Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 37534/97

by Aziz SARIALTUN and Others

against Germany

The European Commission of Human Rights sitting in private on

23 April 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

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

J. MUCHA

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 22 August 1997 by

Aziz SARIALTUN against Germany and registered on 28 August 1997 under

file No. 37534/97;

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

5 December 1997 and the observations in reply submitted by the

applicant on 19 February 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are members of a Turkish family of Kurdish ethnic

origin. The first applicant, Aziz Sarialtun, was born in 1950 in

Pazarcik, Turkey. The second applicant, Hatice Sarialtun, was born

there in 1957. She married the first applicant in Turkey. The

spouses' children, Meliha Kunduru (born in 1976 in Pazarcik and married

to a Turkish national who has applied for asylum in Germany), Fidan

Sarialtun (born in 1978 in Pazarcik), Hasan Sarialtun (born in 1981 in

Pazarcik), Fatma Sarialtun (born in 1983 in Pazarcik); Esme Sarialtun

(born in 1985 in Pazarcik), Tahir Sarialtun (born in 1990 in Pazarcik)

and Zeliha Sarialtun (born in 1991 in Herten, Germany), are the third

to ninth applicants. When lodging their application they were living

in Seilersbach.

Several relatives of the applicants, brothers or cousins of the

first and second applicants, have been granted asylum in Germany or

asylum proceedings are still pending.

In the proceedings before the Commission, all applicants are

represented by Mr. R. Marx and partners, a law firm in Frankfurt am

Main.

The first applicant left Turkey for the first time in

December 1987. His request for asylum was dismissed by the Federal

Office for Refugees (Bundesamt für die Anerkennung ausländischer

Flüchtlinge) in April 1988. He withdrew his appeal with the Koblenz

Administrative Court (Verwaltungsgericht) and was deported to Turkey

in June 1989.

According to the applicants, they had subsequently repeated

problems with special forces of the Turkish police authorities. In the

summer of 1990 they were staying with their cattle in the mountains in

the Engecik region. They supported members of the PKK (Workers' Party

of Kurdistan) by giving food and shelter. On three occasions, soldiers

required the first applicant to show them hiding-places of members of

the PKK in the mountains. The soldiers eventually destroyed their

tents. Due to the pressure of the security forces, they gave up their

habit of herding during the summer and, in spring 1991, the first

applicant purchased a grocer's shop in order to maintain his family and

support the PKK. On 10 July 1991 the applicant was allegedly arrested

by special forces of the Turkish police authorities and brought to the

Kahmanmaras police station where he was kept for a period of ten days.

During his detention, he was questioned about his brother and two

cousins as well as about a relative of the second applicant, all of

them militant PKK members since 1986, and also about his activities for

the PKK in general. Presumably, his relatives had been betrayed by a

PKK official who had cooperated with the Turkish authorities. In the

first applicant's submission, he was subjected to torture and ill-

treatment such as beating with fists and shoes and "falaka", i.e.

beating on the soles of his feet, during his questioning. Upon his

release, he was allegedly threatened with death in case he should

further assist his relatives or other members of the PKK.

On 16 October 1991 the first applicant returned to Germany,

together with his wife and children. They applied for asylum.

On 5 October 1993 the Federal Office for Refugees heard the

applicants. The first applicant referred to his activities in support

of the PKK, i.e. by giving food or shelter, his arrest and detention

by special police forces in July 1991 and the beatings and torture

during his questioning. The second applicant confirmed their support

for the PKK and further stated that she had also once been arrested,

beaten and threatened with rape. On another occasion, when attempting

to prevent her husband's arrest, she was beaten and, as a result, had

suffered a miscarriage.

On 15 October 1993 the Federal Office dismissed their respective

requests on the ground that they had failed to show any persecution

reaching the relevant level of severity requiring that they be granted

asylum.

On 11 December 1995 the Koblenz Administrative Court dismissed

the applicants' actions challenging the refusal of asylum. The Court

found that the applicants had failed to show a real risk of individual

persecution for political reasons. They were no political activists

but simple citizens suffering from the general living conditions. They

could have avoided the difficulties in the area of their origin by

moving to one of the big towns in the West or North of Turkey. Their

political activities in Germany did not give rise to a right to asylum,

either.

On 20 February 1996 the applicants renewed their requests for

asylum (Asylfolgeantrag), relying on new elements, namely new evidence

to prove their persecution and risk of ill-treatment if returned to

Turkey. Thus they filed a letter sent by the first applicant's mother

in which she described the persecution of other family members,

enquiries about the first applicant's whereabouts as well as the

destruction of the applicants' house which had taken place in the

meantime.

On 8 July 1996 the Federal Office refused to conduct new asylum

proceedings on the grounds that the applicants' new submissions were

not sufficiently substantiated and that the mere reference to a letter

was irrelevant.

The applicants filed an action with the Koblenz Administrative

Court challenging the decision of 8 July 1996 and applied for interim

judicial protection (vorläufigen Rechtsschutz), i.e. a court decision

to stop their deportation pending these proceedings.

On 17 September 1996 the Koblenz Administrative Court dismissed

their requests for interim judicial protection.

On 11 October 1996 and 6 November 1996, respectively, the Koblenz

Administrative Court dismissed their requests for a review of its

decision of 17 September. The Court found that a local press article

on the first applicant's situation as asylum seeker did not expose him

to any real risk of persecution by the Turkish authorities.

On 20 May 1997 the Koblenz Administrative Court dismissed their

renewed requests for interim judicial protection on the ground that the

competent Aliens Office did not actually envisage to enforce their

deportation.

On 8 July 1997 the Koblenz Administrative Court dismissed their

repeated requests for interim judicial protection. The Court,

referring inter alia to Article 3 of the Convention, considered that

the applicants had not been persecuted for political reasons prior to

their emigration from Turkey and that their activities in Germany did

not expose them to any real risk of ill-treatment in case of their

return.

On 11 August 1997 the Federal Constitutional Court

(Bundesverfassungsgericht) refused to entertain their constitutional

complaint (Verfassungsbeschwerde).

COMPLAINTS

1. The applicants complain under Article 3 of the Convention about

their envisaged deportation to Turkey.

2. In case the Commission should find that only the first

applicant's envisaged deportation would amount to a breach of Article 3

of the Convention, the applicants complain that the deportation of the

other family members would amount to a violation of the right to

respect for their family life, as guaranteed under Article 8 para. 1

of the Convention.

3. The applicants complain under Article 13 of the Convention that

the Federal Office for Refugees refused to conduct new asylum

proceedings and that the Administrative Courts refused their requests

for interim judicial protection.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 August 1997 and registered

on 28 August 1997.

On 28 August 1997 the President of the Commission decided, in

accordance with Rule 28 para. 3 and Rule 42 para. 2 (b) of the Rules

of Procedure, to give notice of the application to the respondent

Government and to ask for their observations on its admissibility and

merits. The President of the Commission also decided on the same date

to indicate to the Government, in accordance with Rule 36 of the

Commission's Rules of Procedure, that it was desirable, in the

interests of the parties and the proper conduct of the proceedings, not

to deport the applicants to Turkey until the Commission had an

opportunity to examine the application during its session in

December 1997).

Following an extension of the time-limit, the respondent

Government's observations were received on 5 December 1997.

The Commission examined the state of the proceedings on

11 December 1997 and decided to prolong the above Rule 36 indication

to the respondent Government until 13 March 1998.

The applicants replied to the Government's observations on

19 February 1998, also after an extension of the time-limit.

On 11 March 1998 the Commission decided to prolong the above

Rule 36 indication to the German Government until 24 April 1998.

THE LAW

1. The applicants complain that their envisaged deportation to

Turkey would expose them to treatment prohibited under Article 3

(Art. 3) of the Convention.

This provision reads as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Government do not raise objections against the admissibility

of the applicants' complaint under Article 3 (Art. 3) though they

maintain that the applicants would not face a real risk of being

subjected to treatment in breach of Article 3 (Art. 3) in case of their

deportation to Turkey.

