Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22276/93

by Burhan KARADENIZ

against Turkey

The European Commission of Human Rights sitting in private on

3 April 1995, the following members being present:

MM. C. A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

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 July 1993 by

Burhan KARADENIZ against Turkey and registered on 19 July 1993 under

file No. 22276/93;

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 10 March 1994 and 12 January 1995 and the

information and observations in reply submitted by the applicant

on 15 November 1993, 13 April 1994, 11 and 24 May 1994, 2 June

1994 and 29 July 1994;

Having deliberated;

Decides as follows:

THE FACTS

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

1973 and lives in istanbul. He 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.

A. The particular circumstances of the case

The applicant started working as a journalist in istanbul in 1990

for the weekly newspaper "Yeni Ülke". He then joined a daily newspaper

"Özgür Gündem" (Free Agenda), which started publishing on 31 May 1992.

The applicant was assigned a temporary post in the Diyarbakir office

of this paper. He covered both general news and news concerning the

State Security Court.

The applicant claims that the following events occurred.

When he was living in Diyarbakir, the applicant and his

colleagues (eight persons working in the Diyarbakir office) were

subjected to continuous harassment. The applicant, for example, was

taken into police custody four times, and his camera smashed on two

occasions, but has never been charged with any offence. His colleagues

working in the office were frequently threatened by letter and by

telephone. People associated with the newspaper as distributors or

vendors were also subject to attacks.

The applicant states that he was under surveillance. For a period

of about three weeks before the attack, he was followed and there was

a car parked in front of the bakery across the road from his house.

That car was not there for three days before the attack. The applicant

recognised those following him as plainclothes police officers.

On 5 August 1992 before going to work, at about 8.30h, the

applicant looked out over the balcony of his home. He noticed three

people outside the teashop diagonally opposite his house, on the left.

He did not notice what they looked like. The applicant set off on foot

to go the 300 metres to the newspaper office. He had walked about 50

metres and was stepping onto the pavement at the side of the road, when

he heard the sound of a pistol behind him. The teashop was behind him

at that point. He turned round and, as he did so, he fell on the

ground. He could not see the person shooting at him.

The street was busy at the time of the shooting, with civil

servants going to work, street traders and children. Many people saw

the incident. The applicant was subsequently told by local residents,

who witnessed the attack, that one person fired at him. His assailant

was estimated to be 19-20 years of age and was wearing a denim suit.

The applicant was conscious at this time. He was on the ground

for some time. During this period, no security forces came. The people

who gathered round put the applicant in a taxi. He was taken to the

Diyarbakir hospital. The police wanted to take his statement before he

received medical attention. The applicant refused.

The bullet had entered the applicant's spine and came out of the

front of his neck membrane. His wounds were stitched up and dressed.

He did not require surgery.

The applicant alleges that he was aware of policemen attempting

to interfere with him as he lay half-conscious in the hospital but his

own effort to gain attention and the hospital staff interrupted them.

S.Y., a lawyer who arrived at the hospital on news of the shooting

noted a heavy presence of police at intensive care and witnessed their

threatening behaviour to medical staff and the applicant's relatives.

S.Y. alleges that a doctor stated that they would be unable to ensure

the applicant's safety at the hospital and on another occasion referred

to a patient wounded by unknown assailants who died following tampering

with the serum being administered.

On 6 August 1992 a policeman came to the hospital and took a

cursory statement.

It was intended due to the severity of the applicant's condition

to transfer him for treatment to Ankara. The transfer was obstructed

by the police and airport authorities for three days and it appears

that on one occasion the applicant was removed from the plane and

returned to the hospital.

In September 1992 a month after the incident, the applicant went

to Germany for medical treatment. He stayed there for about three

months. He is still paralysed from his chest down and has to move round

in a wheelchair.

After his return to Turkey, the applicant's statement was taken

by two policemen at his home in or about December 1993/January 1994.

During the taking of the statement, the police made the leading

suggestions and claimed, for example, that the PKK had shot the

applicant.

The applicant has referred to a Helsinki Watch report according

to which 12 journalists were assassinated in Turkey in 1992 while a

further 4 were killed in the first seven months of 1993. These included

6 journalists from the "Özgür Gündem": Musa Anter killed in 1992, Hafiz

Akdemir who was shot on 8 June 1992 in Diyarbakir, Yahya Orhan who was

shot and killed in the street in Gerçus near Batman on 31 July 1992,

Hüseyin Deniz shot on 9 August 1992 in Ceylanpinar and died from

injuries, Kemal Kilic ambushed and killed on 18 February 1993 and

Ferhat Tepe, kidnapped by persons unknown and his body found on

3 August 1993 (Helsinki Watch "Free Expression in Turkey 1993:

Killings, Convictions, Confiscations", August 1993, Vol. 5 Issue 17 and

see also Amnesty International report "Turkey: walls of glass" November

1992, AI Index Eur 44/75/92).

The respondent Government state that pursuant to Art. 156 of the

Code of Criminal Procedure, the police investigated the crime which had

been committed. The investigation was completed on 17 December 1993

when Mustafa Gezer was arrested in respect of the shooting of

Abdurrahman Bakir and his gun was found from ballistic examination to

have been used in 9 other incidents including that of the applicant.

Gezer and 16 others who are alleged to be members of an illegal

terrorist organisation Hizbullah were included in a written indictment

made by the public prosecutor on 3 February 1994. The accused are

awaiting trial in the Diyarbakir State Security Court. The indictment

charges the accused with the offence of being a member of the illegal

Hizbullah organisation and being involved in activities aimed at

separating part of the territory of the country from state sovereignty.

The indictment includes a list of 10 attacks and killings carried out

by Mustafa Gezer, one of which is stated to be the armed attack on the

applicant.

The applicant has not introduced any claims for compensation in

the civil or administrative courts.

The applicant refers to the doubts as to the independence of

Hizbullah as an armed force. He cites the report of Amnesty

International which states:

"there have been persistent doubts about the independence of

Hizbullah as an armed force - doubts which have been fuelled by

the striking degree of coincidence between the targets of

killings attributed to Hizbullah, and the targets of police

harassment, arbitrary detention, ill-treatment and torture."

The Hizbullah are described by Amnesty International as "a

shadowy organisation which was established in 1987 in Batman and

belongs to the Sunni branch of the Islamic faith... The group is

committed to the establishment of a fundamentalist Islamic state in

Turkey." (Disappearances and Political Killings, 1994, Chapter 5 p. 60)

On 10 November 1993, the applicant was granted refugee status by

the relevant authorities in Germany.

B. Relevant domestic law and practice

Pursuant to Art. 41 of the Civil Code, an injured person may

file a claim for compensation against the alleged perpetrator:

"Every person who causes damage to another in an unlawful manner,

be it wilfully or be it negligently or imprudently, is liable for

compensation."

Pursuant to Art. 46, any victim of an assault may claim material

damages:

"The person who has been injured is entitled to compensation for

the expenses as well as for the losses resulting from total or

partial disability to work due regard being had to the detriment

inflicted on the economic future of the injured party."

Moral damages may also be claimed under Art. 47:

"...the court may, taking into consideration the particular

circumstances, award adequate general damages to the injured..."

COMPLAINTS

The applicant complains of violations of Articles 2, 3, 6, 10,

13 and 14 of the Convention.

As to Article 2 he claims that he was the victim of a life-

threatening attack by agents of the State, or that the State failed in

its obligation to protect his right to life. He complains of the lack

of any effective system for ensuring protection of the right to life

and of the inadequate protection of the right to life in domestic law.

As to Article 3 he maintains that the risk of life-threatening

attack, particularly against Kurdish journalists, is very much greater

in South East Turkey than elsewhere in Turkey and that such

discrimination on grounds of race or ethnic origin violates Article 3.

As to Article 6 he complains of the failure to initiate

proceedings before an independent and impartial tribunal against those

responsible for the life-threatening attack, as a result of which the

applicant cannot bring civil proceedings arising out of the attack.

As to Article 10 he maintains that he was attacked because he is

a journalist of a specific paper, Özgür Gündem. He claims a violation

of this Article on account of threats and an attack designed to deter

the lawful exercise of freedom of expression. He alleges that there is

an administrative practice in this respect, referring to the attacks

made on journalists, distributors and sellers as well as raids and

arson attacks on newspaper kiosks and editorial offices.

As to Article 13 he complains of the lack of any authority before

which his complaints can be brought with any prospect of success.

As to Article 14 he complains of discrimination in the enjoyment

of his rights under Articles 2, 6, 10 and 13 of the Convention. He

refers to an administrative practice of discrimination on account of

race or ethnic origin.

The applicant refers also to the submissions made on behalf of

the applicant in Cagirga v. Turkey No. 21895/93 (Dec. 19.10.94).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 July 1993 and registered on

19 July 1993.

On 11 October 1993, 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 10 March 1994

after one extension in the time-limit. The applicant submitted further

information and observations in reply on 15 November 1993, 13 April

1994, 11 and 24 May 1994, 2 June 1994 and 29 July 1994 respectively.

The Government provided further information on 12 January 1995.

THE LAW

The applicant alleges that on 5 August 1992 he was shot and

seriously injured in circumstances for which the State bears

responsibility. The applicant invokes Article 2 (Art. 2) (the right to

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

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

10 (Art. 10) (freedom of expression), Article 13 (Art. 13) (the right

to effective national remedies for Convention breaches) and Article 14

(Art. 14) (prohibition on discrimination).

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. They contend that the applicant's assailant has been

identified and is now facing trial on criminal charges.

In respect of the injuries suffered by the applicant and the loss

contingent upon those, the Government submit that the applicant has the

possibility of introducing a claim for compensation against the person

responsible in the civil courts.

The applicant contends that there are no effective or realistic

remedies in respect of his complaints. He points out that the alleged

assailant is not in fact charged with the attempted murder of himself.

The applicant maintains his claim that the attack was carried out by

or with the complicity of State agents, referring to the strong

suspicion of connection between the Hizbullah and State authorities and

to the circumstances of the incident. The remedy identified by the

Government is not a remedy against the Government and cannot, in the

applicant's submission, address the applicant's complaints. He also

asserts that he has no effective remedies against the violations of the

Convention for which the State is responsible on account of an

administrative practice of ineffective remedies.

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). However, 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).

The Commission notes that an investigation was carried out by the

police pursuant to Art. 156 of the Code of Criminal Procedure and that

this investigation was concluded on 17 December 1993 when a suspect

Mustafa Gezer was apprehended and a gun was found in his possession,

which ballistics tests allegedly indicated had been used in number of

shootings including the attack on the applicant. While as pointed out

by the applicant, the pending criminal proceedings which subsequently

indicted the alleged assailant, Mustafa Gezer, charged him with general

offences of membership of the illegal Hizbullah group and of being

involved in separatist activities, the Commission notes that the

indictment lists as part of these offences the various assaults and

shootings alleged to have been carried out by the suspect including the

attack on the applicant.

The Commission notes that the trial of the suspect on the

indictment described above is still pending before the Diyarbakir State

Security Court. The domestic courts have therefore yet to be afforded

an opportunity of examining the factual and legal issues arising in the

case. In these circumstances, the Commission finds that it cannot be

said with any certainty that the proceedings will fail to provide an

effective mechanism for establishing the facts or attributing

responsibility for the attack on the applicant.

As regards the applicant's argument that he was not required to

pursue any remedies since there is an administrative practice in South-

East Turkey which makes any remedies illusory, inadequate and

ineffective, the Commission notes that the authorities have pursued an

investigation to a conclusion and that criminal proceedings are now

pending. Given that action has been taken and the courts now have

jurisdiction over the results of the investigation, the Commission is

not satisfied that the proceedings can be discounted as ineffective.

Moreover, if there were no effective remedies, the applicant would have

been required under Article 26 (Art. 26) of the Convention to lodge his

application within six months from the date on which he was injured ie.

on 5 August 1992. He did not do this, and the Commission will therefore

proceed from the assumption that the investigation and its consequences

constitute part of the process of exhaustion of domestic remedies.

Consequently, the Commission finds that in the circumstances of

this case the applicant cannot be considered as having complied with

the exhaustion of domestic remedies rule laid down in Article 26

(Art. 26) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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KARADENIZ v. TURKEY

KARADENIZ v. TURKEY