AS TO THE ADMISSIBILITY OF

                      Application No. 26144/95

                      by Abdülrezak and Halil iKiNCiSOY

                      against Turkey

      The European Commission of Human Rights sitting in private on

26 February 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

                 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 19 May 1994 by

Abdülrezak and Halil iKiNCiSOY against Turkey and registered on

6 January 1995 under file No. 26144/95;

      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

      8 August 1995 and the observations in reply submitted by the

      applicant on 3 November 1995;

      Having deliberated;

      Decides as follows:

THE FACTS

      The first applicant, Abdülrezak ikincisoy, a Turkish citizen of

Kurdish origin, was born in 1933 and lives in Diyarbakir.

      The second applicant, Halil ikincisoy, a Turkish citizen of

Kurdish origin, was born in 1974 and lives in Diyarbakir. He is the son

of the first applicant.

      The applicants are applying to the Commission on their own

behalf, on behalf of Mehmet Sah ikincisoy (born in 1971) the eldest son

of the first applicant and brother of the second applicant, and on

behalf of  Hüseyin ikincisoy the younger son (born in 1979), Makbule

ikincisoy (born in 1970), Nefise ikincisoy (born in 1972) and Garipsah

ikincisoy (born in 1976), all daughters of the first applicant.

      They are 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

1.    Events relating to the death of Mehmet Sah ikincisoy and the

      arrest and detention of the applicants and members of their

      family

      The applicants state as follows:

      The applicants live in Melikahmet neighbourhood in Diyarbakir.

On the night of 22 November 1993 both applicants were at their home.

At about 01:00 hours there was a knock on the door of their house. When

the first applicant, Abdülrezak, opened the door, he saw plain clothed

members of the Anti-Terror Branch of the police. They introduced

themselves to Abdülrezak as policemen but did not produce any

identification. Four of them entered the applicants' house while others

waited outside. The police went through the rooms in the house and

asked where Abdülrezak's son, Mehmet Sah, was. Abdülrezak told the

police that Mehmet Sah was staying with his uncle, Abdülrezak's

brother. Mehmet Sah worked in the uncle's cafe at night. Three

policemen then required the second applicant, Halil ikincisoy, to take

them to the uncle's house.  One or two of the policemen stayed at

Abdülrezak's house.

      When Halil ikincisoy arrived at his uncle's building, one

policeman stayed at the entrance of the building and the other two went

up to the uncle's flat on the second floor. Halil ikincisoy knocked on

the door and it was opened immediately. He saw that there were 23

people in the house - his uncle, his uncle's wife, his two sons, his

daughter-in-law, their fifteen children, two workers from the uncle's

cafe and his brother, Mehmet Sah.

      The police looked at the identity cards of those present and

searched the house. One policeman took the two workers into a room and

began to take their statement. The others remained in the sitting room.

At one point they heard two gunshots. They realised that a clash had

broken out in the room where the policemen were questioning the two

workers. One of the policemen was killed. After the gunshots the other

policemen took Mehmet Sah and told him that someone had made a

statement against him. Mehmet Sah was taken downstairs by the police

so that they could place him in custody. Halil and the other occupants

of the room were witness to this. Halil and the others in the room were

very frightened because of the clash and because Mehmet Sah had been

taken away;  they stayed in silence in the flat. Meanwhile, the workers

went on to the roof and tried to climb down. Another clash was heard;

apparently the workers had clashed with the police at the door. They

learned later that one of the workers had died and the other escaped.

One of the policemen was also injured. Press reports claimed that the

workers were PKK members.

      Ten to fifteen minutes after this second clash dozens of

policemen surrounded the building. They searched the whole building.

They entered the uncle's flat and Halil, his uncle Abdülkadir, his

uncle's wife Adile, his uncle's son Nasir, his uncle's daughter-in-law

Sabriye and his uncle's grandson Bilgi were all taken by minibus into

custody to the Market Place Police Station. This station is located on

Gazi street which adjoins Balikçilarbasi and Dörtyol in the centre of

Diyarbakir. During the trip, the detainees were subjected to constant

hitting by the police.

      When Halil ikincisoy and the others entered the police station

they were told to keep their heads to the wall, which they did. They

were detained in the entrance hall. On the right hand side of the

entrance hall in the Market Place Police Station there are three rooms.

Two of these rooms are usually used for interrogation purposes while

the third is the superintendent's room. Halil ikincisoy was called into

one of the small rooms to make a statement. As he was entering the

room, he saw through a hole in his tracksuit his brother Mehmet Sah

lying face down in the next room, with his red leather jacket pulled

over his face. Mehmet Sah was wearing the same clothes that he had been

wearing when he was detained in his uncle's house.

      In the other room, Halil ikincisoy was questioned about the

incident by the police. He could not make out what was going on around

him as he was constantly punched and kicked by the police. He told them

what he knew and made an oral statement. Halil did not sign anything.

This lasted about five minutes and then he was returned to the entrance

hall.

      In the meantime, the police had taken Abdülrezak, his son Hüseyin

and his daughters Makbule, Nefise and Garipsah into custody. They were

also transferred by minibuses and cars to the Market Place Police

Station. When they entered they were forced to keep their clothes

pulled over their heads to prevent them seeing anything. However,

Abdülrezak says he saw - through the parting in his clothes - the other

group  - Halil, Abdülkadir, Adile, Nasir, Sabriye and Bilgi ikincisoy

- in the entrance hall. He asked his daughter, Nefise, in Kurdish if

it was Halil who was sitting there. She replied that it was and that

her uncle was there too. Both Nefise and Abdülrezak were beaten for

talking. Abdülrezak was hit with an iron bar.

      After he had been taken into the room to give his statement,

Halil ikincisoy heard the second group being brought into the police

station, When the others entered the hall, he did not dare to look up

at the people. They were policemen standing beside them and the

policemen who would pass them in the hall would abuse them or hit them.

However, Halil recognised the voices of his father and sister and he

heard his father ask if it was Halil who was in the entrance hall. He

also heard his sister reply that it was. Halil recognised the cries of

his sister.

      Abdülrezak and his group stayed only five minutes in the station

before being taken out, lined up and again being put into the

minibuses. As Abdülrezak's eyes were not covered he was able to see

easily that the person standing behind was his son Mehmet Sah who had

pulled the clothes back over himself. Halil and his group were also put

into minibuses. The minibuses took the detainees to some unknown

destination. Abdülrezak says that his son Mehmet Sah was also present

at this second destination. During the journey the applicants were

beaten.

      They were finally brought to a third place which they did not

know either. Here they were interrogated. Abdülrezak was beaten and

sustained two broken ribs. He was subjected to intense mental torture

as he could hear the screams of his children while they were being

tortured. Abdülrezak was told by the police that if anyone asked about

Mehmet Sah, he must say that the police did not take him and that he

had fled to the mountains to join the guerillas.

      Abdülrezak was transferred to a cell where there were four other

people. The others in the cell told him that he was in the Riot Police

place. This is referred to amongst the people as the torture place.

Officially it is a police station where student policemen are educated.

It is located in Cezaevi in Diyarbakir.

      Halil was taken to the second or third floor of the building.

After about fifteen minutes, he was taken into a room for

interrogation. He was asked the same questions as he had been asked in

the Market Place station about the incident. Halil gave the same

replies that he had given the police at that police station. While he

was being questioned, he could hear the screams of his brother, Mehmet

Sah, being tortured. Then Mehmet Sah's voice stopped.

      Halil was then taken, blindfolded, into the torture room. He was

made to strip until he was naked. The police then hosed Halil with

pressurized water. He was beaten and the policemen stuck their hands

down his throat to prevent his screams from being heard. When they had

finished torturing Halil, he was left for about half an hour, naked,

on a concrete floor in the hall where his family were. Finally, he was

allowed to put on his tracksuit and was taken into another room. Here

his blindfold was lifted a little and he was asked to identify people

in photographs. Some of the people in the photographs were family

members while others, he said he did not recognise. He was returned to

the hall where he could hear screams from people, his family, being

tortured.

      He was then put into a cell with three other people. These people

likewise told him that they were at the Riot Police place. Halil says

that all three other detainees in his cell had also been severely

tortured. One of these detainees, called Hüseyin, had a broken arm as

a result of being suspended.

      Abdülrezak was detained for four days. During his first  three

days of detention, he was given no food or water, but simply left in

his cell. On the fourth day he was taken to give a statement. He

explained to the police all he knew. The police told him that Mehmet

Sah had gone to the mountains and that he should go to get him.

Abdülrezak said that Mehmet Sah had been taken into custody, that he

was at the Riot Police place and that even his jacket was in the

entrance hall. When they asked who owned the jacket he said that it was

Mehmet Sah.

      Abdülrezak was then taken with Hüseyin, Nefise, Garipsah, Makbule

and Bilgi to the State Hospital. He did not tell the doctor that he had

been tortured as he was scared. Abdülrezak's daughters did try to tell

the doctor that they had been tortured. They told the doctor three

times that they had been tortured. When they did this, the police took

them to the cars and threatened to take them back to the interrogation

centre if they repeated their claims. The girls were too scared to

complain of torture after that. The doctor made no report. All five

were then released.

      Halil was not released until 14 days after his detention, He too

was denied food during his first two days of detention. On the third

day, he was further interrogated about the incident and he was asked

if he knew certain people or not. He said he did not know them. He was

beaten up again. He was also told that his brother had not been caught

and that he had fled to the mountains. Halil refuted this and said that

his brother had been taken into custody from the house and that he had

heard his voice under torture. He was then returned to his cell and was

twice transferred to different cells which were overcrowded. At one

point, there were six people kept in a cell meant for only three

persons. During his detention, Halil was only given one piece of bread

a day and allowed to go to the toilet once a day.

      On the twelfth day his statement was taken by the police. Two

days later, he was released by the Prosecutor. On his release, Halil

was taken to the doctors by the police who he alleges tortured him.

They threatened him not to complain that he had been tortured. He did

tell the doctor that he had been tortured but the doctor did not pay

any attention to what he said. After he had told the doctor, the police

threatened him again and he did not dare to repeat his complaint. His

uncle's daughter-in-law, Sabriye, was also released on the same day.

Abdülkadir and Nasir were remanded and put into prison.  A case has

been opened against Halil ikincisoy and other members of the family.

They are accused of being members of an illegal organisation and

assisting illegal organisations.

      On 6 December 1993 Abdülrezak went to the State Security Court

(DGM) Prosecutor and gave him a petition relating to his son Mehmet

Sah. The Prosecutor took him personally aside and showed him some

photographs. Amongst them he recognised one of his son Mehmet Sah. He

was naked from the waist up and there were no marks on his body.

Abdülrezak inquired where his son was. The Prosecutor told  him that

he had been killed on 25 November 1993 in a clash near the Öngözlü

bridge 4-5 km from Diyarbakir and that his son had been buried in the

cemetery. The Prosecutor gave him a document which said "Sent to the

Offices of the Leader of the Council with Document No. Hz. 1993/5394

dated 25.11.1993". Later Abdülrezak went with Halil to the Offices of

the Leader of the Council and they were sent from there to the

Mardinkapi cemetery. They were shown an unmarked grave and were told

that it was that of Mehmet Sah. They requested that it be opened but

they were refused.

      On 7 December 1993 Abdülrezak submitted a petition to the DGM

Chief Prosecution requesting permission to open his son's grave. He

also stated his desire to be allowed to visit the grave on Fridays and

to be able to make a burial ritual.  The petition was refused verbally

without being processed on the grounds that neither the DGM Chief

Prosecution nor the DGM Prosecutor had the authority to grant

permission.

      On 13 December 1993 Abdülrezak made two more petitions to the DGM

Chief Prosecution in Diyarbakir. In the first petition he stated that

he thought that his son had been killed in custody and requested that

they perform an autopsy in order to learn the truth about the

circumstances of his son's death. In the second petition, entered as

No. 1993/5702 Hz. A.B. and 1993/2096 Es., he requested information to

be given to him as to the fate of his son, who had been taken into

custody on 22 November 1993. According to two statements made by him

on 13 December 1993, neither petition was processed. He states that the

first petition was turned away without being processed officially and

that he was told to apply to the court. In respect of the second

petition, he was told that his son had been killed in a clash without

the petition being processed at all.

      On 13 December 1993 (and again on 18 January 1994) Abdülrezak

also petitioned Mehmet Kahraman, the State Minister concerned with

human rights in Ankara, to investigate the circumstances of his son's

death. The Minister replied on 5 April 1994. He informed Abdülrezak

that his application had been forwarded to the relevant Ministries (the

Ministry of the Interior and the Ministry of Justice) and an

investigation had been requested into the matter; however the Ministry

of the Interior had replied in a letter of 21 March 1994, denying that

Mehmet Sah ikincisoy had been taken into custody and claiming that

there were no records on the matter.

      The applicants are convinced that Mehmet Sah did not die in a

clash but was killed in custody under torture. Halil witnessed his

brother being taken into custody by the police. Both of the applicants

claim that they saw him while he was in custody and heard his screams

under torture.

      The Government state as follows:

      On 22 November 1993, pursuant to receipt of information

concerning the PKK, a team of security officers went to the house of

Abdülrezak ikincisoy to take Mehmet Sah, his son, into custody for

questioning. On being told that he was at his uncle's house, the police

officers were taken to the house by Halil ikincisoy. While searching

the house, the police officers came under fire from four men lying in

a room. One police officer was killed and one wounded. Of the gunmen

one was killed and the others escaped.

      Abdülrezak ikincisoy was taken into custody on 22 November 1993

at about 14.30 hours and released on 25 November 1993.

      Halil ikincisoy was taken into custody on 22 November 1993 and

released on 3 December 1993 after being brought before the public

prosecutor.

      Neither Halil ikincisoy or Abdülrezak ikincisoy made any

complaint to the public prosecutor about alleged ill-treatment in

custody.

      On 23 November 1993, following receipt of information by

telephone that two armed men were sheltering in a hut near the Ongözlü

bridge, a security force team went to the  hut. Fire was opened on the

security forces from the hut. During the subsequent armed clash, both

men in the hut were shot dead.  One of the deceased was identified as

Atilla Güller. The second body was not identified, no identity card

being found on it, and photographs were taken. An autopsy was conducted

on 24 November 1995. Subsequently, on 6 December 1993, by means of the

photographs the unidentified deceased man was identified as Mehmet Sah

ikincisoy by Abdülrezak ikincisoy.

      The Government state that arms which were found near the hut at

the bridge have been established by ballistics experts as having been

used in the armed clash during the search at Abdülkadir ikincisoy's

house.

2.    Events subsequent to the introduction of the application

      The Government have submitted to the Commission a statement

signed by the first applicant, Abdülrezak ikincisoy, taken by the

public prosecutor on 6 June 1995 after the application was

communicated. In this statement, he denies that he wanted to bring an

application to the Commission and he states that he withdraws his

complaint.

      The applicants' representatives have subsequently submitted

another statement signed by Abdülrezak ikincisoy, dated

31 October 1995, in which he explains that he was forced to sign the

statement before the public prosecutor and confirms that he wishes his

application to the Commission to continue.

COMPLAINTS

      The applicants complain of violations of Articles  2, 3, 5, 6,

8, 9, 13 and 14 of the Convention.

      As to Article 2 they complain of the death of Mehmet Sah

ikincisoy whilst in police custody. They also complain of the threats

to the lives of both of them during their detention, on account of the

conditions and their subjection to torture.

      As to Article 3 they refer to the acts of torture inflicted on

all the applicant detainees while in the custody of the police at the

Market Place police station and the Riot Police Headquarters. They also

complain in relation to the two applicants in so far as the conditions

of their detention, particularly the deprivation of food and sustenance

over several days, constitute at a minimum inhuman treatment. The two

applicants finally refer to their inability to obtain true information

on the circumstances of Mehmet Sah's death and to open his grave to

have an autopsy carried out.

      As to Article 5 they allege that they were detained for periods

between four and fourteen days in circumstances incompatible with the

requirements of Article 5 paras. 1 (c), 3, 4 and 5 of the Convention,

even taking into account the respondent Government's derogation.

      As to Article 6 the applicants complain that the first applicant

is unable to start proceedings to determine the circumstances of his

son's death because of the refusal of the Prosecutor and other

authorities, and that he is totally without remedy in determining the

responsibility for his son's death and compensation for his torture and

unlawful killing.

      As to Article 8 they complain that the police arbitrarily entered

their home in the middle of the night and took twelve family members

into custody in total.

      As to Article 9 they refer to the refusal of the authorities to

permit the first applicant to open the grave where they buried Mehmet

Sah and to allow him to rebury his son according to his religious

beliefs and customs.

      As to Article 13 they allege that there is a lack of any

independent national authority which could offer them a remedy for the

alleged violations.

      As to Article 14 in conjunction with all the above articles of

the Convention the applicants allege their family members have been

discriminated against on the ground of their Kurdish origin.

      The applicants maintain that they have made fruitless attempts

to have their complaints addressed and they are not required to pursue

any other alleged domestic remedies as they are illusory, inadequate

and ineffective because:

      a)   there is a systematic practice of torture and

      disappearances and unacknowledged murders by the authorities in

      Turkey and these practices make it impossible for the applicants

      to seek adequate redress;

      b)   there is an administrative practice of not respecting the

      rule under Article 13 of the Convention which requires the

      provision of effective domestic remedies;

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

      refusal of the prosecution in this case to officially process the

      first applicant's petitions and to give adequate oral replies to

      them leaves the applicants with no legal channels open to them;

      d)   alternatively the applicants have already exhausted all

      available remedies as the petitions to the State Security Court's

      Chief Prosecution were not processed; the first applicant has

      also made an extra-judicial plea to the State Minister concerned

      with Human Rights to intervene.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 19 May 1994 and registered on

6 January 1995.

      On 3 April 1995, the Commission decided to communicate the

application to the respondent Government.

      The Government's written observations were submitted on

8 August 1995 after the expiry of the time-limit fixed for that

purpose.  The applicant replied on 3 November 1995 within the extension

of the time-limit granted.

THE LAW

      The applicants allege that Mehmet Sah ikincisoy was killed whilst

in police custody and that they are unable to have the grave re-opened

to have an autopsy carried out and for his body to be buried by the

family in accordance with their beliefs. They also complain of torture,

ill-treatment and threats which they and other members of their family

suffered while in police custody and of the circumstances of the

applicants' arrest and detention. They invoke Article 2 (Art. 2) (the

right to life), Article 3 (Art. 3) (prohibition on inhuman and

degrading treatment), Article 5 (Art. 5) (right to liberty and security

of person), Article 6 (Art. 6) (the right of access to court), Article

8 (Art. 8) (right to respect for family life and home), Article 9

(Art. 9) (freedom to manifest religion), Article 13 (Art. 13) (the

right to effective national remedies for Convention breaches) and

Article 14 (Art. 14) of the Convention (prohibition on discrimination).

      The Government submit that the application should be dismissed:

1.    as regards the first applicant, since there is no valid

application;

2.    for failure to exhaust domestic remedies in respect of the

applicants' allegations of ill-treatment in custody;

Article 25: existence of a valid petition in respect of the first

applicant

      The Government submit that, as indicated by the statement of the

first applicant to the public prosecutor dated 6 June 1995, the

applicant had no intention of complaining to Strasbourg and that he

wishes to withdraw any application in his name.

      The applicants' representatives have submitted a statement dated

31 October 1995 from the first applicant to the effect that he had been

obliged to sign a statement which he was unable to read after police

came to his house and took him away. In the statement of 31 October

1995, he expresses his wish to continue with the application.

      The Commission notes that the application submitted to it

contains a power of attorney signed by the first applicant in favour

of the applicants' representatives. The statement of 6 June 1995 to the

public prosecutor does not in fact contest that this is the genuine

signature of the first applicant.  The Commission finds no element to

indicate that the application lodged in the first applicant's name was

not a valid exercise of the right of individual petition under

Article 25 (Art. 25) of the Convention. The Commission therefore has

competence to examine it. Further, given the subsequent signed

statement of the first applicant dated 31 October 1995 casting doubt

on the voluntariness of an alleged intention to withdraw his

application, the Commission finds that there is no basis on which it

could safely proceed to strike the application from the list pursuant

to Article 30 para. 1 (a) (Art. 30-1-a) of the Convention at the

present time.

      Further, the Commission has had regard to the serious matters

which arise from the first applicant's statement of 31 October 1995,

in particular, that it is alleged that the first applicant was taken

from his home by the police to be questioned about his application to

the Commission and required to sign a statement, which he was unable

to read and which was not read to him. The Commission considers that

these matters require examination under Article 25 para. 1 (Art. 25-1)

in fine of the Convention, by which Contracting States undertake not

to hinder in any way the effective exercise of the right of individual

petition.

Applicants' allegations of ill-treatment in custody

      The Government submit that the applicants have failed to exhaust

domestic remedies in respect of their complaints of ill-treatment while

in custody. Neither applicant has made a complaint to the public

prosecutor in respect of their allegations.

      The applicants accept that they did not make complaint at the

time. They submit that the authorities' reactions to Mehmet Sah's death

destroyed their trust in legal proceedings and they decided not to

pursue cases for their own injuries. They consider (see above under

Complaints) that remedies are illusory, inadequate and  ineffective

since, inter alia, it is alleged that there is a widespread practice

of torture in police custody.

      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. A mere doubt as to the prospect of success however

is not sufficient to exempt an applicant from submitting a complaint

to the competent court (see eg. No. 20357/92, Dec. 7.3.94, D.R. 76-A,

p. 80). 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 notes that the ill-treatment in custody of which

the applicants complain is prohibited by the Turkish Criminal Code and

that it is not in dispute that if such acts took place, they would have

been in contravention of the criminal law to which the police are

subject. The Turkish legal system provides in such instances for

investigation to be carried out by the Public Prosecutor who takes the

decision whether or not to initiate a prosecution against the alleged

perpetrators. In the event a decision not to prosecute is issued, there

is the possibility under Article 165 of the Code of Criminal Procedure

of appealing to a court. Further, there are court precedents indicating

that police officers have been prosecuted and convicted for offences

involving ill-treatment in custody and that payment of compensation has

been ordered.

      In the present case, the applicants have taken no step by which

their complaints were brought to the attention of any relevant or

competent authority, in particular, making no complaint to the public

prosecutor. While in a previous case (Aksoy v. Turkey, No. 21897/93,

Dec. 19.10.94, D.R. 79-A, p. 60), the applicant, who had complained of

torture, was found to have exhausted domestic remedies as required by

Article 26 (Art. 26) of the Convention, the Commission recalls that it

took the view that,  whether or not the applicant had expressly

complained to the public prosecutor about his treatment, it had no

doubt that there were elements arising in his interview with the

prosecutor (in particular, his complaint that he was unable to use his

hands) which should have alerted the prosecutor to the existence of

possible grounds for an investigation or led him to seek further

information as to the cause of the applicant's injuries. It is not

apparent from the facts submitted in this application, that the

substance of the applicants' complaints in respect of their alleged

ill-treatment in custody was drawn to the attention of the public

prosecutor either directly or indirectly, even though the first

applicant was in contact with the Chief Prosecution office at the State

Security Court shortly after his release.

      The Commission has had regard to the apparently unsatisfactory

nature of the response made by the authorities to the applicants'

complaints in respect of Mehmet Sah. However, given the existence of

a legal framework of redress to which they had recourse in respect of

the death of Mehmet Sah, the Commission finds that the exhaustion of

domestic remedies imposes in the circumstances of this case that the

applicants do the minimum which might be required to bring their

complaints to the notice of the competent authorities to give them the

opportunity, as the basic principle at the heart of Article 26

(Art. 26) requires, to investigate and offer redress before the matter

is pursued before an international jurisdiction. Consequently, the

Commission finds that the applicants cannot be considered as having

complied with the requirement for the exhaustion of domestic remedies

laid down in Article 26 (Art. 26) of the Convention. The part of the

application relating to their allegations of ill-treatment in custody

must therefore be rejected for non-exhaustion of domestic remedies

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

Remaining complaints, including those relating to the death of Mehmet

Sah ikincisoy

      The applicants allege that Mehmet Sah ikincisoy was killed in

custody under torture and invoke in this respect Article 2 (Art. 2) of

the Convention.

      Insofar as the Government's submissions that the applicants have

failed to exhaust domestic remedies in respect of their complaints of

ill-treatment while in custody can be interpreted as extending to their

allegations about the death of Mehmet Sah while in police custody, the

Commission notes that the first applicant made a number of approaches

to the authorities:

      (i) a petition of 7 December 1993 to the Chief Prosecution at the

      State Security Court in which he asked for permission to open the

      grave of his son;

      (ii) a petition of 13 December 1993 to the Chief Prosecution at

      the State Security Court, in which he stated that he did not

      believe that his son was killed in a clash but believed that his

      son, after being taken into custody, had been killed in custody;

      he further asked for an autopsy to be performed in order to learn

      the truth;

      (iii) a petition dated 13 December 1993 to the Chief Prosecution

      at the State Security Court in which he asked for information

      about the fate of his son, pointing out that he had been taken

      into custody by the police on 22 November 1993 from the home of

      the first applicant's brother;

      (iv) a petition of 13 December 1993 by the first applicant to Mr.

      Mehmet Kahraman, State Minister for Human Rights, in which he

      requested an investigation of the cause of his son's death.

      The Commission notes that the first applicant has stated that

none of his petitions to the Chief Prosecution were processed

officially and that he was met with the reply that his son was killed

in a clash. Further in the response to his petition to the Human Rights

Minister, he was told that the Ministry of the Interior had made it

clear that the first applicant's son had not been taken into custody

in Diyarbakir and that there were no records on the matter.

      The Commission considers that the first applicant made serious

attempts to obtain an investigation about the cause of his son's death

from relevant and competent authorities. In view of the reactions which

he received from these authorities, he cannot, in the Commission's

view, be required under Article 26 (Art. 26) of the Convention to

pursue any other legal remedy in this regard (cf. No. 19092/91, Yagiz

v. Turkey, Dec. 11.10.93, D.R. 75, p. 207).

      The Commission concludes that the applicants may therefore be

said to have complied with the domestic remedies' rule laid down in

Article 26 (Art. 26) of the Convention and, consequently, this part of

the application should not be rejected for non-exhaustion of domestic

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

      Insofar as the applicants complain also of their inability to

obtain true information on the circumstances of Mehmet Sah's death or

to open his grave to obtain an autopsy, their detention for periods of

four to fourteen days, the inability to take proceedings or obtain a

remedy for Mehmet Sah's ill-treatment and death in custody, the

circumstances of the police raid, in which twelve family members were

taken into custody, the refusal to allow the first applicant to rebury

his son according to his religious beliefs and customs and of

discrimination, the Commission notes that the Government have made no

express comment. The Commission therefore finds no basis on which these

complaints can be rejected for non-exhaustion of domestic remedies.

      As regards the substance of the applicants' remaining complaints,

the applicants submit, inter alia, that they are convinced that Mehmet

Sah died as a result of ill-treatment in custody. They submit that the

second applicant saw him being taken into custody and that both

applicants saw and heard him while they were in custody.  They submit

that the Government have affirmed that the applicants' home was raided

and that they and members of their family were taken into custody and

held for up to twelve days.

      The Government submit that the applicants' complaints are devoid

of any supporting evidence. They submit that Mehmet Sah was not taken

into custody but killed when he participated in an armed clash against

the security forces.

      The Commission considers, in light of the parties' submissions,

that these complaints raise complex issues of law and fact, the

determination of which should depend on an examination of the merits

as a whole. The Commission concludes, therefore, that this part of the

application is not manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring

it inadmissible has been established.

      For these reasons, the Commission,

      by a majority,

      DECLARES INADMISSIBLE the applicants' complaints relating to

      their alleged ill-treatment in custody;

      unanimously,

      DECLARES ADMISSIBLE, without prejudging the merits, the

      applicants' remaining complaints;

      unanimously,

      DECIDES TO EXAMINE FURTHER whether there has been interference

      with the effective exercise of the first applicant's right of

      individual petition under Article 25 para. 1 (Art. 25-1) in fine

      of the Convention.

Secretary to the Commission                 President of the Commission

      (H.C. KRÜGER)                               (S. TRECHSEL)