Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21986/93

by Behiye SALMAN

against Turkey

The European Commission of Human Rights sitting in private on

20 February 1995, the following members being present:

MM. C. A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

S. TRECHSEL

A.S. GÖZÜBÜYUK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

J. MUCHA

D. SVÁBY

E. KONSTANTINOV

G. RESS

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 20 May 1993 by

Behiye SALMAN against Turkey and registered on 7 June 1993 under file

No. 21986/93;

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

31 January 1994 and the observations in reply submitted by the

applicant on 23 March 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish national born in 1950, is a housewife.

She is the widow of Agit Salman and is represented before the

Commission by Professor Kevin Boyle and Mrs. Françoise Hampson, both

university teachers at the University of Essex.

Particular circumstances of the case

The facts, as submitted by the applicant, may be summarised as

follows:

In the early hours of the morning of 28 April 1992, plain clothes

policemen who introduced themselves as such, came to the applicant's

house, asking for Agit Salman. The applicant informed them that her

husband was a taxi driver and that he worked at Aksoy taxi rank. The

police officers left.

Later, at about 02.30, her husband's colleagues brought his taxi

home and informed her that he had been detained by the police.

Mr. Salman was being questioned for "participating in the Nevroz

celebrations in Adana on 23 March 1992. Lighting a fire in the road and

chanting slogans of the terrorist PKK organisation to protest at the

Sirnak incidents, taking part in illegal marches, being involved in

attacks on security forces, being the cause of death of one person and

injury of four persons in the clash which broke out, collecting money

by force for the PKK in rural areas, participating in the killing of

a person who was killed on 5 February 1992 and similar offences".

On the following day a telephone call was received from the

police at the applicant's house at about 11.30 a.m. They asked that her

son Mehmet should meet them at the taxi rank. He did so and was taken

to the Adana Police Headquarters, Anti Terror Department, to make a

statement. Mehmet was asked by a police officer if there had been

anything wrong with his father, and when he replied there had not been,

he was told that his father had died of a heart attack.

On 30 April 1992 the applicant, fearing that her husband had been

killed by the police, made a formal complaint to the Adana Public

Prosecutor. In the complaint she asserted that her husband had no heart

condition and that she believed he had died as a result of torture.

On 18 May 1992 advocate Ramazan Uzkaya petitioned the Public

Prosecutor, seeking a copy of the autopsy report and the preliminary

investigation of the death by the prosecutor. He also informed the

prosecutor that he had taken photographs of the body and that these

would be presented to the prosecution and the court during trial. He

stated that, when the body was examined by the family, there had been

injuries and bruising on the lower armpits, the legs and the soles of

the feet, those marks being consistent with torture.

On 20 May 1992 the applicant's lawyer made a legal application

for the autopsy report but was informed that it was not authorised by

the law to supply the documentation requested. The autopsy report was

later made available along with other medical records.

The autopsy report dated 21 May 1992 stated that:

"discoloration has set in on the back and on areas not

subject to pressure on the body of the circumcised male,

externally two superficial bloody blunt bruises, traumatic

graze wounds of dimensions 1x1cm were identified on the

front side of the left ankle, an old violet-coloured bruise

traumatic echimose of dimensions 5x10 cm was identified on

the centre of the front side of the breast, two dried blunt

bruises, traumatic graze wounds of dimensions 3x1cm were

identified under the front part of the right armpit. No

injuries from a firearm or a sharp or pointed weapon were

observed."

The report concluded that the case should be sent to the

Specialists Committee of the Forensic Head Offices in Istanbul for it

to establish the cause of death.

On 8 July 1992 Mr. Uzkaya wrote to the Prosecutor to inform him

that he had found a witness, present in the interrogation centre at the

same time as Mr. Agit Salman. He requested that the Prosecutor should

have this witness's statement recorded.

In its report of 15 July 1992 the Forensic Medicine 1st

Specialist Committee suggested that the "superficial traumatic changes"

on Mr. Salman's body "could be ascribed to the resistance and struggle

during apprehension or his being placed in a vehicle after being taken

ill". The report also records:

"breakage in the sternum corpus and fresh bleeding in the

surrounding soft tissues which could have been caused by

attempted resuscitation".

The report referred to the large size of the heart and the

subject's longstanding heart disease and concluded:

"It is the unanimous and considered decision that death was

caused by the stoppage of the heart connected to

neurohumoural changes brought about by the pressure of the

incident because of his existent heart disease".

On 19 October 1992 the Adana Public Prosecutor, in a written

decision, determined that there were no grounds to proceed against 10

named police officers mentioned in his decision as defendants, and all

of whom were from the Adana Police Headquarters.

On 13 November 1992 the Tarsus Criminal Court refused the appeal,

holding that the Adana Prosecutor's decisions had been "proper and

appropriate". The case-files were ordered to be closed and the

applicant was informed.

Pursuant to Article 343 of the Code of Criminal Procedure, the

Minister of Justice, after communication of the case to the Government

by the Commission, referred the case to High Court of Appeals for

review of the Tarsus Criminal Court's refusal of the appeal.

A hearing in the matter took place before the High Court of

Appeals on 1 December 1994.

COMPLAINTS

The applicant complains of violations of Articles 2 and 3 of the

Convention in that her husband died as a result of torture in the hands

of Adana Security Police who were interrogating him.

She further submits that the failure of the Prosecutor to

commence proceedings against those identified as involved in the

custody, detention and questioning of her husband, cannot be justified

in the light of the medical and photographic evidence and the statement

of a witness. She submits that it can only be concluded that the

prosecuting authorities and the police have conspired together to cover

up her husband's death and to frustrate justice. The conclusion of the

Adana Prosecutor that it had been impossible to obtain evidence which

justified a prosecution is an arbitrary decision in the light of the

documentation and evidence in the case. The review of that decision by

the Tarsus judge was equally arbitrary. The applicant submits there has

been a breach of Article 6 of the Convention.

The applicant maintains that the Prosecutor's decision to the

effect "that there is no place in law for the execution of further

proceedings relating to the incident of the death of the deceased" is

an indictment of the Turkish legal system. The applicant submits that

there has been a breach of Article 13 of the Convention in the

circumstances of this case.

It is further submitted that it is established in this and other

cases submitted by applicants from South East Turkey that there is an

administrative practice of violations of Articles 2, 3, 6 and 13 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 May 1993 and registered on

7 June 1993.

On 30 August 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 31 January 1994

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

observations in reply on 23 March 1994.

On 27 June 1994 Commission decided to adjourn the further

examination of the case and to include it in the agenda of the session

beginning on 10 October 1994. The Government were requested to provide

information concerning pending proceedings in the High Court of

Appeals.

On 11 October 1994, the Commission decided to invite the

Government to submit their observations on the substance of the

applicant's complaint within eight weeks.

The Government provided further information to the Commission by

letter dated 11 January 1995.

THE LAW

The applicant complains about the death of her husband in

custody. She invokes Article 2 (Art. 2) (the right to life), Article

3 (Art. 3) (prohibition of torture), Article 6 (Art. 6) (access to

court) and Article 13 (Art. 13) (the right to effective national

remedies) 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 point out that the case is pending before the High

Court of Appeals following the referral by the Minister of Justice.

The applicant maintains that there is no requirement that she

pursue domestic remedies. Any purported remedy is illusory, inadequate

and ineffective. She refers to an administrative practice of unlawful

killings, torture and inhuman treatment and of not respecting the

requirement under the Convention of the provision of effective domestic

remedies.

Further, the applicant submits that, whether or not there is an

administrative practice, domestic remedies are ineffective in this case

having regard, inter alia, to the situation in South-East Turkey which

is such that potential applicants have a well-founded fear of the

consequences; limitations on rights and remedies created by the state

of emergency; the lack of genuine investigations by public prosecutors

and other competent authorities; positive discouragement of those

attempting to pursue remedies; an official attitude of legal

unaccountability towards the security forces; and the lack of any

prosecutions against members of the security forces for alleged extra-

judicial killings or torture.

In respect of the pending matter before the High Court of

Appeals, the applicant submits that this is the result of a referral

by the Minister of Justice, the exercise of which power cannot be

considered as part of the process of the exhaustion of domestic

remedies required of an applicant.

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.

The Commission notes that public prosecutor refused to initiate

a prosecution against the police officers allegedly concerned in the

detention and interrogation of the applicant's husband and that on

13 November 1992, the appeal against this decision was rejected by the

Tarsus Criminal Court. While the Government refers to the pending

review of this rejection before the High Court of Appeals, the

Commission notes that almost three years have elapsed since the

applicant's death and that the applicant's complaints were communicated

to the Government on 30 August 1993, 18 months ago. No indication has

been given by the Government as to the likely date of a decision in the

pending review. In view of the delays involved and the serious nature

of the alleged crime, the Commission is not satisfied that the review

carried out pursuant to the exercise of a discretionary power by the

Minister of Justice, can be considered as furnishing an available and

sufficient remedy which requires to be exhausted pursuant to Article

26 (Art. 26) of the Convention.

The Commission accordingly finds that in the circumstances of

this case the applicant is not required to pursue any other legal

remedy in addition to the public prosecutor's inquiry and the appeal

against his decision (see eg. No. 19092/91, Yagiz v. Turkey, Dec.

11.10.93, D.R.75). The Commission concludes that the applicant should

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 have made no comment on the substance of the

applicant's allegations.

The applicant maintains her submissions.

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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SALMAN v. TURKEY

SALMAN v. TURKEY