Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23763/94

by Selma TANRIKULU

against Turkey

The European Commission of Human Rights sitting in private on

28 November 1995, 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 25 February 1994

by Selma TANRIKULU against Turkey and registered on 28 March 1994 under

file No. 23763/94;

Having regard to :

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

the Commission;

- the observations submitted by the respondent Government on

1 March 1995 and the observations in reply submitted by the

applicant on 20 April 1995;

Having deliberated;

Decides as follows:

THE FACTS

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

1964 and resides at Silvan. She is represented before the Commission

by Professor Kevin Boyle and Ms. Francoise Hampson, both university

teachers at the University of Essex. The applicant states that she

brings the application in her own name and on behalf of her deceased

husband, Dr. Zeki Tanrikulu, and her children (she has two daughters

and at the time of her husband's death was expecting a third child).

The facts of the present case may be summarised as follows.

The applicant states that the following occurred.

Zeki Tanrikulu was born in Silvan in 1958. He was a medical

doctor and Head Consultant at Silvan District State Hospital at the

time of his death.

On 2 September 1993, at 11.55 hours, about two minutes after the

applicant had seen her husband from the balcony of the hospital

residences in which they lived, she heard the sounds of heavy automatic

weapons. She went out, ran a few metres and saw her husband shot down

near a wall in a slightly raised place called "Kaymakam" ramp, about

20 metres from the Security Directorate. There is a distance of about

50 metres between the Hospital and the Security Directorate.

When she arrived on the spot, her husband was still alive. Having

seen that there was no one around except for police, the applicant

started to run down the ramp in order to see the assailants. She saw

two people running a few metres away. Their haircuts looked smart. One

was wearing a light blue T-shirt and jeans and the other was wearing

a yellow T-shirt and brown cloth trousers. She shouted after them but

the men did not turn round. They entered the street leading to the

Security Directorate and disappeared. Since the applicant saw them from

behind, she did not see their faces and could not see whether they were

carrying weapons. The applicant ran out of breath and fell on the

ground. When she got up, she went back to get the licensed gun of her

husband from his bag and again ran in the direction the presumed

assailants had gone. Aware of the police present, she told them "the

murderers are escaping, catch them" but the police did not react at

all. While hospital personnel took her husband into the hospital, the

applicant shouted at the police and described the presumed assailants

to them.

Zeki Tanrikulu died 15 minutes after being taken into hospital.

After the incident, the applicant saw a man who turned out to be

the Security Director in the hospital. She said to him that her husband

had asked for a few days' leave. Indicating that her husband had not

been granted the leave although there were six other doctors working

at the hospital, she said: "Was it because you knew that he was going

to be killed that you didn't give it to him?" After she had been

informed that this man was the Security Director she said to him that

her husband had been killed in front of the Security Directorate. The

Security Director showed no reaction.

Two days later, two doctors (Mustafa, an intern, and Ilhan, an

internal diseases expert) asked the Silvan District Governor for leave

indicating that they would otherwise resign. The District Governor is

then alleged to have said: "Zeki was killed because he was Kurdish and

from round here. You are Turks, nothing will happen to you." The

applicant states that she requested Ilhan to make a written statement,

which he refused, saying that it would put his own life in danger. The

applicant states that a six-month intern has obtained leave on several

occasions, although he was not entitled to such leave.

The police examined the facts on the spot. One hour after the

attack, a report signed by three police officers was drawn up which

tells of sixteen empty cartridges and one deformed bullet being found

at the place of the incident. The report further states that residents

in the area gave a description of the two perpetrators: both were thin

and tall and clad in jeans, one was wearing a yellow T-shirt and the

other a white striped shirt. The report goes on to say that during a

wide investigation of the area no individuals fitting either of the

descriptions were found.

The body of the applicant's husband was examined by forensic

medical doctors in the presence of the District Public Prosecutor and

an autopsy report was issued on 2 September 1993. According to this

report, the applicant's husband had been hit by many bullets.

On 5 November 1993, the Head of the District Public Prosecution's

office of Silvan, after considering the nature of the charges, the way

the incident had occurred and the evidence, decided that he had no

competence to investigate the matter and sent the file to the Head of

the Public Prosecution's office at the Diyarbakir State Security Court.

No statement was taken from the applicant by any of the

authorities.

According to the applicant, her husband had no enemies. He had

been taken into custody once, on 6 June 1993, by plainclothes police

connected to the Security Directorate who said that they wanted a

statement. He was held for five and a half hours and released. He was

never brought before a public prosecutor.

The respondent Government state the following.

The death of the applicant's husband is currently under

investigation by the Public Prosecutor of the Diyarbakir State Security

Court. Although witnesses have been heard and an on-site inspection,

an autopsy and a forensic examination have taken place, the

perpetrators have not so far been apprehended. The Government have

submitted copies of witness statements, the report of the on site

inspection mentioned above and a sketch, a ballistic expert's report

and the autopsy report. All documents bear dates between 2 and

9 September 1993, except for one of the documents containing a witness

statement which is dated 2 September 1994.

The refusal of a few days' leave requested by the applicant's

husband is unconnected with his death; given that the applicant's

husband was Deputy Head Consultant at the hospital, his leave would

have interrupted the medical service.

Also, the alleged taking into custody of the applicant's husband

on 6 June 1993 is not connected with the incident. In fact, the

applicant's husband was summoned to the police station on 6 April (not

June) 1993 in order to give a statement upon the allegation that he was

hiding a named terrorist in his home. As soon as it had been

established that this allegation was false, the applicant's husband was

released.

The Government further submit that the applicant has stated that

she did not sign the written authorisation for her representation in

the proceedings before the Commission.

On this latter point, the applicant's representatives reply that

the applicant has confirmed that she did sign the letter of

authorisation submitted with the application.

COMPLAINTS

The applicant alleges in her own name, on behalf of her children

and her deceased husband that they have been victims of violations of

Articles 2, 3, 6, 13 and 14 of the Convention.

As to Article 2, she complains that her husband was killed in

circumstances suggesting that undercover agents of the State were

involved, or that the killing of her husband constituted a violation

of the State's obligation to protect her husband's right to life. She

asserts that the police had adequate personnel and armoured cars and

that, if appropriate action had been taken, the police could have

caught the alleged assailants. She further complains of the lack of any

effective system to ensure protection of the right to life in domestic

law.

As to Article 3, she refers to discrimination on the grounds

of race and ethnic origin.

As to Article 6, the applicant complains of the failure to

initiate proceedings before an independent and impartial tribunal

against those responsible for the killing, as a result of which the

applicant cannot bring civil proceedings arising out of the killing.

As to Article 13, the applicant complains of the lack of any

independent national authority before which these complaints can be

brought with any prospect of success.

As to Article 14, the applicant complains of discrimination on

grounds of race and/or ethnic origin in the enjoyment of the rights

guaranteed under Articles 2, 6 and 13.

The applicant considers that she is not required to pursue

domestic remedies. She considers that any alleged remedy is illusory,

inadequate and ineffective because:

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

which requires the provision of effective domestic remedies,

(b) the unlawful killing of individuals at the hands of undercover

agents of the Turkish security forces is common in South-East Turkey,

(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 pursue alleged remedies.

The applicant asks for a guarantee of safety for herself, members

of her family and those who have assisted her in pursuing this case.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 February 1994 and

registered on 28 March 1994.

On 11 October 1994 the Commission decided to communicate the

application to the Turkish Government who were invited to submit their

observations on its admissibility and merits before 23 December 1994.

By letter of 24 January 1995 the Commission's Secretary pointed

out to the Government that the period for the submission of the

Government's observations had expired and that no extension of that

time-limit had been requested. It was added that the application was

being considered for inclusion in the list of cases for examination by

the Commission at its session in February/March 1995.

Observations were submitted by the Turkish Government on

1 March 1995. The applicant replied on 20 April 1995.

THE LAW

The applicant complains of the killing of her husband. She

invokes Articles 2 (Art. 2) (the right to life), 3 (Art. 3)

(prohibition on inhuman and degrading treatment), 6 (Art. 6) (the right

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

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

discrimination) of the Convention.

Article 25 (Art. 25) of the Convention

The Government contend that the applicant has stated that she did

not sign the document authorising her representation in the proceedings

before the Commission.

The applicant's representatives submit that the applicant has

confirmed that she did sign this document.

The Commission notes that the application was introduced by the

applicant's representatives on the basis of a power of attorney dated

27 September 1993. The representatives maintain that the power of

attorney has been validly signed by the applicant. The Government have

contested this but have not provided any evidence showing that the

document has been forged. In these circumstances, the Commission

accepts, on the basis of the available material, that the application

has been validly introduced on the applicant's behalf.

Exhaustion of domestic remedies

The Government submit that the applicant has failed to comply

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

exhaust domestic remedies before lodging an application with the

Commission.

The Government contend in the first place that an investigation

by the Public Prosecutor of the Diyarbakir State Security Court into

the incident is currently still pending. They further submit that the

applicant has not pursued this criminal investigation, has not claimed

compensation for the loss of her husband and has not made any complaint

to the competent public prosecutor covering the allegations included

in the present application.

The applicant maintains that there is no requirement that she

pursue domestic remedies. Any notionally available remedy is rendered

illusory and ineffective by an administrative practice of non-respect

for the requirement under the Convention of the provision of effective

domestic remedies.

The applicant adds that, in order to be able to use a remedy, the

individual needs to be able to seek and obtain legal advice and the

lawyers need to be able to pursue appropriate remedies without fear of

the consequences. She alleges, however, that several lawyers who have

dealt with cases of this kind have been subjected to detention and ill-

treatment. Some of them are facing criminal charges, which include

drawing up documents belittling or making propaganda against the

Turkish State.

The applicant does not deny that the procedures identified by the

Government are formally part of the Turkish legal structure, but she

contends that the Government have not shown how such procedures could

conceivably be effective for the specific circumstances of the present

application. The purported remedies are ineffective in her case for the

following reasons:

- the investigation into her husband's death has still not been

concluded, even though the documentary evidence of the

investigation as submitted by the Government dates from between

2 and 9 September 1993. The applicant suggests that the date of

2 September 1994 on one of the witness statements might well be

a misprint, the correct date being 2 September 1993, given its

close relationship with the other witness statement;

- the investigation appears to be based on the assumption that

the perpetrators were not members of the security forces;

- the fact that no statement was taken from the applicant

herself;

- the untenability of the claim that a wide search of the area

took place by police as claimed in the report of

2 September 1993, whereas the police seen and called upon by the

applicant actually had the opportunity to pursue and apprehend

the assailants at the time of the incident but failed to

undertake action of any kind; and

- the absence of any significant case-law demonstrating the

successful use of these remedies on a regular basis in other

similar cases.

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).

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 under

the state of emergency to deal effectively with her complaints.

While the Government refer to the pending investigation by the

Public Prosecutor of the Diyarbakir State Security Court, the

Commission notes that the applicant's husband died on 2 September 1993

and the investigation has not yet been concluded more than two 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 applicant herself has not been

interviewed by the authorities except insofar as, immediately after the

incident, the applicant described the perpetrators to the police

present at that time. The Commission notes, moreover, that the

applicant's description of the perpetrator's clothing does not entirely

correspond with the description in the police report. No explanation

has been given as to any obstacles in the way of bringing the

investigation to a conclusion.

The Commission considers that in the circumstances of this case

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

addition to the pending investigation by the Public Prosecutor of the

Diyarbakir State Security Court (see eg. No. 19092/91, Yagiz v. Turkey,

Dec. 11.10.93, D.R. 75). 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 Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.

As to the substance of the applicant's complaints

The Government submit that the death of the applicant's husband

was unconnected to either his required presence at the police station

on 6 April 1993 or the refusal of his request for a few days' leave.

The applicant maintains that, despite the implied assertion by

the Government that her husband was not killed by agents of the State,

the facts of the case point to the contrary.

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 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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TANRIKULU v. TURKEY

TANRIKULU v. TURKEY