Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25657/94

by Behçet AVSAR

against Turkey

The European Commission of Human Rights sitting in private on

14 October 1996, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

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

Mr. H.C. KRÜGER, 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 10 October 1994

by Behçet Avsar against Turkey and registered on 14 November 1994 under

file No. 25657/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 20 February 1995 to communicate the

application ;

- the observations submitted by the respondent Government on

14 June 1995 and the observations in reply submitted by the

applicant on 31 August 1995 ;

Having deliberated;

Decides as follows:

THE FACTS

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

1960 and lives in Köln, Germany. He is represented before the

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

university teachers at the University of Essex.

A. Particular circumstances of the case

The facts of the present case have not been agreed upon by the

parties.

The applicant claims that the following events have occurred:

Serif Avsar was the brother of the applicant, Behçet Avsar, who

is the European representative of the Kurdish opposition daily

newspaper "Özgür Gündem". Behçet Avsar lives in Köln, Germany. Although

a businessman who was not politically active, Serif Avsar had

previously been detained and interrogated several times, apparently due

to his brother's political activities and their joint involvement in

the newspaper.

On Friday 22 April 1994 at about 11 am, five men came into the

shop owned by the Avsar family in Diyarbakir. The men said they were

policemen and Serif Avsar spoke to them first. They said they wanted

him to go with them and give a statement on behalf of another brother

of the applicant, Abdül Kerim, who was then in custody in the

Diyarbakir prison. Serif Avsar claimed that he did not know who they

were, as they had not identified themselves and he did not recognise

them. Serif Avsar further stated that if a statement was needed, then

uniformed policemen should come and get it from him; he would be happy

to go with them to provide it. There was then an argument between the

five men and the Avsar family members in the shop (mentioned thereafter

as "the witnesses") over whether they should take Serif Avsar. The five

persons then said that they would call the police station in order to

identify themselves. As a result of their telephone conversation it

became clear to the witnesses that the men were in fact "village

guards". Two more people then appeared and claimed to be policemen.

Serif Avsar asked them their identities. They showed two cards but the

witnesses could not ascertain whether the cards indeed identified them

as policemen.

The argument continued until one of the last two men to arrive

pulled out a gun. All of the other men then pulled out their guns.

Serif Avsar believed that they were going to shoot the other Avsar

family members in the shop, and so agreed to go with them. The

witnesses saw them all get into a white Renault (Registration Number

21 AF 989) and drive away. There were five people in the car, including

Serif Avsar. The remaining three got into a taxi (Registration Number

21T 1127) and drove off after them. The witnesses then jumped into

their car and followed the men to the Gendarme Headquarters in

Saraykapi. The witnesses could not get inside the Headquarters as they

were in a normal car as only official vehicles and taxis were allowed

in. They could, however, see the three men who they had identified as

"village guards" outside the building. The witnesses asked one of the

guards where their brother was. The guard denied any knowledge of him.

The witnesses pointed out to the Duty Officer the man who had brought

Serif Avsar to the building. The witnesses then saw one of the two men

who had arrived at the Avsars' shop last driving off in a navy blue

Renault 21 (Registration Number 06C DE35).

The witnesses returned to their shop and called the police,

informing them that their brother had been kidnapped. The police said

their brother had not been kidnapped but was in fact at the Gendarme

station. The witnesses said that the Gendarmes had just denied that.

The policemen on the other end of the phone did not respond to this and

hung up the phone. At 4.30 pm on the same day, the witnesses received

a telephone call to their home and an unidentified person told them "We

have dealt with your brother, we have killed him and you are all in the

queue".

On 24 April 1994, Serif Avsar's father spoke to the Minister for

Human Rights who said that he had spoken to the Governor and the

Minister of Interior Affairs about Mr. Avsar's disappearance. They had

told the Minister that Serif Avsar was in the hands of the Special Unit

and if they could get there in time they would save him. The witnesses

were told that the Minister of Interior Affairs said the same on

25 April 1994, to Mr. Kamil Genç, the social democratic party MP for

Tunceli.

The Avsar family subsequently made written petitions to the State

of Emergency Regional Governor, the State Security Court Prosecutor,

and the Judicial Prosecutor. All denied that Serif Avsar had ever been

in the custody of the authorities. The applicant's family undertook an

intensive campaign to ascertain the whereabouts of Serif Avsar, with

the help of Amnesty International, the PEN centres in numerous

countries, the International Federation of Journalists, and other

organisations. The Turkish officials all denied that Serif Avsar was

being held.

On 7 May 1994, the Avsar family was asked by telephone to go to

the university hospital in Diyarbakir to identify a body found in a

wasteland area near the village of Toprakli, in the district of Silvan

in south-east Turkey. The Avsar family confirmed that the body was that

of Serif Avsar. Mr. Avsar had been shot twice in the head, and an

autopsy reportedly established that he had been killed some 10 days

earlier, five days after his abduction.