Referring to the criteria established in the case-law of the

Convention organs, the Government consider that, if his account were

correct, the circumstances of the first applicant's questioning in

July 1991 could be regarded as treatment in breach of Article 3

(Art. 3) of the Convention.

However, there were no further reasons to believe that the

applicants would risk any treatment contrary to Article 3 (Art. 3) if

deported to Turkey. The first applicant's submissions concerning

political activities in Germany were not sufficiently substantiated.

Moreover, the Government, having regard to reports on the situation in

Turkey with regard to prosecution for PKK activities and allegations

of torture, find no indication that persons deported from Germany had

been subjected to torture or ill-treatment in Turkey. As regards the

destruction of the applicants' home, the Government note that it had

occurred after the applicants had left Turkey. The applicants could

avoid repetition of such problems if they were to settle in the large

towns on the western coast of Turkey. Finally, in the Government's

view, there was no risk of ill-treatment on account of the membership

in the PKK of family members. While family members could be summoned

for questioning regarding the whereabouts of a suspect, and could be

brought to such questioning, the right to remain silent was guaranteed

by law.

The applicants consider that the concentration of facts and

circumstances including the general situation in Turkey, seen as a

whole, justify the conclusion that there is a real risk of inhuman or

degrading treatment, if they return.

The applicants submit in particular that the Government have not

stated any specific grounds which could call into question the first

applicant's account of ill-treatment on the occasion of his arrest in

1991. According to them, the Turkish authorities are still interested

in persecuting the first applicant, but also the others, on account of

the family situation, namely the political activities of members of

both the Sarialtun and the Kunduru families in Turkey and abroad. In

this respect, they refer to the fact that several other family members

were persecuted in Turkey and have been granted asylum in Germany.

They further maintain that they could not avoid persecution in Turkey

as there was a real risk that they were subjected to ill-treatment

already upon their arrival.

The Commission considers, in the light of the parties'

submissions, that the applicants' complaint that their deportation to

Turkey would expose them to a real risk of treatment contrary to

Article 3 (Art. 3) of the Convention raises complex issues of law and

of fact under the Convention, the determination of which should depend

on an examination of the merits of the application. The Commission

concludes, therefore, that the application is not manifestly ill-

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

Convention. No other grounds for declaring it inadmissible have been

established.

2. In case the Commission should find that only the first

applicant's envisaged deportation would amount to a breach of Article 3

(Art. 3) of the Convention, the applicants complain that the

deportation of the other family members would amount to a violation of

the right to respect for their family life, as guaranteed under Article

8 para. 1 (Art. 8-1) of the Convention.

Article 8 (Art. 8) provides as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Government submit that the applicants have not raised

arguments relating to their family life in domestic proceedings. In

any event, the Government maintain that their complaint is of a purely

hypothetical nature as the competent authorities gave no reason to

believe that, in case the first applicant should not be deported to

Turkey, it may have intended nevertheless to deport the other

applicants.

The applicants contest the Government's submissions.

The Commission considers that this complaint is closely related

to that under Article 3 (Art. 3) of the Convention and it must

therefore also be declared admissible.

3. The applicants complain under Article 13 (Art. 13) of the

Convention that the Federal Office for Refugees refused to conduct new

asylum proceedings and that the Administrative Courts refused their

requests for interim judicial protection.

Article 13 (Art. 13) provides as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Government submit that the applicants' request for interim

judicial protection was thoroughly and repeatedly examined by the

German authorities and courts.

The applicants submit that the competent Administrative Court did

not duly consider all their arguments and the evidence adduced by them.

The Commission considers that this complaint is closely related

to the other complaints made by the applicants and that it must

therefore also be declared admissible.

For these reasons, the Commission,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

unanimously,

the applicants' complaints about their envisaged deportation to

Turkey;

by a majority,

the applicants' complaints about the absence of effective

remedies with regard to their envisaged deportation.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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SARIALTUN AND OTHERS v. GERMANY

SARIALTUN AND OTHERS v. GERMANY