BINBAY v. TURKEY

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 24922/94
by Yavuz BİNBAY
against Turkey

The European Court of Human Rights (Second Section) sitting on 3 February 2000 as a Chamber composed of

MrC.L. Rozakis, President,
MrM. Fischbach,
MrB. Conforti,
MrG. Bonello,
MrP. Lorenzen,
MrA.B. Baka, judges,

MrF. Gölcüklü, ad hoc judge,
 

andMrE. Fribergh, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 August 1994 by Yavuz Binbay against Turkey and registered on 18 August 1994 under file no. 24922/94;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 10 February 1997 and the observations in reply submitted by the applicant on 18 April 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1956 and living in Van.

He is represented before the Court by Mr Kevin Boyle and Ms Françoise Hampson, both law professors at the University of Essex, England.

A.Particular circumstances of the case

The facts of the case, as submitted by the parties, are disputed and may be summarised as follows.

The applicant

The applicant is a shopkeeper, a former president of the Van Branch of the Human Rights Association and a member of the National Management Committee of the Association.

On 21 March 1992, during the Newroz Festival, the applicant was present as an observer at the Peoples Labour Party (“HEP”) building in Van in his capacity as an officer of the Human Rights Association. Incidents occurred during the festival involving the police which led to a curfew being imposed. As a result, many people were stranded inside the HEP building.

The applicant was anxious that the people inside, particularly the elderly and children, should be able to go home safely and went outside to speak to the police chief and governor. Someone shouted “Here comes Yavuz Binbay – kill him!”. The applicant called out to the Deputy Chief of Police, whom he knew, to protect him, but the Deputy Chief did nothing. Police officers then attacked the applicant with their fists and truncheons and kicked him when he fell, causing him injuries to the chest and to the head. The injuries were life-threatening and required him to remain in hospital for nine days.

Following his discharge from hospital, the applicant was remanded in custody and sent to prison.

On the same day, 21 March 1992, police officers went to the applicant’s shop premises in the Ozel Idare shopping arcade. The arcade watchman, Resat Yurdakil, was threatened and made to leave the area. Between 11.30 p.m. and 12 a.m. the applicant’s shop was raided, the only shop out of 22 on the same floor to be raided, and electrical equipment and household consumer goods were damaged or stolen. On 23 March 1992 the applicant wrote to the Van first instance court requesting that an assessment be made of the damage to enable him to secure his rights. An assessment was carried out by an expert who estimated the loss at TRL 182,002, 000. The Van Directorate of Public Works and Housing wrote to the applicant on 23 September 1992 informing him that his application for compensation had been rejected. The applicant submitted a petition to the Van Administrative Court in which he maintained that his claim should be accepted since the authorities had failed to take sufficient measures to protect property on the day in question. The applicant states that the court rejected his claim.

The applicant states that he complained about the beating he received as well as the damage to his property, but was himself prosecuted for public order offences. He remained in prison for 3 1/2 months, during which time he was tortured. According to a report prepared by Maître William Bourdon, of the Fédération Internationale des Ligues des Droits de l’Homme, who observed the applicant’s trial at the State Security Court at Diyarbakır on 5 and 7 July 1992, there were a number of serious violations of basic human rights standards in relation to the trial. Following Maître Bourdon’s intervention, all the accused were released and the trial was adjourned sine die. The applicant was eventually acquitted on 4 March 1994 for lack of evidence.

On 30 August 1992 while the applicant was in Ankara for a National Executive Committee meeting of the Human Rights Association, his car was damaged while parked opposite his house in Van. Damage to the amount of TRL 9,500,000 was done to the car. A vehicle witness and damage assessment report was draw up by police officers on 31 August 1992. The applicant maintains that his applications concerning the damage to his car have received no response.

The applicant states that, despite being released, he continued to suffer persecution and intimidation at the hands of the Turkish Government. On 5 November 1993 he was taken into custody for two days. On 11 November 1993 he was taken into custody for one day. On 13 January 1994 he was taken into custody for two days. Although he was not physically tortured on these occasions, the applicant states that he was continually threatened and severe psychological pressure was applied to him.

In particular, on 13 January 1994 the applicant’s family were told that he was not in custody and the authorities only admitted that he was in custody a day later. The applicant submits that this tactic was deliberately designed to terrify and intimidate the applicant’s family. It was subsequently alleged that he was in custody because someone had made a statement about him and a case was brought against him in Diyarbakır.

The applicant and his family have for the past years received frequent threatening telephone calls. Offensive and abusive language is always used. The applicant is usually told that he must leave Van or be killed. His wife has developed a psychological disorder as a result of hearing such calls.

In late January 1994, while the applicant was in Ankara, two men describing themselves as policemen came to his shop, asked his employees about him and told them that they wanted to question him. When he returned to Van, the applicant applied on 1 February 1994 to the Public Prosecutor asking whether he was required to answer questions, but was given a written statement that he was not required to attend for further questioning. The applicant submits that this is a further example of systematic and persistent attempts by the authorities to persecute and intimidate him. From about 8 February 1994 onwards the threatening telephone calls increased to about 3 a day; on each occasion the applicant was told that he would be killed.

On 11 February 1994 the applicant had arranged to meet a friend, Cetin Zihrli, at his office. On his way to the meeting, the applicant became aware that two people were following him. On arrival at his friend’s office, the applicant first looked out of the window, but could see nothing suspicious. He decided to check the corridor outside the office. While he was walking in the middle of the corridor he felt a sharp pain in his back. When he recovered consciousness, he found himself in the lift-shaft. Although the applicant can remember that he did not turn or trip, he has no recollection as to how he fell into the lift-shaft.

The applicant suffered an undisplaced fracture of the first lumber vertebrae, a fracture of the left ischium and pubic ramus. He also suffered three fractures of the left distal radius.

While the applicant was in intensive care he was interviewed by members of the State anti-terrorist squad, who persistently asked him whether he recognised the people who pushed him, even though the applicant insisted that he could not remember. The applicant submits that in the circumstances it is highly likely that the Turkish Government or its agents caused or directed his fall into the lift-shaft; alternatively, the Turkish Government, which was taking a particular interest in the applicant, failed to take proper steps to protect him from such harm, or acquiesced in it.

Following his discharge from hospital the applicant has continued to receive telephone calls to the effect that he had escaped this time, but would not be able to next time. He still has broken bones in his hands, and his back pains are continuing. He has been unable to work since.

The Government

The Government, with reference to the events in Van on 21 March 1992, state that illegal demonstrations were organised on that day. Those demonstrations turned to violence and two police officers were killed, twenty-three persons including ten police officers were injured and severe damage was caused to buildings and property. Three hundred shops were looted.

The Government point to the fact that a member of the Administrative Board of HEP, Arif Acar, stated to the police when he was taken into custody that the applicant and HEP members were leading the demonstrators and inciting them to violence. Furthermore, in the applicant’s statement taken on 26 March 1992 he described how damage resulted from the acts of aggression of the demonstrators.

The applicant and other demonstrators took shelter in the HEP headquarters. The crowds outside the building defied an official warning that a curfew would be imposed and continued to attack the police. The applicant emerged from the building to talk to the police. However he was injured when stones were thrown at him. The police had to rescue him and take him to hospital where he was treated for nine days. On being discharged from hospital the applicant was brought before a judge on 31 March 1992 and charged with, inter alia, organising the illegal demonstration. He was detained on remand and released from prison in mid-July 1992. On 4 March 1994 the Diyarbakır State Security Court acquitted the applicant for lack of evidence.

As to the lift-shaft incident of 11 February 1994, the Government draw attention to the fact that the police questioned the applicant on two occasions about this event but he refused to provide them with any information. Accordingly, the police were unable to make any progress in their investigation.

The Government dispute that the applicant was ever taken into custody on 5 and 11 November 1993. They acknowledge that the applicant was held in custody for one day on 13 January 1994 on the authorisation of the Office of the Public Prosecutor attached to Diyarbakır State Security Court. The Government state that the applicant was not ill-treated on that occasion. They aver that the applicant was brought before the Van Public Prosecutor, made a statement and was released from custody on 14 January 1994.

B.Relevant domestic law

The Turkish Criminal Code makes it a criminal offence:

(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),

(b) to issue threats (Article 191),

(c) to subject an individual to torture or ill-treatment (Articles 243 and 245).

For all these offences 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.

The public prosecutor is deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the regional governor shall be subject, in respect of acts performed in the course of their duties, to the Law on the Prosecution of Civil Servants. Thus, any public prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court.

Article 125 of the Turkish Constitution provides as follows:

“All acts or decisions of the administration are subject to judicial review...

The administration shall be liable to indemnify any damage caused by its own acts and measures.”

The above provision is not subject to any restrictions even in a state of emergency or war. The second paragraph of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.

COMPLAINTS

The applicant complains under Article 2 of the Convention. He states with reference to the two serious and life-threatening injuries which he suffered in two separate incidents that the authorities failed to protect his right to life and to identify and prosecute the culprits.

The applicant also invokes Article 3 of the Convention in respect of the beating he received on 21 March 1992, the psychological ill-treatment he experienced while in detention on separate occasions in 1993 and 1994 and the injuries sustained in February 1994.

The applicant further relies on Article 5 § 1 of the Convention on account of the frequent occasions he was detained in police custody without justification.

In addition, the applicant invokes Article 6 of the Convention. He claims that the authorities failed to take proceedings against those responsible for his personal injuries and the damage to his property. This failure, he submits, makes it impossible for him to institute civil proceedings to obtain compensation.

Furthermore, the applicant refers to the effect which the persistent threatening telephone calls have on the enjoyment of his right to the respect for his home and family life, in breach of Article 8 of the Convention and maintains that the climate of harassment has been deliberately intended to force him to refrain from the exercise of his right to hold opinions and to receive and impart information, in contravention of Article 10 of the Convention.

The applicant states that he has no effective remedy in respect of the above complaints and is thus a victim of a breach of Article 13 of the Convention.

The applicant contends also that the damage caused to his shop and car engages the responsibility of the authorities under Article 1 of Protocol No. 1 to the Convention.

The applicant submits that that the responsibility of the authorities is also engaged under Article 14 separately and taken together with the above mentioned Articles of the Convention on account of the fact that he is of Kurdish origin.

In conclusion, the applicant relies on Article 18 of the Convention in support of his submission that the injuries and damage which he has sustained are part of a State-authorised practice.

PROCEDURE

The application was introduced on 11 August 1994 and registered on 18 August 1994.

On 2 September 1996 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 10 February 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 18 April 1997.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains under Articles 2, 3, 5, 6, 8, 10, 13 and Article 1 of Protocol No. 1 to the Convention as well as under Article 14 taken together with these Articles. He also invokes Article 18 of the Convention.

The Government’s preliminary objections

1. Non-exhaustion

The Government state in reply that the applicant has failed to exhaust domestic remedies in respect of these complaints and on that account his application should be ruled inadmissible under Article 35 § 1 of the Convention.

The Government draw attention to the fact that the applicant never lodged a complaint with the public prosecutor that he had been ill-treated by the police on 21 March 1992. In fact the applicant owed his life to the police since it was they who transported him to hospital. Furthermore, when the applicant was questioned about the lift-shaft incident which occurred on 11 February 1994 he stated that he could not recall who was responsible and indicated that he had no complaint to make. He never filed a complaint with the public prosecutor in connection with this incident.

The Government further contend that it would have been open to the applicant to file a complaint under Article 547 of the Penal Code with the public prosecutor that his family were receiving threatening phone calls. He failed to do so.

The Government also state that in his petition of 23 March 1992 to the Van first instance court, the applicant requested an expert assessment report of the material damage he sustained to enable him to assert his rights to compensation. However, the applicant never took any steps thereafter to seek compensation. In the Government’s submission the applicant, by his own admission, by-passed domestic administrative law proceedings and applied directly to the Commission in order to expedite the examination of his complaint. In these circumstances he must be taken to have failed to comply with the non-exhaustion rule in Article 35 § 1 of the Convention.

The applicant affirms that domestic remedies in south-east Turkey are ineffective. He states that on each occasion when he or his property had been attacked he tried to avail himself of domestic remedies, either by raising his complaint with the authorities or by seeking compensation. His attempts proved futile.

The applicant submits that he was in no position to file a complaint in respect of the assault carried out on him on 21 March 1992 since he was hospitalised for nine days and was then remanded in custody by the domestic court without any statement having been taken from him. He further maintains that on 9 April 1992 he lodged a complaint with the public prosecutor about the treatment which he suffered at the hands of the police. However he was informed that on 28 April 1992 that the public prosecutor had declined jurisdiction. He states that in a statement to the police dated 26 March 1992 he declared that he had been attacked by police officers on the day in question and he repeated this assertion at his trial. However no follow-up was ever given to his complaint by the authorities despite the fact that the assault had been witnessed by several police officers on the day in question.

As to the further assault carried out on him on 11 February 1994, the applicant contends that the police questioned him twice about the incident when he was in an emergency ward in hospital. Since the police knew that he had been attacked it was incumbent on them to inform the public prosecutor of the crime and to initiate an investigation. Furthermore, the police made no effort to interview him when he had recovered from his injuries; nor did they take any measures to find possible witnesses to the incident. The applicant states that in view of this inactivity, and given the absence of any follow-up investigation into the assault on him by the police on 21 March 1992, any attempt on his part to invoke remedies would have been futile. In the applicant’s submission, the attacks on his life are part of an orchestrated official campaign to eliminate prominent Kurdish figures active in the Human Rights Association or DEP/HADEP, a campaign which is characterised by the absence of any effective investigations into the victims’ killings.

The applicant also repudiates the Government’s claim that he did not follow up his application for compensation in respect of the damage caused to his property on 21 March 1992. He states that he applied to the Van Public Works and Housing Directorate on 21 July 1992 and then to the Van Administrative Court on the basis of the damages assessment report which he had obtained. Compensation was refused. Furthermore, his spouse made an official complaint concerning the damage to his car. However the authorities did not respond to the complaint. The applicant also refutes the Government’s suggestion that he should have lodged an official complaint in respect of the threatening phone calls made to his home. In his opinion any such complaint would have proved worthless given that agents of the State were behind the calls and having regard to the lack of vigour with which the authorities had dealt with his other complaints.

2. Six months

The Government maintain that the applicant’s complaints are time-barred under Article 35 § 1 of the Convention. They maintain than a period of more that six months elapsed from the date of the events giving rise to the application and the date of introduction of the application (11 August 1994). As regards certain complaints the time lapse was of the order of two to two and a half years.

The applicant concedes that, with the exception of the attack which took place on 11 February 1994 and the threatening phone calls, all other incidents occurred more than six months prior to the date of introduction of his application. However he submits that he is the victim of a pattern of events which engage the responsibility of the State or its officials, the recent event being the attack on his life on 11 February 1994. Having regard to the on-going and consistent nature of the acts directed against his life and personal security, the applicant maintains that time should be taken to run as of 11 February 1994. On that account it must be concluded that his application has been brought within the six month rule.

The Court’s conclusion

The Court observes that the essence of the applicant’s complaints is that he is the victim of a sustained campaign of intimidation and harassment which began with the alleged attack by police officers on his life on 21 March 1992 and which has continued up until the date of the introduction of the applicant’s application on 11 August 1994. The applicant maintains that his application should not be defeated on either of the grounds advanced by the Government since the authorities of the respondent State are behind the separate attacks on his person and property, have unjustifiably deprived him of his liberty on three occasions and have failed to act on the complaints which he has lodged with them. The applicant highlights in particular the lack of any effective official investigation into the assault on his person which took place on 21 March 1992 and 11 February 1994 that the pursuit of domestic remedies to seek redress for his complaints would be futile.

In the Court’s opinion, and having regard to the nature of the applicant’s submissions, the Government’s objections to the admissibility of the applicant’s complaints can only be properly answered in the light of an examination of the merits of the various individual complaints. For this reason the Court joins to the merits the Government’s preliminary objections.

Merits

1.The applicant asserts the facts of the case disclose a violation of his rights under Articles 2 and 3 of the Convention, which provide respectively:

Article 2:

“1.  Everyone’s right to life shall be protected by law.”

Article 3:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The applicant does not dispute that the intervention of the Chief of Police probably saved his life on 21 March 1992. However he states that the Chief of Police intervened in order to stop the police from beating him further. In the applicant’s submission, it is significant that the Chief of Police was later moved to a desk job in Ankara. The applicant also notes that there is a contradiction in the Government’s account of the incident, namely if he were supposedly inciting the demonstrators to violence why should they attack him? He also draws attention to the fact that he was surrounded by police officers at the time which would have made it impossible for the demonstrators to assault him. The applicant maintains in addition that the police must have known the identity of his assailants. However they have never held anyone responsible for the attack.

The applicant states that no reliance can be placed on Arif Acar’s statement since the latter subsequently retracted it and pleaded in court that the statement had been obtained under duress.

The applicant also maintains that the attack on his life on 11 February 1994 is the work of the authorities. He states that his conclusion is confirmed by the fact that the attack occurred after he had been detained on three occasions and repeatedly threatened over the telephone. In support of this allegation the applicant also relies on the confession of a certain Murat Demir on Turkish television that the latter had received an order to kill him. The applicant also finds it significant that members of the anti-terror squad came to the hospital to interview him. The applicant repeats his assertion that the authorities made no attempt to investigate the incident and that they have no intention of finding the culprits.

The Government reiterate their view that the police saved the applicant’s life during the incident which occurred in Van on 21 March 1992. The applicant in fact confirmed this in his statement dated 26 March 1992. Furthermore, the applicant refused to provide the police with any information as to the circumstances surrounding the assault on him on 11 February 1994. In the Government’s submission the applicant’s lack of co-operation limited the possibilities for tracing his assailants.

For the above reasons the Government contend that the applicant’s complaints under Articles 2 and 3 of the Convention are manifestly ill-founded.

2.The applicant invokes Article 5 of the Convention, which provides as relevant:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...”

The applicant states that Nazmi Gur, the Deputy Secretary General of the Human Rights Association in Ankara, was an eye witness to his detention on 5 and 11 November 1993. He further contends that his detention on 13 January 1994 was arbitrary. He states that on each occasion he was detained he was subjected to threats and psychological pressure.

The Government deny that the applicant was taken into custody on 5 and 11 November 1993 as alleged. On the one occasion when he was taken into custody in accordance with correct procedures, namely on 13 January 1994, he was released the following day without harm.

3.The applicant alleges that there has been a violation of Article 6 of the Convention, which provides as relevant:

“1.  In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ...”

In the applicant’s submission the absence of any official investigation into the attacks on his life and property made it impossible to institute compensation proceedings and thus denied him access to a court.

The Government reiterate that the applicant never availed himself of domestic remedies in respect of his claims for pecuniary and non-pecuniary damage.

4.The applicant invokes Article 8 of the Convention which provides as relevant:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The applicant holds the authorities responsible for the threatening phone calls which he and his wife have received at their home.

The Government reiterate their view that the applicant failed to file a complaint under Article 547 of the Penal Code with the public prosecutor that his family were receiving threatening phone calls. Furthermore, they claim that the alleged harassment is the act of an individual which cannot be imputed to the State or its officials.

5.The applicant invokes Article 10 of the Convention, which provides:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The applicant claims that the unlawful conduct of the authorities is intended to prevent him, a member of Human Rights Association, from expressing and imparting views, opinions, information and ideas.

The Government repudiate the applicant’s assertions.

6.The applicant invokes Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The applicant states that the continuous nature of the attacks establish the absence of any effective remedies which would allow him to put an end to the pattern or have the perpetrators identified.

The Government refute this contention and refer to their arguments on the applicant’s failure to exhaust effective domestic remedies.

7.The applicant invokes Article 14 of the Convention, which states:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

In the applicant’s submission he is being targeted by the authorities on account of his position as a human rights activist and his political opinions as a Kurd. He maintains with reference to his complaints under Articles 2, 3 5, 6, 8, 10 and 13 of the Convention and Article 1 of Protocol No. 1 thereof that only persons of Kurdish origin are subjected to such violations of their Convention rights and that there is an administrative practice of violation of Article 14

The Government rejects these allegations.

8.The applicant complains that the acts of which he a victim establish a breach of Article 18 of the Convention, which reads:

“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

In the Government’s submission the applicant’s allegation are without any foundation.

9.The applicant relies on Article 1 of Protocol No. 1 to the Convention, which provides as relevant:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”.

The applicant contends that his shop was the only one of twenty-two shops on the same floor and twenty-four on the lower floor which were damaged on the night of 21 March 1992 during the curfew and after the police had forced the night watchman to leave the vicinity. The applicant submits that his shop had been deliberately targeted by the police. Furthermore his car was deliberately damaged on 30 August 1993 and no follow-up has been given to his spouse’s formal complaint.

The Government state that in his petition of 23 March 1992 to the Van first instance court, the applicant requested an expert assessment report of the damage he sustained to enable him to assert his rights to compensation. However, the applicant never took any steps thereafter to seek compensation. In the Government’s submission the applicant by his own admission by-passed domestic administrative law proceedings and applied directly to the Commission in order to expedite consideration of his complaint. In these circumstances he must be taken to have failed to comply with the non-exhaustion rule in Article 35 § 1 of the Convention.

The Government reject the applicant’s claim that State officials deliberately damaged either his property or car. They contend that the applicant’s shop, along with three hundred other shops, were looted or damaged by demonstrators in Van on 21 March 1992, not on the previous day as the applicant tried to maintain in his application. The exact date of the damage of the damage to his shop was in fact confirmed in the report prepared by the expert, Ibrahim Şahin. As to the damage caused to the applicant’s car, the Government assert that there is no concrete evidence which links State officials to the incident and the absence of witnesses or other clues has prevented the authorities from finding those responsible for the damage.

The Court’s conclusion on the above complaints

The Court considers, in the light of the parties’ submissions, that the above-mentioned complaints 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. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, by a majority,

DECIDES TO JOIN TO THE MERITS the Government’s preliminary objections;

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

Erik FriberghChristos Rozakis
RegistrarPresident

 

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