AS TO THE ADMISSIBILITY OF
Application No. 22491/93
by Ö.A.
against Turkey
The European Commission of Human Rights sitting in private on
20 February 1995, the following members being present:
MM. C. A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
S. TRECHSEL
A.S. GÖZÜBÜYUK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
G. RESS
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 9 August 1993 by
Ö.A. against Turkey and registered on 23 September 1993 under file
No. 22491/93;
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
30 March 1994 and the observations in reply submitted by the
applicant on 12 May 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen of Kurdish origin, was born in
1976 and lives at Çinarönü Köyü, Savur district, Mardin province. He
is 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. The particular circumstances of the case
The applicant states that the following occurred:
The applicant and his cousin S.A. were grazing the animals 1-2
kilometres from the village of Çinarönü on 14 February 1993. At around
midday, about 50 soldiers from Savur Gendarme Station Command
Headquarters came upon them.
The applicant believes that they were on their way from and/or
to an operation. He thinks that this accounts for what he regards as
the large number of soldiers.
The soldiers asked which way the terrorists had gone. The
applicant and his cousin said that they had not seen them, whereupon
the soldiers stripped the applicant and his cousin completely naked and
began to beat them up. The soldiers also used abusive gestures and
abusive language and threatened them with sexual violence. The beating
lasted 20-30 minutes. The soldiers kept saying "You will show us where
the terrorists are", even though the applicant believes that, in fact,
they knew where they were. When the applicant and his cousin said that
they did not know, they were beaten.
The soldiers left. The applicant and his cousin were in a state
of shock from the beating. When they had got over the shock, they put
their clothes back on and went back to the village.
The applicant and his cousin came up in bruises where they had
been beaten and the applicant developed bronchitis. He saw a specialist
doctor in Diyarbakir, Dr. Bedrettin Alyamaç. He did not tell the
doctor that he had been beaten up, through fear of the consequences.
He was told that the bronchitis could recur any time in cold weather.
The applicant feels insecure because whenever the soldiers are
in the area, they allegedly ask people about the applicant and his
cousin and abuse them.
On account of the lack of witnesses and fear of the consequences,
the applicant has not filed a complaint.
The Government submit that an investigation was commenced into
the complaints by the Savur Public Prosecutor in 1993 (exact date
unspecified). This investigation is still pending but, the Government
state, there exists no evidence in respect of the alleged incident.
COMPLAINTS
The applicant complains of violations of Articles 3 and 13 of the
Convention.
As to the Article 3, he complains of having been subjected to
severe physical ill-treatment including severe beating, of having been
stripped naked in the cold, threatened with sexual violence and
verbally abused. He states that he will seek to obtain a medical report
on his condition at the time he was seen by the doctor. He maintains
that his ill-treatment amounted to torture or constituted inhuman
treatment.
As to the Article 13, he complains of the lack of any adequate
and effective remedies against the alleged actions of security forces
and police officers in the South-East of Turkey.
The applicant maintains that there is no requirement that he
pursue alleged domestic remedies. In his opinion any alleged remedy
is illusory, inadequate and ineffective because
(a) there is an administrative practice of non-respect for the
rule which requires the provision of effective domestic remedies
(Article 13);
(b) there is an administrative practice of torture, inhuman or
degrading treatment at the hands of the Turkish security forces
in South-East Turkey;
(c) whether or not there is an administrative practice, domestic
remedies are ineffective in this case, owing to the failure of
the legal system to provide redress;
(d) whether or not there is an administrative practice, the
situation in South-East Turkey is such that potential applicants
have a well-founded fear of the consequences, should they pursue
alleged remedies.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 August 1993 and registered
on 23 September 1993.
On 29 November 1993, 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 30 March 1994
after one extension in the time-limit. The applicant submitted
observations in reply on 12 May 1994.
THE LAW
The applicant alleges that he and his cousin were beaten and
severely ill-treated by soldiers. He invokes Article 3 (Art. 3)
(prohibition on inhuman and degrading treatment) and Article 13
(Art. 13) (the right to effective national remedies for Convention
breaches).
Exhaustion of domestic remedies
The Government argue that the application is inadmissible since
the applicant has failed to exhaust domestic remedies as required by
Article 26 (Art. 26) of the Convention before lodging an application
with the Commission.
The Government point out that there is an investigation by the
public prosecutor at Savur into the allegations which is still pending.
The applicant maintains that there is no requirement that he
pursue domestic remedies. Any purported remedy is illusory, inadequate
and ineffective since, inter alia, the operation in question in this
case was carried out by soldiers, agents of the State. He refers to an
administrative practice of not respecting the requirement under the
Convention of the provision of effective domestic remedies.
Further, the applicant submits that, whether or not there is an
administrative practice, domestic remedies are ineffective in this case
having regard, inter alia, to the situation in South-East Turkey which
is such that potential applicants have a well-founded fear of the
consequences; the lack of genuine investigations by public prosecutors
and other competent authorities; positive discouragement of those
attempting to pursue remedies; an official attitude of legal
unaccountability towards the security forces; and the lack of any
prosecutions against members of the security forces for alleged ill-
treatment or torture. He states that he is frightened of the
consequences if he makes a complaint, having been told that security
forces in the region have asked people about him and his cousin.
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. 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. 11.05.89, D.R. 61 p. 250, 262).
The Commission does not deem it necessary to determine whether
there exists an administrative practice on the part of Turkish
authorities tolerating abuses of human rights of the kind alleged by
the applicant, because it agrees with the applicant that it has not
been established that he had at his disposal adequate remedies to deal
effectively with his complaints.
The Commission notes that while the Government refers to the
pending inquiry by the public prosecutor into the complaints, almost
two years have elapsed since the incident and the Commission has not
been informed of any significant progress having been made in the
investigation. In view of the delays involved and the serious nature
of the crime alleged, the Commission is not satisfied that this inquiry
can be considered as furnishing an effective remedy for the purposes
of Article 26 (Art. 26) of the Convention.
The Commission also considers that it cannot be said at this
stage that the applicant's fear of reprisals if he complained is wholly
without foundation.
The Commission finds that in the circumstances of this case the
applicant is not required to pursue any other legal remedy in addition
to the public prosecutor's inquiry (see eg. No. 19092/91, Yagiz v.
Turkey, Dec. 11.10.93, D.R.75). The Commission concludes that the
applicant should 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 Article 27 para. 3 (Art. 27-3) of the
Convention.
As regards the merits
The Government make no comment on the substance of the
applicant's allegations beyond commenting that there exists no evidence
in relation to the alleged incident.
The applicant maintains his submissions.
The Commission considers, in the light of the parties'
submissions, 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, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy