AS TO THE ADMISSIBILITY OF
Application No. 23183/94
by Necip ODABASI
against Turkey
The European Commission of Human Rights sitting in private on
28 November 1994 , the following members being present:
MM. C.A. NØRGAARD, President
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
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 20 December 1993
by Necip Odabasi against Turkey and registered on 5 January 1994 under
file No. 23183/94;
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
22 July 1994 and the observations in reply submitted by
the applicant on 30 August 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen of Kurdish origin, born in
1951 and resident at Basari Köyü Cermik, Diyarbakir. He is represented
before the Commission by Professor Kevin Boyle and Ms. Françoise
Hampson, both of the University of Essex, England.
The facts of the case as submitted by the applicant may be
summarised as follows.
The applicant went from his home to Cermik on the morning of
21 June 1992. He completed his business and was sitting in a café
waiting for transport back to his village. At about 11 am, soldiers
and police arrived at the café and took him to Security Headquarters.
There, a first lieutenant said: "I saw you on Gelincik mountain this
morning. You were taking food to the PKK." He said that at that time
he was on his way to Cermik, in the car of the watchman, Y.Y. He
added: "If you like, we can go and ask him." At that point, the
Security Chief intervened and said: "OK, First Lieutenant, your job is
done. You may go." The Security Chief then turned to the applicant
and said: "I believe you are not guilty. You are free."
After being released, he went back to the café where he was
sitting waiting when a sergeant major came up to him and asked: "Are
you Necip Odabasi ?" He replied affirmatively and was then told: "You
will come with me to the station." Then he was taken to the Gendarmes
Station. A captain said to him: "Don't you know that the followers of
Apo are Armenian? Why do you support and shelter them? Since, thanks
to your support, they have organised three raids on Cermik, you are a
murderer." The captain then said: "Do you know that the State kills
people ? Do you read the papers?" The applicant replied: "Yes, I know
that the State kills people." The captain said: "In that case make
your decision. You have two choices: either you will die or you will
work together with us." Out of fear the applicant agreed to become a
spy. Thereupon they released him.
The applicant went secretly to Diyarbakir and from there to
Ankara. In Ankara, he met and explained his problem to a number of
authorities, starting with the State Minister responsible for Human
Rights. He submitted a petition to the Ministry on 29 June 1992. At
about the same time, the applicant also petitioned the Grand National
Assembly of Turkey and other bodies.
The applicant went to the office of the Human Rights Minister for
a meeting. The applicant asked the Minister to guarantee his safety
because of the threats to his life in Cermik. The Minister knew him
from earlier times. The Minister said: "Be quiet. Do not talk this
way in my room. A microphone may have been planted in my room. So
come to the Assembly with my assistant ... and we shall meet at a
suitable place there." Towards the evening of the same day, the
applicant went with the assistant to the Assembly. In the grounds of
the Assembly, he had an interview with the Minister. The applicant
explained the details of the threats against his life and the situation
in which he found himself. The applicant asked the Minister to protect
him. The Minister said: "Look Necip, I cannot guarantee your safety
in Cermik. It is very difficult. I am saying these things to you
because I already know you. Many of the incidents in the area are
above our heads. We have no opportunity to intervene. But for you,
in order to publicise it, I shall accept your application and put it
into the system. I hope something will come of it. But there is
nothing else I can do." It appears from the documents that the
Minister entered into correspondence with the Minister of the Interior
and the Justice Minister for the subject to be investigated. No
results have been obtained from this correspondence.
On 9 February 1993 the applicant was arrested and charged, with
others, with assisting and sheltering the illegal PKK organisation.
The trial was to take place at Diyarbakir State Security Court. The
indictment was issued on 16 February 1993. At the first hearing on
7 April 1993, the applicant said that a statement he had made had been
made under duress and that it was not true. The proceedings were
deferred until 20 May 1993 and the applicant was remanded in custody.
A second trial started on 30 June 1993. This trial was deferred until
4 August 1993. The two cases were joined, and hearings were held on 22
December 1993, 9 February 1994 and 16 March 1994. On that last date the
applicant was released, without bail.
COMPLAINTS
The applicant complains of violations of Articles 2, 3, 4, 5, 13,
14 and 18 of the Convention in regard to the threat that he would be
killed if he did not co-operate with the authorities and the resultant
risk to his life to which this gave rise.
As to Article 2, the applicant refers to the threat to his life,
to the failure in the State's obligation to protect his right to life,
to the lack of any effective system for ensuring protection of the
right to life and to the inadequate protection of the right to life in
domestic law.
As to Article 3, he refers to the inhuman and degrading treatment
to which he was subjected by having to choose between spying and being
killed, leading to his terrorisation as he lives under the shadow of
being killed.
As to Article 4, he complains of being made to undertake
life-threatening work (spying) upon fear of death.
As to Article 5, he complains of the complete lack of security
of the person.
As to Article 13, he complains of the lack of any independent
national authority before which his complaints can be brought with any
prospect of success.
As to Article 14, he alleges that his rights under Articles 2,
3 and 5 have been violated on account of an administrative practice of
discrimination on account of race or ethnic origin.
As to Article 18, he considers that the interferences in the
exercise of the Convention rights are not designed to secure the ends
permitted under the Convention.
As to exhaustion of domestic remedies, the applicant considers
that there is no requirement that he pursue alleged domestic remedies.
In his opinion, any alleged remedy is illusory, inadequate and
ineffective because
(a) the threat made against him was delivered by a State
official during the performance of his duties;
(b) there is an administrative practice of non-respect of the
rule which requires the provision of effective domestic remedies
(Article 13);
(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) alternatively, the applicant has done everything he can do
to exhaust domestic remedies by submitting petitions to various
authorities and getting others to do so on his behalf; the fact
that they have yielded no result confirms the ineffectiveness of
any alleged remedy.
PROCEEDINGS BEFORE THE COMMISSION
The present application was lodged with the Commission on 20
December 1993 and registered on 7 January 1994. The applicant submitted
certain further information relating to the case by letters of 5 May
and 4 August 1994.
On 5 April 1994, the Commission decided to communicate the
application to the Turkish Government, which were invited to submit
their observations on its admissibility and merits before 8 July 1994.
The Government's observations were submitted by letter of 22 July
1994 and the applicant's reply on 30 August 1994.
THE LAW
The applicant complains of violations of Articles 2, 3, 4, 5, 13,
14 and 18 (Art. 2, 3, 4, 5, 13, 14, 18) of the Convention in relation
to a threat that he would be killed if he did not co-operate with the
authorities and the resultant risk to his life to which this gave rise.
He admits that he did not exhaust any domestic remedies but states that
he was under no obligation to do so, since any alleged remedy would in
the circumstances of the case be illusory, inadequate and ineffective.
The Government submit that the application is inadmissible on the
ground that the applicant did not exhaust the domestic remedies.
The Government also state that an investigation was carried out
as a result of the applicant's petition of 29 June 1992 and that this
investigation ended by a decision of 4 February 1993 by the Ministry
of Justice. According to this decision, there was no evidence
supporting the applicant's allegations and, consequently, no need to
proceed further. The Government point out that the application was
lodged 18 months after the date on which the applicant claims to have
suffered the alleged threat and 8 months after the date on which the
Ministry of Justice resolved that there was no basis for further
action.
As regards the latter remark, the applicant states that the
threat to which he was exposed gave rise to a situation of continuing
violation or, alternatively, that he did not apply earlier through
fear. The six months time-limit laid down in Article 26 (Art. 26) of
the Convention therefore did not apply in his case.
The Commission recalls that, according to Article 26 (Art. 26)
of the Convention, the Commission may only deal with a matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law, and within a period of six
months from the date on which the final decision was taken.
The applicant has declared that he did not exhaust the domestic
remedies because he considered any existing remedies to be ineffective
and inadequate. The Commission does not find it necessary to determine
whether the applicant was dispensed from the obligation to exhaust
remedies, since, even assuming this to be the case, the Commission
considers that the application must be rejected for the following
reasons.
The events of which the applicant complains occurred in June
1992, and the applicant's petitions to the authorities were submitted
shortly after these events. The Government have stated that one of
these petitions gave rise to an investigation which, however, was
concluded in February 1993.
It is clear, therefore, that the application was not lodged
within six months from the events or from the end of the investigation
referred to by the Government.
The Commission notes that the basis of the complaint is a
specific incident and cannot find that the complaint can be considered
to concern a continuing violation of the Convention. Nor has it been
established that there were other circumstances which prevented the
applicant from observing the time-limit laid down in Article 26
(Art. 26) of the Convention.
It follows that the application is inadmissible according to
Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy