Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25354/94

by Nuray SEN

against Turkey

The European Commission of Human Rights sitting in private on

5 March 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

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 4 April 1994 by

Ms. Nuray Sen against Turkey and registered on 29 September 1994 under

file No. 25354/94;

Having regard to :

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

the Commission;

- the Commission's decision of 8 December 1994 to communicate the

application;

- the observations submitted by the respondent Government on

20 March 1995 and the observations in reply submitted by the

applicant on 18 May 1995;

- further information and documents submitted by the respondent

Government on 14 November 1995;

Having deliberated;

Decides as follows:

THE FACTS

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

1951 and resides at Nizip, Gaziantep. She is represented before the

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

the University of Essex, England. The applicant states that she makes

the application not only on her own behalf but also on behalf of her

deceased husband and her daughter.

The facts as submitted by the parties may be summarised as

follows:

The applicant states that the following occurred:

The applicant's husband Mehmet Sen was a Turkish national of

Kurdish origin. He was an active member of the Democracy Party (DEP)

in Turkey until the party withdrew from local elections. He became the

candidate of the DEP for the office as Leader of Ayran (Birecik, Sanli

Urfa) Council in the 1994 local elections.

Throughout his involvement with the DEP, Mehmet Sen was followed

and threatened by plainclothes police and this continued after his

withdrawal from the candidacy.

On 25 March 1994, Mehmet Sen informed the applicant that he was

not being followed by the usual plainclothes policemen but by other

people who he said might be "hitmen".

On 26 March 1994 at approximately 5 p.m., two plainclothes

policemen attended and drank at the Çagdas cafe in Birecik, which was

owned by Mehmet Sen and R. A. At approximately 7 p.m., a Dogan SLX car

(registration number 34 PLT 30) blocked the door of the cafe. Three

plainclothes persons entered the cafe. The car engine was left running

and a fourth person remained in the car. One of the three persons asked

R. A. whether he was Mehmet Sen. When he answered he was not, the

person went to Mehmet Sen who confirmed his identity and showed his

identity card. Before nine people in the cafe, the abductors stated

they were plainclothes police and said they were taking Mehmet Sen to

Security. Mehmet Sen was grabbed by the arms and taken away in the

waiting car. It was later ascertained that a second car with four

persons inside left with the Dogan SLX car.

Upon hearing the news of the abduction, the applicant contacted:

(a) the Nizip Struggle with Terrorism Branch who denied having

Mehmet Sen and denied any knowledge of the abduction;

(b) the Gaziantep Security Directorate who also denied any

knowledge of the abduction;

(c) the Gaziantep Branch of the Human Rights Association (IHD)

with a request that they look into the matter;

(d) the Gaziantep and Urfa Provincial Leadership and the Birecik

District Leadership to request that they take initiatives.

Other persons also contacted the Gaziantep Security Directorate

on the applicant's behalf but were told that they did not have Mehmet

Sen in their custody.

On 28 March 1994, the applicant applied to the Nizip Prosecution

by way of petition and reported that Mehmet Sen had been abducted.

On 30 March 1994, an unknown person telephoned the Özgür Gündem

newspaper and the Gaziantep Branch of the DEP to state that Mehmet

Sen's body was at the Gaziantep State Hospital.

The applicant went to the hospital and found that Mehmet Sen had

been killed by torture. The condition in which the applicant found her

husband's body was as follows:

- right eye gouged out,

- right side of the head crushed to pieces,

- right arm broken,

- fingers broken,

- marks evidencing blows to the body,

- a bullet wound to the head and one to the neck with no

traces of blood, implying that the shots had been fired after

death.

An autopsy report concluded as follows:

- bullet wound to the left side of the chest,

- bullet wound above right eyebrow, fired at almost point

blank range, exited body from back of the head,

- bullet wound to the left cheek, fired at a distance of 95 cm,

travelled through the body and lodged in the rib cage,

- no other wounds, blows to the body or head,

- death caused by bullet to head.

On 31 March 1994, the applicant and the DEP MP for Siirt Naif

Günes met the representative of the Governor of Gaziantep. The

Gaziantep Security Director and the Provincial Gendarme Commander were

also present. The Gendarme Commander said that the body of Mehmet Sen

had been found by a shepherd near Karpuzalan village, Sehit Kamil

District, Gaziantep, and that, following the find, gendarmes had

collected the body.

The State Prosecutor N. A. gave the applicant the same

information. However, he also stated that the body had no identity card

on it, and therefore the autopsy report was headed "unidentified body".

However, the applicant was informed that a person at the hospital

had witnessed four plainclothes policemen take Mehmet Sen's body to the

hospital morgue on the night of 29 March 1994.

On 13 April 1994, the Gaziantep Branch of the IHD, on behalf of

the applicant, made an application to the Governorship of Gaziantep and

the State Prosecution. On 22 April 1994, the Governorship replied that

it had not been possible to determine any suspect or suspects but that

the inquiry was continuing. The State Prosecution has also indicated

that the inquiry into Mehmet Sen's death was continuing.

The applicant is not satisfied with the inquiry and the answers

she has been given. The information she has received is inconsistent

with her own findings in the following ways:

(a) The Gendarme Commander stated that the body was found by a

shepherd in the countryside near Karpuzalan village and that the body

was collected by gendarmes. However, a person at the hospital has said

that on the night of 29 March 1994 four plainclothes policemen took the

body to the morgue.

(b) The Gendarme Commander stated that there was no identity

papers on the body. However, on 30 March 1994 an unknown person

telephoned the Özgür Gündem newspaper and the Gaziantep Branch of the

DEP to state that Mehmet Sen's body had been taken to the morgue. The

body had obviously been identified by this unknown person.

(c) The applicant, who saw her husband's body, could observe

clear signs of torture to the body. In the autopsy report there is no

reference to torture and the description of the state of the body

differs greatly from what the applicant saw.

(d) Although the abductors stated before some nine people in the

Çagdas cafe that they were plainclothes policemen, the Gendarme

Commander has denied that police were involved in the abduction.

The applicant has continued to contact the State for answers. She

was informed on 26 May 1994 by the State Prosecutor that no

developments had been made.

The respondent Government state the following:

According to the statements of O.O. and M.Y., on 26 March 1994,

one of the three persons entered the cafe where Mehmet Sen was playing

cards. One of these persons asked where he could find Mehmet Sen. When

Mehmet Sen presented himself, he was asked to show his identity card.

Then the person in question came closer to Mehmet Sen and showed him

a card. O.O. and M.Y. and other eye witnesses R.A., A.S. and D.K.

stated that they had not seen the card shown to Mehmet Sen. They also

stated that the persons who came in the cafe had not openly presented

themselves as plainclothes police. R.A. stated that Mehmet Sen had not

resisted the abductors as if he had known them.

On 29 March 1994, Mehmet Sen's body was found in a building yard

near Kahramanmaras - Gaziantep highway. On the same day an autopsy was

carried out. The autopsy report concluded that the death resulted from

a skull fracture, destruction of the cellular tissues of the brain and

an internal haemorrhage due to a bullet wound. There were no signs of

assault or torture.

The Nizip Public Prosecutor started an investigation into the

killing of Mehmet Sen. On 18 May 1994, a decision of non-jurisdiction

was issued and the file was sent to the Gaziantep Public Prosecutor.

According to the preliminary findings, Mehmet Sen was not taken into

custody by the security forces. The car by which he was driven away

carried a false registration number. The inquiry is still pending.

COMPLAINTS

The applicant complains of violations of Articles 2, 3, 6, 13 and

14 of the Convention.

As to Article 2, she alleges that her husband was intentionally

deprived of his life contrary to that Article and that the right to

life has also been infringed because of the failure to initiate legal

proceedings to determine whether or not those responsible acted

lawfully. She also refers to the inadequate protection of the right to

life in domestic law.

As to Article 3, she alleges that her husband was subjected to

torture and that she herself has suffered inhuman treatment in that she

has been unable to discover what events led to the death of her

husband.

As to Article 6, she alleges that she has been denied effective

access to court on account of the failure to initiate proceedings

before an independent and impartial tribunal against those responsible

for the killing and the injuries, as a result of which she cannot bring

civil proceedings arising out of those events.

As to Article 13, she refers to the lack of any independent

national authority before which her complaint can be brought with any

prospect of success.

As to Article 14, she refers to an administrative practice of

discrimination on grounds of race. She considers that this Article has

been violated in conjunction with Articles 2, 6 and 13, since only

Turkish citizens of Kurdish origin are regularly subjected to unlawful

killings and are affected by the breakdown of the investigation,

prosecution and court system.

As to the exhaustion of domestic remedies, the applicant

maintains that there is no requirement that she pursue such remedies,

since any alleged remedy is illusory, inadequate and ineffective

because

(a) the operation which led to the killing was officially

planned, organised and executed by agents of the State,

(b) there is an administrative practice of non-respect of the

rule which requires the provision of effective domestic remedies

(Article 13),

(c) whether or not there is an administrative practice, domestic

remedies are ineffective in this case owing to the failure of the legal

system to provide redress,

(d) whether or not there is an administrative practice, the

situation in South-East Turkey is such that potential applicants have

a well-founded fear of the consequences, should they invoke alleged

remedies.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 April 1994 and registered on

29 September 1994.

On 8 December 1994, the Commission decided to communicate the

application to the Government and ask for written observations on the

admissibility and merits of the application.

The Government's observations were submitted on 20 March 1995.

The applicant's observations in reply were submitted on 18 May 1995.

Further information and documents were submitted by the

Government on 14 November 1995.

THE LAW

The applicant alleges that her husband was killed in

circumstances for which the State is responsible. She invokes Article

2 (Art. 2) (the right to life), Article 3 (Art. 3) (prohibition on

inhuman and degrading treatment), Article 6 (Art. 6) (the right of

access to court), Article 13 (Art. 13) (the right to effective national

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

on discrimination) of the Convention.

Exhaustion of domestic remedies

The Government submit that the application is inadmissible since

the applicant has failed to exhaust domestic remedies as required by

Article 26 (Art. 26) of the Convention before lodging an application

with the Commission.

The Government point out that the investigation initiated by the

Public Prosecutor of Gaziantep into the killing of the applicant's

husband is still pending.

The applicant maintains that there is no requirement that she

pursue domestic remedies. In her opinion, any purported remedy is

illusory, inadequate and ineffective since, inter alia, the killing of

her husband was planned and executed by agents of the State. She refers

to an administrative practice of unlawful killings giving rise to a

presumption that the local remedies are not effective.

The applicant further argues that, whether or not there is an

administrative practice, domestic remedies are ineffective in this

case, owing to the failure of the legal system to provide redress.

As regards the investigation by the Public Prosecutor of

Gaziantep, she has made various applications to ensure that her

husband's death was investigated. The only response to her inquiries

was that the inquiry was continuing and there were no developments or

clues.

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. 11.5.89, D.R. 61, pp. 250, 262).

The Commission does not deem it necessary to determine whether

there exists an administrative practice on the part of Turkish

authorities tolerating abuses of human rights of the kind alleged by

the applicant, because it agrees with the applicant that it has not

been established that she had at her disposal adequate remedies to deal

effectively with her complaints.

The Commission notes that while the Government refers to the

pending inquiry by the public prosecutor into the death of the

applicant's husband on or around 26 March 1994, almost two years have

elapsed since the killing and the Commission has not been informed of

any progress having been made in the investigation. In view of the

delays involved and the serious nature of the crime, the Commission is

not satisfied that this inquiry, in the prevailing circumstances, can

be considered as furnishing an effective remedy for the purposes of

Article 26 (Art. 26) of the Convention.

The Commission finds that in the circumstances of this case the

applicant is not required to pursue any other legal remedy in addition

to the public prosecutor's inquiry (see eg. No. 19092/91, Yagiz v.

Turkey, Dec. 11.10.93, D.R. 75, p. 207). The Commission concludes that

the applicant should 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 merits

The Government submit that Mehmet Sen was never taken into

custody by the security forces. Referring to the witness statements,

they submit that the persons who abducted Mehmet Sen had not openly

stated that they were plainclothes officers. The eye witnesses had not

clearly seen the card or identity document shown to Mehmet Sen by one

of these persons. Therefore, the persons who abducted Mehmet Sen wanted

to give the impression that they were police officers in order

incriminate the State.

As regards the allegations of ill-treatment, the Government

submit that the autopsy report stated that there were no signs of

assault or torture.

The Government further submit that the submission of the

applicant that Mehmet Sen's body was taken to the hospital morgue on

the night of 29 March 1994 by four plainclothes policemen is unfounded.

The applicant maintains her account of events.

The applicant further submits that the witness statements to

which the Government refer cannot be relied upon. Some of the

descriptions in those statements are identical as if they have been

written by one person.

The applicant also submits that she had witnessed clear signs of

torture to her husband. She questions the reliability of the autopsy

report. She asserts that in November 1994, her husband's father was

handed by Birecik Public Prosecutor a ring and a watch belonging to her

husband. This fact contradicts the autopsy report which stated that no

money or valuables were found on the body.

The Government in reply submit that the personal belongings found

on the body of the deceased were duly delivered to the justice of the

peace in accordance with the provisions of the Turkish Civil Code. The

Birecik Justice of the Peace, after establishing who were the heirs of

the deceased, delivered the watch and the ring to the applicant.

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 by a majority

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER (S. TRECHSEL)

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ŞEN v. TURKEY