Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25660/94

by Süheyla AYDIN

against Turkey

The European Commission of Human Rights sitting in private on

12 January 1998, the following members being present:

Mr S. TRECHSEL, President

MM J.-C. GEUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

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 4 October 1994 by

Süheyla Aydin against Turkey and registered on 14 November 1994 under

file No. 25660/94;

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

20 July 1995 and the observations in reply submitted by the

applicant on 13 October 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen of Kurdish origin, born in 1966,

is a nurse and lives in Urfa, Turkey. She is represented before the

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

university teachers at the University of Essex.

The facts as submitted by the parties may be summarised as

follows.

A. Particular circumstances of the case

The applicant claims that the following events occurred.

On 18 March 1994 at 9.00 p.m., the applicant and her husband

Necati Aydin, president of a health workers' trade union, were taken

into custody along with nine other members of the Aydin family. They

were brought to the Struggle against Terrorism Branch in Diyarbakir for

interrogation.

The applicant was six months pregnant at the time. During the

interrogation, she claims that she was blindfolded, she received

threats and she was obliged to take her clothes off. She was also told

that her husband would be killed.

On 22 March 1994 at 2.30 a.m., the applicant was released without

having been brought before a prosecutor.

The applicant's husband Necati Aydin and his cousin Mehmet Ay

were not released.

On 4 April 1994, the applicant's husband and Mehmet Ay were

brought before the State Security Court in Diyarbakir. They were seen

by a large number of people. Lawyers confirmed that they saw the two

detainees in court.

The prosecutor demanded that they remain in custody, but the duty

judge ordered Necati Aydin and Mehmet Ay to be released that day. The

prosecutor lodged an objection to Mehmet Ay's release with State

Security Court No. 3, but the appeal was rejected.

Despite the order of release from the State Security Court, the

two men were taken out through the back door of the court building and

taken to an unknown destination. Their families waited outside the

court building until late in the evening, but they never again saw

Necati Aydin and Mehmet Ay alive. The following day, 5 April 1994, the

families of the two men applied to the prosecutor in order to get some

information. The prosecutor told them that Necati Aydin and Mehmet Ay

had been released, and that they had not been re-arrested. He suggested

that the families apply elsewhere for information. The Emergency Region

Governor and other authorities likewise denied that the two men had

been re-arrested.

On the evening of 9 April 1994, villagers working in a field at

Silvan district near the Pamuklu river about 40 kilometres outside

Diyarbakir discovered three bodies. A bullet in the head had killedeach

of them. They were buried side by side about one metre deep. A ring in

the pocket of one of the dead carried the name of Süheyla, which is the

applicant's name. Their families identified the bodies of Necati Aydin

and Mehmet Ay that evening. A third body found buried with the others

was not identified.

On 8 April 1994, one day before the bodies were discovered,

Yasemin Aydin, a cousin of Necati Aydin, was called by telephone to

meet with a Prosecutor, Mr. Osman. At this meeting held in the State

Security Court building, Mr. Osman, the Chairman of State Security

Court No. 3, another prosecutor and a judge were present. The chief

prosecutor Bekir Selçuk also joined the meeting later. The discussion

at this meeting concerned the question how Necati Aydin could have gone

missing from inside the court building. The judge at the meeting noted

that apart from the front entrance there was only one other entrance

which was at the back of the building used solely by the police to

transport prisoners to and from the State Security Court. The judge

wondered whether "those people with the walkie-talkies" could have

taken away the two men, but did not finish his sentence. At the end of

the meeting Mr. Osman exchanged telephone numbers with Yasemin Aydin.

The families retrieved the bodies of Necati Aydin and Mehmet Ay

the following day from the morgue at Diyarbakir State hospital. Many

people who visited the morgue were turned away. Three teachers, members

of EGiT-SEN (Education Union), were taken into custody. While in

custody, they were threatened and told that Necati Aydin and Mehmet Ay

had been "killed in a clash".

The applicant invokes the statement of a witness, Salih Güler,

who was detained in the same cell as Necati Aydin on 4 April 1994,

according to which Necati Aydin had told him that he had been tortured

the first two days of his detention and that he was fearing that he

would be killed by the security forces.

The respondent Government state as follows.

Having been arrested on 17 November 1993, the applicant was

examined by a doctor on 23 November 1993. The Government submit the

medical report, according to which there were no signs of ill-treatment

or torture on her body.

In relation to the arrest of the applicant's husband and of

Mehmet Ay on 18 March 1994, the Government submit a request made on

4 April 1994 by the State Security Directorate (Struggle against

Terrorism Branch) that Necati Aydin and Mehmet Ay be examined by a

doctor.

As a result of this request, on 4 April 1994 at 0.45 a.m., the

applicant's husband and Mehmet Ay were examined by a doctor who

concluded that there were no signs of ill-treatment or torture.

On 4 April 1994, the applicant's husband and Mehmet Ay were

brought before the judge, who ordered their release. At 9.00 a.m., they

were brought to the chief of the security forces, who drew up a record

to the effect that their personal belongings had been restituted to

them. They then left the court building.On 9 April 1994, the

applicant's husband's body, the body of Mehmet Ay and a third body not

identified were found buried at a distance of 40 kilometres from

Diyarbakir.

The autopsy performed concluded that they had been summarily

executed, as the bodies were found with the hands tied behind their

backs.

An ex officio investigation was opened under file no. 1994/2233

in order to identify the PKK terrorists, authors of the murders. The

investigation is still pending.

Following the lodging of the application before the Commission,

an ex officio investigation was opened in relation to the allegations

of ill-treatment and torture during the arrest.

On 6 October 1995, the Chief Prosecutor of Diyarbakir decided not

to prosecute as there was no evidence supporting the applicant's

allegations.

B. Relevant domestic law and practice

Civil and administrative procedures

Article 125 of the Turkish Constitution provides :

< translation >

"All acts or decisions of the Administration are subject to

judicial review...

The Administration shall be liable for damage caused by its own

acts and measures."

The principle of administrative liability is reflected in the

additional Article 1 of Law 2935 of 25 October 1983 on the State of

Emergency, which provides :

"...actions for compensation in relation to the exercise of the

powers conferred by this law are to be brought against the

Administration before the administrative courts."

Any illegal act by civil servants, be it a crime or tort, which

causes material or moral damage, may be the subject of a claim for

compensation before the ordinary civil courts and the administrative

courts.

Damage caused by terrorist violence may be compensated out of the

Social Help and Solidarity Fund. Criminal procedures

The Turkish Criminal Code makes it a criminal offence to subject

someone to torture or ill-treatment (Article 243 in respect of torture

and Article 245 in respect of ill-treatment, inflicted by civil

servants). As regards unlawful killings, there are provisions dealing

with unintentional homicide (Articles 452, 459), intentional homicide

(Article 448) and murder (Article 450).

In general, in respect of criminal offences, complaints may be

lodged, pursuant to Articles 151 and 153 of the Code of Criminal

Procedure, with the public prosecutor or the local administrative

authorities. The public prosecutor and the police have a duty to

investigate crimes reported to them, the former deciding whether a

prosecution should be initiated, pursuant to Article 148 of the Code

of Criminal Procedure. A complainant may appeal against the decision

not to institute criminal proceedings.

Emergency measures

Articles 13 to 15 of the Constitution provide for fundamental

limitations of constitutional safeguards.

Provisional Article 15 of the Constitution provides that there

can be no allegation of unconstitutionality in respect of measures

taken under laws or decrees having the force of law and enacted between

12 September 1980 and 25 October 1983. That includes Law 2935 on the

State of Emergency of 25 October 1983, under which decrees have been

issued which are immune from judicial challenge.

Extensive powers have been granted to the Regional Governor of

the State of Emergency by such decrees, especially Decree 285, as

amended by Decrees 424 and 425, and Decree 430.

Decree 285 modifies the application of Law 3713, the Anti-Terror

Law (1981), in those areas which are subject to the state of emergency,

with the effect that the decision to prosecute members of the security

forces is removed from the public prosecutor and conferred on local

administrative councils.

Article 8 of Decree 403 of 16 December 1990 provides as follows :

"No criminal, financial or legal responsibility may be claimed

against the State of Emergency Regional Governor or a Provincial

Governor within a state of emergency region in respect of their

decisions or acts connected with the exercise of the powers

entrusted to them by this decree, and no application shall be

made to any judicial authority to this end. This is without

prejudice to the rights of individuals to claim compensation from

the State for damage suffered by them without justification."

COMPLAINTS

The applicant complains of violations of Articles 2, 3, 6, 11,

13 and 14 of the Convention.

As to the Article 2 she alleges that the intentional deprivation

of the life of her husband was not attributable to any of the purposes

exhaustively listed in para. 2 of Article 2, was not proportionate to

any ground on which force that might result in death could be used, and

was not absolutely necessary to achieve any legitimate purpose. She

also refers to the inadequate protection of the right to life in

domestic law.

As to Article 3 she complains of discrimination on grounds of

language and ethnic origin. She also refers to the subjection of her

husband to treatment incompatible with this article during his

interrogation by the police. She further complains that she was

subjected to ill-treatment during her detention. In particular,

although she was six months pregnant at the time, she was blindfolded

during interrogation, she received threats and she was obliged to take

her clothes off.

As to Article 6 she refers to the failure to initiate criminal

proceedings before an independent and impartial tribunal against those

responsible for the killings, as a result of which she cannot bring

civil proceedings arising out of those events.

As to Article 11 she maintains that the murder of her husband was

due, in large part, to his participation in union activities, and in

particular to his position as president of the Diyarbakir branch of a

trade union.

As to Article 13 she complains of the lack of any independent

national authority before which these complaints can be brought with

any prospect of success.

As to Article 14 the applicant refers to discrimination on the

ground of their Kurdish origin in the enjoyment of their rights under

Articles 2, 3, 6 and 11 of the Convention.

As to the exhaustion of domestic remedies, the applicant notes

that her husband and another person released by the court disappeared

from the court building which meant that the authorities were

immediately fully aware of the facts of the case. The applicant also

explains that she, her relatives and her lawyers made intensive efforts

to alert the authorities to the apparent disappearance of her husband.

She notes that a judge of the State Security Court confirmed on 8 April

1994 that apart from the front entrance of the Court House there was

only one other entrance which was at the back of the building and used

solely by the police to transport prisoners to and from the State

Security Court. The applicant maintains that there is no requirement

that she pursue alleged domestic remedies, as any such alleged remedy

is illusory, inadequate and ineffective. Whether or not there is an

administrative practice, the situation in South-East Turkey is such

that potential applicants justifiably fear the consequences of invoking

any alleged remedies.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 October 1994 and registered

on 14 November 1994.

On 27 February 1995, the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

17 July 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 13 October 1995.

THE LAW

The applicant complains about the abduction and the killing of

her husband and about her ill-treatment during her detention in March

1994. She invokes Article 2 (Art. 2) (the right to life), Article 3

(Art. 3) (the prohibition on inhuman and degrading treatment), Article

6 (Art. 6) (the right to a tribunal), Article 11 (Art. 11) (the freedom

of association), Article 13 (Art. 13) (the right to effective national

remedies for Convention breaches) and Article 14 (Art. 14) (the

prohibition of discrimination) of the Convention.

The Government submit firstly that the applicant cannot claim to

be a victim within the meaning of Article 25 (Art. 25) of the

Convention, insofar as she complains about the killing of Mehmet Ay.

The Commission notes that, although the applicant refers

throughout her submissions to the case of Mehmet Ay, at no moment did

she complain of his abduction and killing. The Commission therefore

considers that the case of Mehmet Ay was referred to by the applicant

only in relation to her husband's case and interprets the application

as concerning her husband Necati Aydin.

Exhaustion of domestic remedies

The Government submit that the applicant has failed to comply

with the requirement under Article 26 (Art. 26) of the Convention to

exhaust domestic remedies before lodging an application with the

Commission.

The Government contend that the applicant could have made a claim

for damages in the administrative courts pursuant to Article 125 of the

Constitution, Article 1 of Law no. 2935 on the State of Emergency and

Article 8 of Decree 430.

The Government point out that the applicant could also have

lodged a claim for compensation in an ordinary civil court, on the

basis of the Code of Obligations, or could have filed a criminal

complaint for homicide on the basis of the relevant provisions of the

Penal Code.

Finally, the Government state that an investigation into the

murders has been opened ex officio under the file no. 1994/2233, but

the investigation is progressing very slowly, as the PKK terrorists who

executed the applicant's husband are of an extreme mobility.The

applicant submits that, in the circumstances of this case, the only

remedy which she could be expected to pursue is the investigation

commenced by the public prosecutor in relation to the killing of her

husband. In this respect, she contends that the investigation has been

going on since 1994 without any evidence of progress. She claims that

the investigation is not an independent and thorough one, as at no

moment have the authorities considered the possibility that her husband

might have been killed by security forces or others working under the

authority of the State.

The applicant refers to the findings of a report issued by the

Turkish Parliamentary Commission on extra-judicial killings, which

concluded, after a two year investigation, that security forces have

been involved on the extra-judicial killings of Kurds who are viewed

by the authorities to be separatists. She further submits that,

according to the same report, security forces were not being held

accountable for their illegal actions. The applicant maintains that

there is no requirement to pursue domestic remedies, as when a crime

is carried out by state officials and condoned by the authorities,

there are real doubts about the effectiveness of any remedy available.

The applicant also submits that, in the light of her previous

arrests and ill-treatment by the security forces, and the constant

intimidation and harassment for her trade union work, she has a well-

founded fear of reprisals for pursuing domestic remedies more

vigorously.

The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of those remedies which relate

to the alleged breaches of the Convention and at the same time can

provide effective and sufficient redress. An applicant does not need

to exercise remedies which in reality do not offer any chance of

redressing the alleged breach. It is furthermore established that the

burden of proving the existence of available and sufficient domestic

remedies lies upon the State invoking the rule (cf. Eur. Court HR, De

Jong, Baljet and Van den Brink judgment of 22 May 1994, Series A no.

77, p. 18, para. 36, and Nos. 14116/88, and 14117/88, Sargin and Yagci

v. Turkey, Dec. 11.05.89, D.R. 61, p. 250, 262).

The Commission notes that an investigation into the killing of

the applicant's husband was opened ex officio under file no. 1994/2233.

This investigation is still pending, more than three years after the

killing. The Commission has not been informed of any findings made as

a result of this investigation.

The Commission considers that in the circumstances of this case

the applicant is not required to pursue any legal remedy separate from

the investigation commenced by the public prosecutor (see eg. No.

19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75, p. 207). The

Commission concludes that the applicant may be considered to have

complied with the domestic remedies rule laid down in Article 26

(Art. 26) of the Convention. Consequently, the application cannot be

rejected for non-exhaustion of domestic remedies under Article 27 para.

3 of the Convention.

As to the substance of the applicant's complaints

The Government deny that the applicant's husband was killed by

security forces. They contend that the applicant's husband left the

court building immediately after his personal belongings had been

restituted to him. The Government point out that no evidence was

submitted by the applicant in support of her allegations.

The Government also deny that the applicant's husband was ill-

treated or tortured during his detention and refer to the medical

report drawn up on 4 April 1994.

The Government further submit that Necati Aydin's activities as

a trade union leader were of no interest to the authorities and claim

that his case was investigated in relation to his alleged links with

the PKK. In particular, the indictment mentioned that the applicant was

accused of assisting the PKK.

The applicant submits that the Government has not offered a

plausible explanation why Necati Aydin and Mehmet Ay did not leave

through the main entrance of the court building, nor did they provide

any information as to the precise time of their release.

The applicant contends that the two men were taken out from the

court building by the back door, which is used only by security forces.

The applicant maintains that the last time the two men were seen was

in the custody of the security forces while attending the court

hearings. Therefore, in the absence of substantive evidence of the men

having been abducted by a third party from the court building, the

responsibility for the safety of the men rests with the State under

whose authority they were at the time of their disappearance.

The applicant submits further that an essential part of the

obligation to protect the right to life is the conduct of genuine

investigations into the allegations that the State has been responsible

for the deprivation of life. In the present case, the prosecuting

authorities failed to consider the totality of the circumstances in

which the men disappeared while in the custody of the security forces

and were later found dead, this raising an issue under Article 2

(Art. 2) of the Convention.

As to the alleged ill-treatment of her husband while in police

custody, the applicant refers to the statement of Salih Güler. The

applicant claims that the medical report of 4 April 1994 submitted by

the Government is totally inadequate. She stresses that her husband had

no adequate medical supervision while he was in custody, the medical

examination having been performed on the day when he was brought to the

court.

The applicant also maintains that she has herself been subjected

to ill-treatment while in custody. She stresses that the Government

have provided no medical report concerning her detention between 18 and

22 March 1994, the report submitted by the Government concerning an

earlier detention in November 1993.The Commission considers, in the

light of the parties' submissions, that the case 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 as a

whole. 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.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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AYDIN v. TURKEY

AYDIN v. TURKEY

LEXI