Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22491/93

by Ö.A.

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 9 August 1993 by

Ö.A. against Turkey and registered on 23 September 1993 under file

No. 22491/93;

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

30 March 1994 and the observations in reply submitted by the

applicant on 12 May 1994;

Having deliberated;

Decides as follows:

THE FACTS

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

1976 and lives at Çinarönü Köyü, Savur district, Mardin province. 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 states that the following occurred:

The applicant and his cousin S.A. were grazing the animals 1-2

kilometres from the village of Çinarönü on 14 February 1993. At around

midday, about 50 soldiers from Savur Gendarme Station Command

Headquarters came upon them.

The applicant believes that they were on their way from and/or

to an operation. He thinks that this accounts for what he regards as

the large number of soldiers.

The soldiers asked which way the terrorists had gone. The

applicant and his cousin said that they had not seen them, whereupon

the soldiers stripped the applicant and his cousin completely naked and

began to beat them up. The soldiers also used abusive gestures and

abusive language and threatened them with sexual violence. The beating

lasted 20-30 minutes. The soldiers kept saying "You will show us where

the terrorists are", even though the applicant believes that, in fact,

they knew where they were. When the applicant and his cousin said that

they did not know, they were beaten.

The soldiers left. The applicant and his cousin were in a state

of shock from the beating. When they had got over the shock, they put

their clothes back on and went back to the village.

The applicant and his cousin came up in bruises where they had

been beaten and the applicant developed bronchitis. He saw a specialist

doctor in Diyarbakir, Dr. Bedrettin Alyamaç. He did not tell the

doctor that he had been beaten up, through fear of the consequences.

He was told that the bronchitis could recur any time in cold weather.

The applicant feels insecure because whenever the soldiers are

in the area, they allegedly ask people about the applicant and his

cousin and abuse them.

On account of the lack of witnesses and fear of the consequences,

the applicant has not filed a complaint.

The Government submit that an investigation was commenced into

the complaints by the Savur Public Prosecutor in 1993 (exact date

unspecified). This investigation is still pending but, the Government

state, there exists no evidence in respect of the alleged incident.

COMPLAINTS

The applicant complains of violations of Articles 3 and 13 of the

Convention.

As to the Article 3, he complains of having been subjected to

severe physical ill-treatment including severe beating, of having been

stripped naked in the cold, threatened with sexual violence and

verbally abused. He states that he will seek to obtain a medical report

on his condition at the time he was seen by the doctor. He maintains

that his ill-treatment amounted to torture or constituted inhuman

treatment.

As to the Article 13, he complains of the lack of any adequate

and effective remedies against the alleged actions of security forces

and police officers in the South-East of Turkey.

The applicant maintains that there is no requirement that he

pursue alleged domestic remedies. In his opinion any alleged remedy

is illusory, inadequate and ineffective because

(a) there is an administrative practice of non-respect for the

rule which requires the provision of effective domestic remedies

(Article 13);

(b) there is an administrative practice of torture, inhuman or

degrading treatment at the hands of the Turkish security forces

in South-East Turkey;

(c) whether or not there is an administrative practice, domestic

remedies are ineffective in this case, owing to the failure of

the legal system to provide redress;

(d) whether or not there is an administrative practice, the

situation in South-East Turkey is such that potential applicants

have a well-founded fear of the consequences, should they pursue

alleged remedies.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 August 1993 and registered

on 23 September 1993.

On 29 November 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 30 March 1994

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

observations in reply on 12 May 1994.

THE LAW

The applicant alleges that he and his cousin were beaten and

severely ill-treated by soldiers. He invokes Article 3 (Art. 3)

(prohibition on inhuman and degrading treatment) and Article 13

(Art. 13) (the right to effective national remedies for Convention

breaches).

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 there is an investigation by the

public prosecutor at Savur into the allegations which is still pending.

The applicant maintains that there is no requirement that he

pursue domestic remedies. Any purported remedy is illusory, inadequate

and ineffective since, inter alia, the operation in question in this

case was carried out by soldiers, agents of the State. He refers to an

administrative practice 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; 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 ill-

treatment or torture. He states that he is frightened of the

consequences if he makes a complaint, having been told that security

forces in the region have asked people about him and his cousin.

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, because it agrees with the applicant that it has not

been established that he had at his disposal adequate remedies to deal

effectively with his complaints.

The Commission notes that while the Government refers to the

pending inquiry by the public prosecutor into the complaints, almost

two years have elapsed since the incident and the Commission has not

been informed of any significant progress having been made in the

investigation. In view of the delays involved and the serious nature

of the crime alleged, the Commission is not satisfied that this inquiry

can be considered as furnishing an effective remedy for the purposes

of Article 26 (Art. 26) of the Convention.

The Commission also considers that it cannot be said at this

stage that the applicant's fear of reprisals if he complained is wholly

without foundation.

The Commission 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 (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 make no comment on the substance of the

applicant's allegations beyond commenting that there exists no evidence

in relation to the alleged incident.

The applicant maintains his 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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Ö.A. v. TURKEY

Ö.A. v. TURKEY