AKSOY v. TURKEY
Doc ref: 21987/93 • ECHR ID: 001-1978
Document date: October 19, 1994
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AS TO THE ADMISSIBILITY OF
Application No. 21987/93
by Zeki AKSOY
against Turkey
The European Commission of Human Rights sitting in private on
19 October 1994, the following members being present:
MM. C.A. NØRGAARD, President
A. WEITZEL
F. ERMACORA
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
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 May 1993 by
Zeki Aksoy against Turkey and registered on 7 June 1993 under file
No. 21987/93;
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
21 February 1994 and the observations in reply submitted by the
applicant on 15 April 1994;
- information submitted by the applicant's representatives on
20 April 1994, and additional material submitted on 15 August,
20 September and 4 October 1994;
- information submitted by the Government on 20 September 1994 and
additional material submitted on 4 and 7 October 1994;
- the parties' oral submissions at the hearing on 18 October 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish national born in 1963, was a welder by
profession. He died on 16 April 1994. His legal representatives before
the Commission are Professor Kevin Boyle and Ms. Françoise Hampson,
both university teachers at the University of Essex.
A. The particular circumstances of the case
The facts of the present case are in dispute.
It is claimed on behalf of the applicant that the following
events occurred:
On 24 November 1992, the applicant was at home with his family.
At around 23.00 to 24.00 hours, about twenty policemen arrived, some
in uniform and some in plain clothes. They searched the house. They
were accompanied by someone who had shown them the house. The
applicant's father, mother and five brothers were also at home that
night. The applicant was taken, together with one of his brothers, to
Kiziltepe Security Headquarters. His brother was released after 11
days. The applicant's house was raided throughout the week following
his incarceration. On the ninth day of his detention, his father was
taken into custody.
The applicant spent the first night in Kiziltepe Security
Headquarters and was then transferred to Mardin Political Branch
Headquarters. He was held there for 16 days. He was asked whether he
knew someone called Metin. On the second day the applicant was taken
to the interrogation room where the blindfold which had been over his
eyes was removed. He was shown a person called Metin who had
accompanied the police when the applicant was arrested.
The applicant was then stripped naked and his hands were tied
behind his back. He was strung up. This kind of torture is known as
"Palestinian hanging". While he was strung up, the police connected
electrodes to his genitals. He was kicked, slapped and verbally abused
in every imaginable way. As they electrocuted him, the police threw
water over him. He was again blindfolded during this torture. As far
as he could tell, it continued for about 35 minutes. During the next
two days, he was repeatedly beaten at intervals of two hours or half
an hour, without being suspended. The torture continued for four days,
the first two being very intensive. He lost the movement of his arms
and hands as a result. His interrogators ordered him to make movements
to restore the control of his hands.
The applicant asked to see a doctor, but was refused. Before
people were released they were seen by a doctor. When the applicant
knew that the doctor was in the building, he unsuccessfully banged on
his door to get attention.
The applicant was kept in a cell with two others. The cell
measured about 1,5 x 3 metres. There was one bed and one blanket
between them. There was no pillow.
Two days before his release, the police took the applicant to see
an official forensic doctor, but the doctor gave him no medicine and
wrote no report or prescription. When the doctor asked how the
applicant's arms had been injured, the accompanying police officers
intervened and said that the applicant had had an accident. It is
alleged that the doctor commented, mockingly, that everyone who went
to those police headquarters suffered an accident.
On 10 December 1992, the applicant was released. He had been
brought previously before the public prosecutor. He was presented with
a statement to sign, but the applicant said that its contents were
untrue and that he had been tortured. The prosecutor insisted he sign
it. When he told the prosecutor that he could not sign because he could
not move his hands, the prosecutor bowed his head and said, "You are
free to go". The prosecutor did not ask any questions about the
applicant's condition or its causes. Rather his energies were directed
at determining whether the applicant should be prosecuted.
The applicant was released on a Thursday and saw a doctor on the
Friday. The following Tuesday, he completed the hospital paperwork and
was admitted to Dicle University Medical Faculty. The applicant's
account of his treatment in custody is consistent with a medical report
from this Faculty, but the doctor whom he consulted was too frightened
to record an explicit explanation of the cause of the applicant's
injuries. A medical report from a surgeon at St. George's Hospital,
London, based on photographs of the applicant's injuries, supports the
applicant's claims of his torture in custody. The applicant remained
in hospital until 31 December 1992.
On 21 December 1992, the public prosecutor decided that there
were no grounds to institute criminal proceedings against the
applicant.
By telefax of 20 April 1994, the applicant's representatives
informed the Commission that the applicant had been killed four days
before. It was alleged that he had been killed as a direct result of
his application to the Commission. He had been threatened with death
in order to make him withdraw his application, the last threat being
made by telephone 14 April 1994. Two days later, on the evening of 16
April 1994, he was shot and killed by two people as he was on his way
home.
The Government submit the following different account of events:
On 26 November 1992 at around 8.30 hours, the applicant was
arrested at his home and placed in police custody at the Mardin
Security Directorate, along with 13 other people, on suspicion of
aiding and abetting the terrorist wing of the PKK, of being a member
of the Kiziltepe PKK branch and of distributing PKK tracts.
On 8 December 1992, after questioning, he was brought before the
Mardin public prosecutor and released on 10 December 1992. The
applicant did not complain of torture or ill-treatment, which is why
no ex officio investigation was made. (If he made any mention of such
treatment the prosecutor would have been obliged to open a judicial
inquiry under Articles 243 and 245 of the Criminal Code [p. 6 below]).
That same day the applicant was examined by a doctor in the medical
service of the sub-prefecture. He found no evidence of injury to the
applicant.
On 21 December 1992, the principal public prosecutor at the
Diyarbakir State Security Court ordered that no proceedings be brought
against the applicant and two other people. Proceedings were
instituted, however, against the eleven other people who had been
detained with the applicant.
On 15 December 1992 the applicant was admitted to the Diyarbakir
State Hospital as a first examination had diagnosed a bilateral radial
paralysis. He left the hospital without discharging himself properly
on 31 December 1992, taking his medical file with him. He was formally
discharged on 8 January 1993.
As regards the circumstances of the applicant's death, the
Government state that a person has been arrested and charged with the
applicant's murder, and is presently remanded in custody awaiting
trial. This person is a member of the PKK and is suspected of several
acts of murder and bombing. The applicant's murder was apparently a
settlement of scores between quarrelling PKK factions.
According to the applicant's representatives, the person in
question was originally charged in May 1994 with the unlawful
possession of weapons. It was only in September 1994 that the murder
charge was added.
B. The relevant domestic law and practice
The Government have submitted that the following domestic law is
relevant to the case:
Article 125 of the Turkish Constitution provides as follows:
(translation)
"All acts or decisions of the Administration are subject to
judicial review ...
The Administration shall be liable for damage caused by its own
acts and measures."
This provision is not subject to any restrictions even in a state
of emergency or war. The latter requirement of the provision does not
necessarily require proof of the existence of any fault on the part of
the Administration, whose liability is of an absolute, objective
nature, based on a theory of "social risk". Thus the Administration may
indemnify people who have suffered damage from acts committed by
unidentified persons when the State may be said to have failed in its
duty to safeguard individual life and property.
The principle of administrative liability is reflected in the
additional Article 1 of Law 2935 of 25 October 1983 on the State of
Emergency, which provides:
(translation)
"... actions for compensation in relation to the exercise of the
powers conferred by this law are to be brought against the
Administration before the administrative courts."
The Turkish Criminal Code makes it a criminal offence to subject
someone to torture or ill-treatment (Article 243 in respect of torture,
and Article 245 in respect of ill-treatment, inflicted by civil
servants).
Complaints may be lodged, pursuant to Articles 151 and 153 of the
Code of Criminal Procedure, with the public prosecutor or the local
administrative authorities. The public prosecutor and the police have
a duty to investigate crimes reported to them, the former deciding
whether a prosecution should be initiated, pursuant to Article 148 of
the Code of Criminal Procedure. A complainant may appeal against the
decision of the public prosecutor not to institute criminal
proceedings.
If the alleged author of a crime is a State official or civil
servant, permission to prosecute must be obtained from local
administrative councils (the Executive Committee of the Provincial
Assembly). The local council decisions may be appealed to the State
Council; a refusal to prosecute is subject to an automatic appeal of
this kind. There is case-law showing the overturn by the State Council
of decisions of the Executive Committee not to prosecute cases of
torture and ill-treatment of people in the custody of security
officials.
Pursuant to Article 1 of Law 466, a person who has been unjustly
held in police custody may apply to the local assize court for
compensation within three months of the decision not to prosecute.
Furthermore, any illegal act by civil servants, be it a crime or
tort, which causes material or moral damage may be the subject of a
claim for compensation before the ordinary civil courts.
Proceedings against the Administration may be brought before the
administrative courts, whose proceedings are in writing.
Pursuant to Article 128 to the Code of Criminal Procedure, a
person arrested and detained shall be brought before a justice of peace
within twenty-four hours, or, in the case of collective offences,
within four days. In the proceedings before the State Security Courts,
these periods are extended, pursuant to Article 30 of Law 3842 of
1 December 1992, to forty-eight hours in the case of individual
offences, and to fifteen days in the case of collective offences.
Pursuant to the same Article, in cases involving a state of emergency,
the custody periods in the proceedings before the State Security Courts
are doubled: four days in the case of individual offences, thirty days
in the case of collective offences.
The applicant pointed to certain legal provisions which in
themselves weaken the protection of the individual which might
otherwise have been afforded by the above general scheme:
Articles 13 to 15 of the Constitution provide for fundamental
limitations on constitutional safeguards.
Provisional Article 15 of the Constitution provides that there
can be no allegation of unconstitutionality in respect of measures
taken under laws or decrees having the force of law and enacted between
12 September 1980 and 25 October 1983. That includes Law 2935 on the
State of Emergency of 25 October 1983, under which decrees have been
issued which are immune from judicial challenge. Extensive powers have
been granted to the Regional Governor of the State of Emergency by such
decrees.
Decree 285 modifies the application of Law 3713, the Anti-Terror
Law (1981), in those areas subject to the state of emergency, with the
effect that the decision to prosecute members of the security forces
is removed from the public prosecutor and conferred on local
administrative councils. These councils are made up of civil servants
and have been criticised for their lack of legal knowledge, as well as
for being easily influenced by the Regional Governor or Provincial
Governors, who also head the security forces.
Article 8 of Decree 430 of 16 December 1990 provides as follows:
(translation)
"No criminal, financial or legal responsibility may be claimed
against the State of Emergency Regional Governor or a Provincial
Governor within a state of emergency region in respect of their
decisions or acts connected with the exercise of the powers
entrusted to them by this decree, and no application shall be
made to any judicial authority to this end. This is without
prejudice to the rights of an individual to claim indemnity from
the State for damages suffered by them without justification."
According to the applicant, this Article grants impunity to the
Governors.
COMPLAINTS
The applicant alleged that he had been the victim of a violation
of Article 3 of the Convention on account of the infliction of torture
and the conditions of his detention.
The applicant complained under Article 5 para. 3 of the
Convention of not having been brought before the public prosecutor
until 16 days after his arrest.
The applicant claimed that there was a breach of Article 6 of the
Convention on account of the failure to institute court proceedings
against those responsible for the torture, as a result of which he
could bring the civil proceedings which should ensue.
The applicant alleged a violation of Article 13 of the Convention
on account of the lack of an independent authority before which a
complaint can be brought with any prospect of success.
After the applicant's death on 16 April 1994, his representatives
have alleged that he was killed because of his application to the
Commission.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 May 1993 and registered on
7 June 1993.
After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on
30 August 1993. It decided, pursuant to Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice of the application to the respondent
Government and to invite the parties to submit written observations on
admissibility and merits. The Government's observations were submitted
on 21 February 1994, after an extension of the time limit fixed for
that purpose, to which the applicant replied on 15 April 1994.
On 20 April 1994 the applicant's representatives informed the
Commission that the applicant had been shot and killed on 16 April
1994. It was alleged that the killing was a direct result of the
application to the Commission. This information was transmitted to the
Government with a request for comment as to the allegation. The
Government failed to respond within the time-limit fixed for this
purpose.
On 27 June 1994 the Commission decided to invite the parties to
make oral submissions on the admissibility of the application at a
hearing. For the purposes of the hearing the application was joined
to two others: No. 21893/93, Akduvar and Others v. Turkey, and No.
21894/93, Akkum and Others v. Turkey. The hearing was fixed for
18 October 1994. Prior to the hearing the parties submitted additional
material: for the applicant on 15 August, 20 September and
4 October 1994, and for the Government on 4 and 7 October 1994.
The Government commented on the circumstances of the applicant's
death by letter of 20 September 1994, in which the allegations of the
applicant's representatives were denied.
At the hearing on 18 October 1994, the Government were
represented by Mr. B. Çaglar, Agent, Mr. S. Alpaslan, Mr. M. Özmen, Ms.
D. Akçay and Mr. H. Golsong, all counsel, and Ms. i. Boivin, Mr. i.
Kovar, Mr. A. Kurudal, Mr. F. Erdogan, Mr. Y. Kizilkaya, Mr. C. Duatepe
and Ms. S.B. Ersöz, all experts. The applicants was represented by
Professor K. Boyle and Ms. F. Hampson, both counsel, Mr. S. Aslantas,
legal adviser from the Diyarbakir Bar, and Mr. M. Yildiz, assistant.
THE LAW
1. The applicant, who had been arrested by the Turkish police,
complained of having been subjected to torture (Article 3 (Art. 3) of
the Convention) and of not having been brought promptly before a
judicial officer (Article 5 para. 3 (Art. 5-3) of the Convention). He
also complained of violations of Articles 6 and 13 (Art. 6, 13) of the
Convention, by reason of allegedly inadequate remedies. His
representatives have asserted that the applicant was killed because of
his application to the Commission.
2. The Government have questioned whether it is justified for the
Commission to continue these proceedings after the applicant's death.
They have stated that his heirs have not indicated whether they wish
to pursue the case and that, in any event, heirs have no right to
complain of the duration and allegedly inequitable character of
proceedings.
The Commission notes the declaration by the applicant's
representatives that the applicant's father wishes to pursue
proceedings before the Commission. Moreover, it finds that, in view of
the serious nature of the complaints and their connection with the
general situation in South-East Turkey, the application is of such
general interest that it would not be justified to strike it off the
list of cases.
3. The Government deny that there is any evidence that the applicant
had been subjected to torture or other treatment contrary to Article
3 (Art. 3) of the Convention, or that his death involved any State
responsibility.
The Government argue that the application is inadmissible for the
following reasons:
i. the applicant failed to exhaust domestic remedies;
ii. alternatively, the applicant did not observe the six months'
time-limit;
iii. the application is an abuse of the right of petition;
iv. the derogation which Turkey has made under Article 15
(Art. 15) of the Convention legitimised the applicant's detention
for 14 days under Article 5 para. 3 (Art. 5-3) of the Convention;
and
v. the application is anyway manifestly ill-founded.
4. Exhaustion of domestic remedies
The Government submit that the applicant failed to comply with
the requirement under Article 26 (Art. 26) of the Convention to exhaust
domestic remedies, particularly in regard to his complaint under
Article 3 (Art. 3) of the Convention, before lodging an application
with the Commission. They contend that the applicant had several
remedies at his disposal which he did not try:
i. By way of the administrative and civil courts
According to the applicant's version of the facts, which is
anyway denied, security officers unjustifiably detained and severely
ill-treated him. However, he had the possibility of introducing an
administrative action before the administrative courts for compensation
in accordance with Article 125 of the Turkish Constitution (pp. 5-6
above). Claims for compensation could also have been lodged before the
local assize court, pursuant to Article 1 of Law 466, or before the
ordinary civil courts (p. 6 above).
ii. By way of criminal proceedings
The acts alleged by the applicant have no lawful authority either
under ordinary domestic law or under emergency legislation or decrees.
They would constitute punishable criminal offences under the criminal
law. The applicant therefore had the possibility of lodging a criminal
complaint with the public prosecutor or the local administrative
authorities (see p. 6 above).
The Government assert that there is no administrative practice
or official tolerance of the type of acts alleged by the applicant. The
aforementioned remedies represent nothing extraordinary and are
accessible and effective before independent judicial authorities. Any
suggestion that people expose themselves to risk if they pursue these
normal remedies can only be qualified as abusive, fallacious and wholly
devoid of credibility.
In order to demonstrate that the available remedies were not
ineffective, the Government have referred to a number of judgments by
the administrative and criminal courts. Some of these decisions concern
cases in which the State Council has ordered the prosecution of public
officials for ill-treating people in custody, despite the initial view
of the local administrative council that the cases were unsuitable for
criminal proceedings.
The applicant maintained that there was no requirement that he
pursue domestic remedies further than he did by telling the public
prosecutor that he had been tortured by his custodians. The public
prosecutor is deemed to be under a duty to prosecute all reported
crimes, but did nothing in the applicant's case.
The applicant submitted that any purported remedy is illusory,
inadequate and ineffective. He did not deny that the procedures
identified by the Government are formally part of the Turkish legal
structure, but he contended that the Government have not shown how such
procedures could conceivably be effective for the specific
circumstances of the present case.
The applicant considered that none of the remedies suggested by
the Government could be regarded as effective because the scale of
torture committed with impunity by agents of the State in detention
centres is such that this must be considered high-level Government
policy - an administrative practice - in regard to which all remedies
are theoretical and irrelevant. This has been confirmed by such bodies
as the European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment, which, in its public statement of
15 December 1992, concluded that the practice of torture and other
forms of severe ill-treatment of persons in police custody remains
widespread in Turkey, and that such methods are applied to both
ordinary criminal suspects and persons held under anti-terrorist
provisions (p. 6 para. 21). The Committee singled out "cases of motor
paralysis of the arms and severe sensory loss consistent with
allegations of suspension", being an especially widespread torture
method in Turkey, particularly in the South-East (p. 5 para. 19). It
called on Public Prosecutors in Turkey "to react expeditiously and
effectively when confronted with complaints of torture and ill-
treatment" (p.7 para. 26), which, according to the applicant, implies
that they were failing to do so at the material time.
The purported remedies were thus ineffective for the following
reasons:
- the limitations on rights and remedies created by the state of
emergency;
- an administrative practice of torture in Turkish detention
centres;
- the lack of genuine investigations by public prosecutors and
other competent authorities, who ignore the evidence of their own
eyes, as in this case, and either do nothing or simply take
evidence from the members of the police or security forces;
- even if an investigation is made, the lack of effective action
being taken afterwards;
- an official attitude of legal unaccountability towards the
security forces;
- the positive discouragement of those who do wish to seek
remedies, as has been demonstrated so tragically in the present
case;
- an administrative practice of not respecting the rule under
Article 13 (Art. 13) of the Convention which requires the
provision of effective domestic remedies; and
- whether or not there is an administrative practice, domestic
remedies were ineffective in this case, owing to the failure of
the legal system to provide redress.
The applicant added that, in order to be able to use a remedy,
the individual needs to be able to seek and obtain legal advice and the
lawyers need to be able to pursue appropriate remedies without fear of
the consequences. He alleged, however, that several lawyers who have
dealt with cases of this kind have been subjected to detention and ill-
treatment. At present 16 lawyers are facing criminal charges, which
include drawing up documents belittling the Turkish State and faxing
them to human rights organisations in Europe. This is demonstrated in
other cases pending before the Commission.
Another key group in guaranteeing effective investigation and
protection is the medical profession. Doctors must be free to give
honest accounts of what they have found in their investigations.
However, the applicant alleged that doctors have been intimidated, as
was the case of the doctor whom he consulted at the Dicle Medical
Faculty.
The Commission has noted the range of remedies put forward by the
Government, the case-law provided to demonstrate the efficacy of those
remedies and the remarks of the applicant as to their theoretical and
illusory nature.
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 anyway finds that the applicant has done all
that could be expected in the circumstances. The Commission has formed
this view for the following reasons:
The Commission notes the applicant's declaration that he had told
the public prosecutor that he had been tortured. Moreover, when asked
to sign a statement, he had answered that he could not sign because he
could not move his hands. It is not possible to establish in detail
what happened during the applicant's meeting with the public
prosecutor, but the Commission finds no reason to doubt that during
their conversation there were elements which should have made the
public prosecutor initiate an investigation or, at the very least, try
to obtain further information from the applicant about his state of
health or about the treatment to which he had been subjected.
The Commission further notes that, after his detention, the
applicant was in a vulnerable position, if he had, as he stated, been
subjected to torture during his detention. Moreover, his family had
also been affected by the actions of the authorities insofar as his
father and one of his brothers had been detained for short periods at
about the same time, and the applicant himself was hospitalised for two
weeks after his release. The threats to which the applicant claimed to
have been exposed after he had complained to the Commission, as well
as his tragic death in circumstances which have so far not been fully
clarified, are further elements which may at least support the view
that the pursuance of remedies may not be devoid of serious risks.
The Commission is, therefore, satisfied that the applicant did
avail himself of a proper remedy when appearing before the public
prosecutor prior to his release and that he was not obliged to pursue
in the circumstances further remedies indicated by the Government (cf.
Nos. 16311/90, 16312/90 and 16313/90, N.H., G.H. and R.A. v. Turkey,
Dec. 11.10.91, unpublished; No. 17126/90, S.Ö. v. Turkey, Dec.
30.08.94, unpublished, and mutatis mutandis No. 19092/91, Yagiz v.
Turkey, Dec. 11.10.93, to be published in D.R. 75). The Commission
concludes that the applicant may be said to have complied with the
domestic remedies' rule laid down in Article 26 (Art. 26) of the
Convention and, consequently, the application cannot be rejected under
Article 27 para. 3 (Art. 27-3).
5. The six months' rule
The Government contend that, even assuming that the applicant
exhausted domestic remedies, he failed to comply with the second
requirement of Article 26 (Art. 26) of the Convention, namely that of
lodging the application within six months of the final effective
decision or, if none, within six months of the events of which
complaints are made.
The applicant pointed out that the events complained of took
place between 24 November and 10 December 1992. The present application
was lodged on 3 May 1993, i.e. within the six month period.
The Commission agrees with the applicant. He did indeed comply
with the six months' rule laid down in Article 26 (Art. 26) of the
Convention.
6. Abuse of the right of petition
The Government maintain that the application, being devoid of any
sound judicial basis, has been lodged for the purposes of political
propaganda against the Turkish Government. Accordingly the application
constitutes an abuse of the right of petition which discredits the
legal nature of the Convention control mechanism.
The applicant rejected the Government's submission and responded
that his complaints related exclusively to violations of the Convention
which he suffered.
The Commission considers that the Government's argument could
only be accepted if it were clear that the application was based on
untrue facts. However, this is far from clear at the present stage of
the proceedings, and it is therefore impossible to reject the
application on this ground.
7. As regards the merits
The Government submit that it is generally accepted in the
comparative and international law on terrorism, authorising "certain
adaptations of the liberal model", that restrictions on Convention
rights will be deemed necessary in a democratic society threatened by
terrorist violence, as being proportionate to the aim of protecting
public order.
The threat posed to Turkey by the PKK and its affiliations is
internationally recognised, as is the need to react firmly to it.
Terrorism strikes at the heart of democracy, its fundamental rights and
the judicial and political systems. This has been acknowledged by the
Convention organs (Eur. Court H.R., Fox, Campbell and Hartley judgment
of 30 August 1990, Series A no. 182, and Nos. 11209/84, 11234/84,
11266/84 and 11386/85, Brogan and Others v. the United Kingdom, Comm.
Report 14.5.87 para. 106). It is not for the Convention organs to
substitute their view on how a State should conduct the necessary fight
against terrorism. In this respect the Government assert that the
powers exercised by the police while the applicant was in their custody
did not exceed the margin of appreciation conferred on States by the
Convention.
The Government maintain that there is no evidence to substantiate
the applicant's allegations against the police under Article 3
(Art. 3) of the Convention. They add that his death was not the work
of any State agent but that of terrorist in-fighting.
In respect of the applicant's allegation under Article 5 para.
3 (Art. 5-3) of the Convention, the Government refer to their
derogation under Article 15 (Art. 15) of the Convention since
6 August 1990 suspending the former Article's applicability. As to
Articles 6 and 13 (Art. 6, 13) of the Convention, the Government submit
that Turkish law guarantees several remedies (as described above at
pp. 5-6) without discrimination.
Accordingly, the Government consider that the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
The applicant maintained that his account of events was accurate
and that his Convention claims were substantiated. He contended that
the Government's submissions on the restrictions which necessarily flow
from the fight against terrorism are immaterial to the facts of the
present case. The application principally concerns torture and inhuman
conditions of detention. It involves rights under Article 3 (Art. 3)
of the Convention which is absolute, unqualified and non-derogable.
There is, therefore, no scope to take into account the political
situation in the region concerned.
As regards the complaint under Article 5 para. 3 (Art. 5-3) of
the Convention and the derogation under Article 15 (Art. 15), the
applicant contested the necessity of a measure permitting detention for
as long as 30 days without any of the basic safeguards against abuse,
which were deemed to be essential by the Convention organs (Eur. Court
H.R., Brannigan and McBride judgment of 26 May 1993, Series A no. 258-
B, pp. 55-56, paras. 62-66). The applicant submitted that the length
of his detention was excessive even by derogation standards.
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.
The Commission also considers that, since it has been claimed
that the applicant was killed as a result of his complaints to the
Commission, it has the task, in the ensuing proceedings, to examine
further the circumstances of the applicant's death.
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)