On 16 May 1994, Osman Yavuzalp, Third Secretary of the Turkish

Embassy in Brussels, sent a reply to the International Federation of

Journalists' request for information on the Avsar case, stating (in

translation) as follows:

"Avsar was abducted by provisional village guards at about 11.30

am on 22 April 1994. According to the witnesses the abductors of

Mr. Avsar could be identified. They were Ömer Güngör, Yasar Günbam,

Zeyyat Aksin, Feyzi Gökçen, Aziz Erbey and Mesut Mehmetoglu. They were

placed in detention on 5 May 1994 and claimed to have taken and killed

Mr. Avsar in a vendetta. The body of Mr. Avsar was found in a field by

the side of a national road which linked the towns of Silvan and

Diyarbakir. The Public Prosecutor is informed of the affair. The

suspects have been arrested and the investigation is in process".

However, according to a spokesman of the Gendarme Headquarters

in Diyarbakir-Saraykapi, the five militiamen involved have been put

under "police supervision". No action appears to have been undertaken

to ascertain the identity of the two plain-clothes officers involved

in the abduction and murder. One source has suggested that the men in

plain-clothes were members of the gendarmerie intelligence service

JITEM attached to the Hazro Gendarmerie (Amnesty International Urgent

Action).

Serif Avsar's family has been under intense pressure to drop

their campaign for justice in Mr. Avsar's abduction and murder. They

receive almost daily anonymous telephone calls threatening them with

death, and policemen have repeatedly visited the family home issuing

threats. On 3 April 1994, two policemen visited the premises of the

Avsar family business, accompanied by two members of the political

party MHP (National Movement Party). The four men questioned the action

undertaken by the family to ascertain the whereabouts of Mr. Avsar, and

issued threats such as: "Why have you created such a fuss? You confuse

everything. This will not do you any good!"

On 18 June 1994, the abduction of two cousins of the applicant

has been attempted in the town of Bismil. After a chase, one of the

cousins was taken into custody. However, due to the other cousin's

escape, and the Avsar family's discovery that the car used in the

attack belonged to one of the corporals in the Gendarmes, the detained

cousin was released the next day.

On 5 July 1994, six people accused of the kidnapping and killing

of Serif Avsar were put on trial in Diyarbakir. Five of the defendants

- Ömer Güngör, Fevzi Gökçen, Yasar Günbam, Aziz Erbey and Zeyyat Aksin

- are village guards, and the sixth defendant, Mesut Mehmetoglu, is a

government informant. The State Prosecutor has requested the death

penalty in each case.

The Prosecution's case against the village guards is, in each

case, based on the guard's confessions, which they have said in court

were extracted under pressure, and which contain contradictory evidence

about the role of the government informant, Mesut Mehmetoglu, in

ordering Serif Avsar's murder. According to an article in the Turkish

Daily News of 7 July 1994, Yasar Günbam said "We cannot talk very much

about the incident. The government authorises us to take some people

and we do it. We are blamed for it. If we had not obeyed the orders we

would have been fired."

The Government claim that the following events have occurred :

On 21 April 1994 four village guards were ordered by the gendarme

commandant of Hazro District to drive some suspects to the Diyarbakir

Gendarme Station in a private car (Registration Number 21 AF 989). On

their way to Diyarbakir, they were asked to give a lift to ÖG, another

village guard. After having transferred the suspects to the Diyarbakir

Gendarme Station, the five village guards spent the night in

Diyarbakir.

On 22 April 1994, as the five village guards were sitting in a

cafe in Diyarbakir, ÖG explained to the others that his brother had

been kidnapped and killed by the PKK and that his body had never been

found. He also said that Mehmet Serif Avsar, who had some links with

the PKK, could tell them where the body was if they took him to the

Gendarme post for interrogation. The four other village guards accepted

this proposal and all together they went to the shop of the Avsar

family. When Serif Avsar questioned their identity, one of the village

guards got out of the shop and asked a policeman whom he knew and who

happened to be passing by (MM), to confirm that all five were village

guards. Finally the four village guards got into the car with Serif

Avsar and one village guard and MM got into a taxi. MM got out of the

taxi before arriving at the Gendarme Command in Saraykapi. The car

stopped for a while in front of the Saraykapi Gendarme Command. ÖG told

the others that he intended to take Serif Avsar to the Lice gendarme

headquarters. The four other village guards accepted this and the group

left for Lice. However, after a while, the four village guards

renounced to go to Lice without the permission of their commander. ÖG

and Serif Avsar got out of the car. ÖG asked the others to send a taxi

from the city.

As they were alone, ÖG asked Serif Avsar where the body of his

deceased brother was. They argued for a while and ÖG shot Serif Avsar

to death.

The four village guards came back and took ÖG into their car.

They went to Hazro and left the car in front of the Gendarme

headquarters.

The applicant complained of the death of his brother and the

village guards were identified and arrested. ÖG claimed to have killed

Serif Avsar and explained that the body of Serif Avsar could be found

on the Diyarbakir-Lice road. Autopsy reports established that he had

been killed 10 or 20 days earlier.

The proceedings are still pending before the Criminal Court in

Diyarbakir, which has held several hearings in order to take and

examine evidence, but has not yet pronounced its judgment.

COMPLAINTS

The applicant complains of violations of Articles 2, 3, 10 and

14 of the Convention.

As to Article 2 he alleges that the intentional deprivation of

the life of his brother was not attributable to any of the exhaustive

purposes listed in para. 2 of the Convention, 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. He also

refers to the inadequate protection for the right to life in domestic

law.

As to Article 3 he complains of discrimination on grounds of

language and ethnic origin.

As to Article 10 he maintains that the murder of his brother and

the continuing pattern of intimidation experienced by his relatives in

South-East Turkey has the purpose of preventing him from practising his

journalism.

As to Article 14 the applicant refers to discrimination on the

ground of the Kurdish origin of his brother and himself in the

enjoyment of their rights under Articles 2, 3 and 10 of the Convention.

The applicant maintains that there is no requirement that he

pursue alleged domestic remedies.

According to him any alleged remedy is illusory, inadequate and

ineffective because:

a) the operation which led to the killings in this case was

officially organised, planned and executed by the agents of the

Government;

b) there is an administrative practice of not respecting the rule

which requires the provision of effective domestic remedies;

c) whether or not there is an administrative practice, the situation

for Kurdish people in South-East Turkey is such that potential

applicants have a well-founded fear of the consequences, should they

invoke alleged remedies;

d) the applicant has done everything possible to exhaust domestic

remedies by appealing to local, regional and national officials

regarding Serif Avsar's disappearance and subsequent murder.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 November 1994 and registered

on 14 November 1994.

On 20 February 1995, the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

14 June 1995. The applicant replied on 31 August 1995.

On 20 March 1996, the Government informed the Commission of the

state of proceedings before the national jurisdictions.

On 23 April 1996 the Government were requested to provide, not

later than 10 June 1996, further information on the state of

proceedings before the national jurisdictions. No information has been

submitted by the Turkish Government.

THE LAW

The applicant complains of kidnapping and killing of his brother

by State officials. He invokes Articles 2 (Art. 2) (right to life), 3

(Art. 3) (freedom from inhuman treatment), 10 (Art. 10) (freedom of

expression) and 14 (Art. 14) (freedom from discrimination in respect

of protected rights) of the Convention.

Exhaustion of domestic remedies

The Government argue that the applicant has failed to exhaust

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

since the proceedings before the Criminal Court at Diyarbakir are still

pending.

The applicant refers to the length of time which the

investigation is taking. He also disputes the efficacy of an

investigation which is being carried out by the body which is alleged

to be responsible for the violation.

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

Convention only requires the exhaustion of such remedies which relate

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

provide effective and sufficient redress. An applicant does not need

to exercise remedies which, although theoretically of a nature to

constitute remedies, do not in reality 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 H.R., De Jong,

Baljet and Van den Brink judgment of 22 May 1984, 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).

While the Government refer to the pending proceedings before the

Criminal Court at Diyarbakir, the Commission notes that the incident

occurred on 22 April 1994 and the investigation has not yet been

concluded more than two and a half years later. The Commission is not

satisfied in view of the delays and the serious nature of the alleged

crime that this inquiry can be considered as furnishing an effective

remedy for the purposes of Article 26 (Art. 26) of the Convention, in

particular having regard to the circumstances of this case where the

relevant evidence would appear to easily accessible to the authorities.

No explanation has been given as to any obstacles in the way of

bringing the investigation to a conclusion.

The Commission finds also that in the circumstances of this case

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

the proceedings before the Criminal Court of Diyarbakir (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 (Art. 27-3) of the Convention.

As regards the substance of the applicant's complaints

The Government state that the applicant's brother was killed as

a result of personal vendetta by ÖG acting by himself and without the

authority of the State. They also state that the victim never entered

to the buildings at the Gendarme Command, therefore Gendarmes were not

involved in the killing of the applicant's brother and the village

guards were not acting under orders of the State.

The applicant points out disputes that the facts as provided by

the Government are different from those provided by the eyewitness

accounts of the brothers of the victim. He refers to some witness

accounts that there were two persons claiming to be security force

members, a policemen and a gendarme officer, who came into the shop to

help the village guards. He states that the presence of these two

persons supports his claim that the abduction of his brother was

conducted on the orders of agents of the State.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and 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.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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AVSAR v. TURKEY

AVSAR v. TURKEY

LEXI