Application No. 39499/98
by Sirus NURKHALAJ and Mujdeh HASSANPOUR
against Turkey
The European Commission of Human Rights sitting in private on
9 July 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
M.P. PELLONPÄÄ
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, 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 7 January 1998 by
Sirus NURKHALAJ and Mujdeh HASSANPOUR against Turkey and registered on
23 January 1998 under file No. 39499/98;
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
2 March 1998 and the correspondence between the Secretariat and
the applicants and their representative since March 1998 ;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, a medical attendant of Iranian nationality,
was born in 1959 in Teheran. He was represented before the Commission
by the Iranian Refugees' Alliance. He complains to the Commission on
behalf of himself and his wife Mujdeh Hassanpour (second applicant),
an Iraqi national of Kurdish origin, born in Sulaymania (Iraq).
The facts as submitted by the parties may be summarised as
follows.
The first applicant was an official supporter of the Organisation
of Iranian People's Fedaian Guerrillas (OIPFG) since 1978.
In 1981, he was arrested by the Iranian security forces on the
grounds of his anti-government political activities within the OIPFG.
He spent three months in prison and escaped while being transferred
from Evin prison (Teheran) to Gohardast prison (Karaj). While in
detention, prison autorities brutally tortured him to obtain a
confession about other members of the organisation. His fiancée, who
was also arrested, was executed.
After his excape from prison, the first applicant continued his
activities in Northern Iraq with the Kurdistan branch of the OIPFG. He
put his medical experience at the service of Iraqi Kurdish
organisations, mainly the Patriotic Union of Kurdistan (PUK),
accompanying critically ill PUK militants to government hospitals,
passing them off as OIPFG members.
After the Gulf war, non-Kurdish Iranian opposition members were
looked upon with suspicion and resentment. In May 1991, the Kurdish
members of the OIPFG separated to form a nationalist Kurdish group. The
remaining members of the OIPFG went to Kirkuk, a town under Baghdad
Government control. They were transferred by the Mukhabarat (the Iraqi
foreign intelligence agency) to the Al-tash refugee camp and, by 1993,
they all fled to Turkey.
The first applicant served the Iraqi Kurdish Front (IKF -
coalition of PUK and the Kurdish Democratic Party (KDP) in Sulaymania
and Penjmin as medical assistant and trainer.
In December 1991 he married Mujdeh Hassanpour, the second
applicant, who had been an active supporter of Rewft Communists during
1988-1989.
In 1989, the second applicant decided to leave the organisation
in order to attend university. In May 1992 she resumed her political
activities with the local People's Council, led by left-wing and
communist groups, for which she was constantly threatened.
In August 1992, there was an unsuccessful assassination attempt
against the first applicant by a man who was allegedly an Iranian
agent. Three months later he was shot at in front of his residence in
the centre of Sulaymania. After this incident, the head of Sulaymania's
security forces advised him to leave Iraqi Kurdistan, informing him
that the police were unable to protect him against Iran's agents and
that they might have to hand him over to the Iranian government.
In December 1992, the applicants entered Turkey illegally. They
were apprehended inside Turkey and deported back to Iraq, where they
were detained by the KDP security forces for several days.
In March 1993, they re-entered Turkey and made an application
to the UNHCR.
Acting upon the UNHCR's request, the Turkish authorities granted
them a provisional residence permit.
In May 1993, the UNHCR refused the applicants' request for
refugee status.
In July 1995, the applicants received a deportation order from
the Turkish autorities. The first applicant joined a group of 160
Iranians who had staged a sit-in at the offices of the United Socialist
Party in Ankara to protest against the UNHCR's rejection of their
refugee claims and to seek a reprieve for their deportation orders back
to Iraq.
In January 1997, the applicants' case was re-opened by the UNHCR.
The first applicant submits that, in November 1997, the UNHCR informed
him that he and his wife were granted refugee status within the meaning
of the Geneva Convention, thus confirming the risk of persecution the
first applicant would run, should he return to Iran. In December 1997
the applicants were told that they should return to Northern Iraq and
seek assistance from the UNHCR office there. This decision was
communicated to the applicant on 29 December 1997.
The applicants' residence permit expired at the end of December
1997 and has not been renewed.
COMPLAINTS
The first applicant claims that his return to Iraq would have the
foreseeable consequence of exposing him to a real risk of expulsion to
Iran and would endanger his and his wife's security due to the Kurdish
administration's inability to protect them against attacks by Iran's
agents.
He adds that he would be subject to discriminatory and inhuman
treatment by the Kurdish authorities because of his ethnic identity and
political views. He invokes Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 January 1998 and registered
on 23 January 1998.
On 7 January 1998, the first applicant applied to the Commission
requesting the application of Rule 36 of the Commission's Rules of
Procedure to prevent his and his wife's deportation to Iraq.
This application was accepted by the Acting President of the
Commission on 7 January 1998 who requested the Turkish Government not
to deport the applicants to Iraq until the Commission had an
opportunity to examine the application.
On 23 January 1998, the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 2 March
1998. These observations were sent to the applicants for comments
before 6 April 1998.
On 31 March 1998, the applicants' representatives informed the
Commission that they could not continue to represent the applicants due
to a break-down in communications and asked that the Government's
observations be transmitted to the first applicant himself at his
latest available address.
The observations were sent to the applicants with a time-limit
for replies until 6 May 1998. However, no reply was received by the
Commission.
By letter sent to the applicants on 28 May 1998 by registered
mail, the applicants were reminded that the time limit for the
submission of their replies to the Government's observations had
expired. They were further invited to state whether they intended to
pursue their application and were warned about the provision of Article
30 para. 1 (a) of the Convention. This letter has not been received by
the applicants as they were not at their address any more.
REASONS FOR THE DECISION
The Commission notes that the applicants did not react when
invited to submit observations in reply to the Government's
observations. The warning letter did not reach them as they had
apparently left their last known residence. They have not informed the
Commission of any change in their address.
In these circumstances, the Commission concludes pursuant to
Article 30 para. 1 (a) of the Convention that the applicants do not
intend to pursue their application and that it is, therefore, no longer
justified to continue the examination of the petition. Moreover, there
are no reasons of a general character affecting respect for Human
Rights as defined in this Convention which require the further
examination of the application by virtue of Article 30 para. 1 in fine
of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy