EUROPEAN COMMISSION OF HUMAN RIGHTS
Application Nos. 22491/93 and 22497/93
Özcan Aslan and izzet Aslan
against
Turkey
REPORT OF THE COMMISSION
(adopted on 22 May 1997)
TABLE OF CONTENTS
Page
I. THE PARTIES
(paras. 1 - 3) . . . . . . . . . . . . . . . . . . . . .1
II. SUMMARY OF THE FACTS
(paras. 4 - 7) . . . . . . . . . . . . . . . . . . . . .1
III. THE PROCEEDINGS BEFORE THE COMMISSION
(paras. 8 - 23) . . . . . . . . . . . . . . . . . . . .2
IV. THE DECISION OF THE COMMISSION
(paras. 24 - 33) . . . . . . . . . . . . . . . . . . . .5
APPENDIX I: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF APPLICATION NO. 22491/93 . 8
APPENDIX II: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF APPLICATION NO. 22497/93. 14
I. THE PARTIES
1. This Report, which is drawn up in accordance with Article 30
para. 2 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms, concerns the application brought by izzet and
Özcan Aslan against Turkey.
2. The applicants are Turkish citizens, born in 1976 and 1947
respectively. The first applicant, Özcan Aslan, was resident in
Çinarönü at the time of introduction of the application but is now of
address unknown. The second applicant, izzet Aslan, is resident in
Çinarönü, Savur district and states that he complains on his own behalf
and on behalf of his son Özcan, his nephew Serif and his brother Ömer.
They are represented before the Commission by Professor K. Boyle and
Ms. F. Hampson, both teachers at the University of Essex.
3. The application is directed against Turkey. The respondent
Government were represented by their Agent, Mr. A. Gündüz.
II. SUMMARY OF THE FACTS
4. The facts of the case as submitted by the parties are set out in
the Commission's decisions on admissibility of 20 February 1995,
annexed hereto, and may be summarised as follows:
5. The complaints made on behalf of the first applicant alleged that
on 14 February 1993, while he was grazing animals with his cousin
Serif, members of the security forces stripped them naked, threatened
to rape them and assaulted them. He invoked Articles 3 and 13 of the
Convention. The complaints made on behalf of the second applicant
alleged that on 13 February 1993 security forces carried out an
operation in Çinarönü village during which they forced the men of the
village to lie down in the snow all night, beat and abused them and
burned the house of Ömer Aslan. Articles 3, 5, 6, 8, 13, 14 and 18 of
the Convention and Article 1 of Protocol No. 1 are invoked in this
respect. These complaints were contained in statements dated
17 February and 3 August 1993 taken by the Human Rights Association
(HRA) in Diyarbakir.
6. An investigation (1993/238) was commenced by the public
prosecutor of Savur into the allegations of the applicants. On
30 December 1993, he took statements from izzet and Özcan Aslan. In the
statement of Özcan Aslan, it is stated that soldiers stripped him naked
and ill-treated him, identifying by name a village guard involved. In
the statement of izzet Aslan, it is stated that during an operation in
the village, a soldier took his son by the hair and struck his head
against a wall causing it to bleed and that later his son complained
that while he was grazing the sheep he was stripped by soldiers and
subjected to degrading treatment. On 30 December 1993, statements were
taken from other members of the family including Sevim Aslan, the
mother of Özcan Aslan, who stated that his head had been broken open
during a search by soldiers and that he had said that he had been
stripped by soldiers and his hand injured with pincers. She named one
of the gendarme officers present. Statements were taken on
17 January 1994 and 21 January 1994 from the gendarme officer and
village guard who were named and who denied the allegations. A
statement was taken on 1 February 1994 from the central gendarmerie
commander at Savur who also denied taking part in any operation at the
village. By letter dated 27 December 1993, the gendarme district
commander responded to the enquiry of the public prosecutor stating
that according to their records the Savur District gendarmerie had not
carried out any activities on the date or at the place indicated.
7. In a decision dated 18 April 1994, the public prosecutor terminated
the investigation, referring to an absence of evidence and the reply
of the district gendarme command above.
III. THE PROCEEDINGS BEFORE THE COMMISSION
8. The applications were introduced on 9 and 12 August 1993
respectively and registered on 20 August 1993.
9. On 11 October 1993, the Commission decided to communicate
application No. 22497/93 to the Turkish Government, who were invited
to submit their observations on admissibility and merits. On
29 November 1993, the Commission communicated application No. 22491/93.
10. In application No. 22491/93, on 30 March 1994, the Government
submitted observations on the admissibility and merits and on
12 May 1994, the applicant's representatives replied. In application
No. 22497/93, on 22 April 1994, the Government submitted observations
on the admissibility and merits and on 27 June 1994, the applicant's
representatives submitted further observations and information.
11. On 20 February 1995, the Commission declared the applications
admissible and joined them.
12. The text of the Commission's decisions on admissibility was sent
to the parties on 7 March 1995 and they were invited to submit such
further information or observations on the merits as they wished. They
were also invited to indicate the oral evidence which they might wish
to put before delegates.
13. On 9 March 1995, the Government submitted observations on the
admissibility and merits. On 21 April 1995, the Government submitted
observations on the Commission's decision on admissibility. On
30 May 1995, the Government submitted complementary information and
observations.
14. On 1 July 1995, the Commission decided to take oral evidence in
respect of the applicants' allegations. It appointed three delegates
for this purpose: Mrs. G.H. Thune, Mr. N. Bratza and
Mr. E. Konstantinov. It notified the parties by letter of 27 July 1995,
proposing certain witnesses and requesting the Government to identify
security force personnel who were present during the operation in issue
and the relevant public prosecutor.
15. On 17 and 13 September 1995, the Government submitted information
identifying certain witnesses.
16. By letter of 15 September 1995, the applicant's representatives
made proposals as to witnesses.
17. By letter dated 26 September 1995, the Commission requested the
Government to confirm that the entire contents of the investigation
files had been submitted in annex to their previous observations, to
verify whether the two proposed gendarme witnesses had been present
during the operation and, if not, to identify senior officers who would
be able to give eye-witness evidence as to the conduct of the
operation.
18. By letter dated 12 January 1996, the Secretariat informed the
applicants' representatives that the summonses issued to the
applicants, Serif and Ömer Aslan had been returned on the basis that
they were no longer at the addresses indicated. By letter dated
12 January 1996, the applicants' representatives stated that no contact
had yet been made with the applicants. By letter dated
17 January 1996, the Secretariat informed the applicants'
representatives that the summons sent to Sevim Aslan had been returned
by the post. By letter of 25 January 1996, the Government proposed that
three additional witnesses be heard.
19. Evidence was heard by the delegation of the Commission in Ankara
on 6-7 February 1996. Before the Delegates the Government were
represented by Mr. A. Gündüz, Agent, assisted by Mr A. Sölen,
Mr. A. Kurudal, Ms. N. Erdim, Mr. Abdülkadir Kaya, Mr. A. Polat,
Mr. Ahmet Kaya, Mr. C. Aydin, Ms. T. Toros, Ms. M. Gülsen and
Ms. A. Emülser. The applicants were represented by Ms. F. Hampson, and
Mr. O. Baydemir, counsel, assisted by Ms. A. Reidy and Ms. D. Deniz
(interpreter). izzet Aslan appeared at the hearing but Özcan Aslan,
Ömer Aslan, Serif Aslan and Sevim Aslan did not appear. At the
conclusion of the hearings, and later confirmed by letter of
14 February 1996, the Delegates requested the Government to provide
certain information and explanations concerning matters arising out of
the hearing and the applicants' representatives were requested to
clarify the absence of Özcan Aslan at the hearing. The time-limit
expired on 5 April 1996. By letter of 10 April 1996, the applicants'
representatives explained that they were endeavouring to find
information with a view to furnishing an explanation as soon as
possible.
20. On 2 March 1996, the Commission decided to invite the parties to
present their written conclusions on the merits of the case, following
transmission to the parties of the verbatim record. The time-limit was
fixed at 20 May 1996.
21. On 20 May 1996, after an extension of the time-limit until
31 May 1996, the applicants' representatives submitted their final
observations on the merits. On 1 July 1996, the Government submitted
their final observations, after obtaining a further extension in the
time-limit.
22. On 22 May 1997 the Commission decided to strike the present
application out of its list of cases, pursuant to Article 30 para. 1
(c) of the Convention.
23. The Commission adopted the present Report and decided to transmit
it to the Committee of Ministers and the Parties for information and
to publish it. The following members of the Commission were present
when the Report was adopted:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
Mrs. M. HION
Mr. A. ARABADJIEV
IV. THE DECISION OF THE COMMISSION
A. Concerning Application No. 22491/93
24. The applicant Özcan Aslan's representatives submit that there is
no evidence of any desire on his part to withdraw his application. They
have submitted that the Commission should seek to hear evidence from
him and his cousin Serif and that they are trying to locate the
applicant in Istanbul. They point to the evidence which exists to the
effect that an operation did take place at the village, despite earlier
denials of the Turkish authorities, and to the fact that izzet Aslan
did make complaints about ill-treatment to the public prosecutor and
also gave oral testimony that his son Özcan suffered injuries.
25. The Government have contended, in particular in light of the
testimony of izzet Aslan (see below), that there is doubt that any
valid application exists.
26. The Commission notes that the applicant Özcan Aslan was summoned
to give evidence in the taking of evidence in the application presented
on his behalf and that he failed to appear. It recalls that the summons
sent to his address was returned and that since then his
representatives have not had any contact with him and have been unable
to provide an explanation for his absence at the hearing, which was
requested on 14 February 1996 more than a year and three months ago.
27. The Commission has had regard to the seriousness of the
allegations made in the application on behalf of Özcan Aslan.
Nonetheless it recalls that individual applicants bear the
responsibility of co-operating with procedures flowing from the
introduction of their complaints, particularly where factual issues
arise which may only be resolved by their personal participation in the
proceedings (No. 22057/93 Kapan v. Turkey dec. 13.1.97). Given the
length of time since the hearing of evidence in February 1996, during
which no further information from Özcan Aslan has been forthcoming, and
the fact that it is apparent that the applicant's representatives have
not been able to contact the applicant for some time since he has
changed his address, the Commission finds that it is no longer
justified to continue the examination of the petition made on his
behalf, which should therefore be struck off the list pursuant to
Article 30 para. 1(c) (Art. 30-1-c) of the Convention.
B. Concerning Application No. 22497/93
28. The representatives of the applicant izzet Aslan submit that
there is a valid application introduced by him. Though he denied the
signatures on the application documents, he acknowledged that they were
similar. There was also a clear resemblance with the sample signatures
given to the Delegates. While he now states that he wishes to withdraw
any application, the representatives note that he did at one time want
to complain about events, since he made similar complaints to the
public prosecutor, and that though they are not aware of why he now has
changed his mind, they would submit that the Commission should continue
its consideration of the case in the interests of the public order of
Europe (Eur. Court HR, Tyrer judgment of 25 April 1978, Series A
no. 26). They point to the seriousness of the allegations, the
discrepancies in the evidence of official witnesses, and the evidence
which supports the complaints made in the application.
29. The Government submit that there is no valid application. From
izzet Aslan's testimony, they state that a petition was concocted
following a conversation by him with a lawyer of the Human Rights
Association (HRA)in a coffee shop and that he signed something under
the mistaken impression that it was a petition to the Turkish
authorities. They point to the fact that the statement purporting to
bear his signature is dated four days after the events while he stated
that he had spoken to the HRA lawyer four months later and that the
statements of izzet Aslan and other members of his family to the public
prosecutor contradict many of the allegations made in the purported
application to the Commission.
30. The Commission has examined the transcript of the evidence given
by izzet Aslan as regards the circumstances in which he lodged his
application and has had regard to the Delegates' assessment that in
appearing before them he demonstrated an anxiety and unease, which
rendered him reluctant to acknowledge any signature put to him for
confirmation, including his signature on the statement to the public
prosecutor which was not in fact disputed. It agrees with the
representatives' view that the signatures are not markedly dissimilar.
However, even assuming that he did sign the statement of complaints and
the letter of authority, there are doubts as to whether he understood
that it involved a petition to an international jurisdiction and he has
expressed his wish to the Commission's Delegates that the examination
of the application does not continue.
31. The Commission has considered whether it would nonetheless be
justified in continuing the examination of the application. It has
noted that izzet Aslan did claim to witness his son's head bleeding and
that he heard his son state that a soldier had caused it. Supporting
evidence is found in a statement taken by the public prosecutor from
the boy's mother. It also notes that the public prosecutor in reaching
his decision not to prosecute relied, inter alia, on the evidence from
the gendarme command that no operation took place in the village as
alleged whereas before the Delegates one of the gendarme officers
stated that he had taken part in an operation in the village in
February 1993 as a guide. The Government were requested to provide an
explanation for this discrepancy with the official gendarme response
to the public prosecutor's investigation but no reply has been
forthcoming.
32. Notwithstanding these troubling elements, the Commission notes
the lack of evidence to support many of the allegations made in the
application as to ill-treatment and destruction of property. In the
absence of a willingness of izzet Aslan, Özcan Aslan (see above) or
other members of the family to give further, detailed evidence in
respect of events there is no prospect that the Commission can
effectively fulfil its task under Article 28 para. 1 (a) (Art. 28-1-a)
to establish the facts.
33. In these circumstances, the Commission considers that it is no
longer justified to continue the examination of the application
introduced on behalf of izzet Aslan, which should therefore be struck
off the list pursuant to Article 30 para. 1(c) (Art. 30-1-c) of the
Convention.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE APPLICATION Nos. 22491/93 and 22497/93 OUT OF ITS
LIST OF CASES;
ADOPTS THE PRESENT REPORT;
DECIDES TO SEND THE PRESENT REPORT to the Committee of Ministers for
information, to send it also to the parties' representatives, and to
publish it.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy