AS TO THE ADMISSIBILITY OF
Application No. 37534/97
by Aziz SARIALTUN and Others
against Germany
The European Commission of Human Rights sitting in private on
23 April 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
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
J. MUCHA
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 22 August 1997 by
Aziz SARIALTUN against Germany and registered on 28 August 1997 under
file No. 37534/97;
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
5 December 1997 and the observations in reply submitted by the
applicant on 19 February 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are members of a Turkish family of Kurdish ethnic
origin. The first applicant, Aziz Sarialtun, was born in 1950 in
Pazarcik, Turkey. The second applicant, Hatice Sarialtun, was born
there in 1957. She married the first applicant in Turkey. The
spouses' children, Meliha Kunduru (born in 1976 in Pazarcik and married
to a Turkish national who has applied for asylum in Germany), Fidan
Sarialtun (born in 1978 in Pazarcik), Hasan Sarialtun (born in 1981 in
Pazarcik), Fatma Sarialtun (born in 1983 in Pazarcik); Esme Sarialtun
(born in 1985 in Pazarcik), Tahir Sarialtun (born in 1990 in Pazarcik)
and Zeliha Sarialtun (born in 1991 in Herten, Germany), are the third
to ninth applicants. When lodging their application they were living
in Seilersbach.
Several relatives of the applicants, brothers or cousins of the
first and second applicants, have been granted asylum in Germany or
asylum proceedings are still pending.
In the proceedings before the Commission, all applicants are
represented by Mr. R. Marx and partners, a law firm in Frankfurt am
Main.
The first applicant left Turkey for the first time in
December 1987. His request for asylum was dismissed by the Federal
Office for Refugees (Bundesamt für die Anerkennung ausländischer
Flüchtlinge) in April 1988. He withdrew his appeal with the Koblenz
Administrative Court (Verwaltungsgericht) and was deported to Turkey
in June 1989.
According to the applicants, they had subsequently repeated
problems with special forces of the Turkish police authorities. In the
summer of 1990 they were staying with their cattle in the mountains in
the Engecik region. They supported members of the PKK (Workers' Party
of Kurdistan) by giving food and shelter. On three occasions, soldiers
required the first applicant to show them hiding-places of members of
the PKK in the mountains. The soldiers eventually destroyed their
tents. Due to the pressure of the security forces, they gave up their
habit of herding during the summer and, in spring 1991, the first
applicant purchased a grocer's shop in order to maintain his family and
support the PKK. On 10 July 1991 the applicant was allegedly arrested
by special forces of the Turkish police authorities and brought to the
Kahmanmaras police station where he was kept for a period of ten days.
During his detention, he was questioned about his brother and two
cousins as well as about a relative of the second applicant, all of
them militant PKK members since 1986, and also about his activities for
the PKK in general. Presumably, his relatives had been betrayed by a
PKK official who had cooperated with the Turkish authorities. In the
first applicant's submission, he was subjected to torture and ill-
treatment such as beating with fists and shoes and "falaka", i.e.
beating on the soles of his feet, during his questioning. Upon his
release, he was allegedly threatened with death in case he should
further assist his relatives or other members of the PKK.
On 16 October 1991 the first applicant returned to Germany,
together with his wife and children. They applied for asylum.
On 5 October 1993 the Federal Office for Refugees heard the
applicants. The first applicant referred to his activities in support
of the PKK, i.e. by giving food or shelter, his arrest and detention
by special police forces in July 1991 and the beatings and torture
during his questioning. The second applicant confirmed their support
for the PKK and further stated that she had also once been arrested,
beaten and threatened with rape. On another occasion, when attempting
to prevent her husband's arrest, she was beaten and, as a result, had
suffered a miscarriage.
On 15 October 1993 the Federal Office dismissed their respective
requests on the ground that they had failed to show any persecution
reaching the relevant level of severity requiring that they be granted
asylum.
On 11 December 1995 the Koblenz Administrative Court dismissed
the applicants' actions challenging the refusal of asylum. The Court
found that the applicants had failed to show a real risk of individual
persecution for political reasons. They were no political activists
but simple citizens suffering from the general living conditions. They
could have avoided the difficulties in the area of their origin by
moving to one of the big towns in the West or North of Turkey. Their
political activities in Germany did not give rise to a right to asylum,
either.
On 20 February 1996 the applicants renewed their requests for
asylum (Asylfolgeantrag), relying on new elements, namely new evidence
to prove their persecution and risk of ill-treatment if returned to
Turkey. Thus they filed a letter sent by the first applicant's mother
in which she described the persecution of other family members,
enquiries about the first applicant's whereabouts as well as the
destruction of the applicants' house which had taken place in the
meantime.
On 8 July 1996 the Federal Office refused to conduct new asylum
proceedings on the grounds that the applicants' new submissions were
not sufficiently substantiated and that the mere reference to a letter
was irrelevant.
The applicants filed an action with the Koblenz Administrative
Court challenging the decision of 8 July 1996 and applied for interim
judicial protection (vorläufigen Rechtsschutz), i.e. a court decision
to stop their deportation pending these proceedings.
On 17 September 1996 the Koblenz Administrative Court dismissed
their requests for interim judicial protection.
On 11 October 1996 and 6 November 1996, respectively, the Koblenz
Administrative Court dismissed their requests for a review of its
decision of 17 September. The Court found that a local press article
on the first applicant's situation as asylum seeker did not expose him
to any real risk of persecution by the Turkish authorities.
On 20 May 1997 the Koblenz Administrative Court dismissed their
renewed requests for interim judicial protection on the ground that the
competent Aliens Office did not actually envisage to enforce their
deportation.
On 8 July 1997 the Koblenz Administrative Court dismissed their
repeated requests for interim judicial protection. The Court,
referring inter alia to Article 3 of the Convention, considered that
the applicants had not been persecuted for political reasons prior to
their emigration from Turkey and that their activities in Germany did
not expose them to any real risk of ill-treatment in case of their
return.
On 11 August 1997 the Federal Constitutional Court
(Bundesverfassungsgericht) refused to entertain their constitutional
complaint (Verfassungsbeschwerde).
COMPLAINTS
1. The applicants complain under Article 3 of the Convention about
their envisaged deportation to Turkey.
2. In case the Commission should find that only the first
applicant's envisaged deportation would amount to a breach of Article 3
of the Convention, the applicants complain that the deportation of the
other family members would amount to a violation of the right to
respect for their family life, as guaranteed under Article 8 para. 1
of the Convention.
3. The applicants complain under Article 13 of the Convention that
the Federal Office for Refugees refused to conduct new asylum
proceedings and that the Administrative Courts refused their requests
for interim judicial protection.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 August 1997 and registered
on 28 August 1997.
On 28 August 1997 the President of the Commission decided, in
accordance with Rule 28 para. 3 and Rule 42 para. 2 (b) of the Rules
of Procedure, to give notice of the application to the respondent
Government and to ask for their observations on its admissibility and
merits. The President of the Commission also decided on the same date
to indicate to the Government, in accordance with Rule 36 of the
Commission's Rules of Procedure, that it was desirable, in the
interests of the parties and the proper conduct of the proceedings, not
to deport the applicants to Turkey until the Commission had an
opportunity to examine the application during its session in
December 1997).
Following an extension of the time-limit, the respondent
Government's observations were received on 5 December 1997.
The Commission examined the state of the proceedings on
11 December 1997 and decided to prolong the above Rule 36 indication
to the respondent Government until 13 March 1998.
The applicants replied to the Government's observations on
19 February 1998, also after an extension of the time-limit.
On 11 March 1998 the Commission decided to prolong the above
Rule 36 indication to the German Government until 24 April 1998.
THE LAW
1. The applicants complain that their envisaged deportation to
Turkey would expose them to treatment prohibited under Article 3
(Art. 3) of the Convention.
This provision reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Government do not raise objections against the admissibility
of the applicants' complaint under Article 3 (Art. 3) though they
maintain that the applicants would not face a real risk of being
subjected to treatment in breach of Article 3 (Art. 3) in case of their
deportation to Turkey.
Referring to the criteria established in the case-law of the
Convention organs, the Government consider that, if his account were
correct, the circumstances of the first applicant's questioning in
July 1991 could be regarded as treatment in breach of Article 3
(Art. 3) of the Convention.
However, there were no further reasons to believe that the
applicants would risk any treatment contrary to Article 3 (Art. 3) if
deported to Turkey. The first applicant's submissions concerning
political activities in Germany were not sufficiently substantiated.
Moreover, the Government, having regard to reports on the situation in
Turkey with regard to prosecution for PKK activities and allegations
of torture, find no indication that persons deported from Germany had
been subjected to torture or ill-treatment in Turkey. As regards the
destruction of the applicants' home, the Government note that it had
occurred after the applicants had left Turkey. The applicants could
avoid repetition of such problems if they were to settle in the large
towns on the western coast of Turkey. Finally, in the Government's
view, there was no risk of ill-treatment on account of the membership
in the PKK of family members. While family members could be summoned
for questioning regarding the whereabouts of a suspect, and could be
brought to such questioning, the right to remain silent was guaranteed
by law.
The applicants consider that the concentration of facts and
circumstances including the general situation in Turkey, seen as a
whole, justify the conclusion that there is a real risk of inhuman or
degrading treatment, if they return.
The applicants submit in particular that the Government have not
stated any specific grounds which could call into question the first
applicant's account of ill-treatment on the occasion of his arrest in
1991. According to them, the Turkish authorities are still interested
in persecuting the first applicant, but also the others, on account of
the family situation, namely the political activities of members of
both the Sarialtun and the Kunduru families in Turkey and abroad. In
this respect, they refer to the fact that several other family members
were persecuted in Turkey and have been granted asylum in Germany.
They further maintain that they could not avoid persecution in Turkey
as there was a real risk that they were subjected to ill-treatment
already upon their arrival.
The Commission considers, in the light of the parties'
submissions, that the applicants' complaint that their deportation to
Turkey would expose them to a real risk of treatment contrary to
Article 3 (Art. 3) of the Convention raises complex issues of law and
of fact under the Convention, the determination of which should depend
on an examination of the merits of the application. 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.
2. In case the Commission should find that only the first
applicant's envisaged deportation would amount to a breach of Article 3
(Art. 3) of the Convention, the applicants complain that the
deportation of the other family members would amount to a violation of
the right to respect for their family life, as guaranteed under Article
8 para. 1 (Art. 8-1) of the Convention.
Article 8 (Art. 8) provides as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Government submit that the applicants have not raised
arguments relating to their family life in domestic proceedings. In
any event, the Government maintain that their complaint is of a purely
hypothetical nature as the competent authorities gave no reason to
believe that, in case the first applicant should not be deported to
Turkey, it may have intended nevertheless to deport the other
applicants.
The applicants contest the Government's submissions.
The Commission considers that this complaint is closely related
to that under Article 3 (Art. 3) of the Convention and it must
therefore also be declared admissible.
3. The applicants complain under Article 13 (Art. 13) of the
Convention that the Federal Office for Refugees refused to conduct new
asylum proceedings and that the Administrative Courts refused their
requests for interim judicial protection.
Article 13 (Art. 13) provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Government submit that the applicants' request for interim
judicial protection was thoroughly and repeatedly examined by the
German authorities and courts.
The applicants submit that the competent Administrative Court did
not duly consider all their arguments and the evidence adduced by them.
The Commission considers that this complaint is closely related
to the other complaints made by the applicants and that it must
therefore also be declared admissible.
For these reasons, the Commission,
DECLARES ADMISSIBLE, without prejudging the merits of the case,
unanimously,
the applicants' complaints about their envisaged deportation to
Turkey;
by a majority,
the applicants' complaints about the absence of effective
remedies with regard to their envisaged deportation.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy