AS TO THE ADMISSIBILITY OF
Application No. 25657/94
by Behçet AVSAR
against Turkey
The European Commission of Human Rights sitting in private on
14 October 1996, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
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 10 October 1994
by Behçet Avsar against Turkey and registered on 14 November 1994 under
file No. 25657/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 20 February 1995 to communicate the
application ;
- the observations submitted by the respondent Government on
14 June 1995 and the observations in reply submitted by the
applicant on 31 August 1995 ;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen of Kurdish origin, was born in
1960 and lives in Köln, Germany. He is represented before the
Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both
university teachers at the University of Essex.
A. Particular circumstances of the case
The facts of the present case have not been agreed upon by the
parties.
The applicant claims that the following events have occurred:
Serif Avsar was the brother of the applicant, Behçet Avsar, who
is the European representative of the Kurdish opposition daily
newspaper "Özgür Gündem". Behçet Avsar lives in Köln, Germany. Although
a businessman who was not politically active, Serif Avsar had
previously been detained and interrogated several times, apparently due
to his brother's political activities and their joint involvement in
the newspaper.
On Friday 22 April 1994 at about 11 am, five men came into the
shop owned by the Avsar family in Diyarbakir. The men said they were
policemen and Serif Avsar spoke to them first. They said they wanted
him to go with them and give a statement on behalf of another brother
of the applicant, Abdül Kerim, who was then in custody in the
Diyarbakir prison. Serif Avsar claimed that he did not know who they
were, as they had not identified themselves and he did not recognise
them. Serif Avsar further stated that if a statement was needed, then
uniformed policemen should come and get it from him; he would be happy
to go with them to provide it. There was then an argument between the
five men and the Avsar family members in the shop (mentioned thereafter
as "the witnesses") over whether they should take Serif Avsar. The five
persons then said that they would call the police station in order to
identify themselves. As a result of their telephone conversation it
became clear to the witnesses that the men were in fact "village
guards". Two more people then appeared and claimed to be policemen.
Serif Avsar asked them their identities. They showed two cards but the
witnesses could not ascertain whether the cards indeed identified them
as policemen.
The argument continued until one of the last two men to arrive
pulled out a gun. All of the other men then pulled out their guns.
Serif Avsar believed that they were going to shoot the other Avsar
family members in the shop, and so agreed to go with them. The
witnesses saw them all get into a white Renault (Registration Number
21 AF 989) and drive away. There were five people in the car, including
Serif Avsar. The remaining three got into a taxi (Registration Number
21T 1127) and drove off after them. The witnesses then jumped into
their car and followed the men to the Gendarme Headquarters in
Saraykapi. The witnesses could not get inside the Headquarters as they
were in a normal car as only official vehicles and taxis were allowed
in. They could, however, see the three men who they had identified as
"village guards" outside the building. The witnesses asked one of the
guards where their brother was. The guard denied any knowledge of him.
The witnesses pointed out to the Duty Officer the man who had brought
Serif Avsar to the building. The witnesses then saw one of the two men
who had arrived at the Avsars' shop last driving off in a navy blue
Renault 21 (Registration Number 06C DE35).
The witnesses returned to their shop and called the police,
informing them that their brother had been kidnapped. The police said
their brother had not been kidnapped but was in fact at the Gendarme
station. The witnesses said that the Gendarmes had just denied that.
The policemen on the other end of the phone did not respond to this and
hung up the phone. At 4.30 pm on the same day, the witnesses received
a telephone call to their home and an unidentified person told them "We
have dealt with your brother, we have killed him and you are all in the
queue".
On 24 April 1994, Serif Avsar's father spoke to the Minister for
Human Rights who said that he had spoken to the Governor and the
Minister of Interior Affairs about Mr. Avsar's disappearance. They had
told the Minister that Serif Avsar was in the hands of the Special Unit
and if they could get there in time they would save him. The witnesses
were told that the Minister of Interior Affairs said the same on
25 April 1994, to Mr. Kamil Genç, the social democratic party MP for
Tunceli.
The Avsar family subsequently made written petitions to the State
of Emergency Regional Governor, the State Security Court Prosecutor,
and the Judicial Prosecutor. All denied that Serif Avsar had ever been
in the custody of the authorities. The applicant's family undertook an
intensive campaign to ascertain the whereabouts of Serif Avsar, with
the help of Amnesty International, the PEN centres in numerous
countries, the International Federation of Journalists, and other
organisations. The Turkish officials all denied that Serif Avsar was
being held.
On 7 May 1994, the Avsar family was asked by telephone to go to
the university hospital in Diyarbakir to identify a body found in a
wasteland area near the village of Toprakli, in the district of Silvan
in south-east Turkey. The Avsar family confirmed that the body was that
of Serif Avsar. Mr. Avsar had been shot twice in the head, and an
autopsy reportedly established that he had been killed some 10 days
earlier, five days after his abduction.
On 16 May 1994, Osman Yavuzalp, Third Secretary of the Turkish
Embassy in Brussels, sent a reply to the International Federation of
Journalists' request for information on the Avsar case, stating (in
translation) as follows:
"Avsar was abducted by provisional village guards at about 11.30
am on 22 April 1994. According to the witnesses the abductors of
Mr. Avsar could be identified. They were Ömer Güngör, Yasar Günbam,
Zeyyat Aksin, Feyzi Gökçen, Aziz Erbey and Mesut Mehmetoglu. They were
placed in detention on 5 May 1994 and claimed to have taken and killed
Mr. Avsar in a vendetta. The body of Mr. Avsar was found in a field by
the side of a national road which linked the towns of Silvan and
Diyarbakir. The Public Prosecutor is informed of the affair. The
suspects have been arrested and the investigation is in process".
However, according to a spokesman of the Gendarme Headquarters
in Diyarbakir-Saraykapi, the five militiamen involved have been put
under "police supervision". No action appears to have been undertaken
to ascertain the identity of the two plain-clothes officers involved
in the abduction and murder. One source has suggested that the men in
plain-clothes were members of the gendarmerie intelligence service
JITEM attached to the Hazro Gendarmerie (Amnesty International Urgent
Action).
Serif Avsar's family has been under intense pressure to drop
their campaign for justice in Mr. Avsar's abduction and murder. They
receive almost daily anonymous telephone calls threatening them with
death, and policemen have repeatedly visited the family home issuing
threats. On 3 April 1994, two policemen visited the premises of the
Avsar family business, accompanied by two members of the political
party MHP (National Movement Party). The four men questioned the action
undertaken by the family to ascertain the whereabouts of Mr. Avsar, and
issued threats such as: "Why have you created such a fuss? You confuse
everything. This will not do you any good!"
On 18 June 1994, the abduction of two cousins of the applicant
has been attempted in the town of Bismil. After a chase, one of the
cousins was taken into custody. However, due to the other cousin's
escape, and the Avsar family's discovery that the car used in the
attack belonged to one of the corporals in the Gendarmes, the detained
cousin was released the next day.
On 5 July 1994, six people accused of the kidnapping and killing
of Serif Avsar were put on trial in Diyarbakir. Five of the defendants
- Ömer Güngör, Fevzi Gökçen, Yasar Günbam, Aziz Erbey and Zeyyat Aksin
- are village guards, and the sixth defendant, Mesut Mehmetoglu, is a
government informant. The State Prosecutor has requested the death
penalty in each case.
The Prosecution's case against the village guards is, in each
case, based on the guard's confessions, which they have said in court
were extracted under pressure, and which contain contradictory evidence
about the role of the government informant, Mesut Mehmetoglu, in
ordering Serif Avsar's murder. According to an article in the Turkish
Daily News of 7 July 1994, Yasar Günbam said "We cannot talk very much
about the incident. The government authorises us to take some people
and we do it. We are blamed for it. If we had not obeyed the orders we
would have been fired."
The Government claim that the following events have occurred :
On 21 April 1994 four village guards were ordered by the gendarme
commandant of Hazro District to drive some suspects to the Diyarbakir
Gendarme Station in a private car (Registration Number 21 AF 989). On
their way to Diyarbakir, they were asked to give a lift to ÖG, another
village guard. After having transferred the suspects to the Diyarbakir
Gendarme Station, the five village guards spent the night in
Diyarbakir.
On 22 April 1994, as the five village guards were sitting in a
cafe in Diyarbakir, ÖG explained to the others that his brother had
been kidnapped and killed by the PKK and that his body had never been
found. He also said that Mehmet Serif Avsar, who had some links with
the PKK, could tell them where the body was if they took him to the
Gendarme post for interrogation. The four other village guards accepted
this proposal and all together they went to the shop of the Avsar
family. When Serif Avsar questioned their identity, one of the village
guards got out of the shop and asked a policeman whom he knew and who
happened to be passing by (MM), to confirm that all five were village
guards. Finally the four village guards got into the car with Serif
Avsar and one village guard and MM got into a taxi. MM got out of the
taxi before arriving at the Gendarme Command in Saraykapi. The car
stopped for a while in front of the Saraykapi Gendarme Command. ÖG told
the others that he intended to take Serif Avsar to the Lice gendarme
headquarters. The four other village guards accepted this and the group
left for Lice. However, after a while, the four village guards
renounced to go to Lice without the permission of their commander. ÖG
and Serif Avsar got out of the car. ÖG asked the others to send a taxi
from the city.
As they were alone, ÖG asked Serif Avsar where the body of his
deceased brother was. They argued for a while and ÖG shot Serif Avsar
to death.
The four village guards came back and took ÖG into their car.
They went to Hazro and left the car in front of the Gendarme
headquarters.
The applicant complained of the death of his brother and the
village guards were identified and arrested. ÖG claimed to have killed
Serif Avsar and explained that the body of Serif Avsar could be found
on the Diyarbakir-Lice road. Autopsy reports established that he had
been killed 10 or 20 days earlier.
The proceedings are still pending before the Criminal Court in
Diyarbakir, which has held several hearings in order to take and
examine evidence, but has not yet pronounced its judgment.
COMPLAINTS
The applicant complains of violations of Articles 2, 3, 10 and
14 of the Convention.
As to Article 2 he alleges that the intentional deprivation of
the life of his brother was not attributable to any of the exhaustive
purposes listed in para. 2 of the Convention, was not proportionate to
any ground on which force that might result in death could be used and
was not absolutely necessary to achieve any legitimate purpose. He also
refers to the inadequate protection for the right to life in domestic
law.
As to Article 3 he complains of discrimination on grounds of
language and ethnic origin.
As to Article 10 he maintains that the murder of his brother and
the continuing pattern of intimidation experienced by his relatives in
South-East Turkey has the purpose of preventing him from practising his
journalism.
As to Article 14 the applicant refers to discrimination on the
ground of the Kurdish origin of his brother and himself in the
enjoyment of their rights under Articles 2, 3 and 10 of the Convention.
The applicant maintains that there is no requirement that he
pursue alleged domestic remedies.
According to him any alleged remedy is illusory, inadequate and
ineffective because:
a) the operation which led to the killings in this case was
officially organised, planned and executed by the agents of the
Government;
b) there is an administrative practice of not respecting the rule
which requires the provision of effective domestic remedies;
c) whether or not there is an administrative practice, the situation
for Kurdish people in South-East Turkey is such that potential
applicants have a well-founded fear of the consequences, should they
invoke alleged remedies;
d) the applicant has done everything possible to exhaust domestic
remedies by appealing to local, regional and national officials
regarding Serif Avsar's disappearance and subsequent murder.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 November 1994 and registered
on 14 November 1994.
On 20 February 1995, the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
14 June 1995. The applicant replied on 31 August 1995.
On 20 March 1996, the Government informed the Commission of the
state of proceedings before the national jurisdictions.
On 23 April 1996 the Government were requested to provide, not
later than 10 June 1996, further information on the state of
proceedings before the national jurisdictions. No information has been
submitted by the Turkish Government.
THE LAW
The applicant complains of kidnapping and killing of his brother
by State officials. He invokes Articles 2 (Art. 2) (right to life), 3
(Art. 3) (freedom from inhuman treatment), 10 (Art. 10) (freedom of
expression) and 14 (Art. 14) (freedom from discrimination in respect
of protected rights) of the Convention.
Exhaustion of domestic remedies
The Government argue that the applicant has failed to exhaust
domestic remedies as required by Article 26 (Art. 26) of the Convention
since the proceedings before the Criminal Court at Diyarbakir are still
pending.
The applicant refers to the length of time which the
investigation is taking. He also disputes the efficacy of an
investigation which is being carried out by the body which is alleged
to be responsible for the violation.
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).
While the Government refer to the pending proceedings before the
Criminal Court at Diyarbakir, the Commission notes that the incident
occurred on 22 April 1994 and the investigation has not yet been
concluded more than two and a half years later. The Commission is not
satisfied in view of the delays and the serious nature of the alleged
crime that this inquiry can be considered as furnishing an effective
remedy for the purposes of Article 26 (Art. 26) of the Convention, in
particular having regard to the circumstances of this case where the
relevant evidence would appear to easily accessible to the authorities.
No explanation has been given as to any obstacles in the way of
bringing the investigation to a conclusion.
The Commission finds also that in the circumstances of this case
the applicant is not required to pursue any legal remedy separate to
the proceedings before the Criminal Court of Diyarbakir (see eg. No.
19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75, p. 207). The
Commission concludes that the applicant may 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 substance of the applicant's complaints
The Government state that the applicant's brother was killed as
a result of personal vendetta by ÖG acting by himself and without the
authority of the State. They also state that the victim never entered
to the buildings at the Gendarme Command, therefore Gendarmes were not
involved in the killing of the applicant's brother and the village
guards were not acting under orders of the State.
The applicant points out disputes that the facts as provided by
the Government are different from those provided by the eyewitness
accounts of the brothers of the victim. He refers to some witness
accounts that there were two persons claiming to be security force
members, a policemen and a gendarme officer, who came into the shop to
help the village guards. He states that the presence of these two
persons supports his claim that the abduction of his brother was
conducted on the orders of agents of the State.
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.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy