AS TO THE ADMISSIBILITY OF
Application No. 26144/95
by Abdülrezak and Halil iKiNCiSOY
against Turkey
The European Commission of Human Rights sitting in private on
26 February 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
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
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 19 May 1994 by
Abdülrezak and Halil iKiNCiSOY against Turkey and registered on
6 January 1995 under file No. 26144/95;
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
8 August 1995 and the observations in reply submitted by the
applicant on 3 November 1995;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, Abdülrezak ikincisoy, a Turkish citizen of
Kurdish origin, was born in 1933 and lives in Diyarbakir.
The second applicant, Halil ikincisoy, a Turkish citizen of
Kurdish origin, was born in 1974 and lives in Diyarbakir. He is the son
of the first applicant.
The applicants are applying to the Commission on their own
behalf, on behalf of Mehmet Sah ikincisoy (born in 1971) the eldest son
of the first applicant and brother of the second applicant, and on
behalf of Hüseyin ikincisoy the younger son (born in 1979), Makbule
ikincisoy (born in 1970), Nefise ikincisoy (born in 1972) and Garipsah
ikincisoy (born in 1976), all daughters of the first applicant.
They are represented before the Commission by Professor Kevin
Boyle and Ms. Françoise Hampson, both university teachers at the
University of Essex.
The facts as submitted by the parties may be summarised as
follows:
A. Particular circumstances of the case
1. Events relating to the death of Mehmet Sah ikincisoy and the
arrest and detention of the applicants and members of their
family
The applicants state as follows:
The applicants live in Melikahmet neighbourhood in Diyarbakir.
On the night of 22 November 1993 both applicants were at their home.
At about 01:00 hours there was a knock on the door of their house. When
the first applicant, Abdülrezak, opened the door, he saw plain clothed
members of the Anti-Terror Branch of the police. They introduced
themselves to Abdülrezak as policemen but did not produce any
identification. Four of them entered the applicants' house while others
waited outside. The police went through the rooms in the house and
asked where Abdülrezak's son, Mehmet Sah, was. Abdülrezak told the
police that Mehmet Sah was staying with his uncle, Abdülrezak's
brother. Mehmet Sah worked in the uncle's cafe at night. Three
policemen then required the second applicant, Halil ikincisoy, to take
them to the uncle's house. One or two of the policemen stayed at
Abdülrezak's house.
When Halil ikincisoy arrived at his uncle's building, one
policeman stayed at the entrance of the building and the other two went
up to the uncle's flat on the second floor. Halil ikincisoy knocked on
the door and it was opened immediately. He saw that there were 23
people in the house - his uncle, his uncle's wife, his two sons, his
daughter-in-law, their fifteen children, two workers from the uncle's
cafe and his brother, Mehmet Sah.
The police looked at the identity cards of those present and
searched the house. One policeman took the two workers into a room and
began to take their statement. The others remained in the sitting room.
At one point they heard two gunshots. They realised that a clash had
broken out in the room where the policemen were questioning the two
workers. One of the policemen was killed. After the gunshots the other
policemen took Mehmet Sah and told him that someone had made a
statement against him. Mehmet Sah was taken downstairs by the police
so that they could place him in custody. Halil and the other occupants
of the room were witness to this. Halil and the others in the room were
very frightened because of the clash and because Mehmet Sah had been
taken away; they stayed in silence in the flat. Meanwhile, the workers
went on to the roof and tried to climb down. Another clash was heard;
apparently the workers had clashed with the police at the door. They
learned later that one of the workers had died and the other escaped.
One of the policemen was also injured. Press reports claimed that the
workers were PKK members.
Ten to fifteen minutes after this second clash dozens of
policemen surrounded the building. They searched the whole building.
They entered the uncle's flat and Halil, his uncle Abdülkadir, his
uncle's wife Adile, his uncle's son Nasir, his uncle's daughter-in-law
Sabriye and his uncle's grandson Bilgi were all taken by minibus into
custody to the Market Place Police Station. This station is located on
Gazi street which adjoins Balikçilarbasi and Dörtyol in the centre of
Diyarbakir. During the trip, the detainees were subjected to constant
hitting by the police.
When Halil ikincisoy and the others entered the police station
they were told to keep their heads to the wall, which they did. They
were detained in the entrance hall. On the right hand side of the
entrance hall in the Market Place Police Station there are three rooms.
Two of these rooms are usually used for interrogation purposes while
the third is the superintendent's room. Halil ikincisoy was called into
one of the small rooms to make a statement. As he was entering the
room, he saw through a hole in his tracksuit his brother Mehmet Sah
lying face down in the next room, with his red leather jacket pulled
over his face. Mehmet Sah was wearing the same clothes that he had been
wearing when he was detained in his uncle's house.
In the other room, Halil ikincisoy was questioned about the
incident by the police. He could not make out what was going on around
him as he was constantly punched and kicked by the police. He told them
what he knew and made an oral statement. Halil did not sign anything.
This lasted about five minutes and then he was returned to the entrance
hall.
In the meantime, the police had taken Abdülrezak, his son Hüseyin
and his daughters Makbule, Nefise and Garipsah into custody. They were
also transferred by minibuses and cars to the Market Place Police
Station. When they entered they were forced to keep their clothes
pulled over their heads to prevent them seeing anything. However,
Abdülrezak says he saw - through the parting in his clothes - the other
group - Halil, Abdülkadir, Adile, Nasir, Sabriye and Bilgi ikincisoy
- in the entrance hall. He asked his daughter, Nefise, in Kurdish if
it was Halil who was sitting there. She replied that it was and that
her uncle was there too. Both Nefise and Abdülrezak were beaten for
talking. Abdülrezak was hit with an iron bar.
After he had been taken into the room to give his statement,
Halil ikincisoy heard the second group being brought into the police
station, When the others entered the hall, he did not dare to look up
at the people. They were policemen standing beside them and the
policemen who would pass them in the hall would abuse them or hit them.
However, Halil recognised the voices of his father and sister and he
heard his father ask if it was Halil who was in the entrance hall. He
also heard his sister reply that it was. Halil recognised the cries of
his sister.
Abdülrezak and his group stayed only five minutes in the station
before being taken out, lined up and again being put into the
minibuses. As Abdülrezak's eyes were not covered he was able to see
easily that the person standing behind was his son Mehmet Sah who had
pulled the clothes back over himself. Halil and his group were also put
into minibuses. The minibuses took the detainees to some unknown
destination. Abdülrezak says that his son Mehmet Sah was also present
at this second destination. During the journey the applicants were
beaten.
They were finally brought to a third place which they did not
know either. Here they were interrogated. Abdülrezak was beaten and
sustained two broken ribs. He was subjected to intense mental torture
as he could hear the screams of his children while they were being
tortured. Abdülrezak was told by the police that if anyone asked about
Mehmet Sah, he must say that the police did not take him and that he
had fled to the mountains to join the guerillas.
Abdülrezak was transferred to a cell where there were four other
people. The others in the cell told him that he was in the Riot Police
place. This is referred to amongst the people as the torture place.
Officially it is a police station where student policemen are educated.
It is located in Cezaevi in Diyarbakir.
Halil was taken to the second or third floor of the building.
After about fifteen minutes, he was taken into a room for
interrogation. He was asked the same questions as he had been asked in
the Market Place station about the incident. Halil gave the same
replies that he had given the police at that police station. While he
was being questioned, he could hear the screams of his brother, Mehmet
Sah, being tortured. Then Mehmet Sah's voice stopped.
Halil was then taken, blindfolded, into the torture room. He was
made to strip until he was naked. The police then hosed Halil with
pressurized water. He was beaten and the policemen stuck their hands
down his throat to prevent his screams from being heard. When they had
finished torturing Halil, he was left for about half an hour, naked,
on a concrete floor in the hall where his family were. Finally, he was
allowed to put on his tracksuit and was taken into another room. Here
his blindfold was lifted a little and he was asked to identify people
in photographs. Some of the people in the photographs were family
members while others, he said he did not recognise. He was returned to
the hall where he could hear screams from people, his family, being
tortured.
