Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23178/94

by Sükran AYDIN

against Turkey

The European Commission of Human Rights sitting in private on

28 November 1994, the following members being present:

MM. C.A. NØRGAARD, President

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

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 21 December 1993

by Sükran Aydin against Turkey and registered on 7 January 1994 under

file No. 23178/94;

Having regard to :

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

the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

1976 and resident at Derik, Mardin. She is represented before the

Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of

the University of Essex.

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

be summarised as follows.

On 29 June 1993 the applicant was at home in her village, Taslik.

There was no electricity in the village. At around 17.00 hours, a

group including protectors and two special teams arrived at the village

in four vehicles. The protectors started to wander around the outside

of the village. Given the lack of electricity, which meant the

villagers could not see what was happening, when they went to bed they

thought that the protectors had gone from the village. In the morning,

before sunrise and whilst it was still slightly dark, four people

suddenly entered the applicant's home. They asked them "Where are

those who came to the house in the evening ?" The applicant's family

insisted that no one had come to their house. The four people claimed

that those whom they alleged had entered the house were PKK

representatives. The four threatened and insulted the applicant's

family and they then collected together the applicant's family and the

other villagers in the square next to the school.

They took the applicant, her father and her sister-in-law and

separated them from the other villagers. They blindfolded them and,

as they led them from the village square, they shouted to the

villagers, "PKK supporters have been to these people's house, helping

the PKK ; see how we'll show them". The applicant does not know which

way they were taken because she was blindfolded. They were finally

taken to Derik gendarme station. When they arrived at the gendarme

station, they were separated in different rooms. In the meantime, the

forces kept denigrating them and threatening that they were going to

kill them, tear them in pieces etc. Soon after the applicant was taken

to the room, she was taken to what she calls "the torture chamber".

The applicant, her father and her sister-in-law were stripped naked.

They were put into car tyres. Once inside, they were spun round and

round, beaten and had high-pressure cold water jets played on them.

Towards midday, the applicant was taken, together with her sister-in-

law, from "the torture chamber" to the room she had been in.

The applicant was then taken, blindfolded, to the interrogation

room. The door was locked. An individual in military clothing with

her in the room ripped her dress off by force and stripped her. She

was trying to shout out but he held her mouth very tightly. When she

was naked, he laid her on her back and raped her. In the meantime, the

applicant's sister-in-law had apparently been brought to the door and

was being kept waiting, completely naked. When the person raping the

applicant had finished, he got up off her and told her to get up and

to get dressed immediately. When she got up, she was covered in blood

and was in severe pain.

Later, the applicant and her sister-in-law were taken to another

room. When evening came, a plain-clothed member of the team, with a

beard, came and took her to "the torture chamber". There the applicant

was beaten, slapped and kicked badly for about an hour. Other people

there joined in the assault. Whilst they were doing so, they kept

warning her over and over again not to tell anyone what they had done

to her. After the beating, they took the applicant back to the room

she had been in before. On the third day, she was released, along with

her father and sister-in-law. They were released on the same day but

separately. The applicant was left alone in the mountains near her

village. When the forces left her, they threatened her, telling her

not to tell anyone of the rape and that, if she did, other things would

happen to her.

The applicant wants the protectors and soldiers to be punished.

Amnesty International reported on 30 July 1993 that the applicant had

a medical examination, the report of which was consistent with her

allegation of rape. The organisation also reported that she made a

formal complaint to the local prosecutor, saying that she would be able

to recognise the officer who raped her, even though she was

blindfolded. The rape in custody has been reported by Amnesty

International and at page 26 of the report by a British Parliamentary

Human Rights Group, "A desolation called peace". The latter report

also refers to a press report in Özgur Gündem on 18 July 1993.

COMPLAINTS

The applicant complains of violations of Articles 3, 6 and 13 of

the Convention.

As to Article 3, she complains of physical ill-treatment

(blindfolding, stripping her naked, putting her inside a wheel which

was spun round and round, beating, slapping and kicking her, hosing her

with high pressure cold water, verbally abusing and threatening her)

and rape, which should be considered to constitute torture and which

represented a form of discrimination since it was based on the

applicant's race or ethnic identity.

As to Article 6, she complains of the denial of an effective

right of access to court.

As to Article 13, she submits that there was no effective

domestic remedy in regard to the violations of her rights to which she

was subjected.

As to the exhaustion of domestic remedies, the applicant states

that there is no requirement that she pursue alleged domestic remedies.

She considers that any alleged remedy is illusory, inadequate and

ineffective because

(a) the detention, rape and torture of the applicant was done

by State officials in an official place, the Derik gendarme

station ;

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

rule which requires the provision of effective domestic remedies

(Article 13) ;

(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) alternatively, the applicant has done everything she can do

to exhaust domestic remedies by submitting a formal complaint to

the local prosecutor ; the fact that it has yielded no result

confirms the ineffectiveness of any alleged remedy.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 December 1993 and was

registered on 7 January 1994.

On 5 April 1994 the Commission decided to communicate the

application to the Turkish Government who were invited to submit their

observations on its admissibility and merits before 5 July 1994. At the

Government's request, this time-limit was subsequently extended until

5 August 1994.

By letter of 29 July 1994 the Government asked for a further

extension of the time-limit until 12 September 1994. The Commission's

Secretary answered, by letter of 4 August 1994, that the Preesident of

the Commission had not granted a further extension of the period

concerned.

By letter of 6 September 1994 the Commission's Secretary pointed

out to the Government that the period for the submission of the

Government's observations had expired long ago. It was added that the

application was being considered for inclusion in the list of cases for

examination by the Commission at its October or November session.

No observations have been submitted by the Turkish Government.

THE LAW

The applicant complains of violations of Articles 3, 6 and 13

(Art. 3, 6, 13) of the Convention in that she was ill-treated and raped

at a gendarme station to which she had been brought blindfolded.

The Government, which have been informed that the application was

considered for inclusion in the agenda of the Commission at its present

session, have submitted no observations on the admissibility and merits

of the application.

It is the normal practice of the Commission, where a case has

been communicated to the respondent Government, not to declare the

application inadmissible for failure to exhaust domestic remedies,

unless this matter has been raised by the Government in their

observations. The Commission considers that the same principle should

be applied where, as in the present case, the respondent Government

have not submitted any observations at all.

It follows that the application cannot be rejected on the ground

that the domestic remedies have not been exhausted.

Moreover, the Commission is of the opinion that the application

raises important questions of fact and law which cannot be resolved at

the stage of the admissibility but require an examination on the

merits. The application cannot therefore be considered manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention and no other ground for declaring it inadmissible has been

established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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AYDIN v. TURKEY

AYDIN v. TURKEY