Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23183/94

by Necip ODABASI

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 20 December 1993

by Necip Odabasi against Turkey and registered on 5 January 1994 under

file No. 23183/94;

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

22 July 1994 and the observations in reply submitted by

the applicant on 30 August 1994;

Having deliberated;

Decides as follows:

THE FACTS

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

1951 and resident at Basari Köyü Cermik, Diyarbakir. He is represented

before the Commission by Professor Kevin Boyle and Ms. Françoise

Hampson, both of the University of Essex, England.

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

summarised as follows.

The applicant went from his home to Cermik on the morning of

21 June 1992. He completed his business and was sitting in a café

waiting for transport back to his village. At about 11 am, soldiers

and police arrived at the café and took him to Security Headquarters.

There, a first lieutenant said: "I saw you on Gelincik mountain this

morning. You were taking food to the PKK." He said that at that time

he was on his way to Cermik, in the car of the watchman, Y.Y. He

added: "If you like, we can go and ask him." At that point, the

Security Chief intervened and said: "OK, First Lieutenant, your job is

done. You may go." The Security Chief then turned to the applicant

and said: "I believe you are not guilty. You are free."

After being released, he went back to the café where he was

sitting waiting when a sergeant major came up to him and asked: "Are

you Necip Odabasi ?" He replied affirmatively and was then told: "You

will come with me to the station." Then he was taken to the Gendarmes

Station. A captain said to him: "Don't you know that the followers of

Apo are Armenian? Why do you support and shelter them? Since, thanks

to your support, they have organised three raids on Cermik, you are a

murderer." The captain then said: "Do you know that the State kills

people ? Do you read the papers?" The applicant replied: "Yes, I know

that the State kills people." The captain said: "In that case make

your decision. You have two choices: either you will die or you will

work together with us." Out of fear the applicant agreed to become a

spy. Thereupon they released him.

The applicant went secretly to Diyarbakir and from there to

Ankara. In Ankara, he met and explained his problem to a number of

authorities, starting with the State Minister responsible for Human

Rights. He submitted a petition to the Ministry on 29 June 1992. At

about the same time, the applicant also petitioned the Grand National

Assembly of Turkey and other bodies.

The applicant went to the office of the Human Rights Minister for

a meeting. The applicant asked the Minister to guarantee his safety

because of the threats to his life in Cermik. The Minister knew him

from earlier times. The Minister said: "Be quiet. Do not talk this

way in my room. A microphone may have been planted in my room. So

come to the Assembly with my assistant ... and we shall meet at a

suitable place there." Towards the evening of the same day, the

applicant went with the assistant to the Assembly. In the grounds of

the Assembly, he had an interview with the Minister. The applicant

explained the details of the threats against his life and the situation

in which he found himself. The applicant asked the Minister to protect

him. The Minister said: "Look Necip, I cannot guarantee your safety

in Cermik. It is very difficult. I am saying these things to you

because I already know you. Many of the incidents in the area are

above our heads. We have no opportunity to intervene. But for you,

in order to publicise it, I shall accept your application and put it

into the system. I hope something will come of it. But there is

nothing else I can do." It appears from the documents that the

Minister entered into correspondence with the Minister of the Interior

and the Justice Minister for the subject to be investigated. No

results have been obtained from this correspondence.

On 9 February 1993 the applicant was arrested and charged, with

others, with assisting and sheltering the illegal PKK organisation.

The trial was to take place at Diyarbakir State Security Court. The

indictment was issued on 16 February 1993. At the first hearing on

7 April 1993, the applicant said that a statement he had made had been

made under duress and that it was not true. The proceedings were

deferred until 20 May 1993 and the applicant was remanded in custody.

A second trial started on 30 June 1993. This trial was deferred until

4 August 1993. The two cases were joined, and hearings were held on 22

December 1993, 9 February 1994 and 16 March 1994. On that last date the

applicant was released, without bail.

COMPLAINTS

The applicant complains of violations of Articles 2, 3, 4, 5, 13,

14 and 18 of the Convention in regard to the threat that he would be

killed if he did not co-operate with the authorities and the resultant

risk to his life to which this gave rise.

As to Article 2, the applicant refers to the threat to his life,

to the failure in the State's obligation to protect his right to life,

to the lack of any effective system for ensuring protection of the

right to life and to the inadequate protection of the right to life in

domestic law.

As to Article 3, he refers to the inhuman and degrading treatment

to which he was subjected by having to choose between spying and being

killed, leading to his terrorisation as he lives under the shadow of

being killed.

As to Article 4, he complains of being made to undertake

life-threatening work (spying) upon fear of death.

As to Article 5, he complains of the complete lack of security

of the person.

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

national authority before which his complaints can be brought with any

prospect of success.

As to Article 14, he alleges that his rights under Articles 2,

3 and 5 have been violated on account of an administrative practice of

discrimination on account of race or ethnic origin.

As to Article 18, he considers that the interferences in the

exercise of the Convention rights are not designed to secure the ends

permitted under the Convention.

As to exhaustion of domestic remedies, the applicant considers

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

In his opinion, any alleged remedy is illusory, inadequate and

ineffective because

(a) the threat made against him was delivered by a State

official during the performance of his duties;

(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 he can do

to exhaust domestic remedies by submitting petitions to various

authorities and getting others to do so on his behalf; the fact

that they have yielded no result confirms the ineffectiveness of

any alleged remedy.

PROCEEDINGS BEFORE THE COMMISSION

The present application was lodged with the Commission on 20

December 1993 and registered on 7 January 1994. The applicant submitted

certain further information relating to the case by letters of 5 May

and 4 August 1994.

On 5 April 1994, the Commission decided to communicate the

application to the Turkish Government, which were invited to submit

their observations on its admissibility and merits before 8 July 1994.

The Government's observations were submitted by letter of 22 July

1994 and the applicant's reply on 30 August 1994.

THE LAW

The applicant complains of violations of Articles 2, 3, 4, 5, 13,

14 and 18 (Art. 2, 3, 4, 5, 13, 14, 18) of the Convention in relation

to a threat that he would be killed if he did not co-operate with the

authorities and the resultant risk to his life to which this gave rise.

He admits that he did not exhaust any domestic remedies but states that

he was under no obligation to do so, since any alleged remedy would in

the circumstances of the case be illusory, inadequate and ineffective.

The Government submit that the application is inadmissible on the

ground that the applicant did not exhaust the domestic remedies.

The Government also state that an investigation was carried out

as a result of the applicant's petition of 29 June 1992 and that this

investigation ended by a decision of 4 February 1993 by the Ministry

of Justice. According to this decision, there was no evidence

supporting the applicant's allegations and, consequently, no need to

proceed further. The Government point out that the application was

lodged 18 months after the date on which the applicant claims to have

suffered the alleged threat and 8 months after the date on which the

Ministry of Justice resolved that there was no basis for further

action.

As regards the latter remark, the applicant states that the

threat to which he was exposed gave rise to a situation of continuing

violation or, alternatively, that he did not apply earlier through

fear. The six months time-limit laid down in Article 26 (Art. 26) of

the Convention therefore did not apply in his case.

The Commission recalls that, according to Article 26 (Art. 26)

of the Convention, the Commission may only deal with a matter after all

domestic remedies have been exhausted, according to the generally

recognised rules of international law, and within a period of six

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

The applicant has declared that he did not exhaust the domestic

remedies because he considered any existing remedies to be ineffective

and inadequate. The Commission does not find it necessary to determine

whether the applicant was dispensed from the obligation to exhaust

remedies, since, even assuming this to be the case, the Commission

considers that the application must be rejected for the following

reasons.

The events of which the applicant complains occurred in June

1992, and the applicant's petitions to the authorities were submitted

shortly after these events. The Government have stated that one of

these petitions gave rise to an investigation which, however, was

concluded in February 1993.

It is clear, therefore, that the application was not lodged

within six months from the events or from the end of the investigation

referred to by the Government.

The Commission notes that the basis of the complaint is a

specific incident and cannot find that the complaint can be considered

to concern a continuing violation of the Convention. Nor has it been

established that there were other circumstances which prevented the

applicant from observing the time-limit laid down in Article 26

(Art. 26) of the Convention.

It follows that the application is inadmissible according to

Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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ODABASI v. TURKEY

ODABASI v. TURKEY