Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23143/93

by 1. Sevtap YOKUS

2. Musa FARISOGULLARI

3. M. Selim SEFTALI

4. Yuksel ZENGIN

5. Bedri ALTINDAG

6. Omer YARDIMCI

7. Ahmet CICEK

8. Kadri KAYA

9. Osman KARAKAS

10. Ismet SUZER

11. Ahmet SEVER

12. Abdullah ZENGIN

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

Mrs. G.H. THUNE

Mr. 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 7 December 1993

by Sevtap Yokus and 11 others against Turkey and registered on

19 August 1993 under file No. 23143/93;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the present case as submitted by the applicants may

be summarised as follows:

The applicants are all members of the Diyarbakir Branch of the

Education and Science Workers Union (Egit-Sen). They are represented

before the Commission by Professor Kevin Boyle, Ms. Francoise Hampson

and Ms. Sheldon Leader, all university teachers at the University of

Essex.

The Union was founded on 13 November 1990, but has never been

granted formal legal status. The Diyarbakir Branch was declared illegal

by the Office of the Chief of Police and the Mayor of Diyarbakir.

On 26 October 1992 a meeting between the union and the National

Education Director was arranged for the following day. The purpose was

to appeal to the Director to put an end to the attacks against members

of Egit-Sen, since, in October 1992, four members had been attacked,

one of them had died, others were undergoing treatment, and about 40

members had been exiled to other regions.

The fourth applicant, Yuksel Zengin, was the first to arrive at

the meeting on 27 October 1992. When he saw that there were police

forces outside the Directorate, he explained to them that there was not

going to be any protest action but only a meeting with the Director.

The police accepted that a meeting had been arranged by appointment,

but said that they had no intention of leaving.

Shortly thereafter, about a hundred members of the trade union,

including the other applicants, arrived and were allowed into the

grounds of the Ministry. The Director said he could only receive a

small delegation and those not part of that delegation could leave. The

delegation went into the building, but the police did not allow the

remainder of the group to leave. The persons who had gathered there

were surrounded by the police who filmed, verbally abused and

threatened them. During the filming, the commanding officers said to

their officers, "Look at them well, get to know them well. From now on,

if anything happens pick them up from the schools and bring them in.

These are traitors." After the filming, the police carried out an

identity check and wrote down everyone's identity details and home

address. The fourth applicant submits that, following this development,

the persons who were subjected to identity checks, have been

telephoned, visited and disturbed in their homes.

While the filming and identity checks were taking place, the

applicants M. Selim Seftali (third applicant), Kadri Kaya (eighth

applicant) and Abdullah Zengin (twelfth applicant), together with

eleven other attendants, were allegedly manhandled and detained.

M. Selim Seftali submits that when they were taken to the Police

Headquarters, they were kicked and sworn at until they reached the

eighth floor. When they got to the top, the policemen who had brought

them said to their colleagues, "We have brought you some traitors". M.

Selim Seftali was detained for 30 hours and released without charge.

After being arrested Abdullah Zengin was threatened by a plain

clothes officer who said, "Take your steps carefully. Otherwise I will

break your feet. We know what you are up to in the school. You shout

slogans with your pupils." Abdullah Zengin was detained for one and a

half days in the Headquarters of the Police Anti-Terrorism Branch and

then released.

Kadri Kaya was detained for 29 hours and then released.

Since their release, none of these three applicants has been

charged with any offence arising out of the meeting on 27 October 1992.

A woman educationalist, while being arrested, was allegedly

kicked, slapped and abused.

In a later statement to the press, the National Education

Director stated that the meeting had gone smoothly and that no teacher

had been detained.

Since those events, the applicants claim to have been subjected

to threats.

On 2 July 1993 the Diyarbakir Province National Education

Disciplinary Committee examined a proposal to impose a disciplinary

sanction on Yuksel Zengin (the fourth applicant). It was stated in the

proposal that the applicant had signed a statement relating to a press

conference as the Secretary to Egit-Sen, a trade union whose

authorities and responsibilities were not known, i.e. its activities

in Diyarbakir Province were unauthorised and therefore illegal. The

proposal was brought in accordance with Article 125 D(g) of Law No.

657, which prohibits State officials from "giving information and

statements to the press, news agencies, radio or television

institutions when not authorised to do so". The proposed sanction was

to suspend the applicant's promotion for a period of one year. The

Committee, considering that the applicant had a good record and that

his defence was partly satisfactory, rejected the proposal and sent the

file to the Governor's Office.

On 8 July 1993 the Governor of Diyarbakir Province disciplined

the fourth applicant by a reduction of 1/30 of his salary in accordance

with Article 125 C of Law No. 657. The Governor held that, based on

the decision of the Committee, he had imposed a lower sanction on the

applicant.

COMPLAINTS

The fourth applicant complains that the disciplinary penalty

imposed upon him on 8 July 1993 by the Governor of Diyarbakir Province

breached his Convention rights and freedoms as follows:

- The penalty which was imposed upon him for signing a press

statement in his capacity as a trade union official constituted

an unjustified interference with his freedom of expression and

freedom of association, in relation to his trade union activity,

guaranteed by Articles 10 and 11 of the Convention.

- The penalty was not the product of a fair and public hearing by

an independent and impartial tribunal as guaranteed by Article

6 para. 1 of the Convention.

- The violation of Article 6 para. 1 in the disciplinary

proceedings was the result of a breakdown in the system of

justice to a degree that occurs on a systematic basis only in

South-East Turkey, and thus also constitutes discrimination under

Article 14 of the Convention.

The applicants allege the following violations of the Convention

arising out of the meeting at the Diyarbakir National Education

Directorate on 27 October 1992:

- The third, eighth and twelfth applicants complain of a violation

of Article 5 of the Convention, in that their arrest and detention were

not for any legitimate purpose prescribed in paragraph 1 of that

Article. They assert in this regard that the police did not have any

intention of charging them with any offence but rather wished to

intimidate them.

- The applicants all complain of a violation of Article 8 of the

Convention, in that the filming and taking of their personal details

by the police constituted an unjustified interference with their

private life.

- The applicants all complain of a violation of Article 11 of the

Convention in that the intimidation, to which they were subjected for

assembling at the National Education Directorate, constituted an

unjustified interference with their freedom of peaceful assembly and

their freedom of association in relation to their trade union activity.

- The applicants all complain under Article 14 in conjunction with

Articles 11 of the Convention that, as trade unionists, they are

subjected to legal disabilities and police action which are not applied

to trade unionists in other parts of Turkey.

As regards the six months' time-limit laid down in Article 26 of

the Convention, the applicants consider that, in view of the ongoing

threats and intimidation to which they are exposed, there is a

continuing situation for the purposes of fixing the time-limit for

application to the Commission. The applicants further assert that the

last action taken by the State against the fourth applicant, Yüksel

Zengin, for his activities as a trade union official occurred on

8 July 1993, which was the latest event in this continuing situation.

As a further alternative, the applicants consider that the six months'

rule should be suspended in their case, since they have not been in a

position to supply the full facts because of continuing fears of

reprisal from the authorities.

As regards exhaustion of domestic remedies for the purposes of

Article 26 of the Convention, the applicants submit that there is a

fear of reprisal, which should be seen as a legitimate reason for not

exhausting remedies. In any case, the remedies are not effective. There

is a common practice of arbitrary application of the law, and for none

of the wrongs they have suffered is there an adequate prospect of

receiving justice by having recourse to domestic remedies.

THE LAW

1. The fourth applicant complains that the disciplinary penalty

imposed upon him by the Governor of Diyarbakir Province for his

statement to the press in his capacity as a trade union official

violated Articles 10 and 11 (Art. 10, 11) of the Convention. Article

10 (Art. 10) of the Convention guarantees freedom of expression,

subject to certain limited exceptions, and Article 11 (Art. 11) of the

Convention guarantees freedom of association with others, including the

right to form and join trade unions for the protection of one's

interests, subject to certain restrictions concerning, inter alia,

civil servants.

The Commission finds that these complaints raise questions

involving the exhaustion of domestic remedies, as well as the facts and

law. It cannot, therefore, on the basis of the present state of the

file, determine the admissibility of these complaints and considers

that it is necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of this part of the application to

the respondent Government.

2. The fourth applicant also complains of a violation of Article 6

para. 1 (Art. 6-1) of the Convention in that he allegedly did not have

a fair and public hearing by an independent and impartial tribunal in

the disciplinary proceedings brought against him.

Article 6 para. 1 (Art. 6-1) of the Convention provides, inter

alia, that "In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled to a fair

and public hearing ... by an independent and impartial tribunal ... ".

However, the proceedings brought against the fourth applicant

were clearly of a disciplinary character and cannot be considered to

have concerned either his civil rights and obligations or the

determination of a criminal charge against him (cf. No. 9208/80,

Saraiva de Carvalho v. Portugal, Dec. 10.7.81, D.R. 26 p. 262;

No. 10059/82, Dec. 5.7.85, D.R. 43 p.5). Consequently, Article 6

(Art. 6) was not applicable to those proceedings.

It follows that this complaint is incompatible ratione materiae

with the provisions of the Convention, pursuant to Article 27 para. 2

(Art. 27-2).

3. The fourth applicant also complains of discrimination under

Article 14 (Art. 14) of the Convention in that the violation of Article

6 (Art. 6) was the result of a breakdown in the system of justice that

occurs on a systematic basis only in South-East Turkey.

Article 14 (Art. 14) prohibits discrimination only in relation

to the enjoyment of Convention rights and freedoms. It is true that the

fourth applicant has invoked Article 6 para. 1 (Art. 6-1) of the

Convention in conjunction with Article 14 (Art. 14). However, as the

Commission found above, the complaint under Article 6 para. 1

(Art. 6-1) is incompatible ratione materiae with the provisions of the

Convention.

It follows that the complaint under Article 14 (Art. 14) of the

Convention is likewise incompatible ratione materiae with the

provisions of the Convention, pursuant to Article 27 para. 2

(Art. 27-2).

4. The applicants M. Selim Seftali (third applicant), Kadri Kaya

(eighth applicant) and Abdullah Zengin (twelfth applicant) complain of

a violation of their liberty of person ensured by Article 5 para. 1

(Art. 5-1) of the Convention because, allegedly, their arrest and

detention following the meeting of 27 October 1992 was not for any of

the legitimate purposes prescribed in that provision.

Furthermore, in relation to the events which occurred on

27 October 1992, the applicants all allege the following violations of

the Convention:

- a violation of Article 8 (Art. 8) in that the filming and taking

of their personal details by the police at the meeting

constituted an unjustified interference with their private life;

- a violation of Article 11 (Art. 11) in that the intimidation to

which they were allegedly subjected for assembling at the

Directorate constituted an unjustified interference with their

freedom of peaceful assembly and association; and

- a violation of Article 14 in conjunction with Article 11

(Art. 14+11) of the Convention, in that the situation in South-

East Turkey is such as to constitute discrimination in the

enjoyment of their Article 11 (Art. 11) freedoms.

As regards exhaustion of domestic remedies pursuant to Article

26 (Art. 26) of the Convention, the applicants submit that there is

a fear of reprisal, which should be seen as a legitimate reason for not

exhausting remedies. They also allege that there are no effective

remedies.

The Commission is of the opinion that it does not need to decide

whether the applicants may be said to have exhausted domestic remedies,

since Article 26 (Art. 26) of the Convention also provides that the

Commission "may only deal with the matter ... within a period of six

months from the date on which the final decision was taken". According

to the Commission's constant case-law, where no domestic remedy is

available, the six month period runs from the act alleged to constitute

a violation of the Convention, unless there is a continuing situation,

in which case the six month period runs from the end of that situation

(No. 9303/81, Dec. 13.10.86, D.R. 49 p. 44). The Commission further

recalls that in the absence of a remedy against detention on remand,

the six month period runs from the date of release from detention

(No. 8130/78, Dec. 10.5.79, D.R. 16 p.120).

The Commission notes that, in the present case, the third, eighth

and twelfth applicants were released from detention on remand on

28 October 1992. It further notes that the events which gave rise to

the applicants' complaints under Articles 8, 11 and 14 (Art. 8, 11, 14)

of the Convention occurred on 27 October 1992. Therefore the

application, as regards these complaints, was filed after the expiry

of the six months' time-limit.

The applicants have stated that, in view of the threats and

intimidation to which they have been exposed and their fear of

reprisals, the situation should be regarded as a continuing one, or

that the six months' time-limit should be considered to have been

suspended in their case.

The Commission cannot find on the facts of the present case that

there exists a continuing violation of the Convention. Nor has it been

shown that the applicants were unable to complain to the Commission

during the period of six months following the meeting of

27 October 1992, or, as regards the third, eighth and twelfth

applicants, following their release from detention. The Commission,

therefore, finds that this part of the application has been lodged out

of time and must be rejected in accordance with Articles 26 and 27

para. 3 (Art. 26, 27-3) of the Convention.

For these reasons, the Commission unanimously

ADJOURNS its examination of the fourth applicant's complaints

about violations of his freedom of expression and freedom of

association in relation to his trade union activity, allegedly

resulting from the decision of the Governor of Diyarbakir

Province on 8 July 1993;

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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YOKUS, FARISOGULLARI, SEFTALI, ZENGIN, ALTINDAG, YARDIMCI, CICEK, KAYA, KARAKAS, SUZER, SEVER AND ZENGIN v. TURKEY

YOKUS, FARISOGULLARI, SEFTALI, ZENGIN, ALTINDAG, YARDIMCI, CICEK, KAYA, KARAKAS, SUZER, SEVER AND ZENGIN v. TURKEY

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