ERDOGAN, SiMSEK, HAKKI ILCI, ÖZKAYA, ELIUYGUN AND NURLU v. TURKEY



                      AS TO THE ADMISSIBILITY OF

                 Application No. 19807/92

                 by 1. Hüseyin ERDOGAN

                      2. Sevgi ERDOGAN

                      3. Esme SiMSEK

                      4. Hüseyin SiMSEK

                      5. ismail Hakki ILCI

                      6. Nahit ÖZKAYA

                      7. Mahmut Ali ELiUYGUN

                      8. Necla NURLU

                 against Turkey

     The European Commission of Human Rights sitting in private on

16 January 1996, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 C.L. ROZAKIS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

           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 6 January 1992 by

by Mr. Hüseyin Erdogan, Ms. Sevgi Erdogan, Ms. Esme Simsek, MM. Hüseyin

Simsek, ismail Hakki Ilci, Nahit Özkaya, Mahmut Ali Eliuygun and

Ms. Necla Nurlu against Turkey and registered on 7 April 1992 under

file No. 19807/92;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the Commission's decision of 9 September 1992 to communicate the

     application;

-    the observations submitted by the respondent Government on 7

     January and 10 May 1993 and the observations in reply submitted

     by the applicants on 8 April and 29 October 1993;

-    the additional information and observations submitted by the

     applicants on 23 December 1994 and by the Government on 16 March

     and 20 July 1995;

-    further information submitted by the applicants on 16 October

     1995 and by the Government on 12 January 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicants are all Turkish citizens. They are relatives of

ibrahim Erdogan, Yücel Simsek, ibrahim Ilci, Cavit Özkaya and Hasan

Eliuygun, alleged members of Dev-Sol (Revolutionary Left) who were

killed by the security forces in Istanbul on 12 July 1991.

     The applicants' particulars, i.e., their dates of birth, place

of residence and their relationship to those who were killed in the

operation are as follows:

Name               Date          Resident    Relationship

                   of birth      at

Hüseyin ERDOGAN      1933        istanbul   ibrahim Erdogan's father

Sevgi ERDOGAN        1956        istanbul   ibrahim Erdogan's wife

Esme SiMSEK          1946        istanbul   Yücel Simsek's mother

Hüseyin SiMSEK       1942        istanbul   Yücel Simsek's father

ismail Hakki ILCI    1960        izmir      ibrahim Ilci's brother

Nahit ÖZKAYA         1962        istanbul   Cavit Özkaya's brother

Mahmut Ali ELiUYGUN  1926        istanbul   Hasan Eliuygun's father

Necla NURLU          1956        istanbul   Hasan Eliuygun's sister

     The applicants are all represented before the Commission by Ms

Françoise Hampson, senior lecturer in law in the University of Essex.

     The facts as submitted by the parties may be summarised as

follows.

1.   General background

     On 12 July 1991 the police carried out operations against Dev-Sol

activists in four buildings located in different areas in Istanbul. Ten

alleged members of Dev-Sol were killed during these operations. No

police were killed or injured.

     According to the applicants, in every case, the victims had been

under surveillance for some time and the area was sealed off before the

operation. The applicants also submit that the operations were

coordinated. According to some newspaper reports, the Minister of

Interior Affairs at the material time had confirmed in a press

statement that the victims had been under surveillance before the

operations took place and that the operations had been coordinated.

     According to certain of the newspaper reports, after the

operations Mr. Mehmet Agar, Chief of the Istanbul Police, congratulated

the members of the police force who had taken part in the raids.

     The purpose of the operations, according to the Government, was

to apprehend those who were suspected of having been involved in

terrorist activities and to bring them to trial and also to prevent

possible terrorist attacks.

     According to the applicants, the purpose of the operations must

be inferred from the result. All the alleged terrorists were killed.

The only person injured was a resident in the building. Following the

killings, there was no police investigation. The applicants assert that

the arming of the police with grenades and their use during the

operations was inconsistent with any intention to arrest.

     The Government submit that the police made several calls to

surrender. The police reports suggest that in each case several calls

to surrender were made, to which the deceased replied by opening fire.

     According to the applicants, the Government have failed to

distinguish between the four different locations or to adduce

independent evidence that calls to surrender were made in each case.

     Certain newspaper reports suggest that there were calls to

surrender, while some others claim that no call to surrender was made.

     The Government submit that the deceased were armed. They further

submit that in each case the deceased opened fire first. According to

the police reports, in each location, guns and rifles of various size,

bombs, hand grenades and material used for producing explosives were

found. The Public Prosecutors' reports confirm this.

     The applicants, who contend that no Public Prosecutor in fact

attended at the scene of any of the operations, rely on the lack of any

independent corroborative evidence of this assertion.

2.   Particular circumstances of each of the four operations

     The circumstances of the four operations, which were coordinated,

were as follows:

(a)  Ekmek fabrikasi Sokak, No 26/1 - Nisantasi - istanbul

     According to the Police Reports, this apartment was the first to

be raided at 19.00 hours on 12 July 1991.

     The police reports suggest that there was an armed clash for one

and a half hours between police and those inside the building. A

resident (I.G.) who tried to run away from the place of the incident

was shot by the police and wounded.

      Two alleged terrorists were killed by the police at this

location: ibrahim Ilci and Bilal Karakaya.

     The autopsy report on Ilci states the cause of death as rib

fractures and internal haemorrhage due to bullet wounds.

(b)  Dikilitas Gelincik Sokak, No 6/2, Besiktas - istanbul

     The police reports suggest that this was the second building to

be raided at 19.45 hours on 12 July 1991. They also suggest that there

was an armed clash between the police and the alleged terrorists.

     Cavit Özkaya and Hasan Eliuygun and three other alleged

terrorists, Niyazi Aydin, Zeynep Eda Berk and Nazmi Türkcan, were

killed at this address.

     The autopsy report on Cavit Özkaya gives his cause of death as

an internal haemorrhage, fractures of shoulder blades and ribs,

concurrent with the perforation of internal organs resulting from

bullet wounds.

     A Forensic Pathologist who, at the request of the applicants,

inspected the premises after the incident and examined the autopsy

reports ("the Forensic Pathologist"), commented that the only fatal

wound to the front of Özkaya was probably the last shot to the body and

that it was fired when the body was on a firm surface, such as the

ground. According to the Forensic Pathologist, three of the fatal shots

and two non-fatal shots indicate that the individual was shot from

behind.

     The autopsy report on Hasan Eliuygun gives his cause of death as

internal haemorrhage caused by bullet wounds. The report indicates that

he was shot by five bullets. Five metal fragments also hit his body.

(c)  Balmumcu, Özmelik Apartmani, No 11/1 Besiktas, istanbul

     This was the third building raided at 22.30 hours.

     Two alleged terrorists were killed at this address: ibrahim

Erdogan and Yücel Simsek. The official report claims that there was an

armed clash with the people inside the building. No police were killed

or injured.

     The autopsy report on ibrahim Erdogan gives his cause of death

as internal bleeding due to bullet wounds and skull and spinal column

fractures. According to the autopsy report on Yücel Simsek, his death

occurred as a result of internal and external haemorrhage, destruction

of the brain and skull and vertebrae fractures caused by bullets and

metallic parts of an explosive material.

     According to the Forensic Pathologist, "there is no evidence of

an exchange of gunfire having occurred within the apartment; the main

room of the apartment shows evidence of a minimum of 9 gunshots having

been fired, all 9 gunshots fired in the main room of the apartment were

directed downwards towards the floor with a shooter to target distance

of about 3 metres or less; if a person was shot dead within the main

room of the apartment, the evidence suggests that the person was on or

close to the floor, within 3 metres of the shooter, and was not firing

a weapon at the time of being shot".

(d)  1. Levent, Birlik Sokak No 10/1, Besiktas - istanbul

     The fourth raid took place at this location. One alleged

terrorist, Ömer Coskunirmak, was killed there. His death is not the

subject of any application to the Commission.

3.   Proceedings before the domestic authorities

(i)  Complaint by Sevgi Erdogan to the Public Prosecutor against the

     Istanbul Chief of Police and the police officers who participated

     in the operations

     On 16 July 1991 the second applicant Sevgi Erdogan filed a

complaint with the Public Prosecutor of istanbul. Her legal

representatives claimed that, having regard to the use of grenades

during the operation, the presence of explosive fragments found in the

bodies of the deceased, the signs on the bodies which indicated that

they had been shot at close range, the fact that the operation was

carried out within a short space of time and the fact that all the

people living in the raided house had been killed, it was apparent that

the security forces had aimed at killing these persons rather than

arresting them. It was further submitted that, as none of the members

of the security forces had been injured, it was questionable whether

there had really been any clashes. It was requested that criminal

proceedings be instituted for murder against the Istanbul Chief of

Police and the security personnel involved in the operation.

     On 28 November 1991 the Istanbul Public Prosecutor's Office

referred the matter to the istanbul Governor's Office to obtain a

decision as regards prosecution pursuant to the provisions of the Law

on the Prosecution of Civil Servants. The istanbul Provincial

Administrative Council subsequently decided that there were no grounds

for opening an investigation.  No appeal was lodged against this

decision.

(ii) Criminal Proceedings instituted by the Public Prosecutor of

     Istanbul before the Sixth Chamber of the istanbul Criminal Court

     (Agir Ceza Mahkemesi)

     In an indictment dated 25 February 1992, the Public Prosecutor

of Istanbul charged nine policemen, in relation to the events in three

locations referred to in Sections 2 (b) (c) and (d) above, with

unintentional homicide and causing death in a way which rendered the

identification of the perpetrator impossible. The charges were brought

under Articles 452/1, 463, 50 and 51/2 of the Turkish Criminal Code.

     During the first hearing which took place on 21 April 1992 the

applicants Sevgi Erdogan, Nahit Özkaya, Hüseyin Simsek, Esme Simsek and

Mahmut Eliuygun applied to the Court to intervene in the proceedings.

In their statement to the Court, the applicants submitted that, "apart

from the so-called warnings to surrender, there was no indication of

either an intention or a willingness to arrest these people alive ...

It is essential in this case to investigate whether or not the object

of the operation was to arrest these people". The Court granted their

applications at the hearings on 7 July and 15 September 1992.

     Between 21 April 1992 and 16 June 1993 the defendants made their

statements to the Court. Owing to the late appearance of some of the

defendants, it took eleven hearings for the Court to complete the

taking of oral evidence from all the defendants.

     During the course of five hearings held between 23 September 1993

and 3 March 1994, the Court heard some twenty witnesses.

     Between 1 June 1994 and 24 November 1994 the Court, at the

request of the applicants' legal representatives, adjourned the

hearings several times for them to make their final submissions.

     In a decision dated 8 February 1995, the Court found no grounds

for imposing any punishment on the defendants.  The Court noted the

evidence according to which the deceased had participated in various

terrorist activities. It also noted the evidence showing that weapons

and explosives had been discovered in the flats of the deceased and

found it established that the deceased were members of Dev-Sol. The

Court noted that it had not carried out an examination at the sites of

various operations as requested by the intervening parties since there

had been an initial examination and since there was no purpose in any

further examination having regard to the time which had elapsed since

the events in question. The Court held that, according to the oral

evidence given by the witnesses, in all three operations the area had

first been sealed off and the deceased had been warned many times by

megaphones. According to some witnesses, the deceased had started

shooting from the windows and the security forces had fired back. Some

witnesses had stated that they could not tell clearly who fired first.

However, other witnesses confirmed that they had first heard shootings

from the flats. The Court therefore found it established that the

police had given the necessary warnings, and when being fired on, had

started shooting back. It considered that, in all three cases, the

defendants acted in accordance with their orders and within the scope

of their duties. It found that the acts of the accused remained within

the limits of legitimate defence.

     A relative of Zeynep Eda Berk who had been killed during the

operations appealed from the decision to the Court of Cassation. The

appeal is still pending.

     On 16 February 1995 a petition was submitted to the Court by Mr.

Ahmet Düzgün Yüksel, signed in the capacity as the "legal

representative for the intervening parties" without identifying the

parties. In the petition Mr. Yüksel stated that he had been unable to

be present at the hearing during which he understood that the Court had

given its judgment and that he appealed against the Court's decision

and would submit a detailed statement of appeal after receiving its

reasoned judgment.

(iii) Criminal Proceedings before the Fourth Chamber of the istanbul

      Criminal Court (Agir Ceza Mahkemesi)

     These proceedings concern the killing of Ibrahim Ilci and Bilal

Karakaya in respect of the raid at the first location (2 (a) above).

     According to the Government's submissions, during the preliminary

investigation, these proceedings were severed from the proceedings

relating to the three other locations (3 (ii) above) and the case was

referred to the Public Prosecutor of the Sisli District. The case was

then referred back to the Public Prosecutor of istanbul.

     In an indictment dated 1 June 1994 the Public Prosecutor of

istanbul charged twelve police officers with intentional homicide and

causing death in a way which rendered the identification of the

perpetrator impossible. The charges were brought under Articles 450/5,

463, 281, 31, 33, 49/1-3 and 50 of the Turkish Criminal Code.

     Between 1 June 1994 and 21 February 1995 all the defendants gave

their statements to the istanbul Criminal Court.

     At the hearing on 29 June 1995 the legal representative of the

applicant ismail Hakki Ilci, brother of the deceased Ibrahim Ilci,

requested to intervene in the proceedings. At the hearing of 21

September 1995, the Court ordered the submission of documents

indicating the family relationship between Ismail Hakki Ilci and

Ibrahim Ilci. The hearing was adjourned to 24 October 1995. The

Commission has not been informed any further progress in these

proceedings.

COMPLAINTS

     The applicants allege, both in their own names and on behalf of

their dead relatives, that they have been victims of violations of

Articles 2, 6 and 13 of the Convention.

     It is alleged that there has been a violation of Article 2 on a

number of grounds. It is claimed that

     (i) the intentional deprivation of life was not attributable to

any of the exhaustive list of purposes set out in paragraph 2;

alternatively

     (ii) the deprivation of life was attributable to a use of lethal

force disproportionate to any lawful ground on which force which might

result in death could be used;

     (iii) the deprivation of life was attributable to the use of a

degree of force more than "absolutely necessary" to achieve any

legitimate purpose;

     (iv) there was a failure adequately to protect the right to life

by initiating legal proceedings to determine whether or not those

responsible for the deaths acted lawfully;

     (v) there was inadequate protection of the right to life in

domestic law.

     It is alleged that Article 6 has been violated on account of the

failure to initiate proceedings before an independent and impartial

tribunal for a determination of the applicants' civil right to have the

right to life of their relatives adequately protected and for

determining whether or not those responsible for the deaths had acted

lawfully.

     It is alleged that Article 13 has been violated on account of the

lack of any independent national authority before which these

complaints can be brought with any prospect of success.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 6 January 1992 and registered

on 7 April 1992.

     On 9 September 1992 the Commission decided to communicate the

application to the respondent Government and to ask for written

observations on the admissibility and merits of the application.

     The Government's observations were submitted on 7 January and

10 May 1993. The applicant submitted observations in reply on 8 April

and 29 October 1993.

     On 28 November 1994 the Commission decided to invite the parties

to submit simultaneously their additional observations and information

on the facts.

     The applicants submitted their additional observations and

information on 23 December 1994. On 16 March and 20 July 1995 the

Government submitted their additional observations and information.

     Further information was submitted by the applicants on 16 October

1995 and by the Government on 12 January 1996.

THE LAW

1.   The applicants complain, both in their own names and on behalf

of their dead relatives, that they have been victims of violations of

Article 2 (Art. 2) (right to life), Article 6 (Art. 6) (right of access

to court) and Article 13 (Art. 13) (right to effective remedies) of the

Convention.

2.   Exhaustion of domestic remedies

     The Government submit that the applicants have failed to exhaust

domestic remedies before lodging their application with the Commission

as required by Article 26 (Art. 26) of the Convention.

     The Government submit in this regard that

-    the complaint lodged against the istanbul Chief of Police was not

duly pursued, as the applicants failed to file an appeal before the

State Council against the decision of non-prosecution by the Provincial

Administrative Council;

-    the criminal proceedings instituted against the police officers

in respect of all four operation locations are still pending;

-    the applicants Hüseyin Erdogan and Necla Nurlu, relatives of the

deceased Erdogan and Eliuygun, failed in any event to intervene in the

criminal proceedings before the Sixth Chamber of the istanbul Criminal

Court and therefore have not exhausted domestic remedies;

-    it is open to the applicants to bring a civil claim for

compensation against the officers involved in the operations; and

-    it is also open to the applicants to file a claim for

compensation against the Administration.

     The Government assert that these remedies are effective and that

Turkish Law envisages the enforcement of constitutional and Convention

rights before the domestic courts. They submit that the purpose of the

operation was to apprehend the suspects and bring them to justice and

that there is no substantiation of the applicants' claim that the

authorities officially instigated the killing of the persons concerned.

     The applicants first maintain that the evidence in these cases

relieves them of any need to exhaust domestic remedies. They argue in

this regard that the deaths were the result of operations which had

been officially authorised and approved and which had proceeded as

planned and that this element of official instigation sufficed to

relieve the applicants of the need to exhaust domestic remedies. They

further assert that the provision of any remedy after the event cannot

be a substitute for the prohibition of unlawful killings.

     The applicants further submit that for the following reasons the

available remedies were ineffective and that, to the extent that they

were required to exhaust such remedies, they had in any event done so:

-    as regards their complaint against the Chief of Police, the

applicants submit that the Public Prosecutor wrongly referred the case

to the Governor. Since a prosecution was in any event brought against

the police involved in the operation, there was no purpose in pursuing

an appeal against the refusal of the Provincial Administrative Council

to prosecute the Chief of Police. Furthermore such an appeal offered

no prospect of success. There is no precedent for such proceedings

against a Chief of Police;

-    the proceedings before the Sixth Chamber of the istanbul Criminal

Court were and are fundamentally flawed, in that the indictments

asserted that the police officers returned fire, thereby depriving the

Court of the opportunity of examining the vital issue as to whether the

deceased opened fire first; the proceedings advanced remarkably slowly;

certain defendants had not been present at certain hearings because

they were on duty; and the court failed to obtain the clothing of the

deceased for forensic examination;

-    as regards the failure of Hüseyin Erdogan and Necla Nurlu to

intervene in the proceedings, the applicants submit that there was no

necessity for them to be made parties because Sevgi Erdogan and Mahmut

Ali Eliuygun, relatives of the deceased Erdogan and Eliuygun, were

parties and were able to raise all the issues concerning their killing;

-    as regards the proceedings before the Fourth Chamber of the

istanbul Criminal Court, the applicants point especially to the length

of the preliminary investigation before the proceedings were commenced;

-    the applicants maintain that civil proceedings against the police

officers stand no prospect of success and are ineffective unless there

has been a prior criminal conviction; and

-    the applicants further maintain that there is no precedent for

an administrative remedy being sought successfully in such a case.

     The Commission does not consider it necessary to determine

whether the applicants were relieved of the need to exhaust domestic

remedies on the grounds of their allegations that the killings were

officially instigated, since for the following reasons the Commission

finds that there has in any event been no failure to exhaust domestic

remedies.

     The Commission recalls that according to its constant case-law,

the obligation to exhaust domestic remedies requires only that an

applicant make normal use of remedies likely to be effective, adequate

and accessible (cf. e.g. No. 19819/92, Dec. 5.7.94, D.R. 78 p. 88). An

applicant does not need to exhaust 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. 11.5.89, D.R. 61 pp. 250, 262).

     In the present case the Commission notes that the operations

which took place in four different locations appear to have been

coordinated. It further observes that two separate sets of criminal

proceedings were instituted before the Fourth and Sixth Chambers of the

istanbul Criminal Court and that all but two of the applicants

intervened in the proceedings before the Sixth Chamber and an

application was made by the applicant Mr. Ilci to intervene in the

proceedings before the Fourth Chamber, the outcome of which application

is not known to the Commission.

     The Commission considers that in principle such proceedings

constitute a domestic remedy which the applicants were required to

exhaust. However, in determining whether in practice the proceedings

afforded the applicants an effective domestic remedy and, if so,

whether the applicants may be treated as having exhausted the remedy,

regard must be had to the length of the proceedings and to the time

which has elapsed since the events of which complaint is made (see

mutatis mutandis No. 21895/93, Cagirga v. Turkey, Dec. 19.10.94,

unpublished).

     In this respect the Commission notes that the deaths in question

occurred on 12 July 1991 (some four years and six months ago). As

regards the deaths of ibrahim Erdogan, Yücel Simsek, Cavit Özkaya and

Hasan Eliuygun, the criminal proceedings in the Sixth Chamber of the

istanbul Criminal Court commenced on 25 February 1992, but the trial

did not conclude until nearly three years later, on 8 February 1995.

The Commission observes in particular that, owing to the late

attendance of certain of the defendants, it took eleven hearings over

a period of some seventeen months for the court to complete the taking

of oral evidence from all the defendants. The Commission further notes

that, although an appeal has been lodged against the decision of the

Sixth Chamber by a relative of one of the persons killed in the police

operations, the appeal is still pending and it is unclear when a

determination is likely to be reached.

     As regards the death of ibrahim Ilci, the Commission notes that

there was a delay of some three years in instituting criminal

proceedings against the police officers concerned, for which the

Government have given no satisfactory explanation. The criminal

proceedings which were eventually instituted before the Fourth Chamber

of the istanbul Criminal Court were still pending in October 1995 and,

on the information available to the Commission, have not yet concluded.

     The Commission is of the opinion that the delays involved in the

institution and prosecution of the criminal proceedings cast some doubt

on the effectiveness of these remedies in the present case. However,

even assuming that the criminal proceedings are to be regarded as

remedies which the applicants were in principle required to exhaust,

the Commission considers that, having regard to the lapse of time since

the deaths in question, the applicants must be taken to have exhausted

these remedies, despite the fact that the proceedings in the Fourth

Chamber have not concluded and that it is unclear whether an appeal has

been lodged on behalf of any or all of the applicants from the decision

of the Sixth Chamber.

     In these circumstances, it is not necessary to consider whether

the criminal proceedings in the Sixth Chamber were in any event

fundamentally flawed in the respects alleged by the applicants. Nor,

since criminal proceedings were in any event brought against the police

officers concerned in the operation, does the Commission find it

necessary to consider whether the complaint against the istanbul Chief

of Police was properly pursued by the applicants.

     The Government submit that the first and eighth applicants,

Hüseyin Erdogan and Necla Nurlu, relatives of the deceased Erdogan and

Eliuygun, failed to intervene in the criminal proceedings and therefore

have not exhausted the domestic remedies. In this regard, the

Commission recalls that when an application is lodged by more than one

party, the Commission may, in certain circumstances, examine the entire

application despite the fact that only one party has exhausted domestic

remedies (cf. No. 9905/82, Dec. 15.3.84, D.R. 36 pp. 187, 192). The

Commission observes that in the present case the applicants Sevgi

Erdogan and Mahmut Ali Eliuygun, who are also relatives of the deceased

Erdogan and Eliuygun, intervened in the proceedings and were able to

raise all the issues concerning their killing. It therefore considers

that the first and eighth applicants were absolved from the need

personally to exhaust domestic remedies by intervening in the

proceedings.

     The Commission also finds that in the circumstances of this case,

the applicants are not required to pursue any further legal remedy

concerning their complaints (see e.g. No. 19092/91, Yagiz v. Turkey,

Dec. 11.10.93, D.R. 75 pp. 207, 215).

     Having regard to the above, the Commission concludes that the

applicants 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 Articles 26 and 27 para. 3 (Art. 26, 27-3) of

the Convention.

3.   As to the substance of the applicants' complaints

     As to the complaint under Article 2 (Art. 2) of the Convention,

the Government submit that the use of force was lawful and necessary.

They rely, inter alia, on the facts that the deceased were armed, that

in each case several calls to surrender had been made and that the

deceased refused to surrender and opened fire on the security forces.

The applicants maintain their allegations, inter alia, that there is

no independent evidence as to whether or not calls to surrender were

made and whether the deceased opened fire first. They assert that the

arming of the police with grenades and their use by the police was

inconsistent with an intention to arrest. They also rely on the

findings of the Forensic Pathologist which cast doubts on the

circumstances in which the applicants' relatives were killed.

     As regards the complaints under Articles 6 and 13 (Art. 6, 13)

of the Convention, the Government submit that there exist effective

domestic remedies including the criminal proceedings instituted in the

Fourth and Sixth Chambers of the istanbul Criminal Court. The

applicants maintain their allegations as to the inadequacy and

ineffectiveness of the remedies.

     In the light of the parties' submissions, the Commission

considers 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, by a majority,

     DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

     merits of the case.

Secretary to the Commission             President of the Commission

        (H.C. KRÜGER)                          (S. TRECHSEL)

 

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