He was then put into a cell with three other people. These people
likewise told him that they were at the Riot Police place. Halil says
that all three other detainees in his cell had also been severely
tortured. One of these detainees, called Hüseyin, had a broken arm as
a result of being suspended.
Abdülrezak was detained for four days. During his first three
days of detention, he was given no food or water, but simply left in
his cell. On the fourth day he was taken to give a statement. He
explained to the police all he knew. The police told him that Mehmet
Sah had gone to the mountains and that he should go to get him.
Abdülrezak said that Mehmet Sah had been taken into custody, that he
was at the Riot Police place and that even his jacket was in the
entrance hall. When they asked who owned the jacket he said that it was
Mehmet Sah.
Abdülrezak was then taken with Hüseyin, Nefise, Garipsah, Makbule
and Bilgi to the State Hospital. He did not tell the doctor that he had
been tortured as he was scared. Abdülrezak's daughters did try to tell
the doctor that they had been tortured. They told the doctor three
times that they had been tortured. When they did this, the police took
them to the cars and threatened to take them back to the interrogation
centre if they repeated their claims. The girls were too scared to
complain of torture after that. The doctor made no report. All five
were then released.
Halil was not released until 14 days after his detention, He too
was denied food during his first two days of detention. On the third
day, he was further interrogated about the incident and he was asked
if he knew certain people or not. He said he did not know them. He was
beaten up again. He was also told that his brother had not been caught
and that he had fled to the mountains. Halil refuted this and said that
his brother had been taken into custody from the house and that he had
heard his voice under torture. He was then returned to his cell and was
twice transferred to different cells which were overcrowded. At one
point, there were six people kept in a cell meant for only three
persons. During his detention, Halil was only given one piece of bread
a day and allowed to go to the toilet once a day.
On the twelfth day his statement was taken by the police. Two
days later, he was released by the Prosecutor. On his release, Halil
was taken to the doctors by the police who he alleges tortured him.
They threatened him not to complain that he had been tortured. He did
tell the doctor that he had been tortured but the doctor did not pay
any attention to what he said. After he had told the doctor, the police
threatened him again and he did not dare to repeat his complaint. His
uncle's daughter-in-law, Sabriye, was also released on the same day.
Abdülkadir and Nasir were remanded and put into prison. A case has
been opened against Halil ikincisoy and other members of the family.
They are accused of being members of an illegal organisation and
assisting illegal organisations.
On 6 December 1993 Abdülrezak went to the State Security Court
(DGM) Prosecutor and gave him a petition relating to his son Mehmet
Sah. The Prosecutor took him personally aside and showed him some
photographs. Amongst them he recognised one of his son Mehmet Sah. He
was naked from the waist up and there were no marks on his body.
Abdülrezak inquired where his son was. The Prosecutor told him that
he had been killed on 25 November 1993 in a clash near the Öngözlü
bridge 4-5 km from Diyarbakir and that his son had been buried in the
cemetery. The Prosecutor gave him a document which said "Sent to the
Offices of the Leader of the Council with Document No. Hz. 1993/5394
dated 25.11.1993". Later Abdülrezak went with Halil to the Offices of
the Leader of the Council and they were sent from there to the
Mardinkapi cemetery. They were shown an unmarked grave and were told
that it was that of Mehmet Sah. They requested that it be opened but
they were refused.
On 7 December 1993 Abdülrezak submitted a petition to the DGM
Chief Prosecution requesting permission to open his son's grave. He
also stated his desire to be allowed to visit the grave on Fridays and
to be able to make a burial ritual. The petition was refused verbally
without being processed on the grounds that neither the DGM Chief
Prosecution nor the DGM Prosecutor had the authority to grant
permission.
On 13 December 1993 Abdülrezak made two more petitions to the DGM
Chief Prosecution in Diyarbakir. In the first petition he stated that
he thought that his son had been killed in custody and requested that
they perform an autopsy in order to learn the truth about the
circumstances of his son's death. In the second petition, entered as
No. 1993/5702 Hz. A.B. and 1993/2096 Es., he requested information to
be given to him as to the fate of his son, who had been taken into
custody on 22 November 1993. According to two statements made by him
on 13 December 1993, neither petition was processed. He states that the
first petition was turned away without being processed officially and
that he was told to apply to the court. In respect of the second
petition, he was told that his son had been killed in a clash without
the petition being processed at all.
On 13 December 1993 (and again on 18 January 1994) Abdülrezak
also petitioned Mehmet Kahraman, the State Minister concerned with
human rights in Ankara, to investigate the circumstances of his son's
death. The Minister replied on 5 April 1994. He informed Abdülrezak
that his application had been forwarded to the relevant Ministries (the
Ministry of the Interior and the Ministry of Justice) and an
investigation had been requested into the matter; however the Ministry
of the Interior had replied in a letter of 21 March 1994, denying that
Mehmet Sah ikincisoy had been taken into custody and claiming that
there were no records on the matter.
The applicants are convinced that Mehmet Sah did not die in a
clash but was killed in custody under torture. Halil witnessed his
brother being taken into custody by the police. Both of the applicants
claim that they saw him while he was in custody and heard his screams
under torture.
The Government state as follows:
On 22 November 1993, pursuant to receipt of information
concerning the PKK, a team of security officers went to the house of
Abdülrezak ikincisoy to take Mehmet Sah, his son, into custody for
questioning. On being told that he was at his uncle's house, the police
officers were taken to the house by Halil ikincisoy. While searching
the house, the police officers came under fire from four men lying in
a room. One police officer was killed and one wounded. Of the gunmen
one was killed and the others escaped.
Abdülrezak ikincisoy was taken into custody on 22 November 1993
at about 14.30 hours and released on 25 November 1993.
Halil ikincisoy was taken into custody on 22 November 1993 and
released on 3 December 1993 after being brought before the public
prosecutor.
Neither Halil ikincisoy or Abdülrezak ikincisoy made any
complaint to the public prosecutor about alleged ill-treatment in
custody.
On 23 November 1993, following receipt of information by
telephone that two armed men were sheltering in a hut near the Ongözlü
bridge, a security force team went to the hut. Fire was opened on the
security forces from the hut. During the subsequent armed clash, both
men in the hut were shot dead. One of the deceased was identified as
Atilla Güller. The second body was not identified, no identity card
being found on it, and photographs were taken. An autopsy was conducted
on 24 November 1995. Subsequently, on 6 December 1993, by means of the
photographs the unidentified deceased man was identified as Mehmet Sah
ikincisoy by Abdülrezak ikincisoy.
The Government state that arms which were found near the hut at
the bridge have been established by ballistics experts as having been
used in the armed clash during the search at Abdülkadir ikincisoy's
house.
2. Events subsequent to the introduction of the application
The Government have submitted to the Commission a statement
signed by the first applicant, Abdülrezak ikincisoy, taken by the
public prosecutor on 6 June 1995 after the application was
communicated. In this statement, he denies that he wanted to bring an
application to the Commission and he states that he withdraws his
complaint.
The applicants' representatives have subsequently submitted
another statement signed by Abdülrezak ikincisoy, dated
31 October 1995, in which he explains that he was forced to sign the
statement before the public prosecutor and confirms that he wishes his
application to the Commission to continue.
COMPLAINTS
The applicants complain of violations of Articles 2, 3, 5, 6,
8, 9, 13 and 14 of the Convention.
As to Article 2 they complain of the death of Mehmet Sah
ikincisoy whilst in police custody. They also complain of the threats
to the lives of both of them during their detention, on account of the
conditions and their subjection to torture.
As to Article 3 they refer to the acts of torture inflicted on
all the applicant detainees while in the custody of the police at the
Market Place police station and the Riot Police Headquarters. They also
complain in relation to the two applicants in so far as the conditions
of their detention, particularly the deprivation of food and sustenance
over several days, constitute at a minimum inhuman treatment. The two
applicants finally refer to their inability to obtain true information
on the circumstances of Mehmet Sah's death and to open his grave to
have an autopsy carried out.
As to Article 5 they allege that they were detained for periods
between four and fourteen days in circumstances incompatible with the
requirements of Article 5 paras. 1 (c), 3, 4 and 5 of the Convention,
even taking into account the respondent Government's derogation.
As to Article 6 the applicants complain that the first applicant
is unable to start proceedings to determine the circumstances of his
son's death because of the refusal of the Prosecutor and other
authorities, and that he is totally without remedy in determining the
responsibility for his son's death and compensation for his torture and
unlawful killing.
As to Article 8 they complain that the police arbitrarily entered
their home in the middle of the night and took twelve family members
into custody in total.
As to Article 9 they refer to the refusal of the authorities to
permit the first applicant to open the grave where they buried Mehmet
Sah and to allow him to rebury his son according to his religious
beliefs and customs.
As to Article 13 they allege that there is a lack of any
independent national authority which could offer them a remedy for the
alleged violations.
As to Article 14 in conjunction with all the above articles of
the Convention the applicants allege their family members have been
discriminated against on the ground of their Kurdish origin.
The applicants maintain that they have made fruitless attempts
to have their complaints addressed and they are not required to pursue
any other alleged domestic remedies as they are illusory, inadequate
and ineffective because:
a) there is a systematic practice of torture and
disappearances and unacknowledged murders by the authorities in
Turkey and these practices make it impossible for the applicants
to seek adequate redress;
b) there is an administrative practice of not respecting the
rule under Article 13 of the Convention which requires the
provision of effective domestic remedies;
c) whether or not there is an administrative practice, the
refusal of the prosecution in this case to officially process the
first applicant's petitions and to give adequate oral replies to
them leaves the applicants with no legal channels open to them;
d) alternatively the applicants have already exhausted all
available remedies as the petitions to the State Security Court's
Chief Prosecution were not processed; the first applicant has
also made an extra-judicial plea to the State Minister concerned
with Human Rights to intervene.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 May 1994 and registered on
6 January 1995.
On 3 April 1995, the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
8 August 1995 after the expiry of the time-limit fixed for that
purpose. The applicant replied on 3 November 1995 within the extension
of the time-limit granted.
THE LAW
The applicants allege that Mehmet Sah ikincisoy was killed whilst
in police custody and that they are unable to have the grave re-opened
to have an autopsy carried out and for his body to be buried by the
family in accordance with their beliefs. They also complain of torture,
ill-treatment and threats which they and other members of their family
suffered while in police custody and of the circumstances of the
applicants' arrest and detention. They invoke Article 2 (Art. 2) (the
right to life), Article 3 (Art. 3) (prohibition on inhuman and
degrading treatment), Article 5 (Art. 5) (right to liberty and security
of person), Article 6 (Art. 6) (the right of access to court), Article
8 (Art. 8) (right to respect for family life and home), Article 9
(Art. 9) (freedom to manifest religion), Article 13 (Art. 13) (the
right to effective national remedies for Convention breaches) and
Article 14 (Art. 14) of the Convention (prohibition on discrimination).
The Government submit that the application should be dismissed:
1. as regards the first applicant, since there is no valid
application;
2. for failure to exhaust domestic remedies in respect of the
applicants' allegations of ill-treatment in custody;
Article 25: existence of a valid petition in respect of the first
applicant
The Government submit that, as indicated by the statement of the
first applicant to the public prosecutor dated 6 June 1995, the
applicant had no intention of complaining to Strasbourg and that he
wishes to withdraw any application in his name.
The applicants' representatives have submitted a statement dated
31 October 1995 from the first applicant to the effect that he had been
obliged to sign a statement which he was unable to read after police
came to his house and took him away. In the statement of 31 October
1995, he expresses his wish to continue with the application.
The Commission notes that the application submitted to it
contains a power of attorney signed by the first applicant in favour
of the applicants' representatives. The statement of 6 June 1995 to the
public prosecutor does not in fact contest that this is the genuine
signature of the first applicant. The Commission finds no element to
indicate that the application lodged in the first applicant's name was
not a valid exercise of the right of individual petition under
Article 25 (Art. 25) of the Convention. The Commission therefore has
competence to examine it. Further, given the subsequent signed
statement of the first applicant dated 31 October 1995 casting doubt
on the voluntariness of an alleged intention to withdraw his
application, the Commission finds that there is no basis on which it
could safely proceed to strike the application from the list pursuant
to Article 30 para. 1 (a) (Art. 30-1-a) of the Convention at the
present time.
Further, the Commission has had regard to the serious matters
which arise from the first applicant's statement of 31 October 1995,
in particular, that it is alleged that the first applicant was taken
from his home by the police to be questioned about his application to
the Commission and required to sign a statement, which he was unable
to read and which was not read to him. The Commission considers that
these matters require examination under Article 25 para. 1 (Art. 25-1)
in fine of the Convention, by which Contracting States undertake not
to hinder in any way the effective exercise of the right of individual
petition.
Applicants' allegations of ill-treatment in custody
The Government submit that the applicants have failed to exhaust
domestic remedies in respect of their complaints of ill-treatment while
in custody. Neither applicant has made a complaint to the public
prosecutor in respect of their allegations.
The applicants accept that they did not make complaint at the
time. They submit that the authorities' reactions to Mehmet Sah's death
destroyed their trust in legal proceedings and they decided not to
pursue cases for their own injuries. They consider (see above under
Complaints) that remedies are illusory, inadequate and ineffective
since, inter alia, it is alleged that there is a widespread practice
of torture in police custody.
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. A mere doubt as to the prospect of success however
is not sufficient to exempt an applicant from submitting a complaint
to the competent court (see eg. No. 20357/92, Dec. 7.3.94, D.R. 76-A,
p. 80). 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).
The Commission notes that the ill-treatment in custody of which
the applicants complain is prohibited by the Turkish Criminal Code and
that it is not in dispute that if such acts took place, they would have
been in contravention of the criminal law to which the police are
subject. The Turkish legal system provides in such instances for
investigation to be carried out by the Public Prosecutor who takes the
decision whether or not to initiate a prosecution against the alleged
perpetrators. In the event a decision not to prosecute is issued, there
is the possibility under Article 165 of the Code of Criminal Procedure
of appealing to a court. Further, there are court precedents indicating
that police officers have been prosecuted and convicted for offences
involving ill-treatment in custody and that payment of compensation has
been ordered.
In the present case, the applicants have taken no step by which
their complaints were brought to the attention of any relevant or
competent authority, in particular, making no complaint to the public
prosecutor. While in a previous case (Aksoy v. Turkey, No. 21897/93,
Dec. 19.10.94, D.R. 79-A, p. 60), the applicant, who had complained of
torture, was found to have exhausted domestic remedies as required by
Article 26 (Art. 26) of the Convention, the Commission recalls that it
took the view that, whether or not the applicant had expressly
complained to the public prosecutor about his treatment, it had no
doubt that there were elements arising in his interview with the
prosecutor (in particular, his complaint that he was unable to use his
hands) which should have alerted the prosecutor to the existence of
possible grounds for an investigation or led him to seek further
information as to the cause of the applicant's injuries. It is not
apparent from the facts submitted in this application, that the
substance of the applicants' complaints in respect of their alleged
ill-treatment in custody was drawn to the attention of the public
prosecutor either directly or indirectly, even though the first
applicant was in contact with the Chief Prosecution office at the State
Security Court shortly after his release.
The Commission has had regard to the apparently unsatisfactory
nature of the response made by the authorities to the applicants'
complaints in respect of Mehmet Sah. However, given the existence of
a legal framework of redress to which they had recourse in respect of
the death of Mehmet Sah, the Commission finds that the exhaustion of
domestic remedies imposes in the circumstances of this case that the
applicants do the minimum which might be required to bring their
complaints to the notice of the competent authorities to give them the
opportunity, as the basic principle at the heart of Article 26
(Art. 26) requires, to investigate and offer redress before the matter
is pursued before an international jurisdiction. Consequently, the
Commission finds that the applicants cannot be considered as having
complied with the requirement for the exhaustion of domestic remedies
laid down in Article 26 (Art. 26) of the Convention. The part of the
application relating to their allegations of ill-treatment in custody
must therefore be rejected for non-exhaustion of domestic remedies
under Article 27 para. 3 (Art. 27-3) of the Convention.
Remaining complaints, including those relating to the death of Mehmet
Sah ikincisoy
The applicants allege that Mehmet Sah ikincisoy was killed in
custody under torture and invoke in this respect Article 2 (Art. 2) of
the Convention.
Insofar as the Government's submissions that the applicants have
failed to exhaust domestic remedies in respect of their complaints of
ill-treatment while in custody can be interpreted as extending to their
allegations about the death of Mehmet Sah while in police custody, the
Commission notes that the first applicant made a number of approaches
to the authorities:
(i) a petition of 7 December 1993 to the Chief Prosecution at the
State Security Court in which he asked for permission to open the
grave of his son;
(ii) a petition of 13 December 1993 to the Chief Prosecution at
the State Security Court, in which he stated that he did not
believe that his son was killed in a clash but believed that his
son, after being taken into custody, had been killed in custody;
he further asked for an autopsy to be performed in order to learn
the truth;
(iii) a petition dated 13 December 1993 to the Chief Prosecution
at the State Security Court in which he asked for information
about the fate of his son, pointing out that he had been taken
into custody by the police on 22 November 1993 from the home of
the first applicant's brother;
(iv) a petition of 13 December 1993 by the first applicant to Mr.
Mehmet Kahraman, State Minister for Human Rights, in which he
requested an investigation of the cause of his son's death.
The Commission notes that the first applicant has stated that
none of his petitions to the Chief Prosecution were processed
officially and that he was met with the reply that his son was killed
in a clash. Further in the response to his petition to the Human Rights
Minister, he was told that the Ministry of the Interior had made it
clear that the first applicant's son had not been taken into custody
in Diyarbakir and that there were no records on the matter.
The Commission considers that the first applicant made serious
attempts to obtain an investigation about the cause of his son's death
from relevant and competent authorities. In view of the reactions which
he received from these authorities, he cannot, in the Commission's
view, be required under Article 26 (Art. 26) of the Convention to
pursue any other legal remedy in this regard (cf. No. 19092/91, Yagiz
v. Turkey, Dec. 11.10.93, D.R. 75, p. 207).
The Commission concludes that the applicants may therefore be
said to have complied with the domestic remedies' rule laid down in
Article 26 (Art. 26) of the Convention and, consequently, this part of
the application should not be rejected for non-exhaustion of domestic
remedies under Article 27 para. 3 (Art. 27-3) of the Convention.
Insofar as the applicants complain also of their inability to
obtain true information on the circumstances of Mehmet Sah's death or
to open his grave to obtain an autopsy, their detention for periods of
four to fourteen days, the inability to take proceedings or obtain a
remedy for Mehmet Sah's ill-treatment and death in custody, the
circumstances of the police raid, in which twelve family members were
taken into custody, the refusal to allow the first applicant to rebury
his son according to his religious beliefs and customs and of
discrimination, the Commission notes that the Government have made no
express comment. The Commission therefore finds no basis on which these
complaints can be rejected for non-exhaustion of domestic remedies.
As regards the substance of the applicants' remaining complaints,
the applicants submit, inter alia, that they are convinced that Mehmet
Sah died as a result of ill-treatment in custody. They submit that the
second applicant saw him being taken into custody and that both
applicants saw and heard him while they were in custody. They submit
that the Government have affirmed that the applicants' home was raided
and that they and members of their family were taken into custody and
held for up to twelve days.
The Government submit that the applicants' complaints are devoid
of any supporting evidence. They submit that Mehmet Sah was not taken
into custody but killed when he participated in an armed clash against
the security forces.
The Commission considers, in light of the parties' submissions,
that these complaints raise complex issues of law and fact, the
determination of which should depend on an examination of the merits
as a whole. The Commission concludes, therefore, that this part of the
application is not manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring
it inadmissible has been established.
For these reasons, the Commission,
by a majority,
DECLARES INADMISSIBLE the applicants' complaints relating to
their alleged ill-treatment in custody;
unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicants' remaining complaints;
unanimously,
DECIDES TO EXAMINE FURTHER whether there has been interference
with the effective exercise of the first applicant's right of
individual petition under Article 25 para. 1 (Art. 25-1) in fine
of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy