Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22880/93

by Gülten AYTEKIN

against Turkey

The European Commission of Human Rights sitting in private on

15 May 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

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

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

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 22 October 1993

by Gülten AYTEKIN against Turkey and registered on 5 November 1993

under file No. 22880/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to:

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

the Commission;

- the observations and information submitted by the respondent

Government on 5 December 1994 and the information and

observations in reply submitted by the applicant on

21 September 1994 and 10 and 13 February 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, Gülten Aytekin, is a Turkish citizen of Kurdish

origin, born in 1969 and living in Istanbul. She states that she brings

the application on behalf of her deceased husband Ali Riza Aytekin. She

is 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.

The particular circumstances of the case

The applicant gives the following account.

The applicant's husband, Ali Riza Aytekin, was the assistant

general manager and partner in a building firm with its office at

Diyarbakir. On 24 April 1993, he, his brother, Feyzullah Aytekin, and

his cousins, Salih and Resul Aytekin, travelled in a private car to

check the construction of two bridges near the district of Sason. Ali

Riza Aytekin was under an official contract from the State authorities

in connection with the construction work. He was the driver of the car.

At about 13h.30, as the vehicle was passing the Yanikkaya

Gendarmerie station, he was signalled to pull over and stop by a

soldier on duty outside. According to the testimony of his brother, the

car was travelling very slowly since there were concrete speed bumps

outside the station.

Ali Riza Aytekin stopped the vehicle as directed and then,

according to the statement of Feyzullah Aytekin, who was travelling in

the back seat of the car, the soldier who had ordered them to pull over

fired an aimed shot at the car from behind. The bullet entered through

the rear window and Ali Riza Aytekin was killed by the bullet which

entered his skull before exiting through the front window. The skull

was smashed by the bullet and he died instantly. Nothing was done by

the occupants of the car to justify the shooting. None were armed. The

vehicle had stopped. According to the deceased's brother, they had

nothing in the vehicle except the tools of their trade, a map and a

calculator. They were a party of building workers on route to their

work.

As the three other men got out of the car, the gendarme who had

fired raised his weapon as if to fire at them, but when other

gendarmes, about thirty in all, came out of the station and surrounded

the vehicle he changed his mind and came towards the vehicle. The

survivors, deeply shocked, began to shout and curse the gendarme. The

three survivors were taken to the vicinity of the station and held

there for several hours. They were not arrested or accused but were not

able to attend to the body.

At some point a senior officer, a Lieutenant Colonel, arrived at

the scene from Batman. A State prosecutor also arrived and the

applicants made statements in which they stated that there had been no

warning shot and that the gendarme was guilty.

An autopsy was carried out by a doctor and a medical certificate

was issued at the gendarme station. A burial certificate was also

issued. The vehicle in which the deceased had been killed was inspected

by the prosecutor.

The three men sought strenuously to have the authorities supply

an ambulance to convey the body to hospital in Diyarbakir. This was

refused. They had to bring the body themselves in another vehicle,

procured from local villagers. A villager drove their own car behind

with its smashed windows still full of fresh blood and bits of brain

as one of them describes it. The vehicle was seen by representatives

of the Human Rights Association in Diyarbakir, who confirmed the

trajectory of the bullet and the condition of the vehicle.

Feyzullah Aytekin and his spouse petitioned the prosecutor over

the killing. On 26 April 1993, they sent telegrams to the Presidency,

the Chairmanship of the Grand National Assembly of Turkey, the

leadership of several political parties and the Chairmanship of the

Offices of the General Chief of Staff. A reply was received from the

Prime Minister's office and the Grand National Assembly, both to the

effect that the information had been passed onto the appropriate

authorities. No other replies to the telegrams were received.

An investigation has been opened but only when the application

was lodged, and Gülten, Feyzullah, Salih and Resul Aytekin have been

unable to obtain any details about the proceedings.

A report from Dr. Christopher Milroy gives the opinion that it

is implausible that the applicant's husband was struck by a ricocheting

bullet due to the angle and point of impact of the bullet in the car

and also since an exit wound would not have been expected.

The respondent Government state as follows.

The public prosecutor of the Kozluk district commenced a

preliminary investigation into the incident under file no. 1993/112.

On 8 June 1993, he issued a decision of no jurisdiction and the file

was transferred to the military authorities to carry on the

investigation.

According to the preliminary opinion of the gendarme commander

given in the context of the investigation, the gendarme who opened

fire, Tuncay Deniz, did not display any deliberate or unruly action.

The applicant's husband had driven his car as if deliberately trying

to break through the check point and the gendarme who opened fire was

barely able to prevent himself being crushed by the car. As the car

passed, the gendarme who had been signalling the car to stop, opened

fire shooting first into the air and then into the tyres. One bullet

however ricocheted and hit the deceased's head.

The Government have provided a sketch of the incident from which

it appears that the distance between where the shot was fired and where

it struck the car was 55 metres and the distance from the speed bumps

to where bullet hit the car was 40 metres which indicates, in their

view, that the applicant's husband had driven through the checkpoint.

Moreover they state that there was a sign "Stop Gendarme" 65 metres

before the speed bumps. They refer to the witness statements of three

other persons at the gendarme station as supporting this version of

events.

The investigation has not yet terminated.

COMPLAINTS

The applicant complains of a violation of Article 2 of the

Convention in that the killing of her husband was a deliberate and

unlawful act which could not be justified under that Article.

The applicant also invokes Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 October 1993 and registered

on 5 November 1993.

On 27 June 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 5 December 1994

after the expiry of the time-limit set for that purpose. The

applicant's observations in reply were submitted on 13 February 1995.

THE LAW

The applicant complains of the killing of her husband by a

gendarme at a check point. She invokes Article 2 (Art. 2) (right to

life) and Article 13 (Art. 13) (right to effective national remedies

for Convention breaches).

Exhaustion of domestic remedies

The Government argue that the applicant has failed to exhaust

domestic remedies as required by Article 26 (Art. 26) of the Convention

since the investigation by the military authorities is still pending.

The applicant refers to the length of time which the

investigation is taking. She also disputes the efficacy of an

investigation which is being carried out by the body which is alleged

to be responsible for the violation.

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).

While the Government refer to the pending investigation by the

military authorities, the Commission notes that the incident occurred

on 24 April 1993 and the investigation has not yet 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 relevant evidence would appear

to easily accessible to the authorities. No explanation has been given

as to any obstacles in the way of bringing the investigation to a

conclusion.

The Commission finds therefore that in the circumstances of this

case the applicant is not required to pursue any legal remedy separate

to the investigation commenced by the public prosecutor and referred

to the military authorities (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 Article 27 para. 3 (Art. 27-3) of the Convention.

As regards the merits

The Government state that the gendarme opened fire on the car

when it appeared deliberately to drive through the check point despite

warnings and signals and that it endangered the life of the gendarme.

They state that the gendarme fired into the air and then at the tyres,

and that a bullet ricocheted into the back of the car killing the

applicant's husband. Having regard to the widespread and violent

terrorist attacks which take place in the area, they submit that the

response of the gendarme cannot be deemed to be unexpected or

excessive.

The applicant disputes that the bullet could have ricocheted in

the manner alleged, or that the witness statements submitted by the

applicant substantiate this version in any convincing manner. She

refers to the absence of any statement from the gendarme who fired the

shots and the absence of any reference by the Government to the

statements taken from the others in the car. She disputes the

genuineness or thoroughness of the investigation conducted by the

military, who appear to have prejudged the cause of the incident and

she argues that the shooting was unjustifiable. Further, the applicant

submits that the right to life under the state of emergency in South

East Turkey is not adequately protected by law.

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, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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AYTEKIN v. TURKEY

AYTEKIN v. TURKEY