Application No. 22057/93
by Siyamet KAPAN
against Turkey
The European Commission of Human Rights sitting in private on
13 January 1997, 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
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
B. MARXER
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
Mrs. M. HION
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 15 May 1993 by
Siyamet KAPAN against Turkey and registered on 14 June 1993 under file
No. 22057/93;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
25 October and 16 November 1994 and the observations in reply
submitted by the applicant on 28 December 1994;
- the parties' oral submissions at the hearing on 19 October 1995
in Strasbourg;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born on 1962, is a Turkish national of Kurdish
origin. At the time of the introduction of the application, he lived
in Mazdagi, department of Mardin. Letters of authority were submitted
in the application indicating his representatives before the
Commission to be Professor Kevin Boyle and Ms. Françoise Hampson, both
university teachers at the University of Essex.
A. Particular circumstances of the case
The facts as submitted by the parties may be summarised as
follows.
According to the applicant, on 18 November 1992, at around 18.00,
he and his cousin left the applicant's house in order to go to his
uncle's house for dinner. When they left, three people with their faces
masked followed them. As they approached the uncle's house, the three
masked people hid in a corner and started indiscriminate firing with
automatic weapons. The applicant says that their aim was to kill his
cousin, who was a journalist. His cousin was killed and three of the
bullets hit the applicant in the lungs and stomach.
The applicant's brother and uncle came to the scene and took the
applicant to Diyarbakir State Hospital. The applicant was in intensive
care for 13 days, after which he was taken to the State Hospital Chest-
Surgery Clinic. He stayed there for seventy days. He has had operations
on his stomach and intestines and received medical treatment. He still
needs another operation.
The said attack was carried out in the Gürdogan suburb. In the
same area and at around the same time, Rahime Adsay (52) and her son
Ismet (18) were killed by the same people. The applicant believes that
State authorities are responsible for both attacks since at the time
another son of Rahime Adsay was known to be fighting in the mountains
as a PKK militant. Furthermore, his cousin's house had previously been
attacked and his cousin threatened. His cousin was a correspondent for
the newspaper Hürriyet in Mazdagi.
The applicant and his family received a letter from a woman,
Mülkiye Dogan, who stated that the action had been perpetrated by
special team agents at Mardin, forces for which the State is
responsible. She gave the name of one of these agents and detailed a
number of extra-judicial executions carried out by the group on
persons, including the applicant's cousin and Rahime and Ismet Adsay.
It was stated that Rahime Adsay was targeted because one of her sons
was a guerilla and Ismet Adsay was killed since he saw the attackers.
The respondent Government have submitted the following facts.
The Government state that an investigation was begun into the
incident by the public prosecutor at Mazdagi. This investigation is
still pending. They refer to statements dated 24 May 1993, 6 August
1994 and 5 September 1994 signed by the applicant from which it appears
that his signature is different from that appearing on the documents
submitted to the Commission on his behalf. A statement of 5 October
1994, apparently signed by the applicant, states that he has not
authorised an application to be made in his name to the Commission.
A statement taken by the public prosecutor on 1 June 1995 signed
by the applicant expressed the view that the incident in which he was
shot was targeted against his relative Hatip Kapçak who was a member
of KUK (Kurdish National Liberation Organisation). The attack thus
probably had ideological motives. A further statement taken by the
public prosecutor signed by the applicant on 5 June 1995 stated that
the applicant had not signed the declaration of means submitted by his
purported representatives,that he had not made any application to the
European Commission of Human Rights nor give any power of attorney to
Kevin Boyle and Françoise Hampson. It further stated that he wished to
make formal complaint against those two persons for falsifying those
documents. The signatures did not belong to him.
The Government state that Mülkiye Dogan was killed on 12 April
1993.
B. Relevant domestic law and practice
The Turkish Criminal Code contains provisions dealing with
unintentional homicide (Articles 452, 459), intentional homicide
(Article 448) and murder (Article 450). The Turkish Criminal Code also
makes it a criminal offence to subject someone to torture or ill-
treatment (Article 243 in respect of torture and Article 245 in respect
of ill-treatment, inflicted by civil servants).
For criminal 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 within fifteen days of being
notified (Article 165 of the Code of Criminal Procedure).
If the alleged author of a crime is a State official or civil
servant, permission to prosecute must be obtained from local
administrative councils. The local council decisions may be appealed
to the State Council; a refusal to prosecute is subject to an automatic
appeal of this kind.
Compensation for illegal acts committed by State officials may
be requested in the administrative courts. Article 2 of the
Administrative Judgment Procedure Code (No. 2577, dated 6.1.82)
provides inter alia: "Full compensation cases may be filed by those
whose personal rights have directly been damaged by administrative acts
or actions."
COMPLAINTS
Complaints have been made on behalf of the applicant, alleging
violations of Articles 2, 3, 6, and 14 of the Convention.
As to Article 2 it is claimed that the applicant was the victim
of a life-threatening attack by agents of the State, or that the State
failed in its obligation to protect his right to life. It is alleged
that the force used was more than "absolutely necessary" for the
achievement of any legal legitimate purpose. Complaint is made of the
lack of any effective system for ensuring protection of the right to
life and of the inadequate protection of the right to life in domestic
law.
As to Article 3 it is maintained that the violations of the
Convention of which the applicant is a victim arise not out of
geography, but out of his race. It is submitted that the Kurds are an
indigenous racial group in Turkey. The ill-treatment, to which the
discrimination on grounds of race is said to give rise, is of such a
nature and severity as to constitute independent violations of the
Convention.
As to Article 6 complaint is made of the failure to initiate
proceedings before an independent and impartial tribunal against those
responsible for the killings and injuries, as a result of which the
applicant cannot bring civil proceedings arising out of the attack
against him.
As to Article 13 it is alleged that there is a lack of any
authority before whom his complaints can be brought with any prospect
of success.
As to Article 14 complaint is made of discrimination in the
enjoyment of his rights under Articles 2, 6 and 13 of the Convention.
Allegations are made of an administrative practice of discrimination
on account of race or ethnic origin.
As to the exhaustion of domestic remedies it is submitted that
no remedies are effective in South East Turkey against the acts of the
security forces.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 May 1993 and registered on
14 June 1993.
On 9 May 1994, the Commission decided to communicate the
application to the Government and to ask for written observations on
the admissibility and merits of the application.
The Government's observations were submitted on 25 October and
16 November 1994, after the expiry of one extension in the time-limit
on 30 September 1994. The applicant submitted observations in reply
on 28 December 1994 and invoked Article 25 of the Convention in respect
of the arrest of Mr. Mahmut Sakar, a lawyer who had been involved in
working on his application.
On 2 March 1995, the Commission considered the state of
proceedings and put questions to the parties concerning a number of
issues. It was drawn to the attention of the applicant's
representatives that a delegation of the Commission would be in
Diyarbakir on 13-14 March 1995 and in Ankara on 12-14 April 1995.
On 29 March 1995, the Government replied to the questions and the
applicant's representatives submitted comments by letter of 2 April
1995.
On 10 April 1995, the Commission decided to invite the parties
to an oral hearing on the admissibility and merits. The applicant was
invited to attend. A letter confirming that invitation was addressed
and sent to the applicant on 1 August 1995.
By letter dated 5 and 19 May 1995, the applicant's
representatives made further submissions. The Government provided
further material by letter dated 15 June 1995.
On 11 July 1995, the Commission granted the applicant legal aid.
On 31 July 1995, the Government provided further documents.
On 19 October 1995, at the hearing held in Strasbourg, the
parties were represented as follows. The Government were represented
by Mr. Özmen as Government Agent, Dr. Alpaslan and Dr. Akçay as
advisers. The applicant was represented by Ms. Hampson as counsel, Ms.
Reidy, assistant, Mr. Yildiz, adviser and Mr. Ergin, advocate. The
applicant did not attend. The hearing was adjourned after argument had
been heard on certain preliminary procedural points.
On 26 October 1995, the Commission considered the state of
proceedings. It decided to invite the applicant's representatives to
contact the applicant with a view to securing confirmation of his
intentions with regard to his application. It was drawn to the
attention of the applicant's representatives that a delegation of the
Commission would be present in Diyarbakir in November 1995.
On 19 April 1996, the Commission examined the state of
proceedings. It decided to request the applicant's representatives to
submit further written evidence that they acted on behalf of the
applicant, such evidence to be submitted to the Commission by 31
October 1996. In the absence of further evidence, the Commission
indicated that it would consider whether it should continue its
examination of the application.
By letter of 31 October 1996, the applicant's representatives
informed the Commission that they were not in a position to provide the
information at that time but that every effort was being made to trace
the applicant who had moved residence. An extension in the time-limit
of one month was requested but not granted. The applicant's
representatives were informed that it would be for the Commission to
decide whether to take into account any further information which was
submitted before its session in January 1997.
No further information concerning the applicant has been received
from the applicant's representatives.
REASONS FOR THE DECISION
The Commission notes that there is a dispute concerning the
validity of the application introduced on behalf of the applicant by
Mr. Boyle and Ms. Hampson.
The Government have submitted that the applicant has never
introduced an application before the Commission nor signed any letter
of authority authorising any representatives to do so on his behalf.
They refer in particular to his signed statements of 5 October 1994 and
5 June 1995 in which he states that he did not sign any application or
letter of authority and has made no application to the European
Commission of Human Rights. They dispute the authenticity and validity
of this application and point to a number of discrepancies in the
documents purportedly submitted on behalf of the applicant, including
differences in signatures.
The applicant's representatives submit that the statement
submitted in introducing the application and the letter of authority
were both signed by the applicant and have supplied a signed statement
from the lawyer who took down that statement. They refer to two
unsigned statements dated 12 April 1995 in which an unnamed person who
had spoken with the applicant stated that he wanted to proceed with his
case but that he was frightened for his safety - he had been called to
the police station many times and harassed to withdraw his application
though he had not signed any documents there. Consequently, they submit
that a valid application was introduced and subsequent statements
relied on by the Government were obtained by intimidation in the form
of raids on his house and being called to the public prosecutor to be
questioned about his application. They stated at the oral hearing in
Strasbourg that the applicant wished to attend the hearing but after
talking with his family he informed the lawyer Mr. Mahmut Sakar on 9
October 1995 that he could not do it, that he was afraid and that he
and his family were being persecuted. In these circumstances, the
applicant's representatives argue that clear doubts are raised as to
the voluntary nature of any purported withdrawal of the application and
that it would defeat the purposes of the Convention to permit such a
withdrawal.
The Commission views with considerable disquiet the contradictory
statements of intention which are purportedly emanating from the
applicant in this case. The Commission accepts the submissions of the
applicant's representatives as regards the dangers of allowing the
retraction of applications where there is doubt as to the voluntariness
of the withdrawal on the part of the applicant. It has underlined this
point in a number of cases (see eg. Kurt v. Turkey, No. 24276/94, dec.
22.5.95 and Aranacak and Matyar v. Turkey, No. 23423/94, dec. 13.5.96).
However, the Commission recalls that the system of applications
provided for by Article 25 of the Convention is based on the right of
individual petition, namely, the exercise by the individual of the
right of complaint to the Commission. The Commission may not examine
cases of its own motion or by way of "actio popularis".
While it is essential for the efficacy of the system that
Contracting States comply with their obligation not to hinder the
applicant in the exercise of the right of individual petition, the
individual nonetheless bears the responsibility of co-operating with
procedures flowing from the introduction of his complaints. The
Commission is aware that this may not always be an easy task. However
where factual issues arise which may only be resolved by the
applicant's personal participation in the proceedings, the Commission
may find itself unable to continue with the examination of the case in
the absence of that clarification.
In the present case, there is material before the Commission
which casts doubt on whether an application has ever been validly
introduced and whether the applicant wishes it to continue. It does not
doubt the bona fides of the applicant's representatives but cannot
exclude the possibility that there may be circumstances in which an
applicant is not properly aware of the significance of signing
"petitions" or may change his mind or lose interest in pursuing a
complaint.
The Commission has provided the applicant's representatives with
opportunities for the applicant to appear personally before it,
formally at a hearing or informally by entering into contact with its
delegations in Turkey. It has allowed considerable time to the
applicant's representatives with a view to the provision of a
handwritten and signed statement of the applicant's intentions. The
Commission has noted the reports from the applicant's representatives
that the applicant is afraid and under pressure.
Nonetheless, the Commission relies heavily not only on the good
faith of Contracting States but also on the ability and willingness of
applicants to maintain and support the applications purported to be
introduced on their behalf. It cannot continue the examination of an
application where the latter is not forthcoming. This is particularly
the case where, following any decision of admissibility, it would not
be likely that any facts could effectively be established without the
applicant being prepared to appear before its Delegates or provide
further written clarifications. Furthermore 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 has therefore concluded that, in these
circumstances, the applicant's representatives have not sufficiently
shown their competence to act on behalf of the applicant. The
Commission finds that it is no longer justified to continue the
examination of the petition.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy