ERDOGAN, SiMSEK, HAKKI ILCI, ÖZKAYA, ELIUYGUN AND NURLU v. TURKEY
Doc ref: 19807/92 • ECHR ID: 001-2632
Document date: January 16, 1996
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AS TO THE ADMISSIBILITY OF
Application No. 19807/92
by 1. Hüseyin ERDOGAN
2. Sevgi ERDOGAN
3. Esme SiMSEK
4. Hüseyin SiMSEK
5. ismail Hakki ILCI
6. Nahit ÖZKAYA
7. Mahmut Ali ELiUYGUN
8. Necla NURLU
against Turkey
The European Commission of Human Rights sitting in private on
16 January 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
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 6 January 1992 by
by Mr. Hüseyin Erdogan, Ms. Sevgi Erdogan, Ms. Esme Simsek, MM. Hüseyin
Simsek, ismail Hakki Ilci, Nahit Özkaya, Mahmut Ali Eliuygun and
Ms. Necla Nurlu against Turkey and registered on 7 April 1992 under
file No. 19807/92;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 9 September 1992 to communicate the
application;
- the observations submitted by the respondent Government on 7
January and 10 May 1993 and the observations in reply submitted
by the applicants on 8 April and 29 October 1993;
- the additional information and observations submitted by the
applicants on 23 December 1994 and by the Government on 16 March
and 20 July 1995;
- further information submitted by the applicants on 16 October
1995 and by the Government on 12 January 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are all Turkish citizens. They are relatives of
ibrahim Erdogan, Yücel Simsek, ibrahim Ilci, Cavit Özkaya and Hasan
Eliuygun, alleged members of Dev-Sol (Revolutionary Left) who were
killed by the security forces in Istanbul on 12 July 1991.
The applicants' particulars, i.e., their dates of birth, place
of residence and their relationship to those who were killed in the
operation are as follows:
Name Date Resident Relationship
of birth at
Hüseyin ERDOGAN 1933 istanbul ibrahim Erdogan's father
Sevgi ERDOGAN 1956 istanbul ibrahim Erdogan's wife
Esme SiMSEK 1946 istanbul Yücel Simsek's mother
Hüseyin SiMSEK 1942 istanbul Yücel Simsek's father
ismail Hakki ILCI 1960 izmir ibrahim Ilci's brother
Nahit ÖZKAYA 1962 istanbul Cavit Özkaya's brother
Mahmut Ali ELiUYGUN 1926 istanbul Hasan Eliuygun's father
Necla NURLU 1956 istanbul Hasan Eliuygun's sister
The applicants are all represented before the Commission by Ms
Françoise Hampson, senior lecturer in law in the University of Essex.
The facts as submitted by the parties may be summarised as
follows.
1. General background
On 12 July 1991 the police carried out operations against Dev-Sol
activists in four buildings located in different areas in Istanbul. Ten
alleged members of Dev-Sol were killed during these operations. No
police were killed or injured.
According to the applicants, in every case, the victims had been
under surveillance for some time and the area was sealed off before the
operation. The applicants also submit that the operations were
coordinated. According to some newspaper reports, the Minister of
Interior Affairs at the material time had confirmed in a press
statement that the victims had been under surveillance before the
operations took place and that the operations had been coordinated.
According to certain of the newspaper reports, after the
operations Mr. Mehmet Agar, Chief of the Istanbul Police, congratulated
the members of the police force who had taken part in the raids.
The purpose of the operations, according to the Government, was
to apprehend those who were suspected of having been involved in
terrorist activities and to bring them to trial and also to prevent
possible terrorist attacks.
According to the applicants, the purpose of the operations must
be inferred from the result. All the alleged terrorists were killed.
The only person injured was a resident in the building. Following the
killings, there was no police investigation. The applicants assert that
the arming of the police with grenades and their use during the
operations was inconsistent with any intention to arrest.
The Government submit that the police made several calls to
surrender. The police reports suggest that in each case several calls
to surrender were made, to which the deceased replied by opening fire.
According to the applicants, the Government have failed to
distinguish between the four different locations or to adduce
independent evidence that calls to surrender were made in each case.
Certain newspaper reports suggest that there were calls to
surrender, while some others claim that no call to surrender was made.
The Government submit that the deceased were armed. They further
submit that in each case the deceased opened fire first. According to
the police reports, in each location, guns and rifles of various size,
bombs, hand grenades and material used for producing explosives were
found. The Public Prosecutors' reports confirm this.
The applicants, who contend that no Public Prosecutor in fact
attended at the scene of any of the operations, rely on the lack of any
independent corroborative evidence of this assertion.
2. Particular circumstances of each of the four operations
The circumstances of the four operations, which were coordinated,
were as follows:
(a) Ekmek fabrikasi Sokak, No 26/1 - Nisantasi - istanbul
According to the Police Reports, this apartment was the first to
be raided at 19.00 hours on 12 July 1991.
The police reports suggest that there was an armed clash for one
and a half hours between police and those inside the building. A
resident (I.G.) who tried to run away from the place of the incident
was shot by the police and wounded.
Two alleged terrorists were killed by the police at this
location: ibrahim Ilci and Bilal Karakaya.
The autopsy report on Ilci states the cause of death as rib
fractures and internal haemorrhage due to bullet wounds.
(b) Dikilitas Gelincik Sokak, No 6/2, Besiktas - istanbul
The police reports suggest that this was the second building to
be raided at 19.45 hours on 12 July 1991. They also suggest that there
was an armed clash between the police and the alleged terrorists.
Cavit Özkaya and Hasan Eliuygun and three other alleged
terrorists, Niyazi Aydin, Zeynep Eda Berk and Nazmi Türkcan, were
killed at this address.
The autopsy report on Cavit Özkaya gives his cause of death as
an internal haemorrhage, fractures of shoulder blades and ribs,
concurrent with the perforation of internal organs resulting from
bullet wounds.
A Forensic Pathologist who, at the request of the applicants,
inspected the premises after the incident and examined the autopsy
reports ("the Forensic Pathologist"), commented that the only fatal
wound to the front of Özkaya was probably the last shot to the body and
that it was fired when the body was on a firm surface, such as the
ground. According to the Forensic Pathologist, three of the fatal shots
and two non-fatal shots indicate that the individual was shot from
behind.
The autopsy report on Hasan Eliuygun gives his cause of death as
internal haemorrhage caused by bullet wounds. The report indicates that
he was shot by five bullets. Five metal fragments also hit his body.
(c) Balmumcu, Özmelik Apartmani, No 11/1 Besiktas, istanbul
This was the third building raided at 22.30 hours.
Two alleged terrorists were killed at this address: ibrahim
Erdogan and Yücel Simsek. The official report claims that there was an
armed clash with the people inside the building. No police were killed
or injured.
The autopsy report on ibrahim Erdogan gives his cause of death
as internal bleeding due to bullet wounds and skull and spinal column
fractures. According to the autopsy report on Yücel Simsek, his death
occurred as a result of internal and external haemorrhage, destruction
of the brain and skull and vertebrae fractures caused by bullets and
metallic parts of an explosive material.
According to the Forensic Pathologist, "there is no evidence of
an exchange of gunfire having occurred within the apartment; the main
room of the apartment shows evidence of a minimum of 9 gunshots having
been fired, all 9 gunshots fired in the main room of the apartment were
directed downwards towards the floor with a shooter to target distance
of about 3 metres or less; if a person was shot dead within the main
room of the apartment, the evidence suggests that the person was on or
close to the floor, within 3 metres of the shooter, and was not firing
a weapon at the time of being shot".
(d) 1. Levent, Birlik Sokak No 10/1, Besiktas - istanbul
The fourth raid took place at this location. One alleged
terrorist, Ömer Coskunirmak, was killed there. His death is not the
subject of any application to the Commission.
3. Proceedings before the domestic authorities
(i) Complaint by Sevgi Erdogan to the Public Prosecutor against the
Istanbul Chief of Police and the police officers who participated
in the operations
On 16 July 1991 the second applicant Sevgi Erdogan filed a
complaint with the Public Prosecutor of istanbul. Her legal
representatives claimed that, having regard to the use of grenades
during the operation, the presence of explosive fragments found in the
bodies of the deceased, the signs on the bodies which indicated that
they had been shot at close range, the fact that the operation was
carried out within a short space of time and the fact that all the
people living in the raided house had been killed, it was apparent that
the security forces had aimed at killing these persons rather than
arresting them. It was further submitted that, as none of the members
of the security forces had been injured, it was questionable whether
there had really been any clashes. It was requested that criminal
proceedings be instituted for murder against the Istanbul Chief of
Police and the security personnel involved in the operation.
On 28 November 1991 the Istanbul Public Prosecutor's Office
referred the matter to the istanbul Governor's Office to obtain a
decision as regards prosecution pursuant to the provisions of the Law
on the Prosecution of Civil Servants. The istanbul Provincial
Administrative Council subsequently decided that there were no grounds
for opening an investigation. No appeal was lodged against this
decision.
(ii) Criminal Proceedings instituted by the Public Prosecutor of
Istanbul before the Sixth Chamber of the istanbul Criminal Court
(Agir Ceza Mahkemesi)
In an indictment dated 25 February 1992, the Public Prosecutor
of Istanbul charged nine policemen, in relation to the events in three
locations referred to in Sections 2 (b) (c) and (d) above, with
unintentional homicide and causing death in a way which rendered the
identification of the perpetrator impossible. The charges were brought
under Articles 452/1, 463, 50 and 51/2 of the Turkish Criminal Code.
During the first hearing which took place on 21 April 1992 the
applicants Sevgi Erdogan, Nahit Özkaya, Hüseyin Simsek, Esme Simsek and
Mahmut Eliuygun applied to the Court to intervene in the proceedings.
In their statement to the Court, the applicants submitted that, "apart
from the so-called warnings to surrender, there was no indication of
either an intention or a willingness to arrest these people alive ...
It is essential in this case to investigate whether or not the object
of the operation was to arrest these people". The Court granted their
applications at the hearings on 7 July and 15 September 1992.
Between 21 April 1992 and 16 June 1993 the defendants made their
statements to the Court. Owing to the late appearance of some of the
defendants, it took eleven hearings for the Court to complete the
taking of oral evidence from all the defendants.
During the course of five hearings held between 23 September 1993
and 3 March 1994, the Court heard some twenty witnesses.
Between 1 June 1994 and 24 November 1994 the Court, at the
request of the applicants' legal representatives, adjourned the
hearings several times for them to make their final submissions.
In a decision dated 8 February 1995, the Court found no grounds
for imposing any punishment on the defendants. The Court noted the
evidence according to which the deceased had participated in various
terrorist activities. It also noted the evidence showing that weapons
and explosives had been discovered in the flats of the deceased and
found it established that the deceased were members of Dev-Sol. The
Court noted that it had not carried out an examination at the sites of
various operations as requested by the intervening parties since there
had been an initial examination and since there was no purpose in any
further examination having regard to the time which had elapsed since
the events in question. The Court held that, according to the oral
evidence given by the witnesses, in all three operations the area had
first been sealed off and the deceased had been warned many times by
megaphones. According to some witnesses, the deceased had started
shooting from the windows and the security forces had fired back. Some
witnesses had stated that they could not tell clearly who fired first.
However, other witnesses confirmed that they had first heard shootings
from the flats. The Court therefore found it established that the
police had given the necessary warnings, and when being fired on, had
started shooting back. It considered that, in all three cases, the
defendants acted in accordance with their orders and within the scope
of their duties. It found that the acts of the accused remained within
the limits of legitimate defence.
A relative of Zeynep Eda Berk who had been killed during the
operations appealed from the decision to the Court of Cassation. The
appeal is still pending.
On 16 February 1995 a petition was submitted to the Court by Mr.
Ahmet Düzgün Yüksel, signed in the capacity as the "legal
representative for the intervening parties" without identifying the
parties. In the petition Mr. Yüksel stated that he had been unable to
be present at the hearing during which he understood that the Court had
given its judgment and that he appealed against the Court's decision
and would submit a detailed statement of appeal after receiving its
reasoned judgment.
(iii) Criminal Proceedings before the Fourth Chamber of the istanbul
Criminal Court (Agir Ceza Mahkemesi)
These proceedings concern the killing of Ibrahim Ilci and Bilal
Karakaya in respect of the raid at the first location (2 (a) above).
According to the Government's submissions, during the preliminary
investigation, these proceedings were severed from the proceedings
relating to the three other locations (3 (ii) above) and the case was
referred to the Public Prosecutor of the Sisli District. The case was
then referred back to the Public Prosecutor of istanbul.
In an indictment dated 1 June 1994 the Public Prosecutor of
istanbul charged twelve police officers with intentional homicide and
causing death in a way which rendered the identification of the
perpetrator impossible. The charges were brought under Articles 450/5,
463, 281, 31, 33, 49/1-3 and 50 of the Turkish Criminal Code.
Between 1 June 1994 and 21 February 1995 all the defendants gave
their statements to the istanbul Criminal Court.
At the hearing on 29 June 1995 the legal representative of the
applicant ismail Hakki Ilci, brother of the deceased Ibrahim Ilci,
requested to intervene in the proceedings. At the hearing of 21
September 1995, the Court ordered the submission of documents
indicating the family relationship between Ismail Hakki Ilci and
Ibrahim Ilci. The hearing was adjourned to 24 October 1995. The
Commission has not been informed any further progress in these
proceedings.
COMPLAINTS
The applicants allege, both in their own names and on behalf of
their dead relatives, that they have been victims of violations of
Articles 2, 6 and 13 of the Convention.
It is alleged that there has been a violation of Article 2 on a
number of grounds. It is claimed that
(i) the intentional deprivation of life was not attributable to
any of the exhaustive list of purposes set out in paragraph 2;
alternatively
(ii) the deprivation of life was attributable to a use of lethal
force disproportionate to any lawful ground on which force which might
result in death could be used;
(iii) the deprivation of life was attributable to the use of a
degree of force more than "absolutely necessary" to achieve any
legitimate purpose;
(iv) there was a failure adequately to protect the right to life
by initiating legal proceedings to determine whether or not those
responsible for the deaths acted lawfully;
(v) there was inadequate protection of the right to life in
domestic law.
It is alleged that Article 6 has been violated on account of the
failure to initiate proceedings before an independent and impartial
tribunal for a determination of the applicants' civil right to have the
right to life of their relatives adequately protected and for
determining whether or not those responsible for the deaths had acted
lawfully.
It is alleged that Article 13 has been violated on account of the
lack of any independent national authority before which these
complaints can be brought with any prospect of success.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 January 1992 and registered
on 7 April 1992.
On 9 September 1992 the Commission decided to communicate the
application to the respondent Government and to ask for written
observations on the admissibility and merits of the application.
The Government's observations were submitted on 7 January and
10 May 1993. The applicant submitted observations in reply on 8 April
and 29 October 1993.
On 28 November 1994 the Commission decided to invite the parties
to submit simultaneously their additional observations and information
on the facts.
The applicants submitted their additional observations and
information on 23 December 1994. On 16 March and 20 July 1995 the
Government submitted their additional observations and information.
Further information was submitted by the applicants on 16 October
1995 and by the Government on 12 January 1996.
THE LAW
1. The applicants complain, both in their own names and on behalf
of their dead relatives, that they have been victims of violations of
Article 2 (Art. 2) (right to life), Article 6 (Art. 6) (right of access
to court) and Article 13 (Art. 13) (right to effective remedies) of the
Convention.
2. Exhaustion of domestic remedies
The Government submit that the applicants have failed to exhaust
domestic remedies before lodging their application with the Commission
as required by Article 26 (Art. 26) of the Convention.
The Government submit in this regard that
- the complaint lodged against the istanbul Chief of Police was not
duly pursued, as the applicants failed to file an appeal before the
State Council against the decision of non-prosecution by the Provincial
Administrative Council;
- the criminal proceedings instituted against the police officers
in respect of all four operation locations are still pending;
- the applicants Hüseyin Erdogan and Necla Nurlu, relatives of the
deceased Erdogan and Eliuygun, failed in any event to intervene in the
criminal proceedings before the Sixth Chamber of the istanbul Criminal
Court and therefore have not exhausted domestic remedies;
- it is open to the applicants to bring a civil claim for
compensation against the officers involved in the operations; and
- it is also open to the applicants to file a claim for
compensation against the Administration.
The Government assert that these remedies are effective and that
Turkish Law envisages the enforcement of constitutional and Convention
rights before the domestic courts. They submit that the purpose of the
operation was to apprehend the suspects and bring them to justice and
that there is no substantiation of the applicants' claim that the
authorities officially instigated the killing of the persons concerned.
The applicants first maintain that the evidence in these cases
relieves them of any need to exhaust domestic remedies. They argue in
this regard that the deaths were the result of operations which had
been officially authorised and approved and which had proceeded as
planned and that this element of official instigation sufficed to
relieve the applicants of the need to exhaust domestic remedies. They
further assert that the provision of any remedy after the event cannot
be a substitute for the prohibition of unlawful killings.
The applicants further submit that for the following reasons the
available remedies were ineffective and that, to the extent that they
were required to exhaust such remedies, they had in any event done so:
- as regards their complaint against the Chief of Police, the
applicants submit that the Public Prosecutor wrongly referred the case
to the Governor. Since a prosecution was in any event brought against
the police involved in the operation, there was no purpose in pursuing
an appeal against the refusal of the Provincial Administrative Council
to prosecute the Chief of Police. Furthermore such an appeal offered
no prospect of success. There is no precedent for such proceedings
against a Chief of Police;
- the proceedings before the Sixth Chamber of the istanbul Criminal
Court were and are fundamentally flawed, in that the indictments
asserted that the police officers returned fire, thereby depriving the
Court of the opportunity of examining the vital issue as to whether the
deceased opened fire first; the proceedings advanced remarkably slowly;
certain defendants had not been present at certain hearings because
they were on duty; and the court failed to obtain the clothing of the
deceased for forensic examination;
- as regards the failure of Hüseyin Erdogan and Necla Nurlu to
intervene in the proceedings, the applicants submit that there was no
necessity for them to be made parties because Sevgi Erdogan and Mahmut
Ali Eliuygun, relatives of the deceased Erdogan and Eliuygun, were
parties and were able to raise all the issues concerning their killing;
- as regards the proceedings before the Fourth Chamber of the
istanbul Criminal Court, the applicants point especially to the length
of the preliminary investigation before the proceedings were commenced;
- the applicants maintain that civil proceedings against the police
officers stand no prospect of success and are ineffective unless there
has been a prior criminal conviction; and
- the applicants further maintain that there is no precedent for
an administrative remedy being sought successfully in such a case.
The Commission does not consider it necessary to determine
whether the applicants were relieved of the need to exhaust domestic
remedies on the grounds of their allegations that the killings were
officially instigated, since for the following reasons the Commission
finds that there has in any event been no failure to exhaust domestic
remedies.
The Commission recalls that according to its constant case-law,
the obligation to exhaust domestic remedies requires only that an
applicant make normal use of remedies likely to be effective, adequate
and accessible (cf. e.g. No. 19819/92, Dec. 5.7.94, D.R. 78 p. 88). An
applicant does not need to exhaust 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).
In the present case the Commission notes that the operations
which took place in four different locations appear to have been
coordinated. It further observes that two separate sets of criminal
proceedings were instituted before the Fourth and Sixth Chambers of the
istanbul Criminal Court and that all but two of the applicants
intervened in the proceedings before the Sixth Chamber and an
application was made by the applicant Mr. Ilci to intervene in the
proceedings before the Fourth Chamber, the outcome of which application
is not known to the Commission.
The Commission considers that in principle such proceedings
constitute a domestic remedy which the applicants were required to
exhaust. However, in determining whether in practice the proceedings
afforded the applicants an effective domestic remedy and, if so,
whether the applicants may be treated as having exhausted the remedy,
regard must be had to the length of the proceedings and to the time
which has elapsed since the events of which complaint is made (see
mutatis mutandis No. 21895/93, Cagirga v. Turkey, Dec. 19.10.94,
unpublished).
In this respect the Commission notes that the deaths in question
occurred on 12 July 1991 (some four years and six months ago). As
regards the deaths of ibrahim Erdogan, Yücel Simsek, Cavit Özkaya and
Hasan Eliuygun, the criminal proceedings in the Sixth Chamber of the
istanbul Criminal Court commenced on 25 February 1992, but the trial
did not conclude until nearly three years later, on 8 February 1995.
The Commission observes in particular that, owing to the late
attendance of certain of the defendants, it took eleven hearings over
a period of some seventeen months for the court to complete the taking
of oral evidence from all the defendants. The Commission further notes
that, although an appeal has been lodged against the decision of the
Sixth Chamber by a relative of one of the persons killed in the police
operations, the appeal is still pending and it is unclear when a
determination is likely to be reached.
As regards the death of ibrahim Ilci, the Commission notes that
there was a delay of some three years in instituting criminal
proceedings against the police officers concerned, for which the
Government have given no satisfactory explanation. The criminal
proceedings which were eventually instituted before the Fourth Chamber
of the istanbul Criminal Court were still pending in October 1995 and,
on the information available to the Commission, have not yet concluded.
The Commission is of the opinion that the delays involved in the
institution and prosecution of the criminal proceedings cast some doubt
on the effectiveness of these remedies in the present case. However,
even assuming that the criminal proceedings are to be regarded as
remedies which the applicants were in principle required to exhaust,
the Commission considers that, having regard to the lapse of time since
the deaths in question, the applicants must be taken to have exhausted
these remedies, despite the fact that the proceedings in the Fourth
Chamber have not concluded and that it is unclear whether an appeal has
been lodged on behalf of any or all of the applicants from the decision
of the Sixth Chamber.
In these circumstances, it is not necessary to consider whether
the criminal proceedings in the Sixth Chamber were in any event
fundamentally flawed in the respects alleged by the applicants. Nor,
since criminal proceedings were in any event brought against the police
officers concerned in the operation, does the Commission find it
necessary to consider whether the complaint against the istanbul Chief
of Police was properly pursued by the applicants.
The Government submit that the first and eighth applicants,
Hüseyin Erdogan and Necla Nurlu, relatives of the deceased Erdogan and
Eliuygun, failed to intervene in the criminal proceedings and therefore
have not exhausted the domestic remedies. In this regard, the
Commission recalls that when an application is lodged by more than one
party, the Commission may, in certain circumstances, examine the entire
application despite the fact that only one party has exhausted domestic
remedies (cf. No. 9905/82, Dec. 15.3.84, D.R. 36 pp. 187, 192). The
Commission observes that in the present case the applicants Sevgi
Erdogan and Mahmut Ali Eliuygun, who are also relatives of the deceased
Erdogan and Eliuygun, intervened in the proceedings and were able to
raise all the issues concerning their killing. It therefore considers
that the first and eighth applicants were absolved from the need
personally to exhaust domestic remedies by intervening in the
proceedings.
The Commission also finds that in the circumstances of this case,
the applicants are not required to pursue any further legal remedy
concerning their complaints (see e.g. No. 19092/91, Yagiz v. Turkey,
Dec. 11.10.93, D.R. 75 pp. 207, 215).
Having regard to the above, the Commission concludes that the
applicants 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 Articles 26 and 27 para. 3 (Art. 26, 27-3) of
the Convention.
3. As to the substance of the applicants' complaints
As to the complaint under Article 2 (Art. 2) of the Convention,
the Government submit that the use of force was lawful and necessary.
They rely, inter alia, on the facts that the deceased were armed, that
in each case several calls to surrender had been made and that the
deceased refused to surrender and opened fire on the security forces.
The applicants maintain their allegations, inter alia, that there is
no independent evidence as to whether or not calls to surrender were
made and whether the deceased opened fire first. They assert that the
arming of the police with grenades and their use by the police was
inconsistent with an intention to arrest. They also rely on the
findings of the Forensic Pathologist which cast doubts on the
circumstances in which the applicants' relatives were killed.
As regards the complaints under Articles 6 and 13 (Art. 6, 13)
of the Convention, the Government submit that there exist effective
domestic remedies including the criminal proceedings instituted in the
Fourth and Sixth Chambers of the istanbul Criminal Court. The
applicants maintain their allegations as to the inadequacy and
ineffectiveness of the remedies.
In the light of the parties' submissions, the Commission
considers 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)