Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24351/94

by Eshat AKTAS

against Turkey

The European Commission of Human Rights sitting in private on

4 September 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

G.B. REFFI

M.A. NOWICKI

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

P. LORENZEN

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 May 1994 by

Eshat AKTAS against Turkey and registered on 8 June 1994 under file

No. 24351/94;

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

9 January 1995 and the information and observations in reply

submitted by the applicant on 11 October 1994, 6 March 1995 and

2 May 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish national of Kurdish origin, resident at

Derik, Mardin/Diyarbakir, is the elder brother of Yakup Aktas, who died

on 25 November 1991 while he was in the Mardin Gendarme Regimental

Command interrogation centre. He is represented before the Commission

by Professor Kevin Boyle and Ms. Françoise Hampson, both teachers at

the University of Essex.

The facts as submitted by the parties may be summarised as

follows.

A. The particular circumstances of the case

The applicant states that the following occurred:

Yakup Aktas, who was a grocer and a delegate of the DYP (True

Path Party), was arrested by gendarme officers at about 16.00h on

Sunday 18 November 1990 in Derik. According to the applicant, his

brother was arrested on suspicion of assisting and sheltering

representatives of the PKK. He was taken by gendarme officers to the

Derik Health Centre where a doctor issued a certificate dated

18 November 1990 stating he was in good health and that there was no

sign of beating, force or violence.

Yakup Aktas was then taken to the Mardin Gendarme Regimental

Command interrogation centre.

On 25 November 1990 the authorities notified the uncle of the

applicant and of Yakup Aktas that Yakup Aktas was dead. The burial

permit was signed by two State Prosecutors, two medical experts and a

hospital employee.

On Monday 26 November 1990, the applicant's and Yakup Aktas'

uncle received the body of Yakup Aktas from the morgue of the Mardin

State Hospital.

While the relatives of Yakup Aktas were waiting near Kiziltepe

to bury him, the State security forces took the body immediately to

Derik Cemetery and carried out the burial. A high level of security was

imposed on the whole area and, in particular, members of the Human

Rights Association were prevented from attending at the Hospital or at

the Cemetery. The applicant alleges that the State security forces

wanted to prevent members of the family or representatives of human

rights organisations from seeing the state of the corpse of Yakup

Aktas.

Nevertheless, Mahmut Aktas, another brother of Yakup Aktas, who

washed his body, saw bruises and scratches on his right and left wrists

and arms, and on his back. The back of his head was completely crushed,

and blood was still flowing. There was also an injury to his forehead

and above his eyebrows.

On 15 January 1991, in answer to a question, the Minister of

Justice stated in part that, "No pathological discovery, trace of

injury by a weapon producing shot, nor a sharp cutting instrument was

discovered on the body of Yakup Aktas during the investigation carried

out". Nevertheless, the contents of the official "Examination of the

Deceased and Autopsy Record" dated 26 November 1990 stated:

"The neck, upper thorax, and 15 cm. down the thorax from the chin

and the ears was covered by a mauve area in the shape of a mask

(cyanosis) ...; in the area of the forehead in the middle of the

left eyebrow 3 cm. above it, 1x0.5 in dimension, there was a 1-2

day old contraction of the skin consistent with trauma ... Above

the left humerus exterior on a parallel axis to the body was a

10x2 cm. ecchymosis (bruising) of the skin effected by blunt

trauma; on the left forearm and hands and fingers it was

established that this area was covered by an extensive

ecchymosis; on the right arm humerus upper exterior on a parallel

axis 4x1 cm. was an area of ecchymosis consistent with trauma.

5 cm. below this commencing from beneath the right arm, facing

the inside, was an area of ecchymosis 4x2 cm. in size, visibly

extending to the middle axis 8 cm. of the body, 0.3 cm. in size

being an even-sided cut, in the area between the right forearm

and wrist, in the ecchymotic area described. On the left foot

exterior surface there was to be seen a widespread ecchymotic

area ... The manual examination of the back revealed a half-moon

shaped 8 cm. scar above the right scapula, of around 7-8 days

age; no other pathological discovery was made ... Aside from the

above diagnoses of the corpse, there was no other pathological

diagnosis, nor traces of a sharp instrument, either hot or

without heat having caused any wound at all."

The autopsy had stated that it had not been possible to ascertain

the certain cause of death.

On 27 November 1990, the Derik chief prosecutor issued a decision

of no territorial jurisdiction to consider the applicant's complaint

of the death of Yakup Aktas by means of torture. He sent the file to

the chief prosecutor in Mardin who on 29 November 1990 held that he had

no jurisdiction pursuant to the state of emergency legislation (Decree

285 of 14.7.87). The file was then sent to the Mardin Province

Administrative Council.

On 20 February 1991, the Forensic Medicine Institute issued its

report which had been requested as regards the cause of death. It found

no peculiarities on internal and microscopic examination, no trace of

toxic substances, and concluded that it was not possible to determine

the cause of death from the existing findings.

On 14 March 1991, the applicant and Mahmut Aktas gave their

statements to the police.

On 6 June 1991, the Mardin Province Administrative Council

decided not to continue the investigation against two named gendarme

officers in connection with the death of Yakup Aktas. It considered

that there was insufficient evidence against these officers.

On 24 June 1991 the Council of State annulled the decision of 6

June 1991, and, having regard to the findings in the autopsy reports,

decided that criminal investigations should be carried out against the

two officers. It referred the case to the Mardin Criminal Court.

In 1992 the applicant, with Mahmut Aktas intervening, was

complainant in the prosecution of the two gendarme officers for the

offence of causing the death of Yakup Aktas by beating him during

interrogations.

On 23 September 1992 the Mardin 2nd Criminal Court declared

itself incompetent in this case.

On 26 October 1992 the 9th Criminal Court in Ankara determined

that it had no authority to hear the case and sent the file to the

Court of Cassation for resolution of the disputes of competence between

the Ankara and Mardin Criminal Courts.

In or about March 1993, the case was referred back to the Mardin

2nd Criminal Court.

On 21 September 1993 the Court questioned Mahmut Aktas about

Yakup Aktas and adjourned its hearing until 23 November 1993. On 23

November 1993, three witnesses were heard, (a hospital orderly, a

judicial clerk and a driver), none of whom recalled the autopsy, and

the case was adjourned until 2 February 1994. A hearing was held on 2

February 1994 and the case was again adjourned until 30 March 1994. On

that date there was a further adjournment until 11 May 1994.

On 11 May 1994, a number of gendarme witnesses gave evidence to

the effect that, while the accused had been involved in interrogating

the deceased, both had left several days before the deceased's death

and did not return until afterwards. The prosecution requested an

acquittal on the grounds that it had not been possible to obtain

sufficient and credible evidence for the conviction of the accused. In

its judgment of the same day, the Court found insufficient evidence on

which to convict the two defendant gendarmes, Aytekin Özen, an

intelligence major, and Ercan Günay, a special sergeant, for causing

the death by torture of Yakup Aktas. The defendants accordingly were

acquitted. The Court referred to the evidence to the effect that the

first defendant had left the interrogation centre 3-4 days before the

deceased's death, and that the second defendant had also left several

days before the death occurred. The Court also referred to the report

dated 20 February 1991 from the Forensic Medicine Institute which found

that "it would not be possible to determine the cause of death

according to the findings available".

B. Relevant domestic law and practice

Civil and administrative procedures

Article 125 of the Turkish Constitution provides as follows:

(translation)

"All acts or decisions of the Administration are subject to

judicial review ...

The Administration shall be liable for damage caused by its own

acts and measures."

The Government assert that this provision is not subject to any

restrictions even in a state of emergency or war. The latter

requirement of the provision does not necessarily require proof of the

existence of any fault on the part of the Administration, whose

liability is of an absolute, objective nature, based on a theory of

"social risk". Thus the Administration may indemnify people who have

suffered damage from acts committed by unknown or terrorist authors

when the State may be said to have failed in its duty to maintain

public order and safety, or in its duty to safeguard individual life

and property.

The principle of administrative liability is reflected in the

additional Article 1 of Law 2935 of 25 October 1983 on the State of

Emergency, which provides:

(translation)

"... actions for compensation in relation to the exercise of the

powers conferred by this law are to be brought against the

Administration before the administrative courts."

Proceedings before the administrative courts are in writing.

COMPLAINTS

The applicant alleges violations of Articles 2, 3, 6, 13 and 14

of the Convention.

The applicant complains under Article 2 that Yakup Aktas was

killed intentionally and recklessly by torture during police custody

and that his right to life was not adequately protected. He also

invokes Article 14 in conjunction with Article 2 since only Turkish

citizens of Kurdish origin are regularly subjected to unlawful killings

and injuries.

He complains under Article 3 of torture and infliction of inhuman

and degrading treatment upon Yakup Aktas.

He complains under Article 6 of the failure to initiate or to

follow through to a conclusion criminal proceedings against those

responsible for the torture and killing of Yakup Aktas, as a result of

which the applicant cannot bring civil proceedings arising out of those

events. He alleges therefore that he has been denied access to court.

He also complains of a violation of Article 14 in conjunction with

Article 6 since the breakdown of the investigation and prosecution

system in relation to the acts of the security forces only arises on

a systematic basis in South-East Turkey.

He further alleges that, due to the delays and complications

confronting the applicant and his family in seeking to ascertain the

cause of his brother's death and to have those responsible brought to

justice, they have been denied an effective remedy in violation of

Article 13.

As regards exhaustion of domestic remedies, the applicant states

that every effort has been made to obtain remedies in Turkey but that

it has become apparent that no remedy is to be found. He submits that

there is an administrative practice in South-East Turkey of violation

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

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 May 1994 and registered on

8 June 1994.

On 30 August 1994, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

The Government's observations were submitted on 9 January 1995,

after the expiry of the extension in the time-limit. The applicant

submitted observations in reply on 6 March 1995 and further information

on 11 October 1994 and 2 May 1995.

THE LAW

The applicant alleges that his brother was tortured and killed

while in detention. He invokes Article 2 (Art. 2) (the right to life),

Article 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 argue 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 submit that the decision of acquittal could have

been subject to appeal to the Court of Cassation. Moreover the

applicant has the possibility of introducing an action against the

administration for compensation in accordance with Article 125 of the

Constitution, and in such proceedings it would not have to be shown

which person or persons had exposed the applicant's brother to torture

but only that the State was responsible for the acts.

The applicant submits that the proceedings were subject to every

conceivable delay, including the raising of pointless technical issues

and objections to jurisdiction. He contends that the prosecution failed

either to identify the correct defendants or to take steps to verify

whether the accused were present at or around the time of death so as

to be able to rebut the evidence. It was not, he submits, a serious

prosecution and since the procedure was entirely fruitless it cannot

seriously be suggested that they attempt to start a new process.

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 has noted the delay in the prosecution of persons

in connection with the death of the applicant's brother in custody, ie.

a period of three years, five and a half months between the death and

the acquittal of the accused gendarmes. The Commission recalls that the

prosecution took place on the direction of the Council of State after

the Administrative Council had found insufficient evidence to

prosecute, and that the case proceeded in Mardin only after the

criminal court's own refusal of jurisdiction was overruled. In the

course of the proceedings, it appears that no oral evidence was heard

from the doctors involved in the various autopsy reports and

examinations with a view to further exploring the significance of the

findings, and that no evidence was put forward apparently to rebut the

evidence that the two accused persons had been absent for a period of

days before the death occurred, and had not returned until afterwards.

The Commission also notes that the prosecution asked the criminal court

to acquit the accused on the basis of insufficient evidence and that

the court acceded to this request.

The Commission is of the opinion that these elements cast doubt

on the efficacy of the investigation and prosecution pursued in

relation to the death in custody of the applicant's brother. In view

of this and the delay which has already elapsed, the Commission is not

satisfied that the possible appeal to the Court of Cassation can be

regarded as furnishing an effective remedy for the purposes of Article

26 (Art. 26) of the Convention.

The Commission also finds that in the circumstances of this case

the applicant is not required to pursue any further legal remedy

concerning his complaints (see eg. No. 19092/91, Yagiz v. Turkey, Dec.

11.10.93, D.R. 75).

The Commission concludes that this 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 regards the merits

The Government rely, inter alia, on the two autopsy reports which

failed to establish the cause of death in custody and claim that the

reports do not support the allegations of torture or death by torture

of the applicant's brother.

The applicant maintains his allegations, inter alia, that his

brother was tortured in custody and died as a result. He provides an

expert pathologist's opinion which doubts the thoroughness of the

forensic examination on his brother, and which concludes that, in the

absence of natural disease and with clear injuries on the deceased,

death as a result of torture must be a very strong possibility.

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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AKTAS v. TURKEY

AKTAS v. TURKEY

LEXI