposes (Section 7).

A lump-sum compensation is also payable to the heirs of those who

have been killed in clashes during the forceful change of names

(Section 3 para. 2). In addition, these heirs, as well as the heirs

of those who committed suicide or disappeared during the forceful

change of names, are entitled to a pension (Section 8).

The Rehabilitation Law set up regional commissions and a central

commission for political rehabilitation, which could be seized within

a three years' time-limit from the date of the law's entry into force

in 1991. The regional commissions were examining the requests

submitted to them and deciding whether an applicant had or had not been

a victim of repressions within the meaning of the Rehabilitation Law.

Their decisions were subject to appeal to the central commission.

b. Another law, adopted in 1991, aims at correcting injustices

caused by the forced exodus of the Bulgarian Turks in the summer of

1989. This is the Law on Restitution of Real Property of Bulgarian

Citizens of Turkish Origin Who Sought to Travel to Turkey or to Other

Countries in the Period May - September 1989 (Zakon za vazstanoviavane

na sobstvenostta varhu nedvizhimi imoti na balgarski grazhdani ot

turski proizhod, napravili postapki za zaminavane v Republika Turtzia

i drugi strani prez perioda mai - septemvri 1989).

Restitution of property which had been sold at unreasonably low

prices, under duress, is also possible under Section 27 of the Law on

Obligations and Contracts.

In all cases the courts are competent to examine restitution

claims in ordinary civil proceedings.

COMPLAINTS

The applicants complain of the repressions in 1984 - 1989 and

seek compensation therefor.

They also complain that the Bulgarian authorities currently

refuse to prosecute those responsible for the repressions.

Some of the applicants further state that they currently cannot

recover property taken from them in or before 1989.

THE LAW

1. The applicants complain of the killings, unlawful detention,

forced change of their names and other repressions to which they were

subjected between 1984 and 1989. They seek compensation for their

suffering.

However, the Commission recalls that the Convention only governs,

for each Contracting Party, facts subsequent to its entry into force

with respect to that Party. Bulgaria ratified the Convention and

recognised the right to individual petition as of 7 September 1992.

It follows that all complaints about repression by the communist regime

in the years 1984 - 1989 and the alleged lack of sufficient

compensation therefor are outside the Commission's competence ratione

temporis and that, therefore, these complaints have to be rejected as

being incompatible with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

2. Insofar as some of the applicants may be understood as claiming

that they have been refused their right to a lump-sum compensation, to

a pension, or to other payments provided for under the Rehabilitation

Law, assuming that this complaint may fall to be examined under Article

1 of Protocol No. 1 (P1-1) to the Convention, the Commission notes that

the applicants have not submitted any information indicating whether

or not they applied for rehabilitation and compensation.

The Commission finds, therefore, that the applicants have not

exhausted the domestic remedies available to them under Bulgarian law

as required by Article 26 (Art. 26) of the Convention.

It follows that this part of the application must be rejected

under Article 27 para. 3 (Art. 27-3) of the Convention.

3. The applicants further complain that those responsible for the

repression have not been punished.

However, the Commission observes that the Convention does not

guarantee a right to institute criminal proceedings against third

persons (see, inter alia, No. 7116/75, D.R. 7, p. 91).

It follows that this part of the application has to be rejected

as being incompatible ratione materiae with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2).

4. Insofar as certain applicants may be understood as complaining

that they currently cannot recover property unlawfully taken from them

during the years 1984 - 1989, the Commission is not required to decide

whether or not the facts submitted by the applicants disclose any

appearance of a violation of the Convention as they failed to bring

civil actions before the Bulgarian courts and have not, therefore, in

accordance with Article 26 (Art. 26) of the Convention, exhausted the

remedies available under Bulgarian law. It follows that the remainder

of the application must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

ANNEX

LIST OF APPLICANTS

Harun ABiLOGLU

Hüseyin ADALI

Mücettin AKBASÇAVUS

Seydali AKGÃœN

Mustafa ARABACI

ibrahim ATASOY

Selahattin ATASOY

Turgay ATASOY

Necibe AZIS

Ismet BALKANLI

Yunaus BAYRAMOGLU

Mümin BERKEM

Gülgün BiLEN

Saddettin BiLEN

Cemil BiRTANE

Mümin ÇAKIR

Adil ÇAVUS

Hasan ÇAVUS

Hasan ÇETIN

Seyitahmet CENK

Eyüp CESUR

Hazan DÖNMEZ

isa ERCAN

Ömer Osman ERENDORUK

Saban ERGÃœL

O.G.

Ali GÖL

Muhammet GÖLCÜKLÜ

Halil GÃœLiSTAN

Ömer GÜNES

Halil ibrahim GÃœVEN

Enver HATiPOGLU

ismail HÃœSEYINOGLU

Necmettin iNANÇ

Sabri iSKENDER

Mehmet KAHRAMAN

Mustafa KARAALi

Mehmet KARAALi

Ahmet KARABEKiR

Gülnaz KARABEKiR

Ahmet KARACA

Fehim KARADUMAN

Fikret KARAGÖZ

Gültekin KARAMAN

Nesibe KARAMAN

Bedri KASAP

Hasan KAVONOZOGLU

Halil ibrahim KAYA

ibrahim Mustafov KELESOV

Ahmet KiTAPÇI

Celil KORKMAZ

Alvan KÖYBASI

ismail KURTULDU

Osman KURTULDU

Riovan KURTULMUS

Ali MUTLU

Mustafa NURiOGLU

Hasan OCAKLI

Ali ÖNDER

Sefer ORAL

Ali ORMANLI

Hüseyin OSMANOGLU

ismail ÖZGÜR

Niyazi ÖZGÜR

Enver ÖZKAN

Ali ÖZTÜRK

Hayrettin ÖZTÜRK

Mustafa ÖZTÜRK

Remzi ÖZTÜRK

Hasan ÖZYiGiT

Zehra SAFETOGLU

Yusuf SALINOGLU

Cemal SARAÇOGLU

Sevket SENYÃœZ

Sezgin TARAKÇI

Basri TATA

Kazim TATA

Hüseyin TEPiK

ismail ULUBEY

Mehmet VATANSEVER

Alis YANAR

ismail YANGIN

Sadullah YENiDOGN

Zeynel YIKILMAZ

Ali YILDIZ

Cumaziye YILDIZ

Turgut YILDIZ

Ahmet YILMAZ

Hüsnü YILMAZ

Ahmet YÃœCETÃœRK

Feyzullah YÃœCETÃœRK

Tensile YÃœCETÃœRK

Zülbiye YÜCETÜRK

Mehmet ZAFER

Ibrahim ZAFER

Hanife ZAFER

Zeynep ZAFER

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ABILOGLU AND 96 OTHERS v. BULGARIA

ABILOGLU AND 96 OTHERS v. BULGARIA